EXHIBIT 10.28
AGREEMENT OF LEASE
ENTERED INTO BETWEEN
SHIBBOLET (PROPRIETARY) LIMITED
AND
QUINTILES CLINDEPHARM (PROPRIETARY) LIMITED
Jointly referred to as the Parties.
INDEX
AGREEMENT OF LEASE
NO CLAUSE HEADINGS PAGE
-- --------------- ----
1 Parties
2 Interpretation
3 Recordance
4 Letting and Hiring
5 Duration
6 Rental
7 Operating Costs
8 Increase in the Rates
9 Additional Charges
10 Electricity
11 Deposit
12 Insurance
13 Assignment and Subletting
14 Sundry Obligations of the Lessee
15 Maintenance and Repairs
16 Alterations, Additions and Improvements
17 Exclusion of Lessor's Liability and Indemnity
18 Lessor's Rights
19 Area of the Premises
20 Rules
21 Parking and Loading
22 Damage to or Destruction of Premises
23 Special Remedy for Breach
24 Option of Renewal
25 New Tenants and Purchasers
26 Costs
27 Domicilia and Notices
28 Whole Agreement
29 Non-Waiver
30 Warranty of Authority
31 Merchants' Association
32 Security for Payment by Lessee
33 Sale of Premises
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AGREEMENT OF LEASE
1. PARTIES:
The parties to this lease are:
1.1 Shibbolet (Proprietary) Limited
("the Lessor"); and
1.2 Quintiles Clindepharm (Proprietary) Limited
("the Lessee").
2. INTERPRETATION:
2.1 In this Agreement, except in a context indicating that some other
meaning is intended:
2.1.1 "THIS AGREEMENT" means this Agreement together with all
appedicis and annexures;
2.1.2 "ASSOCIATE" in relation to the Lessee means a company, which
is for the time being:
2.1.2.1 a subsidiary or holding company of the Lessee within
the meaning ascribed to such terms in the Companies
Act 61 of 1973; or
2.1.2.2 a subsidiary or holding company of a company referred
to in 2.1.2.1 above;
2.1.3 "THE BUILDING" means the buildings known as Centurion Science
Park, Phases IV, situated on the Property, and includes, where
the context so allows, all permanent improvements on the
Property;
2.1.4 "COMMON AREAS" means portions of the Building which are not
suitable for letting and are not actually let by the Lessor;
2.1.5 "DAY" means any day of the week, excluding Saturdays, Sundays
and public holidays;
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2.1.6 "THE LEASE PERIOD" means the period for which this lease
subsists, including any period for which it is renewed;
2.1.7 "THE LESSOR" means Shibbolet (Proprietary) Limited, a company
duly incorporated in terms of the Company Laws of the Republic
of South Africa;
2.1.8 "THE LESSEE" means Quintiles Clindepharm (Proprietary)
Limited, a company duly incorporated in terms of the Company
Laws of the Republic of South Africa;
2.1.9 "MONTH" means a calendar month, and more specifically
2.1.9.1 in reference to a number of months from a specific
date, a calendar month commencing on that date or the
same date of any subsequent month; and
2.1.9.2 in any other context, a month of the calendar, that
is, one of the 12 months of the calendar,
2.1.9.3 and "monthly" has the corresponding meaning;
2.1.10 "OPTION PERIOD" means the period referred to in clause 24;
2.1.11 "THE PARTIES" means the parties to this Agreement;
2.1.12 "THE PREMISES" means Phase IV of Centurion Science Park,
further identified by the annexed plans signed by the parties
and having a Rentable Area of 3316 (Three Thousand Three
Hundred and Sixteen) square metres of offices and 134 (One
Hundred and Thirty Four) square metres of storerooms; and also
including the parking areas as set out in 21 and in respect of
which the Premises shall comprise air conditioned offices as
they existed at the commencement date.
2.1.13 "THE PROPERTY" means Xxx 0000, Xxxxxxxxx Xxxxx X 3, Centurion,
including the Premises;
2.1.14 "THE PRIME RATE" means the public quoted basic rate of
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interest per annum (as certified by any manager of ABSA Bank)
at which that bank lends on unsecured overdraft to its most
favoured customers in the private bank sector, compounded
monthly in arrears and calculated on a 365 (three hundred and
sixty five) day year factor irrespective of whether the year
is a leap year of not;
21.15 "THE RATES" means the assessment rates and all taxes of what
so ever nature payable on the Property and includes any other
charges payable by the Lessor to the local authority (such as,
but not limited to, refuse removal charges or sanitary fees),
but not charges for water, electricity or gas;
2.1.16 "RENTABLE AREA" in relation to the Premises means the area of
the Premises determined in accordance with clause 19;
2.1.16 "YEAR" means a period of 12 consecutive months, and "yearly"
refers to a year commencing on the date on which the lease
comes into operation or any anniversary of that date;
2.2 references to notices, statements and other communications by or
from the Lessor include notices by or from the Lessor's agent;
2.3 expressions in the singular also denote the plural, and vice versa;
2.4 words and phrases denoting natural persons refer also to juristic
persons, and vice versa; and
2.5 Pronouns of any gender include the corresponding pronouns of the
other gender;
2.6 If any provision in a definition is a substantive provision conferring
rights or imposing obligations on any party, notwithstanding that it
appears in the definition clause only, effect shall be given to it as
if it were a substantive provision in the body of the agreement.
