1
EXHIBIT 10.9
[IN CIRCLE LETTER L ]
(For new Premises)
(Regular quarterly payment)
(Version 7.97)
UNPROTECTED LEASE AGREEMENT
TABLE OF CONTENTS
1. INTRODUCTION 20. CANCELING THE LEASE
AND THE AGREEMENT
2. DEFINITIONS 21. VACATING THE PREMISES
3. NON APPLICABILITY OF PROTECTED TENANT LAW 22. GUARANTEES
4. THE LEASE 23. CUSTOMARY OWNERSHIP
5. COMPLIANCE OF THE PREMISES 24. LIABILITIES TO BANK
6. TRANSFER DATE AND COMPLETION OF CONSTRUCTION 25. MISCELLANEOUS
7. PARKING
8. THE PURPOSE OF THE LEASE
9. THE PERIOD OF THE LEASE
10. LEASE PAYMENTS
11. PAYMENT OF LEASE FEES
12. OTHER PAYMENTS
13. VALUE ADDED TAX
14. ALTERATIONS TO THE PREMISES AFTER TRANSFER DATE
15. THE USE OF THE PREMISES
16. MAINTENANCE AND REPAIRS
17. INSURANCE AND LIABILITY
18. TRANSFER AND ASSIGNMENT OF RIGHTS
19. FUNDAMENTAL PROVISIONS AND PRE-APPROVED COMPENSATION
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For new Premises)
(Regular quarterly payment)
(Version 7.97)
UNPROTECTED LEASE AGREEMENT
Drawn up and signed in______ , on the 11th day of March, 1998
BY AND BETWEEN
KAPS-PHARMA LTD.
0 XXXXXXXXXXX XX., XXX XXXX
(HEREINAFTER, "THE LESSOR")
PARTY OF THE FIRST PART
AND
JOLT LTD.
PRIVATE COMPANY: 511573594
FROM: 19 YAD HARUTZIM, JERUSALEM
(HEREINAFTER, "THE LESSEE")
PARTY OF THE SECOND PART
Whereas The Lessor declares that it is entitled to be listed as the
legitimate owner of the leasing rights for the land known as
block 30243, section 62, lot 5 in accordance with Jerusalem
Municipal Building Plan 2787 constituting a lot of some 7,863
sq. m. located in the Har Hahotzvim Industrial Zone in
Jerusalem (Hereinafter, "the Lot"), upon which is "the
Building" as defined below;
Whereas The Lessee wishes to lease from the Lessor and the Lessor
declares its desire to lease the areas of the Building defined
herein under, described and designated as "the Premises," and
pursuant and subject to the terms of this Agreement;
THEREFORE, IT IS DECLARED, STIPULATED AND AGREED BETWEEN THE PARTIES AS FOLLOWS:
1. The Introduction to this Agreement constitutes an integral part hereof.
2. DEFINITIONS
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[Page 2 continued]
In this Agreement, the terms specified below shall have the meaning
set forth beside them.
"The Agreement": This Agreement in its entirety including all
appendices.
"The Building": The Building with 9 floors for light industry
and for offices and 2 underground parking on
the Lot.
"The Premises" The office and warehouse space of 562 sq. m.
and warehouses in a space of 52 m2 on floor
11.20 of the Building, as delineated
and indicated in red on the plan attached as
Appendix A to this Agreement and parking space
as detailed in paragraph 7 herein under.
[illegible signature]
Kaps-Pharma Ltd.
4
[Page 3]
"The Project Manager" Xxxx Xxxxx or anyone authorized by him in
writing.
"Index" The Consumer Price Index (including fruit and
vegetables) published by the Central Bureau of
Statistics.
"Base Index" The index in effect on the ninetieth
(90) day after the date this Agreement is
signed, i.e. 155.3 points.
"Interest on Arrears" The total interest on arrears at the highest
acceptable rate prevailing in the period of
arrears in question at the Israel Discount
Bank Ltd. for unauthorized overdrafts in
debitory accounts. Written confirmation by a
branch manager of the Bank regarding the
interest rate as above shall serve as absolute
evidence for the interest rate.
3. NON-APPLICABILITY OF THE TENANTS PROTECTION LAW
A. It is hereby declared that the Premises are located in a
building, the construction of which was completed after August
20, 1968, and that this lease is instituted upon the express
condition that the Tenants Protection Law (Combined Version)
5732 - 1972 and other tenant protection legislation according
to their regulations and stipulations ( hereinafter:
"Tenants Protection Law"), and any other law that shall grant
the Lessee the status of protected Tenant shall not apply to
this lease.
B. The Lessee hereby declares that it neither paid, nor shall pay
the Lessor "key money" or any other such consideration for the
lease which is not a rental payment, and that the Lessee and
any proxy acting on its behalf shall not be a protected tenant
in the Premises according to the law.
C. The Lessee hereby declares that any investment it makes in the
Premises, including equipment and installations, shall be made
for its needs only, and it shall be precluded from claiming
that these investments represent "key money" or payment in
accordance with Section 82 of the Tenants Protection Law
(Combined Version) 5732 - 1972, or any payment granting the
Lessee any right to the Premises, and shall be precluded from
requesting any total or partial participation or refund by the
Lessor for the aforementioned investments.
D. The Lessee is aware that the Premises are leased to the Lessee
inter alia based on its declarations as above, and it shall be
precluded from raising
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[continued - p. 3]
any demands or claims with respect to its being a protected
tenant or that it has any rights in the Premises other than
those specifically conferred by this Agreement.
E. The provisions of sub-clauses A - D above are principal and
fundamental provisions of this Agreement.
4. THE LEASE
A. Under a lease that is not protected by the Tenants Protection
Law the Lessor hereby leases to the Lessee, and the Lessee
hereby leases from the Lessor, the Premises solely for the
purpose of the Lease for the period and under the terms
stipulated herein.
B. The Tenant hereby declares that it has seen the Premises
and/or the plans and/or the specifications and/or the diagrams
of the Premises, that it examined its legal status, found it
commensurate with the declarations of the Lessor as to its
needs, and that it hereby waives any claim related to the
suitability of the Premises to its needs and/or to the
declarations of the Lessor and/or the quality of the Premises
and/or any other claim.
C. The rental is conditional upon the Lessee maintaining an
approved enterprise in the Premises as defined in the Capital
Investment Act. In any case where the Lessee shall cease to
maintain an approved enterprise as stated, such action shall
constitute a fundamental breach of this Agreement.
[illegible signature]
Kaps-Pharma Ltd.
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[Page 4]
D. The provisions of sub-clauses A - C above are principal and
fundamental provisions of this Agreement.
5. COMPLIANCE OF THE PREMISES
The Lessee shall take possession of the Premises as follows: Storage
space - as is without any alterations. Office space, commensurate with
the plans, drawing and the technical specifications attached to this
Agreement as APPENDIX B and APPENDIX B-1, which were prepared by the
architect on behalf of the Lessor, and the public areas in the building
complying with the technical specifications attached to this Agreement
as APPENDIX C, including alteration work on the Premises to meet the
needs of the Lessee (hereinafter: "Adjustment Work"), as specified in
the above appendices.
6. DATE OF TRANSFER AND COMPLETION OF CONSTRUCTION
A. After the Lessee has transferred to the Lessor the lease
payments as detailed in Clause 11 C hereinafter and the
guarantees pursuant to Clause 22, the Lessor shall complete
the Premises and transfer possession to the Lessee by
[handwritten:] 8/16/98 that it determines 30 days after
the date this Agreement is signed. (hereinafter, "the
Transfer Date).
"Completion" means the ability to use and benefit from the
Premises in reasonable fashion and subject to the provisions
of this Clause below.
B. Without derogating from the aforementioned, a delay of up to
21 days in the Transfer Date shall not be considered a breach
of the Agreement, and shall not entitle the Lessee to any
relief. The lease termination date shall be postponed in
accordance with the delay in transfer.
