Exhibit 10.32
UNPROTECTED LEASE AGREEMENT
Made and entered into at Yokneam on the 1st day of September 1996
BETWEEN
XXXXX XXXXXX INDUSTRIAL BUILDINGS LTD.
Publ. Co. 00-000000-0
00 Xxxxxxx Xxxxxx,
Xxxxx Hasharon
(hereinafter: "THE LESSOR")
- OF THE ONE PART -
AND
E.S.C. MEDICAL SYSTEMS LTD.
Publ. Co. 00-000000-0
of 0 Xx'xxxxx Xxxxxx
Tirat Hacarmel
(hereinafter: "THE LESSEE")
- OF THE OTHER PART -
WHEREAS: The Lessor owns the rights to the land, as hereinafter defined,
pursuant to a Development Contract dated June 30, 1994, and is
entitled to have a leasehold contract in respect of the land
signed with it, which contract is in the process of preparation
and signature with the Israel Lands Administration; and
WHEREAS: The Lessee has requested to take the Leased Premises, as
hereinafter defined, on hire from the Lessor, under an
unprotected lease for the period, the purpose and the conditions
set forth in this Agreement; and
WHEREAS: The Lessee declares that it will conduct in the Leased Premises
an approved industrial enterprise within the definition of the
term under the Law for the Encouragement of Capital Investments,
5719-1959, for the manufacture of electronic products; and
WHEREAS: The Lessor has agreed to let the Leased Premises to the Lessee,
under an unprotected lease for the period, the purposes and on
the conditions set forth above and below;
NOW THEREFORE IT IS DECLARED, AGREED AND STIPULATED
BETWEEN THE PARTIES AS FOLLOWS:
1. PREAMBLE:
The preamble to this Agreement and the declarations of the parties
therein constitute an integral part hereof.
2. APPENDICES:
The appendices attached to this Agreement as well as all appendices
which may be attached hereto in the future, if any will be attached
(provided that they bear the signature of the parties and are marked
as appendices to this Agreement) constitute an integral part hereof.
3. INTERPRETATION:
The headings to clauses in this Agreement have been inserted for
convenience only and they do not constitute part hereof and will not
be used for purposes of interpretation.
4. NULLITY OF PRIOR REPRESENTATIONS AND UNDERTAKINGS:
The parties to this Agreement will not be bound by any declaration,
representation, drafts, memorandums, application/s for letting of the
Leased Premises, agreements and undertakings, verbal or in writing,
which are not included in this Agreement, and which were made prior to
the signing hereof, and same shall not serve as evidence for purposes
of the interpretation of this Agreement.
5. DEFINITIONS:
In this Agreement, provided that this does not conflict with the
context, each term and expression set forth below shall have the
meaning set opposite it:
"THE LAND" An area of approximately 3,000 sq.m. in Block
11495 Parcel 13 (in portion) Plot 5 according
to Detailed Plan 163/DT/C which is in Yokneam
Illit.
"THE BUILDING" A building for industry and trade in an area of
approximately 4,400 sq.m. (external
measurements), which will be constructed on the
Land in accordance with the technical
specification and the drawing which are
attached to this Agreement as Appendices A and
B respectively, and in accordance with plans of
the building which is attached to this
Agreement as Appendix C.
"THE LEASED PREMISES" Part of the building in an area of
approximately 600 sq.m. (external measurements)
which is marked on Appendices B and C in
yellow.
"PURPOSE OF THE LEASE" An approved industrial enterprise according to
the definition thereof in the Law for the
Encouragement of Capital Investments,
5719-1959, for the manufacture of electronic
products.
"PERIOD OF LEASE" As described in Clause 8 of this Agreement.
"RENTALS" As defined in Clauses 9, 10 and 11 and in this
Agreement generally.
"YEAR", "MONTH" Within the meaning thereof according to the
Gregorian calendar.
"THE BASIC INDEX" Means the Consumer Price Index (including fruit
and vegetables) for the month of March 1996,
which will be published by the Central Bureau
of Statistics on April 15, 1996.
"THE NEW INDEX" Means the last Consumer Price Index (including
fruit and vegetables) which will published from
time to time by the Central Bureau of
Statistics prior to the time specified in this
Agreement for the effecting of any of the
payments the Lessee has undertaken to pay. If
the basis of the index is replaced and/or if
the method for the computation and compilation
thereof should be changed or if it should be
published by another entity instead of the
Central Bureau of Statistics, the Lessor will
make a calculation of the increase in the index
for purposes of this clause, in the course of
taking cognizance of the aforesaid changes.
"PROMISSORY NOTES" Promissory notes in shekels which will bear
linkage differentials.
"LINKAGE DIFFERENTIALS" The difference between the New Index and the
Basic Index, divided by the Basic Index, and
multiplied by the basic rentals.
6. NON-APPLICABILITY OF TENANTS PROTECTION LAW
The Lessee declares that:
6.1 The Leased Premises and the lease are not protected pursuant to
provisions of the Tenants Protection Law (Consolidated Version)
5732-1972 (hereinafter: "THE LAW"), nor under provisions of any
other law which deals with the protection of the tenant. This
Agreement and the relationship created hereby shall not confer on
the Lessee any right pursuant to the aforesaid laws.
6.2 The Leased Premises are "a vacant property" as this term is
defined in the Law and the Building is "a new property" the
construction of which was completed after 28th Av 5728 (August
20, 1968) and the provisions of the Law, or any other law which
may come in its stead, shall not apply thereto.
6.3 It has not been requested to pay, has not paid and has not
undertaken to pay the Lessor, or any other person, key money, or
any other payment likely to be construed as key money.
6.4 All the alterations, additions, improvements and enhancements
which may be made in the Leased Premises, if any, are solely for
its needs, and are not and will not be fundamental alterations,
and the provisions of Part C of the Law will not apply to this
Agreement and to the relationship between the parties to the
Agreement.
6.5 It is aware that only on the strength of its above declarations
and its undertaking to refrain from raising any allegation which
conflicts with and/or is inconsistent with the foregoing, has the
Lessor agreed to lease the Leased Premises to it.
7. THE LEASE:
7.1 The Lessor hereby lets the Leased Premises to the Lessee and the
Lessee hereby takes the Leased Premises on hire from the Lessor,
under a lease which is not protected under the Tenants Protection
Law, for the period and for the purpose of the lease only.
Should the Lessor decide to let other parts of the Building, the
Lessor undertakes to give notice to the Lessee to that effect and
to give the Lessee a right of first refusal to take the
additional portion of the Building on hire which the Lessor
wishes to let. The Lessee will notify the Lessor within 14 days
from the date the Lessor's notice is sent with regard to its
intention to let the additional area as to whether or not it, the
Lessee, wishes to take same on hire. Should the Lessee fail to
give notice of its intention to take the additional area on hire
within the aforesaid period of 14 days, the Lessor will be
entitled to let the additional area as it deems fit.
If the Lessee should give notice within the aforesaid period of
its desire to take the additional area on hire, the rentals in
respect of the additional area will be the rentals which are
payable per square meter as stipulated in this Agreement, or the
rentals which are the customary norm for the property at such
time, whichever is the higher.
The remaining terms of the lease will be, mutatis mutandis, as
set forth in this Agreement. The Lessee undertakes to sign a
lease agreement with the Lessor and to furnish the Lessor with
the guarantees and collateral in connection with the additional
area, immediately upon the Lessor's first demand.
The contents of this clause will not apply to an extension or
widening of lease contracts with other tenants who, at the time
the Lessor decides to let the additional area, have taken other
portions of the Building on hire.
7.2 The Lessor declares that it has not undertaken to let the Leased
Premises to any third party and that at the time of signing of
this Agreement it is not aware of any contractual or other bar to
the letting of the Leased Premises to the Lessee.
7.3 The Lessee declares that it has examined the Leased Premises
and/or the plans thereof and/or a specification and/or drawing of
the Leased Premises, and has found same to be suitable for its
purposes, and that upon its signing this Agreement and the
appendices hereto, it thereby precludes for itself any allegation
in connection with the suitability of the Leased Premises for its
needs and/or the quality of the Leased Premises and/or any other
allegation. The contents of this sub-clause are conditional upon
the construction of the Leased Premises and the parts of the
Building mentioned in Appendices A, B and C by the Lessor being
completed in accordance with the matters stipulated in Appendices
A, B and C.
7.4 The Lessee declares that it is an industrial enterprise which has
received approval from the Investment Center attached to the
Ministry of Trade and Industry (hereinafter: "THE INVESTMENT
CENTER APPROVAL") in accordance with the Law for the
Encouragement of Capital Investments, 5719-1959 (hereinafter:
"THE LAW FOR THE ENCOURAGEMENT OF CAPITAL INVESTMENTS"), the
approved program for which includes the hiring of a property such
as the Leased Premises for the next six years.