2.7 Words and expressions defined in any sub-clause shall, for the purpose
of the clause of which that sub-clause forms part, bear the meaning
assigned to such words and expressions in that sub-clause.
2.8 If a particular number of days are referred to in this agreement, such
number of days shall be reckoned exclusively of the first day and
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inclusively of the last day of the number of days, which is specified.
2.9 Any provision of this lease imposing a restraint, prohibition or
restriction on the Lessee shall be so construed that the Lessee is not
only bound to comply therewith but is also obliged to procure that the
same restraint, prohibition or restriction is observed by everybody
occupying or entering the Premises or any other part of the Property or
the Building through, under, by arrangement with, or at the invitation
of, the Lessee, including (without limiting the generality of this
provision) its Associates and the directors, members, officers,
employees, agents, customers and invitees of the Lessee or its
Associates.
2.10 Clause headings appear in this lease for purposes of reference only and
shall not influence the proper interpretation of the subject matter.
2.11 This lease shall be interpreted and applied in accordance with South
African law.
3. RECORDANCE:
It is recorded that:
3.1 The Lessor is the owner of the Property;
3.2 The Lessee wishes to hire and the Lessor wishes to lease, the Property;
3.3 This Agreement sets out the terms and conditions agreed upon between
the parties in relation to such lease.
4 LETTING AND HIRING:
The Lessor lets and the Lessee hires the Premises on the terms of this
Agreement.
5 DURATION:
This Agreement shall:
5.1 come into operation on 1 March 2003 (the commencement date) and shall
subsist for 3 (Three) years and 1 (One) months notwithstanding the date
of signature hereof;
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5.2 terminate, unless renewed in terms of 5.3, on 31 March 2006;
5.3 be renewable at the option of the Lessee for a further period of 5
(Five) years.
5.4 The option contained in 5.3 shall be exercisable on notice, as provided
for in this Agreement and in terms of the provisions as set out in 24,
by the Lessee to the Lessor given not less than 6 (six) months prior to
the date on which this Agreement would expire if it were not for the
exercise of such option.
6. RENTAL:
6.1 The monthly rental payable by the Lessee to the Lessor:
6.1.1 in respect of the Premises during the period commencing on the
commencement date and ending on the day prior to the first
anniversary of the commencement date or, if the commencement
date does not fall on the first day of a month, on the last
day of the month in which the first anniversary of the
commencement date falls, shall be R 53.24 (Fifty Three Rand
and Twenty Four Cents) per square meter for offices and R
36.30 (Thirty Six Rand and Thirty Cents) per square meter for
storerooms (amounting to a total rental of R 181 408.04 (One
Hundred and Eighty One Thousand Four Hundred and Eight Rand
and Four Cents) per month;
6.1.2 in respect of the Premises on 1 August 2003 a rental of 10%
(Ten per centum) higher than the rental payable in respect of
the property for the final month of the preceding year and
thereafter in respect of each subsequent year during the
initial period, commencing on 1 April 2000, a rental of 10%
(Ten per centum) higher than the rental payable in respect of
the property for the final month of the preceding year.
6.2 Should the Lessee exercise the option contained in 5.3, the rental
during the option period shall be such rental as may be agreed upon in
writing between the Lessor and the Lessee or, failing such agreement
between the Lessor and the Lessee within 3 (three) months after the
date of the exercise of such option, a fair market rental determined in
accordance with the applicable provisions of this clause 6.
6.3 For the purpose of 6.2, the fair market rental of the property during
the option period shall be deemed to be the rental which a willing
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Lessee would be prepared to pay a willing Lessor in respect of the
property for the option period, if agreed upon on the date of receipt
by the Lessor of the notice referred to in 5.4, and as determined by an
expert agreed upon in writing between the Lessor and the Lessee for
that purpose or, failing agreement between them within 14 (fourteen)
days, as determined by an expert nominated for that purpose at the
request of the Lessor or the Lessee by the president of The South
African Institute of Estate Agents.
6.4 Notwithstanding the provision of 6.3, should either the Lessor or the
Lessee be dissatisfied with the fair market rental determined by the
expert agreed upon or nominated in terms of 6.3, and the party who is
so dissatisfied ("THE DISSATISFIED PARTY") notify the other party
within 14 (fourteen) days after the determination of such expert of his
dissatisfaction, then the matter shall be referred to another expert
nominated by the president of the South African Institute of Estate
Agents for the determination of such fair market rental.
6.5 Should the fair market rental of the property as determined by the
expert nominated in terms of 6.4 ("THE SECOND EXPERT"):
6.5.1 not be 10% (Ten per centum) more or less than the fair market
rental of the property as determined by the expert agreed upon
or nominated in terms of 6.3 ("THE FIRST EXPERT"), then:
6.5.1.1 the fair market rental of the property shall be
deemed to be the fair market rental of the property
as determined by the first expert;
6.5.1.2 the dissatisfied party shall pay all costs incurred
in connection with the services rendered by the
second expert;
6.5.2 be 10% (ten per centum) more or less than the fair market
rental as determined by the first expert, then:
6.5.2.1 the fair market rental of the property shall be
deemed to be the average of the fair market rentals
of the property as determined by the first and second
experts;
6.5.2.2 in the event of the fair market rental of the
property as determined by the second expert being
higher than the fair market rental of the property as
determined by the first expert, the Lessee shall pay
all costs incurred in connection with the services
rendered by the second expert;
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6.5.2.3 in the event of the fair market rental of the
property as determined by the second expert being
lower than the fair market rental of the property as
determined by the first expert, the Lessor shall pay
all costs incurred in connection with the services
rendered by the second expert.