C. Without derogating from the aforementioned Clause B, it is
hereby agreed that the Transfer Date shall be delayed in the
event of an Act of God, including, but not be limited to,
strikes or boycotts in the construction industry that shall
affect the pace of construction of the Building, states of war
or mobilization of reserves, unexpected shortages of materials
or labor, non-provision of electricity and/or non-connection
of the Premises to the electrical grid, provided the liability
thereof is not exclusively that of the Lessor, or any other
reason or cause which is beyond the control or reasonable
anticipation of the Lessor. According to its exclusive
discretion the Project Manager shall determine the time period
the event or Act of God is in effect, and the Transfer Date
shall be delayed accordingly. Such a delay shall not be
considered a breach of the
[illegible signature]
Kaps - Pharma Ltd.
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Kaps-Pharma Ltd.
[Page 4 continued]
Agreement and shall not entitle the Lessee to any relief. The
termination of the Lease Date shall be postponed in accordance
with the transfer delay.
D. The Transfer Date or the Delayed Transfer Date pursuant to
Clauses B or C above shall hereinafter be called the "Transfer
Date."
E. The Lessee shall take possession of the Premises on the
Transfer Date and the Lessor shall deliver the Premises with
the participation of a representative of the Lessee, if
present, after receiving advance notice. They shall prepare
Minutes recording the comments of the Lessee's representative,
if any. The Lessor shall repair anything requiring repair in
accordance with the stipulations of the Project Manager within
45 days of the Transfer Date.
F. To remove any ambiguity, it is hereby stated that the Lessor
shall have the right, even after completion of the building,
to perform construction and other work in areas of the
building which do not constitute the Premises, including, but
not limited to, development work provided that such work shall
not derogate from the reasonable use of the Premises by the
Lessee.
Furthermore, the addition of stories and/or partial stories,
and/or expansion of the usable areas of the building, and/or
alteration of the permitted intention of certain areas in the
building shall not be considered a violation of the
aforementioned obligations of the Lessor as long as this does
not derogate from the reasonable use of the Premises or of its
rights by the Lessee pursuant to this Agreement.
[illegible signature]
Kaps-Pharma Ltd.
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[Page 5]
The Lessor shall have the right to make alterations in the
building plans and/or in the Premises if required to do so by
any competent authority, and as long as such alterations shall
not detract from the reasonable use of the Premises by the
Lessee.
G. The Project Manager shall determine, at its discretion, as
expert and not as arbitrator, whether the Premises are ready
for transfer in accordance with the aforementioned terms,
whether it is built pursuant to the specifications, whether
deviations from or alterations in the specifications
constitute significant or minor deviations and/or whether they
and/or the works and/or alterations and/or additions as stated
above constitute an impediment to the Lessee's reasonable use
of the Premises.
H. The provisions of sub-clauses A - G above are principal and
fundamental provisions of this Agreement.
7. PARKING
The building parking plan is attached to this Agreement as APPENDIX D
(hereinafter: "Parking Plan"). Five parking spaces marked on the
Parking Plan in red shall be at the Lessee's disposal throughout the
lease period, for the sole use of the Lessee.
In consideration of the use of the parking spaces, the Lessee shall pay
the Lessor the lease payments as detailed in Clause 10 below.
In any case where the lease is terminated or cancelled, according to
the circumstances, the right to use the parking spaces as stated above
shall be automatically cancelled. The provisions of this Agreement
regarding the Premises shall also apply to the parking spaces.
[illegible signature]
Kaps-Pharma Ltd.
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[Page 5 continued]
8. THE PURPOSE OF THE LEASE
A. Without derogating from the foregoing, the purpose of the
Lease is the management of a business for the [handwritten:
development, production, and sale of wireless electronic
communications products], and on condition that no disturbance
is caused to the other tenants of the building and that the
usage shall not deviate from the building's building permit.
The Lessee shall be responsible for acquiring all necessary
licenses for managing its businesses on the Premises, if
necessary. Failure to acquire them shall not be a pretext for
shortening the Lease or delaying or reducing leasing fees,
even if the business shall close as a result of losing its
license.
B. Notwithstanding the aforesaid in sub-Clause A above, if the
Lessee does not obtain a license to conduct its business in
the building due to the building not being constructed in
accordance with the building permit, or due to the fact that
the building's designation, according to the building permit
and/or city building plans, does not allow the Premises to be
used for the purposes set forth in this Agreement, then the
Lessor shall have the right and the choice either to arrange a
building permit that is commensurate with the purposes for
managing the Premises as set forth in this Agreement at the
Lessee's expense, or to complete the building as required by
the permit, as the case may be , or to cancel this Agreement,
all at the Lessee's choice, within 120 days of the Lessee's
written demand.
In any case mentioned in the foregoing sub-Clause, the Lessee
shall have no claim of any kind on any grounds against the
Lessor, and by signing this Agreement it hereby waives such
right in advance including but not limited to the Lessee's
investment in the Premises.
None of the aforementioned shall be considered as the Lessor's
permission for the Lessee to use the Premises and/or to manage
a business in the Premises without a permit and/or in
deviation therefrom.
[illegible signature]
Kaps-Pharma Ltd.
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[Page 6]
C. To avoid any ambiguity, and without derogating from the
foregoing, the parties hereby agree that liability for
conducting the Lessee's business without the necessary legal
permits shall apply solely to the Lessee, and it agrees to
indemnify the Lessor for any claim and/or charge imposed on
him for conducting a business without a legal permit and/or
not acquiring the legal permits immediately upon first request
of the Lessor.
D. The provisions of sub-clauses A - C above are principal and
fundamental provisions of this Agreement.
9. THE TERM OF THE LEASE
A. Subject to the fulfillment by the Lessee of all its
obligations pursuant to this Agreement, the Lessor hereby
leases to the Lessee, and the Lessee hereby leases from the
Lessor, the Premises under an unprotected Lease for a period
of sixty (60) months (hereinafter, "the Basic Lease Period")
from the beginning of the transfer.
B. Subject to the fulfillment by the Lessee of all its
obligations pursuant to this Agreement, the approval of the
Parties, and provision of notification as set forth below, the
Lessee shall have the option of extending the Lease Period for
two additional consecutive Lease Periods of 24 months each.
Each 24-month period as stated above shall be hereinafter
called "the Extended Period."
The Lessee's notice to the Lessor regarding the Lessee's
exercise of the option for the Extended Period shall be made
in writing and be delivered to the Lessor at least 4 months
prior to the end of the Basic Lease Period or the previous
Extended Period, as the case may be. The Lessee shall attach
to the above letter guaranties as specified in Clause 22
below.
Lease payments during the Extended Period shall be updated per
Clause 10 C below.
Subject to the above, all the terms of the Lease set forth in
this Agreement shall also apply to the Lessee for the Extended
Period.
In order to avoid ambiguity, it is hereby stated that in any
case, the Basic Lease Period and the Extended Terms together
shall not exceed 9 years and 11 months altogether.
In this Agreement, the Basic Lease Period as well as the
Extended Periods shall be called, for the sake of brevity,
"the Lease Period."
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[Page 6 continued]
C. The provisions of sub-clauses A - B above are principal and
fundamental provisions of this Agreement.
10. LEASE PAYMENTS
A. For the office space - $9 per square meter, as specified in
Clause 2 below, totaling $5,058.
For the storage space - $7 per square meter, as specified in
Clause 2 below, totaling $364
For the parking - 2 parking spaces for $80 per space and 3
parking spaces at no charge, totaling $160.
Total lease payments - 5,602 [crossed out by hand] $5582
[(added by hand] per month (hereinafter: "the Basic Lease
Fees").
[illegible signature]
Kaps-Pharma Ltd.
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[Page 7]
B. In addition to and together with the Basic Lease Fees as
detailed in paragraph A above, the Lessee shall pay the
Lessor, during the Basic Lease Period, additional payments as
reimbursement for the adjustment works in the office space of
the Premises (as specified in Clause 5 above), at $4.20 per
square meter, totaling $2,360.40 per month (hereinafter:
"Premises Adjustment Fee").
