LEASE AGREEMENT
---------------
Made and signed in Tel- Aviv on the 26th day of November 2001
BETWEEN:
SHA'AR YOKNEAM, A REGISTERED LIMITED PARTNERSHIP
(PARTNERSHIP NO.550014666)
By its Directors Messrs. Xxxxxxx Xxxxx (I.D.No127198) and
Yitshak (Tsahi) Levy (I.D.No.22448534)
Who are duly authorized to sign on behalf of and bind the
Partnership whose address for the purposes of this agreement is
At the "Sha'ar Xxxxxxxx" Xxxxxxx, 0 Xxxxx Xxxxxx,
Xxxxx Hacarmel and which for the sake of brevity is hereinafter
called "The Lessor"
OF THE ONE PART
-AND-
GIVEN IMAGING LTD. (COMPANY NO.512578022)
By Messrs. XXXXX XXXXXX (I.D.NO.22223564) AND ZVI XXX-XXXXX
(I.D.NO.56739030) who are duly authorized to sign on behalf of and bind the
Company, whose address for the purposes of this agreement is at the "Hermon"
Building, Sha'ar Yokneam, Yokneam and which for the sake of brevity is
hereinafter called "The Lessee"
OF THE OTHER PART
WHEREAS The lessor is the owner or registered lessee, as the case may
be, and is entitled to exclusive possession of land of an area
of approximately 62,000 square meters (hereinafter - "THE
LAND") which includes complete parcels and parts of parcels in
Block 11098, except part of Parcel Nos. 21 & 82 - which are
not registered in the name of the lessor, and which Soltam
Ltd. which has sold the rights of title in the land to the
lessor, has undertaken to purchase as well. and to transfer
the rights of title or leasehold rights therein to the lessor.
AND WHEREAS The land described above is in a zone, which is designated for
industry under local outline plan 297c.
AND WHEREAS The lessor has initiated a detailed plan for the establishment
of an industrial park on the land, or on part thereof, and
which is known as "Plan No.245BT/C - Yokneam Junction
Industrial Park", which was approved by the Northern Region,
District Planning and Building Committee and which received
final validation when approval was finally given in respect of
the
same to Amendment No.1 and with which the lessee intends to
proceed and to initiate a further detailed plan including
amendments and additions to the plan and to the aforesaid
Amendment No.1.
AND WHEREAS Among the buildings that are to be constructed in the
industrial park, the lessee is building on Parcel Nos. 48,49
as well as on Plot 101 which forms part of Parcel Nos. 50,79
and 80 - (in Musha) in Block 11098 containing a hi-tech
industrial building known as "BEIT HERMON".
AND WHEREAS The lessee wishes to take a letting of a net area of
approximately 1718 SQUARE METERS on Xxxxx 00 (xxx xxxxxx xxxxx
at a height of 3.60 meters) of "Beit Hermon" and a further
area of 34.50 square meters situated in the vicinity of the
aforesaid area, which is also on Xxxxx 00 (but at a height of
about 2.50 meters) which are marked in yellow on the plans of
the building which are attached to this agreement as APPENDIX
1, for the management of a factory thereon in accordance with
the "object of the letting" as hereinafter defined.
AND WHEREAS The lessee's factory is AN APPROVED ENTERPRISE UNDER THE
ENCOURAGEMENT OF CAPITAL INVESTMENTS LAW 5719-1959 - a matter
that constituted a fundamental consideration in the lessor's
decision to let the demised premises to the lessee and in
determining the amount of the rent and the terms of the
tenancy,
AND WHEREAS The demised premises is situated in a new building the
construction of which will be completed in the year 5762
(2001), and that therefore the Tenants Protection Law
(Consolidated Version) 5732 - 1972 (hereinafter - "The Law"
will not apply to the letting of the demised premises,
AND WHEREAS The lessee requires the demised premises for the letting
period as defined in this agreement and in the event of the
lessee exercising the option under the terms of this agreement
- also throughout the "extended letting period" and this -
solely for the purpose of conducting at the demised premises a
business of A HI-TECH PLANT FOR THE DEVELOPMENT, RESEARCH AND
PRODUCTION OF ADVANCED TECHNOLOGY PRODUCTS (above and
hereinafter - "THE OBJECT OF THE LETTING"),
AND WHEREAS The lessor wishes to grant a tenancy of the demised premises
to the lessee and the lessee wishes to take a tenancy of the
demised premises from the lessor, and to do so - by way of a
tenancy that is not protected by any of the categories of The
Tenants Protection Laws, and including a tenancy which is not
protected by the provisions of the Tenants Protection Law
(Consolidated Version) 5732-1972 - and in accordance with
the terms and provisions of this agreement.