6.6 For the purposes of the preceding provisions of this 7, should:
6.6.1 the Lessor notify the Lessee that it is prepared to agree to
the fair market rental of the property being deemed to be
less; or
6.6.2 the Lessee notify the Lessor that it is prepared to agree to
the fair market rental of the property being deemed to be more
than the fair market rental of the property as determined by
the first expert, within 7 (seven) days after the
determination of the first expert, then the fair market rental
of the property as determined by the first expert shall be
deemed to be the higher or lower rental notified by the Lessor
or Lessee to the Lessee or Lessor (as the case may be).
6.7 The costs incurred in respect of the services rendered by the first
expert shall be borne and paid by the parties in equal shares.
6.8 Any additional amount payable by the Lessee in respect of Operating
Costs, Rates and Additional Charges, in terms of 7, 8 and 9 shall be
added to the rental payable by the Lessee, and:
6.8.1 the Lessee shall be liable to pay such increased rental;
6.8.2 the terms and conditions of this agreement in respect of
rental generally shall apply mutatis mutandis to such
increased rental.
6.9 The rentals referred to above are exclusive of value-added tax, and the
Lessee shall, in addition to the rental, be liable for the payment of
value-added tax thereon.
6.10 The aforesaid rental shall be paid monthly in advance on the first day
of each and every month, without deduction or set-off and free of
exchange to the Lessor at ABSA Bank Lyttelton Account Number 600 164
570, or at such other place in Gauteng as the Lessor may direct in
writing.
6.11 All amounts payable by the Lessee to the Lessor in terms of this
agreement, and which are not paid on the due date thereof shall,
without prejudice to any rights which the Lessor may otherwise have,
bear interest with effect from the due date of such payment at the
prime rate, for the period that elapses from such due date up to and
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until 5 (five) days after date of the letter of demand and thereafter
such an amount shall bear interest at a rate per annum of 400 (Four
hundred) basis points higher than the prime rate until date of final
payment.
6.12 The Lessee shall not withhold, defer, or make any deduction from any
payment due to the Lessor, whether or not the Lessor is indebted to the
Lessee or in breach of any obligation to the Lessee.
7. OPERATING COSTS:
7.1 For the purposes of this clause 7:
7.1.1 "THE OPERATING COSTS" means the reasonable costs (for which
the Lessee is not otherwise liable in terms of this lease)
incurred by the Lessor in connection with the ownership,
management, maintenance, repair and operation of the Property
and the Building, including, but not limited to, the Rates and
the costs of:
7.1.1.1 cleaning the Building and the Property;
7.1.1.2 providing security in respect of the Building;
7.1.1.3 maintaining lifts and escalators, if any;
7.1.1.4 providing electricity, water, gas, oil or any
necessary service to Common Areas
7.1.1.5 maintaining internal roofs, walls and finishes
7.1.1.6 gardens and gardening services and maintenance.
7.2 All the above Operating Costs are not included in the rental amount as
set out in 6 above and until such time as these costs are incurred by
the Lessor, in terms of a further written agreement, the Lessee shall
be responsible for such services at its own cost.
8. INCREASES IN THE RATES:
8.1 Whenever the Rates are increased during the Lease Period, the Lessor
may, by written notice to the Lessee, increase the monthly rent for the
Premises by an amount which bears the same ratio to the increase in
Rates, calculated on a monthly basis, as the rent payable
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by the Lessee for the Premises bears for the time being to the total
rentals receivable by the Lessor from all tenants of the Building.
Every such increase in the rent shall take effect on the first day of
the month following that in which the Lessor's notice of the increase
is received by the Lessee or, whichever is the later, the date on which
the corresponding increase in the Rates takes effect.
8.2 For the purposes of 8.1, any premises in the Building which are not
part of the Common Areas but are unlet for the time being shall be
deemed to be let for the rental that was last receivable by the Lessor
for the same premises or, if they were never let, a fair market rental
determined in good faith by a reputable estate agent appointed by the
Lessor).
9. ADDITIONAL CHARGES:
9.1 In addition to paying the rent and other amounts, the Lessee shall
reimburse the Lessor, monthly in arrear, within 7 (Seven) days after
receiving an account from the Lessor reflecting the amount(s) so
payable, with the cost of water consumed on the Premises, determined at
prevailing municipal rates in accordance with readings of separate
submeters or, if there are no such submeters, on the basis of the
Lessee being liable to bear 100 % ( One Hundred percent) of the total
cost of all water consumed on the Property.
9.2 If any additional levy, not dealt with under 7,8 and 9, payable by the
Lessor in respect of the Property, Building or Premises, be increased
from time to time during the duration of this lease so as to exceed the
amount of such levy as at the commencement date; or a new levy or
impost cost or expense of whatsoever nature, not in force as at
commencement date, be imposed at any time thereafter on the Lessor, by
virtue of its being the owner of the property, then the Lessor shall be
entitled to increase the monthly rental for the property by an amount
equal to one-twelfth of the yearly amount of that increase or new levy
or impost multiplied by the Lessee's Contribution Percentage being an
increase in respect of an item, charge or cost as contemplated by 6.8
with effect from the date upon which that increase or new levy or
impost takes effect.