C. At the beginning of each Extended Lease Period, the Lease Fees
shall be increased by 10% relative to the Lease Fees at the
termination of the previous term (hereinafter: "the Adjusted
Lease Fee"). The Basic Lease Fees and the Adjusted Lease Fees
shall be called hereinafter, for the sake of brevity, "Lease
Fees."
D. The Lease Fees and all other payments denominated in dollars
in this Agreement shall be converted and paid in New Shekels
at the representative exchange rate on the date of actual
payment.
E. The provisions of sub-clauses A - D above are principal and
fundamental provisions of this Agreement.
11. PAYMENT OF LEASE FEES
A. As stated in Clause 10 above, the Lessee shall prepay the
Lessor the Lease Fees and, during the Basic Lease Period, the
Premises Adjustment Fees for every 3 months of the Lease on
the first day of each 3-month period as stipulated herein.
B. All the payments by the Lessee pursuant to this Agreement
shall be paid by the Lessee on the date set forth in paragraph
A above as the date of payment by 11:00 in the morning, by
means of a deposit to the account of the Lessor, account
number 344966 at the Israel Discount Bank Ltd., Ramat Hasharon
Branch (hereinafter: "the Bank"). If the date for payment
falls on a non-business day, the payment shall be effected on
the next business day thereafter (the provisions of this
sub-Clause are secured and cannot be altered without the
advance written notice of the Bank).
C. On the date this Agreement is signed and prior to the
beginning of each Extended Period, as the case may be, and on
the date determined by the Lessor, the Lessee shall pay the
Lessor the Lease Fees for the first and last quarters of the
Lease Period.
Payment of the Lease Fees for the last quarter of the Lease
Period shall serve the Lessor as specified in Clause 22 C
below.
D. Payment by check, authorization of bank transfer and/or any
other method of payment shall not be considered payment. Only
after a check has cleared and/or the payment is actually
transferred into the account of the Lessor by the Bank, shall
the payment be considered paid.
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[Page 7 continued]
E. The Lessee shall pay the Lessor the Lease Fees and all other
amounts payable by the Lessee under this Agreement for each
Lease Period, even due to some reason for which the Lessor is
not liable, the Lessee shall use only a portion of the
Premises and/or only for a portion of the time, whether
voluntarily or involuntarily. Nevertheless, the Lessee has an
escape clause from this Agreement whereby the Lessee may
vacate the Premises on [handwritten: August 14, 2001] (i.e. at
the beginning of the fourth year of the Lease) provided that
written notice is furnished four months in advance, and the
Lessee shall pay the Lessor, unconditionally, pre-determined
and pre-agreed compensation of $ 60,000 (sixty thousand US
Dollars). The Lessee shall be exempt from paying the above
compensation if and only if the Lessee brings a substitute
Lessee who will undertake all the Lessee's obligations
pursuant to this Agreement, and who will be approved by the
Lessor in advance and in writing, at the Lessor's exclusive
discretion.
F. Provisions A - E are principal and fundamental provisions of
this Agreement.
[illegible signature]
Kaps-Pharma Ltd.
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[Page 8]
G. The Lessee hereby waives all present and/or future claim and
cause for writing off any amount, whether fixed or outside the
Lease payments and/or administrative fees and/or any other
payment payable to the Lessor pursuant to this Agreement.
12. OTHER PAYMENTS
A. In addition to all the other payments set forth in this
Agreement, the following amounts shall be payable by the
Lessee:
(1) All taxes, fees, and levies, municipal and
governmental, of any type payable now or in the
future by the possessor of the Premises, and/or
charged due to the actual use of the Premises,
including but not limited to general municipal tax,
garbage removal, and other municipal taxes, and/or
related to the business to be conducted by the Lessee
on the Premises and/or the purpose of the Lease,
including business tax, sign tax, fees and licenses
for the business and the management thereof.
(2) All fees and payments related to electricity
consumption on the Premises.
The Lessee shall pay amounts to the Lessor for
electricity consumption on the Premises as determined
by the internal consumption meters to be installed
for the Premises as well as the relative share of
public electricity consumption.
In addition, the Lessee shall pay the Lessor for
electricity consumption for air conditioning in the
Premises based on the electricity consumption of the
air conditioning unit in the building, the Lessee's
share being calculated based on the size of the
Premises relative to the overall leased areas in the
building. For the removal of doubt, the expenses for
electricity for air conditioning are in addition to
the Lease Fees and the Maintenance Fees pursuant to
this Agreement.
If the Lessee does not pay the aforementioned
electricity expense within 7 days from the date the
Lessor's invoice therefor was delivered to the
Lessee, subject to a 72 hour prior warning, the
Lessor has the right to disconnect the supply of
electricity and/or air conditioning to the Premises,
and the contents of this paragraph represent a
warning and ongoing advance notice to the Lessee of
the aforementioned cut off in the event of failure to
pay on time with no need for additional warnings or
notices prior to any such disconnection.
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[Page 8 continued]
The Lessor shall be neither responsible nor liable
for any direct, consequential and/or indirect damage
that may be caused to the Lessee or any person,
organization or corporation as a result of the
disconnection of electricity and/or air conditioning
to the Premises by the Lessor due to non-payment by
the due date.
(3) An appropriate relative share of the expenses and
insurance premiums paid by the Lessor for building
insurance and all systems thereof, with respect to
loss or damage due to fire, explosion, earthquake,
storm and tempest, flood, water damage, strikes,
riots and wanton damage, as well as for any
additional risk which may be required in the Lessor's
opinion. This insurance shall not cover the contents
of the Premises nor any repairs, alterations and
additions thereto which were done by and/or for the
Lessee.
The aforementioned insurance shall include a Clause
regarding waiver of the right to subrogation
vis-a-vis other tenants in the building with respect
to damage caused by them unintentionally.
It is hereby explicitly agreed that the insurance
taken out pursuant to this Clause above shall not
derogate from the Lessee's liability whether pursuant
to this Agreement or under any law, nor shall it
impose any liability on the Lessor regarding any loss
and/or damage to the building.
The aforesaid insurance expenses shall be included in
and be a part of the Maintenance Fees.
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[Page 9]
(4) Maintenance services at the rate stated in Clause 16
below.
(5) The provisions of sub-clauses A - D above are
principal and fundamental provisions of this
Agreement.
B. In the event that any of the amounts required to be paid by the
Lessee to the Lessor pursuant to the foregoing sub-Clause (1) is based
on a xxxx pertaining to the entire building, the Lessee shall pay the
Lessor an appropriate percentage of the entire xxxx as long as for the
purpose of calculating the percentage of the Lessee in the said
payments, then the ratio between the Premises and the rest of the space
intended to be leased in the building shall be taken into
consideration.
C. The Lessor shall be liable for property tax.
D. The Lessee promises to be personally responsible for the
cleanliness of the Premises, and at the expense of the Lessee.
E. The terms of the foregoing sub-Clauses (1) - (4) are part of
the principles and bases of this Agreement.
13. VALUE ADDED TAX
A. The Lessee promises to pay the Lessor VAT in addition to, and
together with, the Lease Fees, including linkage adjustments
and/or interest on arrears, as well as any other payment which
the Lessee is required to pay the Lessor pursuant to this
Agreement, and/or which the Lessor paid instead of the Lessee
and which Lessee must refund to the Lessor. This must be done
against a tax receipt as required by law.
The provisions of this Clause shall also be in effect in the
event any other tax is imposed and added to, or replaces VAT
under conditions whereby the law applies it to Lease Fees or
imposes or permits the transfer of the debit to the Lessee.
VAT shall be treated as Lease Fees in all respects.