The Lessee undertakes, as a basic and fundamental term of this
Agreement, that it will conduct an approved industrial enterprise
in the Leased Premises for a period of not less than six years
from the date of signing of this Agreement, and will make its
best efforts in order to retain and maintain this status for an
additional period of one year, and to keep the Investment Center
Approval in force throughout all the aforesaid periods, and to
take all the steps, to comply with all the conditions and to
perform all the requirements lawfully demanded by any body,
including the Investment Center, and including the providing of
guarantees in accordance with Section 40G of the Law for the
Encouragement of Capital Investments, in order to comply with
this undertaking by it.
Without derogating from the remaining remedies available to the
Lessor pursuant to this Agreement and/or according to law, the
Lessee undertakes to indemnify the Lessor in respect of any
damages the Lessor may suffer in any circumstances in which the
Investment Center Approval is revoked and/or suspended and/or
otherwise prejudiced for any reason whatsoever, including acts or
omissions of the Lessee, within 7 (seven) days from the date of
the Lessor's demand.
7.5 The Lessor declares that the Building has been constructed and
will be constructed in accordance with a valid building permit.
8. PERIOD OF LEASE:
8.1 8.1.1 The Lessee hereby takes the Leased Premises on hire for
a period of nine (9) years and eleven (11) months
commencing from the date of delivery of occupation of
the Leased Premises to the Lessee, as specified in
Clause 17.1.3 below.
8.1.2 The Lessee will be entitled to terminate the Period of
Lease after the elapse of 5 years from the date of
delivery of occupation of the Leased Premises, upon the
fulfillment of all the following conditions:
8.1.2.1 The Lessee has itself made the adjustments and
adaptations to the Leased Premises for
purposes of making them suitable for its
purposes, as stated in Clause 17.5.4 below.
8.1.2.2 Period of Lease in the manner stated at the
beginning of this sub-clause 8.1.2. The date
of termination of the lease will be fixed in
the Lessee's notice, provided that it shall
not be later than 6 months from the date the
notice with regard to termination of the lease
is given to the Lessor.
8.2 In every case that the Lessee fails to present itself to accept
the Leased Premises on the date specified for delivery of
occupation, or if same is delivered to it by the Lessor on the
date of commencement of the Period of Lease, this shall not
constitute a reason for postponing the start of the Period of
Lease, and the provisions of this Agreement shall apply as if the
Lessee has received actual occupation of the Leased Premises.
8.3 In every case that the Lessee accepts occupation of the Leased
Premises the acceptance of occupation shall constitute a
declaration by the Lessee that it has received the Leased
Premises in accordance with the provisions of this Agreement and
it precludes for itself any allegation in connection with the
Leased Premises and/or the performance of this Agreement by the
Lessor, save and except for its allegations in writing which will
be delivered to the Lessor prior to acceptance of occupation of
the Leased Premises, and save and except for repairs during the
check-up period and in the warranty period.
8.4 It is agreed and declared by the parties that in every case in
which the Electric Corporation fails to supply electricity to the
Leased Premises, this will not constitute grounds for postponing
the start of the Period of Lease and/or preventing payment of the
rentals in full, provided that the Lessor shall supply the Leased
Premises with alternative power source and/or a generator having
the capacity specified in the technical specification and
together with a current stabilizer. It is agreed between the
parties that the cost of connection to an alternative power
source and/or the generator shall be borne by the Lessor, and the
cost of the current consumption shall be borne and paid by the
Lessee. The Lessor shall make its best efforts in order that the
supply of electricity be performed by the Israel Electric
Corporation Ltd.
8.5 The Lessor undertakes to obtain a habitation approval for the
Leased Premises by not later than June 15, 1996.
9. RENTALS:
The Lessee undertakes to pay the Lessor rentals in an amount of NIS
17.1 (seven shekels and ten agorot) in respect of each square meter of
the Leased Premises and for each sq.m. of the Lessee's pro rata share
of the common property, as defined in Clause 16.5 below, in each of
the months of the lease during the Period of Lease.
For purposes of payment of the rentals, the Lessee's pro rata share of
the common property will be deemed to be according to the definition
thereof in Clause 16.5 below.
The area of the Leased Premises and the area of the common property
will be determined by a surveyor to be appointed by agreement between
the parties. Should the parties fail to arrive at agreement, the
surveyor shall be appointed by the Lessor.
10. ADDITION OF V.A.T. TO THE RENTALS:
V.A.T. as prescribed by law shall be added to the rentals at the rate
which applies according to law at the time of effecting of each and
every payment. A valid tax invoice will be delivered to the Lessee.
11. ADDITION TO THE RENTALS OF LINKAGE DIFFERENTIALS:
11.1 The rentals as mentioned in Clause 9 above will be linked to the
Basic Index in a manner that in every case that the New Index
should rise as compared with the Basic Index, the rentals will be
increased according to the percentage rise in the New Index as
compared with the Basic Index.
11.2 Notwithstanding the foregoing, if at any time of payment of
rentals a binding legal provision should apply which limits the
percentage increase of the rentals, or freezes the amount
thereof, the parties will act in accordance with the provisions
of the law.
11.3 Should a legal provision which limits the percentage of linked
rentals or which freezes the amount thereof subsequently be
repealed or amended, the rentals will be linked to the index as
specified in Clause 11.1 above, and the Lessee will make payment
to the Lessor, for those months in respect of which it paid the
Lessor frozen rentals, of the differentials due to the Lessor as
a result of the cancellation of the freezing or the changes
therein, in accordance with the matters set forth in the above
clause. The Lessor shall notify the Lessee in writing what the
amount of differentials is that is due to the Lessor from the
Lessee, and the Lessee undertakes to make payment to the Lessor
of the aforesaid differentials, within 6 days after receipt of
the Lessor's notice, and all in accordance with any law.
12. TIME FOR PAYMENT OF RENTALS:
The rentals shall be paid by the Lessee to the Lessor together with
Value Added Tax at the following times: -
12.1 The Lessee shall deposit with the Lessor an autonomous bank
guarantee in a text approved by the Lessor, at the time of
signing of this Agreement, for an amount equivalent to six (6)
months rental. The guarantee will serve as security for the
fulfillment by the Lessee of all the conditions of the Agreement.
The Lessor will send the Lessee notice of 7 days prior to
foreclosing on the guarantee.
12.2 The rentals will be paid by the Lessee to the Lessor each and
every month on the 1st day of each month in respect of the
current month. The first payment shall be made on the date of
commencement of the Period of Lease.
12.3 In every case that the first day of the month is a non-working
day (Saturday, Jewish holiday, etc.) the payment shall be
deferred to the first working day following the non-working day.
13. PAYMENT OF RENTALS ON DUE DATE:
Every payment of rentals for which the Lessee is liable in accordance
with the provisions of this Agreement shall be effected at the time
specified for it and not later than such time. The dates of payment
of the rentals specified in this Agreement, and other payments the
Lessee is obliged to pay pursuant to this Agreement, are basic and
fundamental conditions and a delay in the execution thereof shall
constitute a material breach of the Agreement. Notwithstanding the
foregoing, a default of up to 7 days will not be deemed to be a breach
of this Agreement, but will bear interest at the rate customarily
charged at Bank Leumi le-Israel B.M. in respect of debit balances in
current business accounts.
If no due date for payment has been fixed in this Agreement, the
payment shall be effected at the date prescribed for payment thereof
according to law (if a legal provision exists) or within seven (7)
days after the Lessor's first demand.
14. MANNER OF COLLECTION OF RENTALS:
14.1 For the ease of collection and as security for payment of the
rentals, the Lessee shall, at the time of signing of this
Agreement, and each two years thereafter, deliver to the Lessor
duly stamped non-negotiable promissory notes.
14.2 The number of promissory notes shall be 24, with each note being
for the amount of the monthly rentals, so that on each occasion
promissory notes will be given in respect of rental payments for
a period of two years.
14.3 The promissory notes shall be delivered to the Lessor after all
the details have been completed therein.
14.4 Two months prior to the end of the lease period of two years in
respect of which promissory notes as referred to in this Clause
14 have been given, the Lessor shall deliver to the Lessee 24 new
promissory notes, and so on and so forth until the end of the
Period of Lease.
14.5 The Lessor will be entitled to fill in on each promissory note
any particular which is missing therefrom, and the Lessee waives
any allegation with regard to the completion of such particulars.
14.6 To the extent that the Lessee is requested by the Lessor to do
so, the Lessee undertakes to sign a standing instruction to debit
its bank account in respect of the payment of rentals, and will
do so within 14 days from the date on which the Lessor's request
as aforesaid is delivered to it. In such event the promissory
notes which have not yet been paid will be returned to the Lessee
on the date on which the first payment is effected pursuant to
the standing instruction.