10. ELECTICITY:
The Lessee shall be responsible for the payment of all electricity
charges related to the Premises and in this regard such electricity
consumption shall be determined by separate meter allocated to the
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Premises.
11. DEPOSIT:
11.1 On entering into this Agreement the Lessee shall pay the Lessor a
deposit of R 0.00 ( Nil Rand), which amount the Lessor may apply, in
whole or part, in meeting any payment due by the Lessee to the Lessor
at any time during the Lease Period or after the termination of this
Agreement.
11.2 Whenever during the Lease Period the deposit is so applied in whole or
part, the Lessee shall on demand reinstate the deposit to its original
amount.
11.3 As soon as all the obligations of the Lessee to the Lessor have been
discharged following the termination of this Agreement, the Lessor
shall refund to the Lessee, free of interest, so much of the deposit as
has not been applied in terms of the above provisions.
12. INSURANCE:
12.1 The Lessee shall not keep or do in or about the Property, Building or
Premises anything which is liable to enhance any of the risks against
which the Property or Building is insured for the time being to the
extent that such insurance is rendered void or voidable or the premiums
of such insurance are, or become liable to be, increased.
12.2 Without prejudice to any other right of action or remedy which the
Lessor may have arising out of a breach of the aforegoing provision,
the Lessor may recover from the Lessee on demand the full amount of any
increase in insurance premiums in respect of the Property or Building
attributable to such breach.
13. ASSIGNMENT AND SUBLETTING:
13.1 The Lessee shall not be entitled, except with the prior written consent
of the Lessor to:
13.1.1 cede or assign all or any of the rights or obligations of the
Lessee under this Agreement; or
13.1.2 sublet or give up possession of the Premises, in whole or
part, to any third party which is not an Associate of the
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Lessee.
13.2 The Lessor shall be entitled, in its sole and absolute discretion, to
withhold its consent to the subletting of the whole or part of the
Premises by the Lessee to any other entity.
14. SUNDRY OBLIGATIONS OF THE LESSEE:
The Lessee shall:
14.1 keep the Premises clean and tidy;
14.2 not use the Premises or allow it to be used, in whole or part, for any
purpose other than that of offices and laboratory facilities;
14.3 not place or leave any article or other thing in or about any passage,
lift, stairway, pathway, parking garage, or other common part of the
Property or Building so as to cause a nuisance or obstruction;
14.4 not bring into or unto the Property, Building or Premises any article
which, by reason of its weight or other characteristics, is liable to
cause damage to the Property, Building or Premises;
14.5 not contravene any of the conditions of title of the Property or any of
the laws, rules or regulations affecting owners, tenants or occupiers
of the Property or the Building and specifically any measure having the
force of law with which the Lessor is obliged to comply as owner of the
Property including without limiting the generality hereof all laws
relating to environmental protection which may apply to the Lessee in
general or specifically due to the nature of the Lessee's business;
14.6 not cause or commit any nuisance on the Property or in the Building or
Premises or cause any annoyance or discomfort to other tenants or
occupiers of the Property or Building;
14.7 not leave refuse or allow it to accumulate in or about the Property,
Building or Premises except in the refuse bins provided;
14.8 refrain from interfering with the electrical, plumbing or gas
installations or systems serving the Property, Building or Premises,
except as may be necessary to enable the Lessee to carry out its
obligations of maintenance and repair in terms of this Lease and then
the Lessee shall only utilise persons properly qualified;
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14.9 take all reasonable measures to prevent blockages and obstructions from
occurring in the drains, sewerage pipes and water pipes serving the
Property, Building or Premises;
14.10 provide at the Lessee's own expense all electric, fluorescent and
incandescent light bulbs required in the Premises;
14.11 be responsible for all glass, both internal and external, on the
Premises, including all mirrors, office fronts, and window panels;
14.12 keep the office fronts of the Premises illuminated during such
reasonable hours as the Lessor may from time to time in writing direct;
14.13 procure that the decor of the Premises is maintained at a level which
is in keeping with the standards of the Property and Building;
14.14 not paint, affix or attach to the Premises or any part of the Building
any sign, notice, awning or canopy without the Lessor's prior written
consent, which shall not be unreasonably withheld;
14.15 keep any such sign, notice, awning or canopy which has been so approved
by the Lessor in good order, condition and repair at all times;
14.16 not erect any radio or television aerial on the roof or exterior walls
of the Premises or the Building without the Lessor's prior written
consent, which shall not be unreasonably withheld;
14.17 on the termination of this Agreement reinstate and return the property
to the Lessor in the same good order and condition (fair wear and tear
excepted) as it was in as at the commencement date;
14.18 have no claim of any nature whatsoever for any loss or damages which
the Lessee may suffer ,including cancellation of this lease, as a
result of:
14.18.1 any defect in the property or any part thereof or any
improvement thereon;
14.18.2 vis major, casus fortuitus or any other causes which is either
wholly or substantially outside the control of the Lessor;
14.18.3 not do anything , which will damage the property or any of the
improvements thereon;
14.19 be responsible during the duration of this Agreement for obtaining
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and renewing all licenses, permits or other consents in respect of the
Lessee's business, and the failure to obtain such licenses or permits
shall not be a ground for the cancellation of this Agreement by the
Lessee; and
14.20 take out and maintain public liability insurance for an amount which,
having regard to the nature of the Lessee's business, a prudent
businessman would take out and maintain.