B. Subject to the provisions of sub-Clause 13 (A) above, payments
of VAT shall be effected by means of checks postdated to the
15th of the month following a payment month (check postdated
for 45 days), or whatever other day of the month stipulated by
the VAT authorities from time to time. For the removal of
doubt, the aforementioned checks shall be delivered to the
Lessor together with (on the same day as) the Lease Fees (on
the first day of the month at the beginning of each quarter)
14. ALTERATIONS TO THE PREMISES AFTER TRANSFER DATE
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[Page 9 continued]
A. In addition to the provisions of Clause 5 above, and after
Transfer Date, at its own expense and liability, and after
obtaining the consent of the Lessor, the Lessee shall have the
right to carry out works and alterations in the Premises only
(not including public areas, which include restrooms,
kitchenettes, and entries) that are required by the Lessee in
order to construct and/or move permanent or portable internal
walls, to install telephone, air conditioning, electricity
and/or communication systems; to connect and install its
machines, computers and equipment; and to undertake any other
or additional work or changes that the Lessee shall consider
necessary for conducting its business on the Premises,
excluding alterations likely to damage the building
construction, walls, water and electricity systems and/or
alterations which might affect the exterior or interior
building facade, or the reasonable use thereof by the other
users of units in the building, per the following conditions:
(1) The Lessee shall submit construction plans for the
above for the prior, written approval of the Lessor.
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[Page 10]
(2) The Lessor shall have the right to require changes in
the specifications and the details of the work, and
the Lessee promises to alter them as required by the
Lessor, and to begin the work only after the Lessor
has given written approval.
(3) The approval of the Lessor for such work is
conditional upon, in addition to the foregoing,
delivery by the Lessee to the Lessor of copies of
insurance policies as provided in Clause 17 below.
(4) All work shall be carried out by skilled
professionals at a standard accepted for similar Hi
Tech buildings in the area of the Premises, pursuant
to Israeli regulations, and subject to the guidelines
issued by the project manager.
(5) The Lessee shall carry out the work on the Premises
in a manner and form that will not interfere with
operations in any area of the building and/or other
lessees, and the Lessee hereby agrees to strictly
carry out all the stipulations of the Lessor, and to
take all precautions to prevent the aforementioned
disturbances.
(6) The Lessee shall be liable for any damage caused
during and following work on the Premises, to any
person and property, including the building and/or to
the Premises and/or to other lessees and/or to other
leased premises and/or to the Lessor or its
representatives, whether the work was carried out by
the Lessee or by someone else acting on its behalf.
(7) The Lessee agrees and affirms that any sum that it
spends in carrying out alterations in order to adapt
the Premises for its needs, as stated above, shall
not grant the Lessee vis-a-vis the Lessor any right
to a refund or payment for the sums and/or changes it
made as stated above - neither during the Lease
Period, while vacating the Premises or thereafter.
(8) The Lessee shall acquire and pay for all the
necessary licenses, certificates, and permits for
carrying out the alterations from the competent
institutions and authorities, should such be
required.
B. The provisions of sub-clause A above are principal and
fundamental provisions of this Agreement.
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[Page 10 continued]
15. THE USE OF THE PREMISES
Without derogating from the validity of the other terms of the
Agreement, the Lessee promises as follows:
A. To manage the work only within the boundaries of the Premises,
and to use the Premises only for the purpose set forth in the
Lease and for no other purpose.
B. To maintain the cleanliness of the Premises and its
surroundings, and not to place and/or keep any equipment,
inventory or any movable property and/or any other objects in
the yard and/or on the balconies of the Premises and/or the
building and/or any other area outside of the Premises, and
not to use any area of the building, except for the Premises,
for any purpose whatsoever, except for use for the purpose of
access to the Premises.
It is hereby clarified that the Lessee has no right to install
in the Premises dining rooms, kitchens, kitchenettes and the
like without obtaining prior written approval from the Lessor.
If such approval is obtained, it shall have the right to act
only in accordance with the terms, if any, set forth in the
said approval.
If, in spite of the contents of this Clause, any of the
Lessee's movable property is found on the balconies and/or
outside of the Premises and if the Lessee does not remove it
at first request of the Lessor, the Lessor shall have the
right, though not the obligation,
20
[Page 11]
to remove these objects from the building and/or the area, at
the Lessee's expense, and shall not be liable for the
integrity of such objects.
The failure of the Lessor to exercise the aforementioned right
shall not constitute its consent to keeping the aforementioned
movable property on the balconies and/or outside the Premises,
nor shall this confer on the Lessee any right to continue to
keep objects there, nor shall this prevent the Lessor from
taking any action to which it is entitled under law and/or
this Agreement.
C. To refrain from creating any disturbance, nuisance or
discomfort to people in or visiting the area around the
Premises, including the neighbors and/or environs.
The Lessee hereby promises not to introduce waste that does
not comply with the directives of the Ministry of Health, nor
to allow such waste to flow into the sewage system.
The Lessor shall have the right to charge the Lessee special
fees to cover the additional expense of removing garbage from
the building in which the Premises is located, if, in the
opinion of the Lessor, the amount of garbage and/or refuse
produced by the Lessee on a current basis is excessive,
D. To fulfill all laws, regulations and by-laws in force, and/or
that shall be imposed upon the Premises during the Lease
Period regarding the use thereof and the business, work and
activities carried out therein by the Lessee, and to be held
liable by government and municipal institutions for the
payment of any fines due to non-fulfillment of the
stipulations of this Clause.
E. To access the Premises only via the access ways marked on the
approved plan and those that will exist in the future, to park
cars and other vehicles in spaces designated for same, and not
to use any motor or other vehicle likely to damage the access
or the parking areas, and to comply with the stipulations
issued by the Lessor from time to time relating to the access
and parking arrangements within the boundaries of the lot.
F. To pay any specific amounts that the Lessee owes the Lessor
and/or the appropriate authorities on the due dates for such
payments.
G. To allow the Lessor and/or the representative of the Lessor to
visit the Premises at any reasonable time and to check its
condition and use made thereof in order to maintain the
performance of the provisions of this
21
[Page 11 continued]
Agreement, and/or to take the action and exercise the means
set forth in this Agreement or in any law requiring entry into
the Premises, including:
(1) To make any repairs within the Premises, necessary
for the building or any portion thereof.
(2) To carry out any construction and/or demolition work
which the Lessor has the right to do pursuant to this
Agreement.
(3) To show the Premises to potential buyers and/or
lessees.
H. To fulfill the stipulations of the Lessor and of the competent
authorities in regards to fire fighting and prevention
procedures, civil defense, safety and security, and to
purchase at its own expense per the instructions of the
aforementioned authorities, all the necessary prevention and
safety equipment for the application and execution of the
aforementioned stipulations, and to connect it to the panel on
that floor of the building.
I. At the request of the Lessor, and at the Lessee's expense, to
demolish and/or to change any addition or alteration made by
the Lessee to the Premises and/or the building not constructed
in compliance with the terms of this Agreement, and to restore
the Premises and the building to its original state.
22
[Page 12]
J. The Lessee hereby promises not to hang or install any signs
and/or other means of advertising in the area and/or in any
portion of the building. The signs and the placement, type,
size and shape thereof shall be determined by the Lessor, at
the sole discretion of the Lessor, and shall be installed by
the Lessor at the Lessee's expense.
K. In order to remove all ambiguity, it is hereby explicitly
clarified that the Lessee shall have no right to install air
conditioners in the walls and/or windows of the Premises.
L. The provisions of sub-clauses A - K above are principal and
fundamental provisions of this Agreement.
16. MAINTENANCE AND REPAIRS
A. The Lessee promises to use the Premises in a cautious and
reasonable manner, and to pay close attention throughout the
entire Lease Period that the Premises and all of the
installations related thereto are in working condition,
operational, clean and orderly.
B. In exchange for payment of the sums set forth in Clause D
below, the Lessor hereby promises to supply the maintenance
services listed in Clause C below, as per the terms set forth
therein.
C. Maintenance Services to be provided by the Lessor shall be of
the type, scope and per the conditions set forth below:
(1) Structural maintenance, maintenance of mechanical
systems, public plumbing, public sewage, public
electricity, elevator maintenance, landscaping, sign
maintenance, and cleanliness of public areas.