15. DEFAULT IN PAYMENTS, REMEDIES AND RELIEF:
Without this being construed as acquiescence on the part of the Lessor
to the late execution of any payment for which the Lessee is liable under
this Agreement, any payment the Lessee is obliged to pay to the Lessor in
accordance with this Agreement, including payments imposed on the Lessee
which the Lessor has paid in lieu of the Lessee, and which are not paid to
the Lessor on due date, shall be governed by the provisions set forth
below:
15.1 Without derogating from the Lessor's rights to any other and/or
additional remedy pursuant to this Agreement and/or according to
any law, the Lessee will be obliged to pay the Lessor, as an
addition to a refund of the principal payment, interest at a rate
of 150% of the maximum interest which Bank Leumi le-Israel B.M.
would, on the date of actual payment, charge a non-preferred
customer for unauthorized excesses on overdrafts on business
accounts, with this being in respect of the entire delay in the
payment of the rentals, including V.A.T., and any other payment
the Lessee may owe the Lessor pursuant to the provisions of this
Agreement, and on the costs of collection which will be added
thereto, all reckoned from the date of commencement of the
default and up to the date of actual payment.
15.2 If the payment imposed on the Lessee is monetary compensation
(agreed or awarded) in respect of the Lessor's damages resulting
from a breach of any of the conditions of this Agreement, the
interest specified in Clause 15.1 above will be added to the
amount of compensation from the date of demand for the
compensation and up to the date of actual payment.
15.3 Without prejudice to anything stated in this Agreement and
without this constituting any form of permission to the Lessee
and/or a waiver and/or acquiescence on the part of the Lessor, in
the event that the Lessee has not paid any payment of rentals or
other payment pursuant to this Agreement within 14 days from the
due date for settlement thereof, this will be deemed to be a
proposal by the Lessee to the Lessor to terminate this Agreement.
The Lessor shall be entitled, but not obliged, to agree to such
proposal to terminate the validity of this Agreement, and it may
accept the aforesaid proposal at any time within 3 months from
the date of the breach.
The acceptance of the proposal by the Lessor shall not release the
Lessee from any of its obligations pursuant to this Agreement, and the
Lessor's consent shall not legitimize the non-payment or have the
effect of discharging the Lessee from the payment or to constitute a
breach (acceptance) of the Lessee's breach of the Agreement. Non-
payment as aforesaid shall under all circumstances constitute a
material breach of this Agreement.
15.4 Should a party to this Agreement commit a material breach of the
Agreement, then in addition to any other and/or additional remedy
pursuant to this Agreement (including other agreed compensation)
and/or according to any law, which is available to the aggrieved
party, the defaulting party shall pay the aggrieved party agreed
pre-estimated liquidated damages in an amount which has been
assessed in advance by the parties as being reasonable and as
properly reflecting the damages of the aggrieved party which can
be contemplated at present, after the parties have given serious
consideration to the matter, in an amount equivalent to six (6)
months rentals plus linkage differentials and V.A.T. of this
Agreement. The parties hereby waive any allegation regarding the
extent of the agreed damages and hereby waive in advance an
allegation regarding the extent of the agreed damages and any
argument regarding the need to mitigate same.
15.5 Should the Lessee make payments on behalf of the Lessee (sic! u
the Lessor) the obligation for payment of which is imposed
pursuant to this Agreement on the Lessor, and which the Lessor
has not repaid to the Lessee within 14 days from the date of
sending to the Lessor of a reasoned demand for payment,
accompanied by proof with regard to payment of the amounts and
the reason for same, the Lessor shall pay the Lessee in addition
to repayment of the principal amount of the payment, [interest]
at a rate of 150% of the maximum interest which Bank Leumi le-
Israel B.M. charges a non-preferred customer, on the date of
actual payment, in respect of unauthorized overdrafts on a
current business account. Notwithstanding the foregoing, it is
expressly recorded that the Lessee will not be entitled to effect
payment for the Lessor without the Lessor's consent, unless the
payment is made in order to remove an immediate and urgent
obstacle which does not allow the operation of the Lessee's
business in the Leased Premises, or which adversely affects the
Lessee's ability to operate its business in a normal and
reasonable manner. It is further clarified that the Lessee will
under no circumstances be entitled to set off amounts it has paid
on behalf of the Lessor as stated in this clause against the
payments due to the Lessor from the Lessee in accordance with the
provisions of this Agreement.
16. OTHER PAYMENTS FOR WHICH THE LESSEE WILL BE LIABLE:
In addition to all the other payments set forth in this Agreement, the
following payments shall be borne and paid by the Lessee, on due date,
during the Period of Lease:
16.1 All the taxes, fees, municipal rates, levies, municipal and
governmental (if imposed), current or one-time, that are imposed
on the Leased Premises, directly or indirectly, as same apply at
present or as may apply in the future (hereinafter: "COMPULSORY
PAYMENTS"), which by their nature are imposed on an occupier.
For the avoidance of doubt it is clarified that the Lessor shall
bear Compulsory Payments which, by their nature are imposed on
owners, lessors and ownership only, as distinct from an occupier,
tenant or user.
Where such payment is imposed in respect of a whole year only
part of which falls within the scope of the Period of Lease, the
Lessee will pay a pro rata share of the aforesaid payment. The
aforesaid payment shall be paid by the Lessee on the date
according to law at which same requires to be paid to the
authorities.
16.2 All the payments and expenses in respect of the supply of
electricity, water, gas and telephone to the Leased Premises, and
any other payment of such type, which may apply in respect of the
current use of the Leased Premises.
16.3 All the taxes and payments which will be due to the municipality
and/or local authority and/or government and/or industrial zone
administration (and/or any other administrative body) and/or any
other body in respect of the business which the Lessee will
operate and/or conduct in the Leased Premises, including, but
without derogating from the generality of the foregoing, business
tax, signboard tax and license fees for the business and the
conduct thereof.
16.4 All the payments required in order to obtain permits for
signboards and all the taxes and fees which are imposed in
consequence of the hanging of signboards.
16.5 The provisions of Clauses 16.1 - 16.4 above shall also apply to
parts of the Building and/or the Land intended for use of all the
tenants in the Building and/or the majority thereof (even if they
are within the areas of other parts of the Building and/or the
Land which have been let to a third party) including land, roofs,
stairwells, courtyards, elevators, bomb-shelters and so forth
(hereinafter: "THE COMMON PROPERTY"). The Lessee's share in the
payment in respect of the Common Property pursuant to sub-clauses
16.1 u 16.4 will be according to the ratio between the [area of
the] Leased Premises and the total area of the Building.
16.6 All payments and demands which may be due and/or may be lawfully
demanded by the Investment Center attached to the Ministry of
Trade and Industry and/or any entity in connection with the
maintaining by the Lessee of an approved industrial enterprise in
the Leased Premises.
16.7 The Lessee undertakes to exhibit to the Lessor once each year,
upon the Lessor's request, all the receipts or certificate
testifying to the fact that the payments imposed on the Lessee
pursuant to this Agreement have indeed been paid by it on due
date. Non-payment on due date of any payment imposed on the
Lessee, pursuant to this Clause 16, will constitute a breach of
the Agreement.
16.8 Where one party to the Agreement has, for any reason, paid any
payment which, according to the provisions of this Agreement is
imposed on the other party, the other party will be obliged to
refund to the paying party any amount which may be paid by the
paying party as aforesaid, immediately upon the latter's first
demand.
16.9 The Lessee shall, for the Period of Lease and for that period
only and so long as this Agreement is in force, transfer into its
name and for its account, the employers tax account, and the
electricity, telephone, gas and water meters and the municipal
rates.
17. CONSTRUCTION OF THE BUILDING AND ALTERATIONS THERETO:
17.1 17.1.1 For the avoidance of doubt it is hereby clarified that
development works in the Land have not yet been
performed by the authorities and/or any third party.
17.1.2 The Lessor and the Lessee declare that the Building to
be constructed in accordance with the specification
referred to in Clause 17.1.3 below cannot be put into
operation except after receipt of approvals from the
authorities and compliance with their demands.
17.1.3 Without prejudice to the generality of the foregoing,
the Lessor undertakes to complete the construction of
portion of the Leased Premises the construction of
which is imposed on the Lessor and portion of the
Building the construction of which is imposed on it, in
accordance with Appendices A u C to this Agreement,
itself and/or through third parties, subject to any
approval and/or permit and/or other condition required
according to law and to cause a situation that
construction of the Leased Premises the construction of
which is imposed on it and portion of the Building the
construction of which is imposed on it, as described in
Appendices A u C to this Agreement, will be completed
and the actual possession of the Leased Premises will
be delivered to the Lessee by not later than August 1,
1996 (hereinafter: "DATE OF DELIVERY OF OCCUPATION").
Should the Lessee commence operating its production
lines in the Leased Premises on an earlier date
earlier, the Date of Delivery of Occupation will, for
purposes of payment of the rentals and the other
payments imposed on the Lessee under this Agreement, be
brought forward to the date of commencement of
operation of the Lessee's production lines in the
Leased Premises, provided that there is no legal bar
thereto which does not stem from an act or omission on
the part of the Lessor, and subject to Clauses 17.1.4
and 17.4 below.