15. MAINTENANCE AND REPAIRS:
15.1 The Lessee shall at its own expense and without recourse to the Lessor:
15.1.1 throughout the Lease Period maintain in good order and
condition the interior of the Premises and all parts thereof,
including (without limitation of the generality of this
obligation) all shop fronts, windows, doors, appurtenances,
fixtures and fittings contained in the Premises;
15.1.2 be responsible for all repairs of and maintenance to the
parking bays and shade netting associated with such parking
bays as set out in 21.5;
15.1.3 promptly repair or make good all damage occurring in the
Premises from time to time during the Lease Period, whatever
the cause of such damage, and including damage to any part of
the interior of the Premises or to any shop front, window,
door, appurtenance, fixture or fitting, and replace all such
items (as well as any keys) which have been broken, lost or
destroyed (again regardless of cause); and
15.1.4 on the termination of this lease, howsoever and whenever it
terminates, return the Premises and all such parts thereof
(including all keys) to the Lessor in good order, condition
and repair, fair wear and tear excepted.
15.2 If the Lessee notifies the Lessor in writing within 5(Five) days after
having taken possession of the Premises of the need for any repairs to
or in the Premises or of the fact that any part of the Premises,
including any lock, key, door, shop front, window, appurtenance,
fixture or fitting, is damaged, missing, or out of order, the Lessor
shall promptly cause the necessary repair or replacement to be
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effected at the Lessor's own expense. If or in so far as the Lessee
does not give such notice, the Lessee shall be deemed to have
acknowledged that the Premises and all parts thereof were intact, in
place, and in good order, condition and repair when the Lessee took
possession of the Premises under this lease.
15.3 The Lessor shall be responsible for the maintenance of, and for all
repairs and replacements becoming necessary from time to time in or to,
the Building and all parts thereof other than those which are the
responsibility for the time being of tenants or of the local authority,
and the Lessor's obligations in this respect shall include the
maintenance and repair of the structure of the Building, all systems,
works and installations contained therein, the roofs, the exterior
walls, the lifts, the grounds and gardens, and all other parts of the
Common Areas, provided that maintenance of the grounds and gardens and
all other parts of the Common Areas will only commence once the Lessor
has taken over responsibility for such, based on a further written
agreement between the parties, and until such time as the
responsibility is so taken over by the Lessor the Lessee shall be
responsible for such maintenance at its own cost.
15.4 The Lessor shall not, however, be in breach of clause 15.3 in so far as
any of its obligations thereunder are not or cannot be fulfilled by
reason of any vis maior or the acts or omissions of others over whom
the Lessor has no direct authority or control, and where the Lessor is
indeed in breach of clause 15.3, the Lessee's only remedy against the
Lessor shall be a right of action for specific performance.
15.5 Should the Lessee fail to carry out any of its obligations under this
Agreement with regard to any maintenance, repair or replacement, the
Lessor shall be entitled, without prejudice to any of its other rights
or remedies, to effect the required item of maintenance, repair or
replacement and to recover the cost thereof from the Lessee on demand.
16. ALTERATIONS, ADDITIONS AND IMPROVEMENTS:
16.1 The Lessee shall not make any alterations or additions to the Premises
without the Lessor's prior written consent, but the Lessor shall not
withhold its consent unreasonably to an alteration or addition which is
not structural,
16.2 If the Lessee does alter, add to, or improve the Premises in any way,
whether in breach of 16.1 or not, the Lessee shall, if so required in
writing by the Lessor, restore the Premises on the termination of this
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Agreement to its condition as it was prior to such alteration, addition
or improvement having been made. The Lessor's requirement in this
regard may be communicated to the Lessee at any time, and this 16.2
shall not be construed as excluding any other or further remedy which
the Lessor may have in consequence of a breach by the Lessee of 16.1.
16.3 Save for any improvement which is removed from the Premises as required
by the Lessor in terms of clause 16.2, all improvements made to the
Premises shall belong to the Lessor and may not be removed from the
Premises at any time. The Lessee shall not, whatever the circumstances,
have any claim against the Lessor for compensation for any improvement
to the Premises, nor shall the Lessee have a right of retention in
respect of any improvements.
17. EXCLUSION OF LESSOR FROM CERTAIN LIABILITY AND INDEMNITY:
17.1 The Lessee shall have no claim for damages against the Lessor and may
not withhold or delay any payment due to the Lessor by reason directly
or indirectly of:
17.1.1 a breach by the Lessor of any of its obligations under this
Agreement;
17.1.2 any act or omission of the Lessor or any agent or servant of,
or contractor to, the Lessor, whether or not negligent, or
otherwise actionable at law, and including (without limiting
the generality of the aforegoing) any act or omission of any
cleaner, maintenance person, handyman, artisan, labourer,
workman, watchman, guard, or caretaker;
17.1.3 the condition or state of repair at any time of the Property,
the Building, or any part of the Property or the Building;
17.1.4 any failure or suspension of, or any interruption in, the
supply of water, electricity, gas, air-conditioning, heating,
or any other amenity or service to the Premises, the Building,
or the Property (including, without generality being limited,
any cleaning service), whatever the cause;
17.1.5 any breakdown of, or interruption in the operation of,
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any machinery, plant, equipment, installation or system
situated in or on, or serving the Property, the Building, or
the Premises, and including (but without limiting the
generality of the aforegoing) any lift, escalator, geyser,
boiler, burglar alarm, or security installation or system,
again regardless of cause;
17.1.6 any interruption of, or interference with, the enjoyment or
beneficial occupation of the Premises or any of the Common
Areas of the Property or the Building caused by any building
operations or other works to or in the Building or elsewhere
on or about the Property, whether by the Lessor or by anybody
else; or
17.1.7 any other event or circumstance whatever occurring, or failing
to occur, upon, in, or about the Property, the Building, or
the Premises, whether or not the Lessor could otherwise have
been held liable for such occurrence or failure,
17.1.8 and the Lessee indemnifies the Lessor against all liability to
any of the associates, directors, members, agents, customers,
servants, guests and other invitees of the Lessee or of any of
its Associates, and all other persons who may enter upon the
Premises or any parts thereof through or under the Lessee, in
consequence of any such matter as is referred to in clauses
17.1.1 to 17.1.7 above and further indemnifies the Lessor
against any claim made against the Lessor by anyone for any
loss or damage suffered in or on the property or in
consequence of any act or omission of the Lessee's servants or
agents.