(2) Air conditioning services, including central air
conditioning services, excluding servicing and
maintenance of air conditioning equipment in the
Premises during normal working days and hours.
Heating shall be installed in the end units.
The Lessor shall also provide air conditioning
services during the winter to the Lessee, in the
scope and under the conditions that the parties shall
agree upon.
In order to remove any ambiguity, it is hereby
explicitly clarified that subject to the obligations
of the Lessor to perform repairs on any malfunctions
in the air conditioning system, if any, the
provisions of this Agreement do not make him liable
regarding
23
[Page 12 continued]
potential disruptions in the air conditioning system,
whether as a result of breakdown or due to
maintenance work or for any other reason, without
exception. The Lessee shall have no right to demand
and/or receive from the Lessor any compensation,
and/or damages and/or payment for any reason
whatsoever.
The Lessee shall have no right to touch the air
conditioning units on the Premises, and/or service,
and/or maintain, and/or repair them, and/or perform
maintenance and/or any operation on them and/or to
allow others (even air conditioning professionals or
specialists) to do any of the above to the units.
Should the Lessee violate the terms of this paragraph
and, as a result, should any damage be caused to the
air conditioning units, the Lessee shall bear the
full cost of the repair of the damage, plus interest
on arrears. In order to remove any ambiguity, the
Lessee shall be liable for all servicing and
maintenance costs of the air conditioning units in
the Premises.
(3) Preserving the environment - in a scope to be
determined from time to time by the Lessor, at the
exclusive and sole discretion of the Lessor.
(hereinafter, "Maintenance Services").
D. In exchange for the Maintenance Services, the Lessee shall pay
the Lessor, in addition to the Lease Fees stipulated in Clause
10 above and the Lease fees stipulated in Clause 12 above, the
sum of $2.50 per month per square meter of the Premises, i.e.
$1,535 per month for the entire Premises (hereinafter,
"Maintenance Fees").
24
[Page 13]
The Maintenance Fees shall be converted into Shekels on the
date this Agreement is signed, shall constitute the basis for
payment of Maintenance Fee ("the Principal"), and shall be
paid to the Lessor plus linkage adjustments in the consumer
price index to be added to the Principal. The linkage
adjustments shall be calculated based on the increase in the
new index published at the time of actual payment, compared
with the basic index.
The Lessee shall pay the Lessor the Maintenance Fees in
advance for each 3 months of the Lease Period, as specified in
Clause 11 above.
E. Subject to the provisions of Clause 13 (B) above, the Lessee
shall pay the Lessor, together with the Maintenance Fees, the
Value Added Tax applicable to these payments.
F. To remove any ambiguity, it is hereby agreed that the Lessor
shall not be considered the trustee of the Premises and/or the
contents thereof for the purpose of the Trustee Xxx 0000 -
1967.
G. The Lessee promises to notify the Lessor, as the case may be,
immediately and without delay, of any loss, degradation, or
damage caused to the Premises or any portion thereof.
H. Without derogating from the foregoing, the Lessee promises to
repair immediately and at its own expense, any damage or
degradation for which the Lessee is responsible as provided in
Clause 17 A above within seven (7) days of the occurrence.
I. In the event that the Lessee does not completely fulfill the
obligation stipulated in Paragraphs A and H above, the Lessor
shall have the right (but is not obligated) to carry out the
maintenance and repairs required of the Lessee, and the Lessee
shall refund to the Lessor the monies spent immediately upon
first request of the Lessor, and pursuant to the terms of such
request. Nothing in this Clause shall derogate from the
Lessee's duty to perform the repairs in the Premises himself.
J. The provisions of sub-clauses A - I above are principal and
fundamental provisions of this Agreement.
17. INSURANCE AND LIABILITY
A. In the relationship between the parties, and without
derogating from the Lessee's liability under any law, the
Lessee shall be solely liable for any damage caused to any
person and/or object and/or property during and as a result of
the performance of work on the Premises by the Lessee and/or
25
[Page 13 continued]
any representative thereof, as well as for any damage caused
to any person, object and/or property connected with the
Lessee's possession of and/or use of the Premises. The Lessee
promises to indemnify the Lessor for any damage or financial
expense caused to the Lessor as a result of any suit or demand
filed against the Lessor as a result of events within the
limits of the liability of the Lessee.
In any event, the Lessee shall be responsible for returning
the Premises to the condition in which it was on the Transfer
Date.
B. Without derogating the aforementioned in Paragraph A above,
and without reducing the Lessee's liability and obligations
per this Agreement and in accordance with and in addition to
the provisions of any law, the Lessee undertakes to purchase
and maintain, at its expense, throughout the Term of the
lease, the insurance policies set forth below, and in the
scope and coverages as defined below.
The policies shall be issued by authorized insurance companies
in Israel, and the Lessee shall be responsible for paying the
premiums in full and on the due date for the entire Lease
Period and to meet all its obligations and declarations as
follows:
(1) Employers Liability - the Lessee shall insure the
Lessee's liability to its employees, under any law,
with respect to bodily harm to an employee in
connection with its work, and as the usual limit at
the time the policy is written.
26
[Page 14]
(2) Third Party Liability - to insure the Lessee's
liability vis-a-vis any third party, including the
Lessee's guests, invitees, customers, the Lessor, and
anyone representing the aforementioned. This policy
shall provide coverage within appropriate limits of
liability to the satisfaction of the Lessor's
insurance consultants, liability for injury, loss or
damage to body and/or property caused to a third
party by the Lessee, the Lessee's property or
property under the Lessee's supervision or
responsibility, or by any action of the Lessee, its
employees and anyone acting under the authority of or
for the Lessee within the limits of its legal
liability.
(3) Property Insurance - insurance of the contents of the
Premises, including improvements and investments made
therein of any type or kind whatsoever, of equal
value. This is to be against the usual risks,
including fire, explosion, earthquakes, water damage,
aircraft, collisions, strikes, riots, intentional
damage, burglary, and glass breakage.
(4) For the removal of doubt, regarding the relationship
between the Lessee and the Lessor, the Lessee alone
shall be liable for any damage or loss to the
contents of the Premises and/or the equipment and the
installations installed therein by the Lessee. The
Lessee shall take out appropriate insurance for the
aforesaid contents, the equipment and installations
as it shall see fit, to include Property Insurance as
stated in Paragraph B 3 above.
(5) The Lessee undertakes to present to the Lessor,
within 7 days of the latter's demand, confirmations
that the aforementioned insurance is in force,
without such presentation derogating from the
Lessee's liability and obligation, and without
imposing on the Lessor any liability or obligation
whatsoever.
(6) Should the Lessee not fulfill its obligations per
this Clause, the Lessor shall have the right, but
shall not be obligated, to take out the insurance
policies or any portion thereof instead of the Lessee
and at the Lessee's expense, and/or to pay any sum in
the Lessee's place, without derogating from the
Lessor's right to any other relief under any law
and/or this Agreement, and the provisions of Clause
19 B of this Agreement shall apply.
The Lessee's taking out the aforementioned insurance policies
shall not in any way reduce or limit its obligations pursuant
to this Agreement, nor release the Lessee from its duty to
compensate the Lessor and/or any other person for any damage
incurred by them, whether directly or indirectly,
27
[Page 14 continued]
related to the property for which the Lessee is responsible
and/or as a result of the Lessee's actions and/or use of the
Premises and/or as a result of the Lessee's failure to fulfill
the provisions of this Agreement and/or as a result of work
done on the Premises by the Lessee. Payment of any insurance
compensation to the Lessor shall be used only to reduce the
indemnification and/or compensation to which the Lessor shall
be entitled, as the case may be, for damage or loss.
C. Without derogating from the generality of the aforesaid in
sub-Clause A above, the Lessee shall be liable for any claims
by which the Lessor may be charged as a result of the breach
or failure to fulfill the provisions of any law or license by
the Lessee or as a result of the Lessee breaching any of its
obligations set forth in this Agreement and the Lessee shall
indemnify the Lessor for any expense or damage, if any, in
that respect.