It is agreed and declared between the parties that
failure to complete items which do not prevent the
reasonable use of the Leased Premises will not be
deemed to be a breach of this clause and will not be
deemed to be grounds for postponing the acceptance of
the Leased Premises by the Lessee.
17.1.4 If one or more of the events mentioned below should
occur, the date of delivery will be postponed for a
period corresponding to the duration of the event
and/or the results thereof which prevent the
continuation of the work (hereinafter: "PERIOD OF
PREVENTION"). The Lessee will not be entitled to any
compensation from the Lessor in respect of a delay in
the delivery of the Leased Premises and this will not
constitute any grounds for the Lessee to cancel this
Agreement. The following are the events:
a. Strike or any nation-wide stoppage of work in the
building industry and/or in the transportation
industry.
b. Stoppage of construction due to an order by any
authority or a court order or the order of a
tribunal, which is not under the control of the
Lessor and which is not due to an act or omission
of the Lessor.
c. A general military call-up which delays the
execution of works for a period exceeding three
months.
d. A state of war and/or hostilities.
e. Earthquake at the building site.
f. Flood which damages the building site.
g. Fire which damages the building site.
h. Any other factor and/or reason over which the
Lessor has no control and which it was unable to
foresee and/or to prevent by reasonable means.
17.1.5 Should the Lessor be late in delivering occupation of
the Leased Premises to the Lessor (sic! u Lessee)
contrary to the contents of this Agreement, or in the
date of giving Lessee permission to enter the Leased
Premises in order to perform adaptation work after July
15, 1996, for a period which shall not exceed 31 days,
the Lessor shall pay the Lessee in respect of each day
of default in delivery, or part thereof, an amount
which will be equivalent to $500 in respect of each day
of default.
The compensation referred to in this sub-clause is
final and absolute compensation and the Lessee will not
be entitled to any other remedy in respect of a default
in the delivery of occupation during the period of 31
days referred to in this clause, except the contents of
sub-clause 17.1.6 below.
Should the Lessor be late in delivery of the Leased
Premises for a period which exceeds 31 days, the Lessee
will be entitled to claim from the Lessor either its
actual damages or the daily compensation in a sum of
500 dollars referred to above in this sub-clause, at
the Lessee's election. For the avoidance of doubt it is
clarified that in the event that the Lessee should
elect the daily compensation specified in this
sub-clause, the daily compensation will also apply
during the period from the 31st day of the default and
up to the date the breach is cured.
17.1.6 Delivery of occupation after August 1, 1996 and the
giving of permission to the Lessee to enter the Leased
Premises to perform the adaptation work therein (in
circumstances where the Leased Premises are ready for
the start of the execution of adjustments and
adaptation) after July 15, 1996, will constitute a
material breach of this Agreement, entitling the Lessee
to cancel the Agreement by way of written notice.
Should the Lessee fail to exercise this right up to the
time the breach is cured, excluding the default, this
will be deemed to be a pardon by the Lessee of such
breach, save and except for the daily compensation
specified in sub-clause 17.1.5.
17.2 In every case in which the Lessee requests the Lessor to effect
alterations and additions to the Leased Premises, over and above
the matters stipulated in Appendices A, B and C, prior to the
start of the Period of Lease, the provisions of Clause 17.2 to
17.4 below will apply:
17.2.1 The Lessee will apply to the Lessor with a written
request for the Lessor to perform alterations for it.
As detailed as possible a specification of alterations
and additions shall be attached to the request
(hereinafter: "THE ALTERATIONS").
17.2.2 The Lessor will be entitled, in its sole and absolute
discretion, to accept the Lessee's request and to
cause, through itself and/or through third parties, the
execution of the Alterations, in whole or in part, at
prices to be fixed by it. The Lessor shall cause the
execution of such Alterations after the Lessee has
confirmed to the Lessor, by its signature, that it
agrees to the prices proposed, and that it agrees to
the estimated time for the performance thereof, which
shall be notified to it by the Lessor.
Without derogating from the generality of the
foregoing, the Lessee declares that it is aware that
the Lessor is likely to restrict its consent to
execution of Alterations in the Leased Premises in a
manner that its total investment in the Building
(including the Alterations) will not exceed the total
grant given to the Lessor by the Investment Center.
17.2.3 The Lessee undertakes to obtain all the approvals and
permits required and/or which may be required from the
competent authorities for purposes of executing the
Alterations.
17.2.4 All the Alterations will, for all intents and purposes,
be deemed to be part of the Leased Premises and will be
the sole property of the Lessor without any
consideration being given by the Lessor, and the fact
that they will be left with the Lessor shall not be
construed and shall not be deemed under any
circumstances to be payment of key money or a
contribution.
17.2.5 The Lessee shall furnish the Lessor with a security
note to secure the payment referred to in Clause 17.3.2
below, together with the application for execution of
the Alterations.
17.2.6 Nothing contained above in this clause shall prevent
the Lessor, in its sole discretion, from stipulating
and demanding additional conditions as a pre-condition
for granting its consent to execute the Alterations.
17.3 17.3.1 Where the Alterations mentioned in Clause 17.2 have
been executed, the rentals (as referred to in Clause 9
above) will be changed and will increase by a rate of
10.0% (ten percent) per annum of the price fixed as the
price for executing the Alterations in accordance with
the provisions of Clause 17.2.2 above. The Lessee
shall furnish the Lessor with updated promissory notes
in accordance with the provisions of Clause 14 above.
17.3.2 At the end of the Period of Lease, the Lessee shall pay
the Lessor the price fixed as the price for executing
the Alterations, together with linkage differentials to
the index from the date of ordering the work and up to
the date of actual payment, less the payments which
have been paid as stated in Clause 17.3.1.
17.4 In the event that execution of the Alterations referred to in
Clause 17.2 above should cause a postponement in the date
specified in this Agreement for delivery to the Lessee of the
Leased Premises, as stated in Clause 17.1 above, the Lessee will
pay the Lessor the rentals and the remaining payments imposed on
it pursuant to this Agreement, commencing from the date which was
intended for delivery of the Leased Premises to the Lessee, as if
the Lessee had actually received occupation of the Leased
Premises. In addition, the Lessee will not be entitled to
compensation in respect of non-delivery of the Leased Premises on
due date.
17.5 17.5.1 The Lessee is not entitled to make any external change
and/or to add any constructional addition to the Leased
Premises or to the yard which belongs to the Leased
Premises or to the Land, nor to demolish parts thereof,
not to install or to remove electrical, water, sewerage
and any other type of installations (hereinafter: "THE
ADDITIONS AND CHANGES").
17.5.2 Should the Lessee wish to perform any of the matters
mentioned in sub-clause 17.5.1 above, it shall apply to
the Lessor to obtain the Lessor's prior written
consent. The greatest possible amount of detail shall
be set forth in the request describing what the
requested Additions and Changes are.
17.5.3 If the Lessor has acceded to the Lessee's request as
mentioned in sub-clause 17.5.2 above, the following
provisions will apply:
a. All the expenses in respect of the Additions and
Changes shall be borne by the Lessee.
b. The Lessee undertakes to obtain all the approvals
and permits which are required and/or which may be
required from the competent authorities, at its
expense.
c. The Lessor is entitled, in its sole discretion, to
instruct the Lessee as to whether the Additions and
Changes will remain, in whole or in part, after the
Lessee has left, or that the Lessee must restore
the Leased Premises to their condition prior to the
effecting of the changes. The Lessee will be
entitled to remove from the Building all the
movables it has brought into the Building.
d. Without prejudice to the contents of Clause
17.5.3(c) above, any Change or Addition to the
Leased Premises, whether to the Building, to the
yard or to the Land, shall for all intents and
purposes be deemed to be part of the Leased
Premises, and will be the sole property of the
Lessor without any consideration from the Lessor,
and the fact that they will be left in the
possession of the Lessor shall not be deemed to be
payment of key money or as a contribution.
e. The Lessor undertakes to indemnify the Lessee in
respect of any damage which may be caused to the
Leased Premises and/or to the Lessee by virtue of
the execution of the changes and alterations by the
Leased Premises (sic! u Lessor).
f. Nothing in the foregoing shall prevent the Lessor
from stipulating additional conditions for giving
its consent pursuant to sub-clause 17.5.2 above.
g. The contents of the sub-clauses of this sub-clause
17.5.4 shall also apply to internal alterations
(the execution of which does not require the issue
of a building permit) in the Leased Premises for
the execution of which the Lessee is not obliged to
obtain the Lessor's permission.
