Exhibit 99.3
DEED OF FLEDGE
(to guarantee the Loan Agreement)
Which was signed and entered
on ______ of the month _________ year _________
Between
EQUILEX TRUST REG. AS TRUSTEE OF THE CAPRI TRUST
whose registered office is at Kastanlenhof, Xxxxxxxxxxxx 00, XX- 0000 Vaduz,
Principality Of Liechtenstein
(Hereinafter called “the Lender”)
- on the one hand -
and
TW of _______________________________________________Switzerland
(hereinafter: “the Borrower”)
- on the other hand -
| Whereas: |
The
Borrower obtained from the Lender a loan in the amount of $10,020,000 (“the
Loan Amount”) for the purpose of purchasing 1,800,000 shares of
Optibase Ltd., NASDAQ Ticker XXXX (“the Pledged Shares”) ; and |
| Whereas: |
It
was agreed and stipulated between the Lender and the Borrower that the Borrower
would guarantee to the Lender all the amounts as set out hereunder
by depositing the pledged shares with the Lender and/or Gesafin
Real Estate S.A. acting on its stead (“the Custodian”) as security
for the return of the Loan Amount; and |
| Whereas: |
It
was agreed that the Custodian will act regarding the Pledged Shares based on
instructions which it will obtain from the Lender and subject to the
conditions of this Deed of Pledge ; and |
| Whereas: |
It
is agreed that it is the Custodian’s obligation to open a bank account in order to
deposit the Pledged Shares and to coordinate between the Borrower and the bank the
deposit of the Pledged Shares in the account. |
|
Therefore,
it has been agreed between the parties as follows: |
| 1. |
The
preamble to this Loan Agreement is an integral part thereof. |
| 2. |
Hereunder
are the special conditions of this Deed of Pledge: |
| |
This
Deed of Pledge is intended to guarantee the entire obligations of the Borrower in
accordance with the Loan Agreement between the parties dated September 9, 2004 (hereinafter:
“the Loan Agreement”). |
| 3. |
As
a guarantee for the fulfillment of all the obligations of the Borrower under
the Loan Agreement and the fulfillment of all the conditions of this Deed, the
Borrower hereby deposits in the possession and under control of the Custodian
and/or the Lender, the Pledged Shares. |
| 4. |
The
Borrower declares as follows:- |
| |
a. |
The
Pledged Shares are not mortgaged or pledged to anyone else. |
| |
b. |
The
Pledged Shares will be deposited in the Custodian’s account and/or any
other, as per the instructions of the Lender and/or the Custodian, and will be
in its possession and custody. |
| |
c. |
There
is no limitation and/or condition according to the law and/or an agreement
preventing and/or limiting the Borrower from pledging and/or transferring the
Pledged Shares, and that the Borrower is entitled to transfer them and/or to
deposit them in accordance with this Deed of Pledge. |
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| 5. |
In
each of the following cases, this Deed of Pledge will be crystallized, the
Borrower’s rights in the pledged shares will cease and will be transferred
to the Lender and/or to the Custodian, and from that time, the Lender and/or
the Custodian will be regarded as the owners of the pledged shares and will be
entitled to register the pledged shares in their name in every registration as
per the requirements of the law: |
| |
a. |
If
the Borrower fails to pay any sum of money or fails to discharge any
liability which the Borrower may now or at any time in the future owe
to the Lender when it is due. |
| |
b. |
If
the Borrower is in breach of any of the terms and conditions contained in the
Loan Agreement or in any other agreement or document entered into
pursuant to this Loan Agreement. |
| |
c. |
If
any representation or warranty made by you pursuant to this Loan Agreement or
in any statement delivered or made pursuant to it is incorrect when
made. |
| |
d. |
If
the Borrower is in default in respect of any of the Borrower’s other
facilities (if any) with the Lender. |
| |
e. |
If
the Borrower is in breach of any other agreement to which he is a party with
any other person in relation to the Borrower’s borrowing or
other financial obligations. |
| |
f. |
If
the Borrower enters into any arrangement with its creditors generally. |
| |
g. |
If
the Borrower has a creditor levy distress or execution on, or any other
person seeks to enforce his security or judgement or order over, the
whole or any material part of the Borrower’s assets. |
| |
h. |
If
the Borrower has a bankruptcy petition presented against him. |
| |
i. |
If
the Borrower becomes, in our reasonable opinion, bankrupt or insolvent. |
| |
j. |
If
the Borrower becomes, in the Lender’s reasonable opinion, bankrupt or
insolvent. |
| |
k. |
If
the Borrower ceases to carry on all or a material part of his business. |
| |
l. |
If
any event occurs which would affect the Borrower or the Borrower’s
business so as to render the Borrower unable to comply fully with his
obligations to the Lender pursuant to this Loan Agreement and any
other document entered into pursuant to this Loan Agreement. |
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| |
m. |
If
the Borrower is a partnership and the Borrower presents or have presented
against the Borrower a winding up order. |
| |
n. |
If
the Borrower has a receiver appointed over any of the Borrower’s
property or assets. |
| |
o. |
If
the Borrower ceases, or threatens to cease, to carry on business or dispose
of all or any substantial part of its business or (except in the
ordinary course of business) its assets. |
| |
p. |
If
it becomes unlawful or impossible for the Lender to make, maintain or fund
the Loan or if any of the Borrower’s obligations under this Loan
Agreement cease to be valid, legal and binding and enforceable
against the Borrower in accordance with their terms. |
| |
q. |
If
in the reasonable opinion of the Lender, circumstances have so changed since
the Loan was made available, or such new information has come to
light, as could justify the Lender requesting the immediate repayment
by the Borrower of the Loan |
| |
r. |
If
the Borrower gave the Lender any false or misleading information it its
application for the Loan Agreement. |
| |
s. |
If
there is, in the Lender’s sole opinion, any change in the legal or
beneficial ownership of the Borrower. |
| 6. |
In
the event that the Borrower wishes to sell or otherwise dispose of the Pledged
Shares, for any reason whatsoever, prior to repayment of the Loan Amount, he
shall replace the Pledged Shares with another form of security to the
satisfaction of the Lender, prior to any such sale or disposal. |
| 7. |
Should
it be necessary, reports will be made to the relevant authorities in the US and
Israel. |
IN
WITNESS WHEREOF the parties hereto have executed this Deed of Pledge
——————————————
the Borrower |
——————————————
the Lender |
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