D. If at all possible all insurance policies should state that
after any payment of compensation by the insurer, the limits
of liability shall automatically return to their former state.
The Lessee shall be responsible for payment of any additional
premium deriving therefrom.
E. The provisions of sub-clauses A - D above are principal and
fundamental provisions of this Agreement.
18. Transfer and Assignment of Rights
A. The Lessee shall be entitled to transfer rights and
liabilities under this Agreement, or to permit anyone to use
the Premises or any part thereof (hereinafter: "the
Sublessee"), whether for consideration or not, conditional
upon receipt of the Lessor's prior written consent thereto and
the advance identification of any Sublessee and subject to the
Lessee's continuing to fulfill all of its obligations under
this
28
[Page 15]
Agreement, in respect of the entire Premises, including making
all of the payments specified in this Agreement regarding the
Premises, and the Sublessee shall perform all of the terms of
this Agreement that apply to the Lessee, unless the Lessor has
given written consent in advance. The Lessor shall not
unreasonably withhold its consent.
B. The Lessor shall be entitled to sell or transfer its rights to
the Lot and/or the Building or in any of the units therein,
including the Premises and/or its rights under this Agreement,
or to transfer or mortgage them without giving prior notice to
the Lessee, provided that such does not harm the rights of the
Lessee under the provisions of this Agreement and/or any law.
C. Without derogating from the aforementioned, the Lessor shall
be entitled to transfer, assign, alienate and mortgage all of
its rights to Lease Fees under this Agreement to any other
person and the Lessee shall act in accordance with the written
instructions of the Lessor.
D. The provisions of sub-clauses A - C above are fundamental
provisions of this Agreement.
19. Fundamental Provisions and Liquidated Damages
A. It is hereby agreed that the provisions of Clauses 6, 9, 10,
11, 12, 13, 14, 15, 16, 17, 18, 21, 22 are fundamental
provisions of this Agreement pursuant to the definition of
that term in the Contracts (Remedies for Breach of Contract)
Law, 5731-1970. A breach of any one of these provisions shall
be considered a fundamental breach of contract pursuant to the
definition of that term in the Contracts (Remedies for Breach
of Contract) Law 5731-1970.
B. In the event of a breach of the provisions of Sections 9, 10,
11, 12, 14, 16, 17, 21 of this Agreement, the Lessor shall be
entitled, in addition to any other relief or remedy available
to it, to compensation which the parties hereby agree upon and
set in advance in the sum of the equivalent of 6 months Lease
Fees (hereinafter: "Agreed Indemnification"). The Agreed
Indemnification shall be linked to the index calculated from
the basic index through to the index known on the date of
actual payment. The parties hereby declare that the amount of
Liquidated Damages was determined by them according to the
damage anticipated in the event of a fundamental breach of the
Agreement.
C. Without derogating from the Lessee's obligations under this
Agreement, it is hereby agreed that any delay in the payment
of Lease Fees and/or any other payment set out in this
Agreement shall bear interest for delay in the rate defined in
this Agreement, in addition to and without derogating from any
other relief or remedy available to the Lessor under this
Agreement and/or pursuant to any law.
29
[Page 15 continued]
20. Cancelation of Lease and Agreement
The Lessee hereby agrees and promises that, notwithstanding the
provisions of this Agreement regarding the Lease Period, the Lessor
shall be entitled, without obligation, to cancel this Agreement, and to
evict the Lessee from the Premises with unilateral 14-day advance
written notice, provided that the Lessee is granted a seven day
opportunity (in addition to the aforementioned 14 days) to remedy the
breach in each of the following circumstances:
A. If the Lessee or anyone acting on its behalf has breached
and/or has not fulfilled one of the terms and/or obligations
set out in the Fundamental Provisions on time.
B. If a receiver and/or liquidator (including a temporary
receiver and/or liquidator) is appointed over the Lessee
and/or its assets, in whole or in part, and/or the Lessee is
declared bankrupt, as the case may be, and such appointment
and/or declaration is not withdrawn within 30 days of being
made.
C. If one or all of the guarantors is declared bankrupt and/or
has left the country and/or liquidators have been appointed to
them and/or their assets and the Lessee has not provided
another guarantor to the Lessor's satisfaction within 14 days
of the occurrence of one of the above events on the Lessee's
initiative.
30
[Page 16]
D. If the Lessor and/or any of the guarantors is a corporate
entity and there is a change in the ownership of the Lessee
and/or any of the guarantors, as the case may be, which the
Lessor believes will harm its interests under this Agreement
and the Lessor has not consented to such in writing within 14
days of being notified of the change. The Lessee undertakes to
notify the Lessor of any such change within 7 days of the
occurrence of such a change. A "change in ownership," for the
purposes of this Clause, shall be a change in ownership of
more than 51% of the paid up and issued capital of such
corporation.
21. Vacating the Premises
A. The Lessee hereby undertakes to vacate the Premises at the end
of the Lease Period or upon rescission this Agreement,
whichever is the earlier, and as the case may be, and to
return the Premises to the Lessor's exclusive possession in
the condition that it was in on the Delivery Date, subject to
reasonable and acceptable wear and tear.
B. In addition, and without derogating from the relief and
remedies available to the Lessor under the provisions of this
Agreement and/or the provisions of any law, the Lessee hereby
promises that should it fail to vacate the Premises as stated
in sub-Clause A above, it shall pay the Lessor usage fees
agreed upon and set in advance in the sum equivalent of three
times the daily Lease Fee). This sum shall be linked to the
index from the basic index through to the index published on
the date the Premises must be vacated pursuant to sub-clause
A. above, until the index published on the date of actual
payment.
C. Upon vacating the Premises, the Lessee may take with it all
movable appliances, excluding permanent systems, that it
placed in the Premises at its expense and which are able to be
disassembled (hereinafter: "the Appliances"), provided that
the Lessee bears the expense of any repair required due to the
aforementioned disassembly in order to restore the Premises to
the condition it was in on the Delivery Date as set out in
sub-Clause A above. Such repairs shall be completed prior to
the end of the Lease Period or prior to cancelation thereof
pursuant to this Agreement. If the Lessee fails to disassemble
the fixtures or any part thereof as set out above, the Lessor
shall be entitled, at its discretion, to demand the
disassembly and removal thereof, or, alternatively, to receive
title to them without any obligation to pay any
indemnification and/or refund. Should the Lessor demand the
removal of such fixtures within 7 days of the termination or
cancelation of the Lease Period, then, for the purposes of the
payment of usage fees as set out in sub-Clause B above, the
Lessee shall be deemed not to have vacated the Premises for so
long as the Lessee does not disassemble and remove the
Fixtures from the Premises
31
[Page 16 continued]
and does not return the Premises to the condition that it was
in on the Delivery Date.
D. The provisions of sub-clauses A - C above are fundamental
provisions of this Agreement.
22. Guaranties
In guarantee of the performance of all of its obligations under this
Agreement, the Lessee shall deposit the following guaranties upon
signing this Agreement, as a pre-condition for taking possession of the
Premises:
A. An option to be granted to Rotem Local Communications Networks
Ltd. (hereinafter: "Rotem"), or to such person as Rotem may
instruct, for the purchase of 456 preference shares of NIS
1.00 par value each in the Lessee, at an exercise price of
1.00 NIS each. The Lessee undertakes that, in the event that
an investment is made in the Lessee or shares in the Lessee
(excluding options) are allotted at a share price of less than
$160 per share, the number of shares as stated above shall be
adjusted in such a way as the total value of the shares shall
be at least $72,900.
A condition of the said deed of option shall be that, upon
receipt of notice from the Lessor that one of the events
detailed in sub-Clause C below allowing the Lessor to exercise
the Guaranties has occurred, the Lessor shall be entitled,
immediately and without condition, to exercise the option at
the price set forth above. The Lessee undertakes immediately
to allot to Rotem or such person as it may instruct in
writing, such number of preference shares the total value of
which is at least $72,900, or at least 456 shares (even if
their value is greater than $72,900).