17.5.4 a. The Lessor declares that the Lessee has requested
the execution of Additions and Changes prior to
delivery of occupation of the Leased Premises as
stated in Clause 17.1.3 above, for purposes of
adapting the Leased Premises to the Lessee's needs,
and that the Lessor has agreed and does agree to
the changes which have been conveyed to it by the
Lessee (hereinafter in this sub-clause 17.5.4 u
"THE ADJUSTMENTS"), and that without derogating
from the generality of the contents of Clauses
17.5.2 and 17.5.3 above, the Lessee will be
entitled to enter the Leased Premises commencing
from April 1, 1996, for purposes of performing the
Adjustments by it, in a situation that the Leased
Premises are ready for the commencement of
execution of the Adjustments as described in
Appendix A to this Agreement.
Should the due date for delivery of occupation, as
set forth in sub-clause 17.1.4 above, be postponed,
the date specified above shall be postponed by a
period equivalent to the duration of the
postponement.
b. For the avoidance of doubt it is hereby clarified
that the Lessor's consent to the execution of the
Adjustments by the Lessee shall not confer any
right in the Leased Premises on the Lessee,
including, and without derogating from the
generality of the foregoing, the fact that the
Lessee will not be entitled to operate the Leased
Premises, and the status of the Lessee up until
delivery of occupation of the Leased Premises as
stated in Clause 17.1.3 above, shall be that of a
licensee only.
c. Subject to the condition that the Leased Premises
will be delivered to the Lessee by not later than
April 1, 1996, as prescribed in the appendices to
this Agreement, the Lessee will pay the Lessor the
rentals and the remaining payments imposed on it
pursuant to this Agreement, commencing from the
date of delivery of occupation, as though it has
received the Leased Premises into its actual
possession.
In addition, the Lessee will not be entitled to
receive compensation in respect of the non-delivery
of the Leased Premises on due date.
18. ALTERATIONS WITHOUT THE LESSOR'S CONSENT
18.1 Should the Lessee make changes without the Lessor's consent, then
without this constituting consent on the part of the Lessor to
the execution thereof, and without prejudice to the Lessor's
remaining rights and remedies available to it pursuant to this
Agreement and/or according to law, the Lessor may, in its sole
discretion, instruct the Lessee to remove same, in whole or in
part, within a time to be specified by the Lessor, or may
instruct that the changes and additions shall remain, in whole or
in part, after the Lessee leaves, or may instruct the Lessee to
restore the Leased Premises to the condition in which they were
prior to the execution of the changes, or may hold the Lessee
liable for the cost of restoring the Leased Premises to the
condition in which they were prior to the execution of the
changes.
18.2 Without derogating from the contents of Clause 18.1 above, any
change or addition to the Leased Premises will be the sole
property of the Lessor, without any consideration by the Lessor,
and the fact that they are left in the possession of the Lessor
shall not be construed as payment of key money or as a
contribution.
18.3 Without prejudice to the foregoing, where the Lessee has made
additions and/or changes, without the Lessor's prior written
consent, the Lessor may, in its sole discretion, prevent the
execution of the change or the addition at any time, and may
remove or demolish any change or addition or part thereof, all at
the Lessee's expense.
18.4 The Lessee will be entitled to install a commercial signboard/s
in the Leased Premises, subject to prior coordination and receipt
of the Lessor's prior consent with regard to the size thereof and
the location of the signboard/s, and subject to obtaining all the
requisite permits.
19. NON-RELIANCE ON PROMISES
The Lessee confirms that it has taken the Leased Premises on hire
generally, and for the purposes of the lease in particular, on the
strength of its own inspections, and on its responsibility, and
without having relied on representations and/or promises from the
Lessor, save and except the representations expressly mentioned in
this Agreement. The Lessee hereby releases the Lessor from all
responsibility to the Lessee in connection with the letting of the
Leased Premises and the possibility of operating the Lessee's business
therein, and hereby waives any allegation and claim in connection
therewith as against the Lessor.
20. INSURANCE
20.1 Insurance by the Lessor:
20.1.1 The Lessor shall procure a policy/ies for the insurance
of the Building which will cover the Leased Premises
against all the possible risks, including perils of
fire, explosion, electricity, earthquake, malicious
damage, civil commotion, strikes, xxxxx, xxxxxxx, flood
and water damage, breakage and burglary, aircraft,
impact and extensions to third party insurance risks
and insurance of loss of income (loss of rentals), all
in the Lessor's sole discretion. The Lessee hereby
agrees that the policies will contain provisions with
regard to a waiver by the insurance company of a right
of subrogation against the Lessor and/or the Lessee or
any of their employees.
The insured and the beneficiary under the policy will
be the Lessor. The sum insured will be an amount which
is not less than the value of the Building, in the
Lessor's sole discretion, and the same shall apply with
regard to the value of the other risks insured.
20.1.2 The Lessee shall pay the Lessor such amount as the
Lessor will pay as an insurance premium in respect of
the policy mentioned in this clause, within seven (7)
days from the time the Lessor's demand is served on it.
In the event that the Lessee is able to procure an
insurance policy providing identical insurance cover to
the policy chosen by the Lessor, the premium for which
is cheaper by more than 10% than the premium pursuant
to the policy chosen by the Lessor, insurance of the
Building shall be effected under the cheaper policy,
all subject to the condition that there are no doubts
with regard to the solvency of the cheaper insurer.
20.1.3 The policy shall be renewed and/or a new policy shall
be procured by the Lessor, at the end of each year of
lease, and the Lessor shall be entitled to update the
amounts of the policy in its sole discretion, and the
provisions of sub-clause 20.1.2 shall apply each time
the policy is renewed and/or a new policy is taken out.
20.2 Insurance by the Lessee:
Without derogating from the Lessee's responsibility pursuant to
this Agreement and according to any law, the Lessee shall effect
and maintain throughout the entire Period of Lease, the following
insurances with a duly authorized and reputable insurance
company.
20.2.1 Property insurance which covers the contents of the
Leased Premises and the business and operations of the
Lessee in the Leased Premises, at their full value, on
a basis that the insurance values will be updated from
time to time in accordance with the value of the assets
insured, including inventory, furniture, equipment,
installations and systems which serve the Leased
Premises and/or are owned by the Lessee (whether within
the area of the Leased Premises or outside it), as well
as any repair, alteration, improvement, renovation and
addition to the Leased Premises which may be made by
the Lessee, against all the risks, including loss or
damage as a result of fire, smoke, lightning,
explosion, earthquake, storm and tempest, flood, civil
commotion, strikes and malicious damage, damage by
vehicles, damage by aircraft, accidental damage,
breakage of glass, mechanical breakdown, damage by
liquids, and burglary.
20.2.2 Insurance of consequential damage and loss of profits
to the Lessee, at the full value thereof, as a result
of a loss or damage to the property of the Lessee
and/or to the Leased Premises, against all the risks
mentioned in Clause 20.2.1 above.
20.2.3 Third party liability insurance which covers the
Lessee's liability in respect of any bodily damage
and/or injury and/or damage to property of any person
and/or any entity, including to customers, to visitors
and to any other third party, which are caused due to
the occupation of the Leased Premises and the use
thereof by the Lessee, with limits of liability of not
less than $1,000,000 (one million dollars).
The insurance will not be subject to any limitation
with regard to liability arising from fire, explosion,
panic, hoisting, loading and off-loading apparatus,
defective sanitary installations, and claims by the
National Insurance Institute.
20.2.4 Employers liability insurance with the maximum standard
limits of liability as are customary at the time the
insurance is effected or at the time of the renewal
thereof, but not less than $1,000,000 (one million
dollars), which covers the Lessee vis-a-vis its
employees and/or persons engaged by it or on its behalf
in connection with any physical damage or death caused
to them in the course of and as a result of their
employment.
Such insurance shall not be subject to any limitation
with regard to contractors, sub-contractors and their
employees or the employing of juveniles.
20.2.5 Contractors insurance in connection with all the
renovation and adjustment work which will be performed
in the Leased Premises, if same are to be performed by
the Lessee, which shall include third party liability
in limits of liability of not less than $500,000 (five
hundred thousand dollars) per plaintiff, and employers
liability insurance with limits of liability as
mentioned in Clause 20.2.3 above. The insurance shall
expressly contain cover for damage caused to nearby
property and to property on which work is being done.
20.3 The following provisions shall apply to the insurance policies to
be taken out by the Lessee:
20.3.1 In all the policies mentioned in Clause 20.2 above, the
Lessor shall be an insured jointly with the Lessee, and
it shall be expressly mentioned that the insurer waives
any rights of subrogation as against the Lessor and/or
the management company, if any, except in respect of
damage maliciously caused by them.
(8644)
20.3.2 The insurance effected pursuant to Clause 20.2.3 shall
be extended to indemnify the Lessor and/or the
management company in respect of liability for the
Lessee's acts and/or omissions, subject to a cross-
liability clause pursuant to which the insurance will
be deemed to have been effected separately for each of
the individual parties who make up the insured.
20.3.3 The Lessee's insurance policies shall contain an
express provision to the effect that they rank ahead of
any insurance effected by the Lessor and/or by the
management company (if any).