17.2 The Lessor shall not, however, be excused from specific performance of
any of its obligations under this Agreement, whether express or
implied, and particularly (but not only) its obligations to afford the
Lessee occupation and enjoyment of the Premises as contemplated by this
Agreement and to carry out such maintenance and repairs as are
incumbent upon the Lessor in terms hereof.
17.3 The Lessor does not warrant that the Premises are suitable for the
purposes of the Lessee or any of its Associates or that the Lessee or
any of its Associates will be granted any licence or consent which may
be necessary for the carrying on of any business or activity in the
Premises.
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18. LESSOR'S RIGHTS:
18.1 The Lessor's representatives, agents, servants and contractors may at
all reasonable times, without thereby giving rise to any claim or right
of action on the part of the Lessee or any other occupier of the
Premises:
18.1.1 enter the leased Premises in order to inspect them, to carry
out any necessary repairs, replacements or other works, or to
perform any other lawful function in the bona fide interests
of the Lessor or any of the occupiers of the Property; or
18.1.2 carry out elsewhere in the Building or on the Property any
necessary repairs, replacements or other works;
but the Lessor shall ensure that this right is exercised with due
regard for, and a minimum of interference with, the beneficial
enjoyment of the Premises by those in occupation thereof.
18.2 The Lessor shall have the right:
18.2.1 to display at the property:
18.2.2.1 a "TO LET" notice during the period of 6 (six)
months immediately preceding the termination of
the lease;
18.2.2.2 a "FOR SALE" notice at any time during the
currency of this lease;
18.2.2 to show any prospective tenants or buyers of the property the
property on reasonable notice during reasonable hours on
business days;
18.2.3 to display on the property any notice which may be required by
the Lessor or any of the tenants or prospective tenants of the
Lessor in connection with any applications for a license for
any business to be carried on, on the property;
19. AREA OF THE PREMISES:
19.1 If it is necessary in terms of this lease to determine the area, in
19
square metres, of the Premises or any other part of the Building, such
determination shall be made according to the SAPOA standard method for
measuring floor areas. Any dispute between the Lessor and the Lessee as
to any such area shall be determined by an independent architect,
acting as expert and not arbitrator, whose certificate as to such area
shall be final and binding on the parties. If the parties fail to agree
on the identity of such architect, he shall be appointed by the
Executive Director for the time being of the South African Institute of
Architects.
19.2 The party who declares a dispute in relation to the square meters, as
set out in 2.1.12, shall be responsible for the cost incurred relating
to the determination by the independent Architect as contemplated
above, in the event that such determination confirms the correctness of
the square meters contain in 2.1.12. In the event that the independent
architect determines a meterage other than that contained in 2.1.12,
the cost of such determination shall be borne by the parties equally.
20. RULES:
20.1 The Lessee shall at all material times comply with such reasonable
rules and regulations as are laid down in writing by or on behalf of
the Lessor for observance by tenants and other occupiers of the
Property, their customers and their invitees, including (without
generality being limited) rules and regulations in connection with:
20.1.1 the security of the Property and the protection of persons and
property thereon, including in particular (again without
generality being restricted) any rules for the control and
identification of persons and vehicles entering the Property
or any parts thereof;
20.1.2 the driving and parking of vehicles on or about the Property;
20.1.3 the utilisation of common amenities and facilities on the
Property;
20.1.4 the air-conditioning plant, if any, servicing the Building;
20.1.5 the prohibition or restriction of specific activities and
practices which are actually or potentially detrimental to the
general interests of traders in the Building; and
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20.1.6 the loading and off-loading of merchandise and other articles
on and about the Property.
20.2 20.1 shall not be construed as implying that the Lessor assumes any
liability, which it would not otherwise have had in connection with the
subject matter of any such rule or regulation.
21. PARKING AND LOADING:
21.1 The Lessee shall throughout the Lease Period have the exclusive use for
its directors, officers, members, partners, employees, clients,
customers and invitees of 27 (Twenty Seven) Shaded parking bays and 109
(One Hundred and Nine) Basement parking bays as identified on the plan
being A5, at an initial monthly rental of R 163.35 (One Hundred and
Sixty Three Rand and Thirty Five Cents) per Shaded parking bay and R
297.00 (Two Hundred and Ninety Seven Rand) per Basement parking bay,
payable in addition to, and increasing from time to time simultaneously
with and proportionately to, the rent and or other increases as
contemplated in 7,8 and 9 for the Premises (whatever the cause or basis
of such increase).