The value of the shares shall be determined in accordance with
the share price in the most recent allotment of shares in the
Lessee.
32
[Page 17]
The Lessor shall be authorized to review the Lessee's books
once every three months. The Lessee shall transfer current
reports setting out all investments made in the Lessee, for
review by the Lessor.
On the date of signing this Agreement, the Lessee shall
provide the Lessor with minutes of a meeting of the board of
directors of the Lessee approving the issue of the option and
the option certificate.
The Lessee promises to ensure the maintenance of the rights of
the Lessor and of Rotem, or of any person acting on their
behalf, under this sub-Clause, at all times and that such
shall be mentioned and affirmed in any agreement to which the
Lessee is a party and that such shall not be harmed for any
reason. In the event of a purchase of more than 50% of the
Lessee's assets and/or a merger of the Lessee with another
company, the Lessee undertakes to (1) provide a bank guarantee
to the Lessor as detailed below, or alternatively, at the
Lessee's discretion, (2) to cause the option for the purchase
of shares referred to in this Clause above to set out and deal
with shares in the company that were purchased or merged with
the Lessee as stated above, maintaining the monetary value of
the option, viz. $72,900.
The Lessee shall be entitled to convert its obligations under
the aforementioned Clause, at any time, and in any event shall
be required to do so immediately at the end of 3 years from
the date of signing of this Agreement, into an unconditional
bank guarantee, the form of which shall be approved by the
Lessor in writing in advance, and in the NIS equivalent of
$72,900 for up to 3 months following the termination of the
Lease Term.
The Lessor shall return the deed of option to the Lessee in
exchange for the bank guaranty as stated, or 3 months after
the termination of the Lease Term, whichever is the earlier.
B. A promissory note, in the NIS equivalent of the Lease Fees for
6 months, viz. NIS [handwritten number: 171,990] (hereinafter:
"Promissory Note").
The Promissory Note shall be to the order of the Lessor and
shall be negotiable. The sum of the Promissory Note shall be
linked to the index, from the basic index through to the index
known at the time of exercise of the Promissory Note.
The date of payment of any Promissory Note shall be left blank
and the Lessor may fill in the date of payment at its
discretion, in accordance with the terms of this Agreement.
The Lessor may also write in any details not set out therein,
so as to present it for payment. The Lessee's signature on
this Agreement shall constitute its irrevocable permission to
fill in the date of payment and any other detail as stated.
All Promissory Notes shall be guaranteed by Air Optics Inc.
The Promissory Note shall be in the form set out in Appendix E
to this Agreement.
33
[Page 17 continued]
Should the Lessee exercise its right to extend the Lease, the
Lessee shall provide the Lessor with a new Promissory Note, on
the terms set out above in respect of the extended Lease Term
together with notice of exercise of such right, as a
precondition of the validity of such notice of exercise, or
shall extend the validity of the Promissory Notes already
provided to the Lessor. The replacement Promissory Notes or
the existing Promissory Note with an attached extension
document shall be known hereinafter as "Promissory Notes."
C. Without derogating from the other provisions of this
Agreement, the Lessor shall be authorized to exercise the
Promissory Note and/or the Option (hereinafter: "the
Guaranties"), in whole or in part, at its election, and upon
the giving of 7 days' advance notice, as follows:
(1) In the event that the Premises are not vacated on the
appointed date, the Lessor shall be authorized to
exercise the Guaranties in whole or in part, in such
a way that the monies so paid shall be deemed, inter
alia, to be Liquidated Damages, as set out in this
Agreement.
34
[Page 18]
(2) Should the Lessee fail to make a payment under this
Agreement, the Lessor shall be entitled to exercise
the Guaranties up to the equivalent sum of the
payment owed together with linkage differentials,
fines, interest for delay and any other expense
incurred by the Lessor.
If non-payment constitutes a fundamental breach of
this Agreement, the Lessor shall be entitled to
exercise the Guaranties in the equivalent sum of the
payment owed or the sum of the Agreed Indemnification
under this Agreement, whichever is greater.
(3) In the event of damage or loss caused to the Premises
and/or the contents thereof for which the Lessee is
liable, the Lessor shall be entitled to exercise the
Guaranties in the sum equivalent to the repair of
such. "Repair" may include replacement.
Should the Lessee fail to pay the Lease Fees for a particular
quarter on time, or does not pay any other sum which it owes
under the provisions of this Agreement, on time, the Lessor
shall be entitled, but not obligated, to offset any sum paid
to it as stated above or any portion thereof, against the sum
not paid on time, without derogating from any other relief or
remedy available to the Lessor under this Agreement and/or any
law.
If the Lessee paid the Lease Fees and other payments for which
it is liable under this Agreement as required, such payments
shall be deemed to have been full, complete and final for the
final quarter of the Lease Term (whatever the Lease Fees may
be at such time).
D. The provision of the Security under this Clause shall not
constitute a waiver by the Lessor of its right to other relief
against the Lessee, whether such relief is set out in the body
of this Agreement or is available to the Lessor under any law.
E. The provisions of sub-clauses A - D above are fundamental
provisions of this Agreement.
23. Customary Ownership - Possession of the Premises by the Lessor
Without derogating from the validity of the provisions of this
Agreement, and in addition to the relief and remedies afforded to the
Lessor under this Agreement and/or any law, it is hereby agreed as
follows:
A. At the end of the Lease Period and/or in any event of the
expiry or cancelation of this Agreement, whichever is the
earlier, the Lessor shall be authorized to treat the Premises
or any part thereof in accordance with customary ownership.
35
[Page 18 continued]
B. If the Lessee does not vacate the Premises at the end of the
Lease Period and/or upon expiration and/or cancelation of this
Agreement, whichever is earlier, it shall be deemed to be
trespassing on the Premises and any part thereof, from the
date on which the Lessee is required to vacate the Premises as
aforesaid until it is actually vacated. In such an event, the
Lessor shall be entitled and may prevent the Lessee or any
person acting on behalf of and/or representing the Lessee from
entering the Premises, and may make use of the Premises or any
part thereof. For this purpose, the Lessor shall be entitled
to and may, inter alia, use reasonable force, change the locks
on the Premises, disconnect and/or order the disconnection of
electricity, water, telephone, gas, air conditioning, and
prevent the Lessee from access and entry, including access and
entry to the Building.
24. Liabilities to Discount Bank (Secured Clause, Unalterable without the
Bank's Consent as Specified Below)
A. Pursuant to the Assignment of Debts Law, the Lessor assigns by
way of charge to the Israel Discount Bank Ltd. (hereinafter:
"the Bank") all of its rights to the Lessee for Lease Fees
under to the Lease Agreement and gives an irrevocable order to
the Lessee to pay all monies and make all payments owed to the
Lessor under the Lease Agreement to account number 344966 at
the Ramat Hasharon branch of the Bank only.
36
[Page 19]
B. The Lessee is aware that a duplicate or copy of the Lease
Agreement shall be delivered to the Bank and that such
delivery represents an obligation on its part towards the Bank
regarding the rights granted to the Bank as stated in
sub-Clause A.
C. The Lessee is aware that the Bank's rights in the project have
preference and priority and no possession and/or other rights
in the project and/or the Premises may be transferred without
prior written authorization from the Bank.
D. The Lessee hereby forfeits any existing and/or future right to
file caveats in respect of the land on which the Premises is
situated in respect of its rights under this Agreement, in
whole or in part.
E. The Lessee declares that it is aware that the Bank holds a
first mortgage over the land (subject to the Bank's right of
industrial development as specified in the Agreement between
the Lessor and the Bank dated July 3, 1995) and that the
Bank's right shall prevail over all other, subsequent rights,
subject to the provisions of sub-Clause 27A2 of the aforesaid
Agreement above between the Lessor and the Bank.
F. The Lessee undertakes to sign a deed of authorization and
agreement to the assignment of the Lessor's rights under this
Agreement, in the form required by the Bank.