20.3.4 The Lessee's insurance policies shall contain an
express provision to the effect that the insurance
cover pursuant thereto will not be reduced and will not
be canceled during the Period of Lease without the
Lessor being given notice to that effect by registered
mail at least 30 days in advance.
20.3.5 The Lessee undertakes to update the sum insured in the
insurance policies effected pursuant to Clause 20.2.1
above, from time to time, so that it reflects the real
value of the insured property, and to comply
meticulously with all the provisions of the policies
and to pay the premiums on due date.
20.3.6 The Lessee shall furnish a certificate from its insurer
confirming that the Lessee's insurance policies have
been effected prior to opening its business in the
Leased Premises, as well as a certificate regarding the
updating and extension of the insurance policies in
advance of the end of each year of insurance during the
Period of Lease.
20.3.7 The Lessee hereby releases the Lessor and/or anyone on
the Lessor's behalf from any liability for loss and/or
damage in respect of which the Lessee is entitled to
compensation and/or indemnity in accordance with the
insurance policies described above.
21. ABSENCE OF UNDERTAKING FOR REINSTATEMENT OF THE LEASED PREMISES OUT OF
THE INSURANCE COMPENSATION
The Lessee confirms that the Lessor has expressly notified it that
upon the occurrence of an insurance event to the Leased Premises
and/or part thereof, the Lessor does not undertake to reinstate the
Building.
22. LIABILITY FOR DAMAGE:
22.1 The Lessor will not bear any liability, and in particular nothing
contained in this Agreement shall impose liability of any sort on
the Lessor, for bodily damage and/or damage to the property of
the Lessee, its employees, representatives, visitors, invitees
and/or any third party, which may be caused in the Leased
Premises, in the common property (as defined in Clause 16.5
above), in the surrounds thereof, on the way to the Leased
Premises, whether same is caused in connection with the
occupation of the Leased Premises and/or the use and/or non-use
thereof and/or by and/or in connection with the operation or non-
operation of the Lessee's business (partially or completely), or
due to any other reason, except a negligent or willful act or
omission on the part of the Lessor which is not covered by the
insurance policy.
22.2 "The Lessor" in this clause includes the Lessor, its employees,
agents, emissaries and anyone acting on its behalf, and none of
such parties will be responsible for damage of any sort as
mentioned in Clause 22.1 above.
22.3 The Lessee hereby assumes full responsibility in respect of any
form of damage as described in Clause 22.1 above, and it will
bear full liability for all the damages described above, and
without derogating from the generality of the foregoing, for any
damage caused to the Leased Premises, save and except for damage
which may be caused as a result of the Lessor's acts and/or
omissions.
22.4 The Lessee undertakes to indemnify the Lessor and to hold the
Lessor harmless in respect of any claim, obligation, expense,
damage or loss which may be incurred by the Lessor in connection
with or in respect of claims or demands as aforesaid, including
court costs and attorney's fees. The Lessor shall notify the
Lessee within 7 days from the date of receipt of the claim by it
and will allow the Lessee's attorney to represent the Lessor in
the claim.
23. USE OF THE LEASED PREMISES
Without prejudice to the force and effect of the remaining provisions
of the Agreement, the Lessee undertakes:
23.1 To use the Leased Premises solely for the purpose of the lease
and not for any other purpose. Use of the Leased Premises for a
purpose which differs from the aforesaid purpose shall constitute
a material breach of this Agreement.
23.2 To maintain the cleanliness of the Leased Premises and the common
property, as defined in Clause 16.5 above, and not to place food
products, tools, crates, articles, junk and other movables
outside the Leased Premises, and not to cause any nuisance,
disturbance and unpleasantness for persons in or visiting the
region in which the Leased Premises are located, and to be
responsible to the governmental and municipal institutions and
authorities for the payment of any fines as a consequence of the
non-compliance with the provisions of this clause.
23.3 At its expense to comply with all provisions of the law,
regulations or requirements which may be issued by the competent
authorities in connection with the use of the Leased Premises and
the common property as defined in Clause 16.5 above, including
compliance with all the sanitation and hygiene directives and/or
which are connected with the environment and the prevention of
nuisances.
23.4 To conduct the work solely within the confines of the Leased
Premises, in a manner which does not constitute a public nuisance
or disturbance to neighbors and to the environment.
23.5 For purposes of access to the Leased Premises to make use solely
of the proper ways of access that exist at present and will exist
in the future, to park cars and transportation vehicles at the
places designated for that purpose, and not to make use of any
motorized or other vehicle likely to damage ways of access and
parking surfaces.
23.6 To make prompt and exact payment of all the payments due from it
to the Lessor and/or to the competent authorities, on the dates
specified for the payment thereof.
23.7 To allow the Lessor and/or its representative to visit the Leased
Premises at any reasonable time, and to inspect the condition
thereof and the use being made thereof, in order to ascertain the
extent to which the provisions of this Agreement are being
fulfilled and/or in order to perform the operations and take the
steps stipulated in this Agreement or in any law, which
necessitate entry into the Leased Premises.
23.8 To comply with the directives of the Lessor and/or directives of
the competent authorities connected with fire fighting
arrangements and procedures and the prevention of fires, the
Civil Guard, safety and security, and at its expense and in
accordance with the instructions of the above-mentioned entities,
to purchase any preventive equipment and safety equipment
required for the implementation and the maintaining of the
aforesaid directives, save and except for fire hoses and Civil
Guard installations which are demanded from the Lessor at the
time of construction of the Building pursuant to the approved
plans for the Building in accordance with the adaptation thereof
for the Lessee.
24. MAINTENANCE AND REPAIRS
24.1 The Lessee undertakes to make careful and reasonable use of the
Leased Premises and diligently to see to it that, throughout the
entire Period of Lease, the Leased Premises and all the
installations connected thereto, are in good and proper order,
operative, tidy and clean.
24.2 Without prejudice to the foregoing, the Lessee shall promptly and
at its expense repair any damage or fault which may occur during
the time the Lessee is in the Leased Premises and/or to any other
installation connected in any manner with the Leased Premises,
and in particular, but without derogating from the generality of
the foregoing, any impairment to the external sides of the Leased
Premises, which shall be repaired by and at the expense of the
Lessee, within seven (7) days from the date on which it occurs,
unless the repair requires a longer period of time. The
foregoing shall not apply to damage the repair of which is
imposed on the Lessor as stated in sub-clause 24.4 below.
24.3 Should the Lessee fail to comply fully with its obligation
pursuant to Clauses 17.1 and 17.2 above, the Lessor will be
entitled (but not obliged) itself to perform the maintenance and
the repairs imposed on the Lessee, and the Lessee shall refund to
the Lessor all the expenses incurred by the Lessor for such
purpose, immediately upon the Lessor's first demand and in
accordance with the details set forth in such demand. The Lessee
shall allow the Lessor and/or its representatives to enter the
Leased Premises so as to perform the aforesaid repairs, but
nothing contained in this sub-clause shall in any way derogate
from the Lessee's obligation to perform the repairs in the Leased
Premises itself.
24.4 The Lessor shall repair damages which are due to reasonable wear
and tear to parts of the Leased Premises, and the Building which
has been constructed by the Lessor, and only such repairs, within
a reasonable time from the date it was notified thereof by the
Lessee in writing, including check-up period repairs and warranty
repairs. Repairs which are not of an urgent nature during the
check-up period will be carried out at the end of that period.
24.5 Should the Lessor fail to comply fully with its obligation
pursuant to Clause 24.5 (sic! u 24.4) above, the Lessee will be
entitled, but not obliged, itself to perform the repairs imposed
on the Lessor, and the Lessor shall refund to the Lessee all the
expenses incurred by the Lessee for such purpose, immediately
upon the Lessee's first demand, and in accordance with the
matters set forth in such demand.
25. PROHIBITION ON TRANSFER OR ENCUMBRANCE OF RIGHTS OR REGISTRATION
25.1 The Lessee will not be entitled to make over and/or lease out the
Leased Premises, or any portion thereof, and/or to transfer its
right in the Leased Premises or any part thereof and/or to allow
others to make use of the Leased Premises, or any part thereof,
and/or to make any person a party to the occupation of the Leased
Premises and/or the use thereof and/or any benefit therefrom,
without obtaining the Lessor's prior written consent. The Lessor
will be entitled, on any reasonable grounds, to refuse the
transfer or letting or encumbrance of any right conferred on the
Lessor (sic!), in its sole discretion, but in cases in which the
sub-tenant is an approved industrial enterprise the approved
program of which includes the hiring of a property of the same
type as the Leased Premises, and the operation of which will not
cause any environmental or ecological damage or nuisance, the
Lessor will agree to the sub-lease. In such event the Lessee
will remain bound to the Lessor in respect of all its obligations
pursuant to this Agreement.