AND WHEREAS The demised premises has never been let to a tenant and/or
other persons for key money, and neither the lessee nor any
third party has paid key money for the letting of the demised
premises, to the lessor and/or any other consideration or sum
which could be deemed to be key money in accordance with the
definition thereof in the Law, and that it is accordingly
stipulated and agreed between the parties that the protection
of none of the categories of The Tenants Protection Laws shall
be applicable to the tenancy and letting under this agreement.
AND WHEREAS The lessee is prepared to take a tenancy of the demised
premises for the letting period specified in and on the terms
specified hereafter in this agreement and to undertake to
perform and comply with all the said terms and provisions of
the agreement.
IT IS ACCORDINGLY AGREED AND STIPULATED BETWEEN THE
PARTIES AS FOLLOWS:
PREAMBLE.
1. The aforesaid preamble is part of the body of the agreement.
DEFINITIONS.
2. In this agreement:
"THE LESSOR"- Sha'ar Yokneam, a registered limited partnership Xx.00 -
000000-0
"XXX XXXXXX"- XXXXX IMAGING LIMITED (COMPANY NO.512578022).
"AREA A OR
THE LAND" - Land of an area of 62,000 square meters (or thereabouts) in
Block 11098 which includes the Parcels known as Parcel Nos.
33, 34, 36, 37, 40,41,42,43,44,45,46,47, 48,49,and 50 - (in
their entirety) as well as parts (areas) of Parcels of the
land known as Parcel Nos. 21, 22, 23, 24, 30, 31, 32, 35, 38,
39, 79, 80 and 82.
"THE DETAILED
PLAN" A detailed plan called "Plan No.245BT/C - Yokneam Junction
Industrial Park", which was approved by the Northern Region,
District Planning and Building Committee on 18.9.95 and which
was finally validated including amendments and additions that
were and/or will be in the said plan in due course, and such
other detailed or other plan that is approved in due course as
regards areas of "the land" of the lessee.
"INDUSTRIAL PARK
OR THE PROJECT" - An industrial park which the lessor is establishing on
AREA A in accordance with the detailed plan and which
the lessor will add to and establish on other areas in
accordance with such plans as are approved.
"THE BUILDING OR
BEIT HERMON"- A building for advanced industries (Hi-tech) of which a
plan is attached to this agreement APPENDIX 1, which is
in the course of construction and will constitute part
of "the industrial park".
"PUBLIC AREAS OR
PUBLIC AREAS OF
THE BUILDING" All areas of "the building" on all such floors thereof
as shall be determined by the lessor and defined by the
lessor from time to time as public areas that serve the
whole of the building and its tenants and occupants,
engine rooms, electricity rooms and such other rooms or
areas of installations serving the whole of the
building, access areas, corridors, passageways and any
other areas provided that the same shall not be or
intended to be delivered into the exclusive possession
of one of the occupants of the building or users
thereof. The lessor shall be entitled from time to time
to add to the public areas of the building, or subtract
areas from them and to make them available for the
exclusive use of a tenant or particular occupant or user
provided that the public areas of the building shall
always be areas that serve or are intended to serve all
the tenants or occupants of the building or on a
particular floor level and provided further that the
(net) area of the demised premises shall not be thereby
prejudiced and the lessee shall not be liable for any
additional payment as a result of such a change, except
for management fees, if applicable.