21.2 All the terms of this Agreement relating to the Premises themselves
shall apply mutatis mutandis to the loading bay(s) and parking
bay(s)/garage(s) referred to in 21.1 except those which are obviously
inapplicable.
21.3 Without derogation from any rules or regulations in force for the time
being as envisaged in 20.1, the Lessee shall procure that the loading
and off-loading of merchandise and other articles in connection with
the business carried on in the Premises are carried out:
21.3.1 only in the bay(s) let to the Lessee in terms of 21.1 and such
other loading bay(s)/area(s) as are provided for the purpose;
and
21.3.2 with due regard and consideration for the interests of other
traders in the Building and the general public.
21.4 The provisions of this 21, in respect of the lease of parking bays or
additional parking bays, shall endure for the duration of this
Agreement and shall terminate simultaneously with this Agreement.
21.5 The Lessor shall be responsible for the maintenance and upkeep of the
covered parking bays but the Lessee shall specifically be responsible
for all damage which may occur in respect of such
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parking bays, resulting from the wilful or negligent acts of its
employees, clients or visitors, or any other person and the Lessee
shall pay to the Lessor, on demand, all such costs incurred by the
Lessor in the repair of damaged parking bays.
22. DAMAGE TO OR DESTRUCTION OF PREMISES:
22.1 If the Building or Premises is destroyed or so damaged that the Lessee
can no longer beneficially occupy the Premises, this lease shall
terminate when that happens unless the parties agree otherwise in
writing.
22.2 If the Premises is significantly damaged but can still be beneficially
occupied, this Agreement shall remain in force and the Lessor shall
repair the damage without undue delay, but the rent shall be abated so
as to compensate the Lessee fairly for the effects of the damage and
repair work on the enjoyment of the Premises. Failing agreement on such
abatement or on the applicability of this clause to any particular
circumstances, the matter shall be referred to an expert appointed by
the parties jointly or, if they do not agree on such appointment,
nominated by the President for the time being of The Institute of
Estate Agents of South Africa, and the decision of such expert shall be
final and binding. The expert's fees and disbursements, including any
inspection costs, shall be borne and paid by the parties in equal
shares. Pending determination of the abatement the Lessee shall
continue to pay the full rent for the Premises as if they had not been
damaged, and as soon as the matter has been resolved the Lessor shall
make the appropriate repayment, if any, to the Lessee.
22.3 Subject to 17, if any damage to the Premises or the destruction thereof
is caused by an act or omission for which either party is responsible
in terms of this Agreement or in law, the other party shall not be
precluded by reason of any of the aforegoing provisions of this 22 from
exercising or pursuing any alternative or additional right of action or
remedy available to the latter party under the circumstances (whether
in terms of this Agreement or in law).
23. SPECIAL REMEDY FOR BREACH:
23.1 Should the Lessee default in any payment due under this Agreement and
fail to remedy such default within 5 (five) days after receiving a
written demand that it be remedied; or
23.2 fail to pay any amount owing in terms of this Agreement on due
22
date, but within 5 (five) days after receipt of a notice from the
Lessor requiring such payment to be made, on more than 3 (three)
occasions falling within any period of 12 (twelve) calendar months; or
23.3 commit any other breach of any term or condition of this Agreement and
fail to remedy that breach within a period of 30 (thirty) days after
receipt of a notice from the Lessor calling on the Lessee to do so,
then, in any such event, the Lessor shall be entitled to cancel this
Agreement, by notice to the Lessee, without prejudice to any rights,
which the Lessor may have against the Lessee as a result thereof, then
the Lessor shall be entitled, without prejudice to any alternative or
additional right of action or remedy available to the Lessor under the
circumstances without further notice, to cancel this Agreement with
immediate effect, be possession of the Premises, and recover from the
Lessee damages for the default or breach and the cancellation of this
Agreement.
23.4 Clause 23.1 shall not be construed as excluding the ordinary lawful
consequences of a breach of this Agreement by either party (save any
such consequences as are expressly excluded by any of the other
provisions of this Agreement) and in particular any right of
cancellation of this Agreement on the ground of a material breach going
to the root of this Agreement.
23.5 In the event of the Lessor having cancelled this Agreement justifiably
but the Lessee remaining in occupation of the Premises, with or without
disputing the cancellation, and continuing to tender payments of rent
and any other amounts which would have been payable to the Lessor but
for the cancellation, the Lessor may accept such payments without
prejudice to and without affecting the cancellation, in all respects as
if they had been payments on account of the damages suffered by the
Lessor by reason of the unlawful holding-over on the part of the
Lessee.
24. OPTION OF RENEWAL:
24.1 The Lessee shall have the right to renew this Agreement upon the terms
and subject to the conditions set out below.
24.2 The period for which this lease may be so renewed is five years,
commencing on the date immediately following the date of expiry of the
initial term of this lease.
24.3 All the terms of this Agreement shall continue to apply during the
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renewal period, save that:
24.3.1 the rent shall be determined as set out in clause 6; and
24.3.2 there shall be no further right of renewal.
24.4 The right of renewal shall be exercised by notice in writing from the
Lessee to the Lessor given and received not later than 6 (six) months
prior to the date on which the renewal period is to commence, and shall
lapse if not so exercised.
24.5 If the right of renewal is duly exercised, this Agreement shall be
renewed automatically and without the need for any further act of the
parties.
24.6 The Lessee may not, however, exercise the right of renewal while in
breach or default of any of the terms of this Agreement.