25.2 The Lessee's rights pursuant to this Agreement, in whole or in
part, may not be encumbered or pledged in any manner whatsoever,
or with any ranking of priority.
26. LICENSING AND LICENSES
26.1 The Lessor is not responsible to the Lessee for obtaining
licenses or approvals from the competent authorities, which are
required for the operation and conduct of the Lessee's business
in the Leased Premises. Under no circumstances shall the letting
of the Leased Premises to the Lessee and/or the execution of
Alterations to the Building be deemed to be a declaration or
representation on the part of the Lessor to the effect that the
Lessee will be granted licenses for operating the Leased Premises
for the purposes of the lease.
The Lessee hereby undertakes to obtain any license it requires
and to see to it that its business is conducted in accordance
with the license required by any municipal, governmental, local
or other authority, all as the case may be. Should an order
prohibiting use be issued against the Lessee's business in the
Leased Premises, the Lessee shall forthwith cease the prohibited
use.
26.2 The Lessee shall, throughout the Period of Lease, attend to the
renewal of the licenses and the approvals which are acquired, so
that the operation of the Leased Premises and the work therein
shall be carried out in accordance with the provisions of any law
pertaining thereto and in accordance with the terms and
conditions of any license and/or directives and/or regulations
which may be issued from time to time by any competent authority
in relation to or in connection with the business conducted in
the Leased Premises.
26.3 Should the Lessee fail to commence its operations at the time of
delivery of occupation, inter alia for the reason that it has not
obtained a license required pursuant to this clause above, all
the provisions contained in this Agreement shall apply to the
Lessee and the failure to obtain such license shall not
constitute a reason for the breach of any of the Lessee's
obligations.
26.4 In the event that any competent authority has made the issue of
the license for the operation of the Lessee's business in the
Leased Premises conditional upon the execution of alterations
within the Leased Premises, the Lessee shall be obliged to
request the Lessor's prior consent to the execution of any such
alteration. The Lessor may agree or not agree to any such
alteration. If the Lessor does agree to the alteration, same
shall be performed by the Lessee at its expense under conditions
stipulated by the Lessor, to the extent that such conditions were
stipulated.
26.5 The Lessee hereby declares that it is conversant with its
business and the conditions for the licensing thereof, and that
prior to its signing this Agreement it was given the opportunity
of examining, and that it did in fact examine, the suitability of
the Leased Premises to the purpose of the lease and the
possibility of obtaining a license or licenses which are required
for operating the purpose of the lease in the Leased Premises as
it stands, and that it found the Leased Premises to be suitable
for the purposes of the lease. The foregoing shall apply
provided that the Lessor has not breached any of the conditions
of the building permit and that for that reason the issue of the
license to the Lessee was prevented.
27. EARLY VACATION
27.1 If the Lessee should leave the Leased Premises prior to the end
of the Period of Lease without the Lessor's express prior written
consent, this will constitute a material breach of this
Agreement. In such event and also in the case of the Lessee
vacating the Leased Premises at the Lessor's request as a result
of the cancellation of the Lease Agreement by the Lessor by
virtue of a breach of the Agreement on the part of the Lessee,
then and in that event the Lessee shall pay the Lessor the
monthly rentals and all the remaining payments for which it is
liable pursuant to this Agreement (hereinafter: "THE PAYMENTS")
until the end of the Period of Lease, as if it had continued to
occupy and to use the Leased Premises.
27.2 If the Lessor has let the Leased Premises to another tenant after
the Lessee's leaving, the Lessee shall be released from paying
the Lessor the Payments referred to in Clause 27.1 above to the
Lessor commencing from the date of commencement of the Period of
Lease of such other tenant, but under no circumstances shall the
period for which the Lessee shall pay rentals, which it would
have been obliged to pay to the Lessor had it continued to occupy
the Leased Premises, be less than an additional six (6) months,
with this being as cover for the Lessor's minimum damages that
can be contemplated at present by virtue of vacation of the
Leased Premises within the scope of a breach of this Agreement,
the non-operation of the Leased Premises and the necessity for
finding a substitute tenant.
Without prejudice to the foregoing, if the Lessor has let the
Leased Premises to another tenant for a period and/or at rentals
which are lower than those specified in this Agreement, the
Lessee will continue to pay the Lessor the difference between the
lower rentals which will be payable to the Lessor by the other
tenant, during the entire remainder of the Period of Lease
pursuant to this Agreement.
27.3 The Payments mentioned in Clause 27.1 and 27.2 will be deemed to
be agreed pre-estimated liquidated damages, which properly
reflect the Lessor's damages that can be foreseen at present, and
they shall in no way derogate from the Lessor's right to claim
from the Lessee any other remedy available to the Lessor
according to law and/or pursuant to the provisions of this
Agreement, and no allegation shall be entertained that the agreed
damages pursuant to this clause derogate from the Lessor's right
to any additional and/or other remedy and/or that the agreed
damages are high and should be reduced.
27.4 In the event of the cancellation of the Agreement by the Lessor,
such cancellation shall not be deemed to apply to the provisions
of this clause, unless otherwise expressly stated in the notice
of cancellation.
28. VACATION OF THE LEASED PREMISES
28.1 On the occurrence of one of the following events, the Lessee
shall vacate the Leased Premises and restore possession thereof
to the Lessor, in circumstances where the Leased Premises are
free and vacant of any person and article (except equipment and
accessories which belong to the Lessor), and where same are in
good order and condition and intact, save and except for normal
wear and tear due to reasonable use.
28.1.1 The Period of Lease has come to an end on the date
specified in this Agreement u on that date.
28.1.2 The Lease Agreement has been lawfully cancelled as
stated in Clause 29.2 below u on the date of vacation
as specified therein.
28.1.3 The Lessee has committed a breach of this Agreement
which is not a material breach and has failed to cure
the breach after having been given an extension of time
in which to do so, and the Lessor has lawfully
cancelled the Agreement u at the time of vacation
pursuant to Clause 29.3
28.1.4 An event has occurred which pursuant to this Agreement
and/or according to any law makes the Agreement void
and time for vacation of the Leased Premises applies u
within 14 days from the date of such event.
28.2 Should the Lessee be late in vacating the Leased Premises and
restoring possession thereof to the Lessor, contrary to the
provisions of this Agreement, the Lessee shall pay an amount
which will be equivalent to $500 (five hundred dollars) per day
in respect of each day of delay in vacation, or part thereof,
without this prejudicing the Lessor's rights to other and
additional remedies pursuant to this Agreement and/or according
to any law.
28.3 The payment pursuant to Clause 28.2 shall be deemed to agreed
pre-estimated liquidated damages, and as properly reflecting the
Lessor's damages that can be foreseen at present, and no argument
shall be entertained that the agreed damages pursuant to the
aforesaid Clause 28.2 derogate from the Lessor's right to any
other and/or additional relief.
28.4 Should the Lessor obtain grounds for eviction, the Lessor shall
be entitled to employ self-relief, to enter the Leased Premises,
to break the Lessee's locks and physically to evict the Lessee
and its effects, without any responsibility and/or obligation for
safe-keeping being imposed on the Lessor in consequence thereof.
28.5 All the expenses the Lessor may incur for purposes of having the
Leased Premises vacated, including, but without prejudice to the
generality of the foregoing, legal expenses and attorney's fees,
in an amount in real terms (against the presentation of receipts)
shall be borne by the Lessee and shall constitute a debt by the
Lessee to the Lessor.
28.6 In the event of a cancellation of the Agreement by the Lessor,
such cancellation shall not be deemed to apply to the provisions
of the sub-clauses of this Clause 28, unless otherwise expressly
stated in the notice of cancellation.
29. BREACH OF THE AGREEMENT, REMEDIES AND RELIEF:
29.1 Any of the following acts or failures to act will be deemed to be
a material breach of the Agreement by the Lessee, with this being
in addition to any other provision in this Agreement in which it
is stipulated that the breach of such provision constitutes a
material breach of this Agreement:
29.1.1 Default in payment of the monthly rentals, including
the dishonor of a promissory note given in accordance
with this Agreement, for more than 7 days.
29.1.2 A breach of the provisions of Clause 25 above.
29.1.3 The execution of additions and/or alterations to the
Leased Premises contrary to the provisions of this
Agreement, provided that an extension of time has been
given to the Lessee of 14 days in order to cure the
breach, and the Lessee has failed to cure the breach
within such time.
29.1.4 An arrangement with creditors in accordance with
Section 233 of the Companies Ordinance (New Version),
5723-1983, made by the Lessee, the grant of a
provisional and/or permanent order of liquidation
against the Lessee and/or its assets and/or the
appointment of a provisional and/or permanent receiver
for the Lessee and/or its assets and/or the appointment
a provisional or permanent trustee in bankruptcy for
the Lessee, and such proceedings have not been set
aside within 30 days.
29.1.5 The Lessee has operated the Leased Premises other than
for the purposes of the lease or has operated same
and/or made use thereof for other purposes.