"THE DEMISED PREMISES" The demised premises as defined hereafter in Clause 7 of
this agreement.
"THE MANAGEMENT
COMPANY" - The lessor itself or the company that is formed by the
lessor or with which the lessor enters into a contract
for the management, maintenance and provision of
services of and to the "industrial park" and/or "the
building", or a company to which the lessor assigns the
management, maintenance and provision of services as
aforesaid and all as the case may be and at the lessor's
choice and at its sole and absolute discretion.
"THE MANAGEMENT
CONTRACT" - The management contract which is signed between the
lessor, (or the Management Company) and the lessee.
"THE TENANTS
PROTECTION LAW"- The Tenants Protection Law (Consolidated Version), 5732
- 1972.
"THE ENCOURAGEMENT OF
CAPITAL INVESTMENTS
LAW"- The Encouragement of Capital Investments Law 5719 -1959.
"THE REPRESENTATIVE
RATE OR THE
REPRESENTATIVE RATE
OF THE DOLLAR"- The representative rate in New Shekels of the US Dollar
as last published by the Bank of Israel prior to the
date of actual payment of each of the payments of the
rent or any part of such payments which the lessee is
bound to make and/or which the lessee is liable to pay
to the lessor under the terms of this agreement, and all
as the case may be. It is hereby agreed that the
aforesaid payments shall be calculated and/or made all
as the case may be, on the days on which no restrictions
on trade in foreign currency are imposed and/or are
applicable. In the event that such restrictions shall
apply, the making of such relevant payment shall be
postponed to the first business day following the date
of payment, on which no such restriction on foreign
currency trading has been imposed and/or applies as
aforesaid and on which normal trading in foreign
currency takes place in the commercial banks, and the
relevant payment shall be made in accordance with the
representative rate of the US Dollar in NIS, as
published for the same business day on which the
relevant payment is to be made. It is hereby clarified
and agreed that the representative rate in NIS of the US
Dollar as determined by the parties for the purpose of
calculating the rent is a rate of NIS 4.257 for each 1
US Dollar.
"THE INDEX OR THE
CONSUMER PRICES
INDEX"- The Consumer Prices Index, including fruit and
vegetables, which is published by the Central Bureau for
Statistics and Economic Research in respect of each
relevant calendar month on the 15th of the subsequent
calendar month, and if the aforesaid index ceases to be
published for any reason - such other index, identical
or as similar to it as is possible, replacing it and
which is published by the Central Bureau for Statistics
and Economic Research, or by such other duly authorized
body that replaces it.
"THE BASE INDEX"- The last Consumer Prices Index that was published on
15.10.2001 in respect of the month of September 2001 and
which stands at 171.9192 points.
"THE PRESCRIBED INDEX"- The last published Consumer Index prior to payment of
any of the amounts of the rent or prior to payment of
any sum on account of the rent, or prior to any other
payment under this agreement.
"PLANS OF THE
BUILDING"- The plans that are attached to this agreement as
APPENDIX 1.
"PLANS OF THE
DEMISED PREMISES"- The plans that are attached to this agreement as
APPENDIX 2 and which could form part of the plans of the
building - APPENDIX 1 and which are to be marked
thereon.
"THE LESSEE'S WORKS"- Works of adapting, additions and alterations to the
demised premises that are specified in APPENDIX 3 to
this agreement, which the lessee will be entitled to
carry out at the demised premises, as specified in and
stipulated in Clause 9 of the agreement.
"COMPULSORY PAYMENTS"- Taxes, Municipal taxes, levies and any other payment
which must be made compulsorily by law.
APPENDICES.
3. The following appendices are attached to this agreement as an integral
part thereof:
APPENDIX 1 - Plans of the building
APPENDIX 2 - Plans of the demised premises
APPENDIX 2-1 - Plan of the parking areas
APPENDIX 3 - Detailed breakdown of the lessee's works/technical specification of the
lessee's works to the interior of the demised premises.
APPENDIX 3-1 - Technical specification of the demised premises to the cladding stage.