24.7 If this Agreement does not endure at least for the full term for which
it is initially contracted, the right of renewal shall lapse and any
notice of exercise thereof given prior to such lapsing shall be null
and void.
27. NEW TENANTS AND PURCHASERS:
The Lessee shall at all reasonable times:
25.1 during the Lease Period, allow prospective purchasers of the Property
or of any shares or other interests in the Lessor; and
25.2 during the last 6 (six) months of the Lease Period, allow prospective
tenants or purchasers of the Premises, to enter and view the interior
of the Premises.
27. COSTS:
Each party shall bear its own legal costs incurred in the preparation
and negotiation of this lease provided that the stamp duty payable
thereon shall be borne and paid by the Lessee.
27. DOMICILIA AND NOTICES:
27.1 The parties choose as their domicilia citandi et executandi the
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addresses mentioned in clause 27.2, provided that such domicilium of
either party may be changed by written notice from such party to the
other party with effect from the date of receipt or deemed receipt by
the latter of such notice.
27.2 The parties domicilia addresses:
27.2.1 The Lessor:
The Centurion Wine Centre
123 Amkor Road
Lyttelton Manor X3
Centurion
0157
27.2.2 The Lessee:
At the Premises
27.3 Any notice, acceptance, demand or other communication properly
addressed by either party to the other party at the latter's domicilium
in terms hereof for the time being and sent by prepaid registered post
shall be deemed to be received by the latter on the 7th (seventh)
business day following the date of posting thereof. This provision
shall not be construed as precluding the utilisation of other means and
methods (including telefacsimile) for the transmission or delivery of
notices, acceptances, demands and other communications, but no
presumption of delivery shall arise if any such other means or method
is used.
28. WHOLE AGREEMENT:
28.1 This is the entire agreement between the parties.
28.2 Neither party relies in entering into this agreement on any warranties,
representations, disclosures or expressions of opinion which have not
been incorporated into this agreement as warranties or undertakings,
28.3 No variation or consensual cancellation of this agreement shall be of
any force or effect unless reduced to writing and signed by both
parties.
29. NON-WAIVER:
29.1 Neither party shall be regarded as having waived, or be precluded in
25
any way from exercising, any right under or arising from this lease by
reason of such party having at any time granted any extension of time
for, or having shown any indulgence to, the other party with reference
to any payment or performance hereunder, or having failed to enforce,
or delayed in the enforcement of, any right of action against the other
party.
29.2 The failure of either party to comply with any non-material provision
of this lease shall not excuse the other party from performing the
latter's obligations hereunder fully and timeously.
30. WARRANTY OF AUTHORITY:
The person signing this lease on behalf of the Lessee expressly
warrants his authority to do so.
31. SECURITY FOR PAYMENT BY LESSEE:
31 As security for the due performance by the Lessee of the Lessee's
obligations in terms of this Agreement the Lessee shall provide the
Lessor on the date of signature of this Agreement by the party last
signing, with, at the choice of the Lessor, either or both:
31.1.1 A signed suretyship binding the Lessee to the Lessor in
writing as surety and co-principal debtor for all the
obligations of the Lessee to the Lessor under this Agreement
as well as those arising in consequence of any termination
thereof; and/or
31.1.2 an unconditional and irrevocable bank guarantee, in a form and
from an institution acceptable to the Lessor, of the due
payment by the Lessee of the rental or any other amounts
payable in terms of this agreement, provided that the
liability of the guarantor shall be limited to an amount equal
to four months rental, such rental to be the rental applicable
to the year in respect of which the amount become owing,
having taken all escalations into account.
31.2 The provision of the security as set out in this clause shall act as a
suspensive condition to this Agreement becoming operational except as
set forth in this clause and unless provision of such security is
waived by the Lessor in writing in terms of 31.3, this lease shall not
come into operation but shall be null and void save that the Lessee
shall then solely bear and pay, or reimburse the Lessor on demand with,
the costs of this lease and the Lessor's expenses in reletting
26
the Premises, including any agent's commission and advertising costs.
31.3 The Lessor, by his signature to this agreement, waives the provision of
security as contemplated in 31.2. The parties however agree that the
Lessor shall at any time during the Lease Period be entitled to call
for such security in writing and the Lessee shall within 7 (Seven) days
after receiving such notice provide the security called for failing
which the Lessee shall be in breach of this agreement.
32. SALE OF PREMISES
The validity of this lease shall not in any way be affected by the transfer of
the Property, Building or Premises from the Lessor pursuant to a sale thereof.
It shall accordingly, upon registration of transfer of the Property, Building or
Premises into the; name of the purchaser, remain of full force and effect save
that the purchaser shall be substituted as lessor and acquire all rights and be
liable to fulfil all the obligations which the Lessor, as lessor, enjoyed
against or was liable to fulfil in favour of the Lessee in terms of this
Agreement.
DATED at Centurion on 24 April 2003.
AS WITNESSES:
1. /s/ [illegible] /s/ [illegible]
------------------------------------- ---------------------------------
For and on behalf of Shibbolet
(Proprietary) Limited
2. /s/ [illegible]
-------------------------------------
DATED at Pretoria on 16 April 2003.
AS WITNESSES:
1. /s/ [illegible] /s/ [illegible]
------------------------------------- ---------------------------------
For and on behalf of Quintiles
Clindepharm (Proprietary) Limited
2. /s/ [illegible]
-------------------------------------
27