29.1.6 Attachments have been imposed on the Lessee's rights in
and to the Leased Premises, and the Lessee has not had
such attachments set aside within 45 days from the date
on which they were imposed.
29.2 Should the Lessee commit such material breach, the Lessor will be
entitled, without prejudice to any other and/or additional remedy
available to it according to this Agreement and/or according to
any law, to cancel the Agreement, and the Period of Lease will
terminate on the date of the Lessor's notice of cancellation.
If no date for vacation is specified in the Lessor's notice, the
date for vacation will be within 21 days from the notice of
cancellation, and the Lessor hereby undertakes to vacate the
Leased Premises accordingly.
29.3 If the Lessee has committed a breach of the Agreement which is
not a material breach, the Lessor may notify the Lessee that if
the Lessee does not cure the breach within a time specified in
the notice, then this Agreement will be null and void, or that
the Lessor will cancel the Agreement in consequence thereof.
Should the Lessee fail to cure the breach within the time
specified by the Lessor in the notice to the Lessee, and the
Agreement has been cancelled, the provisions of Clause 29.2 above
shall apply, mutatis mutandis.
30. GUARANTEES AND COLLATERAL SECURITY
30.1 As security for vacation of the Leased Premises, payment of all
the Payments for which the Lessee is liable, and fulfillment of
all the Lessee's remaining obligations as set forth in this
Agreement, including payment of agreed damages and/or
compensation which has not been agreed, the Lessee shall deliver
to the Lessor, at the time of signing of this Agreement, and in
accordance with the Lessor's permission in writing, not later
than within seven days from the date of signing of this
Agreement, as a fundamental and material undertaking by the
Lessee, the following collateral:
30.1.1 An autonomous bank guarantee in favor of the Lessor,
linked to the Consumer Price Index, to be valid for up
to 90 days after the end of the Period of Lease, for
the amount of rentals in respect of six (6) months.
30.1.2 Five (5) promissory notes signed by the Lessee, in an
amount of NIS 60,000 each, plus linkage differentials
and V.A.T. The due date for each promissory note will
be left blank and the Lessor will be entitled to insert
the due date of payment in its discretion, in
accordance with the provisions of this Agreement.
Nothing in the foregoing shall derogate from the
Lessor's right to institute legal proceedings for the
execution of any promissory note as described above.
30.2 The giving of collateral pursuant to this Agreement and/or the
realization thereof shall not constitute any form of waiver by
the Lessor of its right to other remedies against the Lessee, or
its right to obtain payment from the Lessee in any other manner,
whether these be remedies spelled out in the body of the
Agreement or are remedies available to the Lessor by virtue of
any law in force at the time of signing of the Agreement, or
which may be in force in Israel at the time of the breach.
31. PROHIBITION ON LESSEE'S REPRESENTATION
31.1 Nothing contained in this Agreement and/or the conduct of the
parties pursuant to this Agreement shall be construed as
empowering the Lessee to appear in the name of the Lessor, or on
its behalf, or as conferring on the Lessee the status of a
representative of the Lessor in any matter whatsoever.
31.2 The employees of the Lessee shall not be deemed to be employees
of the Lessor under any circumstances and for any purpose.
32. EQUIPMENT AND CHATTELS
Upon its vacating of the Leased Premises, the Lessee will be entitled
to take with it all equipment and chattels it has brought into the
Leased Premises, as well as elements which are capable of being
dismantled. The Lessee will not be entitled to take articles which
are affixed to the Leased Premises and the dismantling of which will
leave a void or defect in the Leased Premises.
33. ASSIGNMENT OF THE LESSOR'S RIGHTS
33.1 The Lessor is entitled to transfer and/or assign and/or let out
and/or encumber its rights pursuant to this Agreement to any
third party, provided that the Lessee's rights under this
Agreement are not adversely affected.
33.2 This Agreement shall inure to the benefit of be binding on the
heirs of the Lessor and/or its successors-in-title.
34. NON-APPLICABILITY OF THE PROVISIONS OF THE HIRE AND LOAN LAW
The provisions of the Hire and Loan Law will not apply to this
Agreement.
35. DEVIATION OR WAIVER
35.1 Should any party fail immediately to exercise its rights stemming
from this Agreement or any part thereof, such non-exercise will
not be deemed to be a waiver, acquiescence or admission by such
party, and it will be entitled to such rights at any time it may
deem fit.
35.2 The agreement by a party to deviate from the terms and conditions
of this Agreement in a particular instance, or series of
instances, shall not constitute a precedent and no like treatment
shall be inferred therefrom in respect of any similar or other
occurrence in the future.
35.3 In every case the Agreement is cancelled or comes to an end, all
those provisions of this Agreement which, by their nature, apply
also after the end of the period of the Agreement or the
cancellation thereof, shall continue to apply, even if not
otherwise expressly stated in the clause itself.
36. EXPENSES FOR DRAWING THE AGREEMENT
The expenses for stamping this Agreement, copies hereof and any other
document connected herewith (including promissory notes) shall be
borne by the Lessee.
37. MANAGEMENT AGREEMENT
37.1 If the Building in which the Leased Premises are located is
managed by a management company, the Lessee shall sign a
management agreement which will be in a usual and reasonable text
for buildings of the same type as the Building.
37.2 A breach of any of the provisions of the management agreement
shall be deemed to be a breach or a material breach, as the case
may be, of this Agreement.
37.3 The Lessor shall be entitled at any time to provide the usual
services and to manage the Building in which the Leased Premises
are located through a management company. In such event the
Lessee undertakes to sign a management agreement which will be
drawn up and to pay the management charges, provided that the
current management charges shall not exceed the actual cost of
the management expenses plus 15%.
37.4 The Lessor undertakes to incorporate the provisions of this
Clause 37 also with other tenants who will sign lease agreements
in the Building at a date subsequent to the date of signing of
this Agreement.
38. GRANT OF EXCLUSIVITY FOR PURPOSES OF USING THE LEASED PREMISES
38.1 The Lessor is entitled to grant various tenants of other leased
areas in the Building an exclusive right to conduct or operate a
particular business in the leased area. Such right, whether
given in writing to other tenants or given in writing to the
Lessee, is a provision in favor of a third party and shall confer
an independent right of action on a person aggrieved on grounds
of the right of exclusivity being violated by the Lessee or by an
unspecified tenant.
38.2 Use of the Leased Premises other than for the purposes of the
lease is likely to constitute an infringement by the Lessee of
the right of exclusivity of another tenant and will constitute a
material breach of this Agreement. Notwithstanding the
foregoing, no obligation shall be imposed on the Lessor with
regard to enforcement of the right of exclusivity of any other
tenant or of the Lessee itself, if the Lessee has been granted a
right of exclusivity.
38.3 Should the Lessee have made use of the Leased Premises other than
for the purposes of the lease and have infringed the right of
exclusivity of another tenant, the Lessee shall compensate the
Lessor in respect of any damage and/or expense of whatsoever
nature incurred by the Lessor as a result of the Lessee's acts.
38.4 A right of exclusivity shall be deemed to have been granted to
the Lessee only if given separately, in an express written
document. Where a right of exclusivity has been granted to the
Lessee in the scope of a signed appendix to this Agreement, the
exclusivity shall be construed in the narrowest possible way so
that it does not impair the freedom of employment or engagement
of others. Definition of the purpose of the lease shall under no
circumstances constitute the grant of a right of exclusivity.
39. AMENDMENTS TO THE AGREEMENT
Any alteration and/or amendment to the Agreement shall be done solely
in an express written document signed by the parties to this
Agreement. No contention that the parties have altered this Agreement
by their conduct shall be entertained, nor shall any evidence to that
effect be adduced or accepted.
40. WAIVER OF RIGHT OF SET-OFF
The Lessee hereby fully and irrevocably waives any right of set-off it
may have as against the Lessor and undertakes not to set off any
amount on any grounds whatsoever against the rentals that are due to
the Lessor and/or against any other payment the Lessee may owe to the
Lessor. The contents of this clause shall in no way prejudice the
Lessee's entitlement to any such amount.
41. NOTICES AND WARNING NOTICES
Any notice or warning notice which is sent by one party to the other
in connection with this Agreement shall be sent by registered post, or
shall be delivered by hand, according to the addresses of the parties
set forth at the head of this Agreement (or any other address in
respect of which suitable written notice is given), and such notice or
warning notice shall be deemed to have been delivered to the addressee
upon the actual delivery thereof if delivered by hand, and within 72
hours from the time of its delivery for posting by registered post,
with advice of receipt confirmation, if sent by post in Israel. The
address of the Lessee shall also be at the Leased Premises themselves.
IN WITNESS WHEREOF THE PARTIES HAVE HEREUNTO SIGNED:
( - ) ( - )
E.S.C Xxxxx Xxxxxx Industrial Buildings Ltd.
------------------------ --------------------------------------
The Lessee The Lessor
(5337)