25. Option to Purchase Shares in the Lessee
On the date this Agreement is signed, the Lessee shall provide the
Lessor with an Option Note for the purchase of 750 regular shares of
the Lessee of NIS 1.00 par value each at an exercise price of $175 per
share. This option shall be valid for at least three years from the
date this Agreement is signed.
The Option Note shall stipulate that immediately upon receipt of notice
from the Lessor (even after the termination of the Agreement for any
reason, and in any event no more than 3 years (subject to the
following) from the date of signing of this Agreement), and in return
for receipt of payment from the Lessor ($175 for each share), the
Lessee, without any further condition, promises to allot to Rotem, or
to such person as Rotem may appoint in writing, up to 750 shares of the
Lessee pursuant to the amount transferred, at the discretion of Rotem
or of such person as Rotem instructs. The payment shall be made in NIS
at the representative exchange rate of the US Dollar on the date of
payment. In addition, the deed of option shall state that in the event
that the Lessee does not take advantage of the provision in sub-Clause
11(E) above allowing it to exit the Agreement, pursuant to the
provisions of such Clause, and the Lease Term is extended for more than
3 years, the term of the option to purchase the shares as specified
shall be extended for an additional two years. In such a case, the
value of the shares shall be 15%
37
[Page 19 continued]
less than the share price at the last allotment effected in the Lessee
(Last Trading Value), but in any event shall not be less than $175.
At the time this Agreement is signed, the Lessee shall present the
Lessor with minutes of a meeting of the board of directors of the
Lessee approving the allotment of the option as aforesaid and the deed
of option.
The Lessee promises to ensure the maintenance of the rights of the
Lessor and of Rotem, or of any person acting on their behalf, under
this sub-Clause, at all times and that such shall be stated and
affirmed in any agreement to which the Lessee is a party and that such
shall not be harmed for any reason.
In any case where a majority of the assets of the Lessee are purchased
by any party, or by a merger between the Lessee and any party, or prior
to a public offering of the stock of the company, in which the option
set out in this Clause has yet to be exercised, the Lessor shall be
given prior notice of such events and the Lessor shall be entitled to
exercise the Option prior to executing the aforementioned actions.
26. Miscellaneous
A. The headings in this Agreement have been inserted for the sake
of convenience only and shall not serve for the interpretation
of the Agreement.
B. The Appendices attached to this Agreement constitute an
integral part of this Agreement.
38
[Page20 - NOTE THAT THE ORIGINAL DOCUMENTS HAD TWO COPIES OF PAGE 20, ONE
COPY STARTS WITH CLAUSE C AND THE OTHER WITH CLAUSE F]
C. If either of the Parties to this Agreement has paid any sum to
the other Party for which the other Party is liable pursuant
the provisions of any law or the provisions of this Agreement,
after providing advance written notice of 7 days, the owing
Party shall refund the sum so paid to the paying Party,
together with interest for delay, from the date of payment by
the paying Party through to the date of actual refund by the
owing Party.
D. The Parties elect that Tel Aviv-Jaffa shall be the place of
exclusive jurisdiction for the purposes of the provisions of
this Agreement.
E. Any alteration or amendment or alteration to this Agreement or
to any of the terms and conditions hereof shall be in writing
and signed by both Parties.
F. The consent of the Lessor to a deviation from any of the
conditions of this Agreement shall not constitute a precedent
and/or shall not represent a waiver and shall not be deemed a
precedent for any similar occurrence.
G. The Lessee hereby declares that it has been expressly made
aware that attorneys Xxxx Xxxxxx and/or Amit Vengrovich and/or
Xxxx Xxxxx and/or Xxxxxx Xxxxxxxxxx represent the Lessor only
in this Agreement and this transaction and that the Lessee has
the right to be represented by another attorney.
H. Stamp fees for this Agreement shall be borne by the Lessee.
I. The addresses of the Parties for the purposes of this
Agreement shall be as set out in the Introduction, and any
notice to be delivered pursuant to or in connection with this
Agreement shall be in writing and shall be delivered by hand
or by registered mail to these addresses. Notwithstanding the
foregoing, after this Agreement is signed, the address of the
Lessee shall be the address of the Premises. If a notice is
sent by registered mail, it shall be deemed to have been
received and to be in the possession of the receiving party
within 72 hours it is sent to him.
J. This Agreement is a true reflection of the agreement between
the Parties. No representation and/or obligation not expressed
in this Agreement shall have any force or effect. Any
representation and/or agreement and/or obligation prior to
this Agreement is hereby nullified.
In witness whereof, we have signed hereunder:
Kaps Pharma Ltd. Jolt, Ltd.
[Illegible Signature] [Xxxxx Xxxxxx]
Kaps Pharma Ltd. Jolt, Ltd.
39
[Page 20 continued]
Certification of Attorney
As attorney for Jolt Ltd., Company no. 511573594 (the Lessee), I, the
undersigned, Attorney ___________, confirm that Mr. __________ signed this
Agreement on behalf of the Lessee, and that such person is authorized by the
Lessee to sign this Agreement, and that its signature shall bind the Lessee in
respect of every matter connected with this Agreement.
Attorney: ________________ Date: _________
Signature: _______________
40
[Page 21]
As the attorney for Kaps-Pharma Ltd., Company no. 510945355 (the Lessor), I, the
undersigned, advocate Amit Vengrovich, confirm that Ms. Dalit Xxxxx and Mr.
Yiphtach Yifhar signed this Agreement on behalf of the Lessor, and that they are
authorized by the Lessor to sign this Agreement, and that their signatures,
jointly, shall bind the Lessor in respect of every matter connected with this
Agreement.
Attorney: Amit Vengrovich Date: _________
Signature: __________________
41
[Page 22]
LIST OF APPENDICES
1. Appendix A: Drawing of Premises
2. Appendix B: Premises Technical Specifications
3. Appendix B1: Specifications of Adjustment Work
3. Appendix C: Technical Areas of Public Areas
4. Appendix D: Drawing of Parking Spaces
6. Appendix E: Insurance Certificate for Premises
42
[PAGE 23]
APPENDIX B
TECHNICAL SPECIFICATIONS FOR THE PREMISES
1. Central Air Conditioning - Energy Center (cooling via chillers) and
preparations for connection to storied air-conditioning.
2. Working capacity of the floor on each level 500 Kg/m2.
3. Smooth finished concrete floor.
4. Plaster covered walls.
5. Wall color Emulsion Plastic PVA white on the exterior shell.
6. Double Draycape windows with zylon interior.
7. Ceramic tiling in the bathrooms to a height of 2.0 meters.
8. Electrical panels and meters for each floor connected to the Energy Center.
9. Exterior walls finished with hewn stone.
10. Three bathroom areas - screen wall finish
11. Two transparent passenger elevators (connecting the parking area with the
roof).
12. Two transparent goods elevators (connecting the parking area with the
roof).
13. Open rooftop balconies finished with granolite.
43
[Page 24]
Name of Company JOLT, LTD. Acc't: 00-000000-0
-------------------------------------------------------------
MINUTES
FROM ANNUAL MEETING HELD
ON 12/7/92 IN JERUSALEM
Attending:
Xxxxx Xxxxxx Xxxx Xxxxxx
Agenda
Elected Meeting Chairman: Xx. Xxxxx Xxxxxx
a. Manager's Report
b. Approval of Financial Report as of 12/31/1991
c. Election of Managers and determination of their remuneration.
d. Appointment of Accountant and determination of his remuneration.
e. Miscellaneous
Decisions
Following the agreement of those attending the Meeting lawfully called and
assembled, it has been decided that:
a. to approve the Manager's Report APPROVED
b. to approve the Financial Report APPROVED
c. No changes to the composition of the management was made, and their
remuneration shall be determined from time to time. No Changes
d. Renewal of appointments of Xxxx Xxxx & Co, as company accountants
Appointment renewed
Xxxxx Xxxxxx
Chairman