APPENDIX 4 - Photocopy letter of approval granted to the lessee under the
Encouragement of Capital Investments Law
APPENDIX 5 - Form of "certificate of construction works insurance".
APPENDIX 6 - Form of "certificate of insurance of the demised premises"
APPENDIX 7 - THIS APPENDIX HAS BEEN CANCELLED.
APPENDIX 8 - Form of contract with the Management Company,
APPENDIX 9 - Signboards appendix
APPENDIX 10 - Certificate of the lessee's Attorney/Accountant regarding identity of
persons duly authorized to sign for the lessee.
THE LESSOR'S DECLARATIONS.
4. The lessor declares that:
(a) It is the owner or the registered lessee, as the case may be, and
person entitled to exclusive possession of the land of an area of
62,000 square meters approximately, comprised of Parcels and sub
Parcels in Block 11098, except part of Parcel Nos. 21 and 82 which
are not registered in the name of the lessor, and which Soltam
Ltd., which has sold the rights
of title to the said land to the lessor, has undertaken also to
acquire and to transfer the rights of ownership or leasehold title
therein, to the lessor.
(b) AREA A. is situated in a zone which is designated for industrial
use under the local outline plan 297C and in respect of --------
which the detailed plan has been approved and which has been
finally validated.
(c) (c) It is establishing on AREA A, and also possibly on additional
areas, an industrial park whose buildings, either wholly or
partially are intended for letting and the building constitutes
one of them. The building has been designated by the lessor for
hi-tech industries.
(d) (d) It is constructing the building in accordance with a building
permit which has been lawfully issued in accordance with such
plans as apply to the land and by law, and that "the object of the
letting" as defined in the preamble to this agreement, comes
within the framework of the permitted uses of the building and the
demised premises in accordance with "the plans of the demised
premises" .In addition the lessor declares that the external
construction of the building and construction of the public areas
therein and the installations appurtenant thereto have not yet
been completed.
The lessor further declares that after completion of the external
construction of "Beit Hermon", completion of construction of the
public areas, and the installation of the common installations
appurtenant therein, the various demised premises on the various
floor levels of "Beit Hermon" will be constructed in accordance
with the requirements of the various tenants.
(e) The lessor undertakes that construction of the external cladding
of the demised premises, as defined in Clause 8(b) hereafter will
be completed by no later than 1.12.2001 (development works and
additional works being carried out in "Beit Hermon" and/or in the
vicinity thereof will be completed within approximately a further
6 (six) calendar months).
(f) That there is nothing that prevents the lessor from entering into
the contract in this agreement.
(g) A breach by the lessor of the aforesaid Clause 4 and/or of any of
its sub-clauses shall be deemed to be a fundamental breach of this
agreement.
THE LESSEE'S DECLARATIONS.
5. The lessee declares that:
(a) It has seen and has examined the detailed plan, the plan of "the
building" and the plans of the demised premises, that he has
visited "the land" and has seen the location that is intended for
construction of the "industrial park" and the location of "Beit
Hermon" which is in the course of construction and has found that
the demised premises and "Beit Hermon
in which the demised premises is situated, are suitable for its
requirements, for its plant and for "the object of the letting"
and is prepared to and undertakes to take a letting of the demised
premises and that it will not bring any claims or actions
concerning the suitability of the building and the demised
premises in respect of "the object of the letting" and to the
lessee's requirements, and all subject to the declarations of the
lessor as specified above in Clause 4, and save for claims
concerning latent discrepancies.
(b) The lessor has shown and informed the lessee that changes and
additions are likely to occur in the "Beit Hermon Plans", which
shall not impinge on the use of the demised premises and the
opportunities for using the same, and the lessee agrees not to
make any claims or complaints concerning the same provided that no
changes are made in the plan of the demised premises without its
PRIOR AND WRITTEN consent, and provided further that the
reasonable use of the demised premises by the lessee for the
"object of the letting" as provided in this agreement, shall not
thereby be prejudiced.
(c) The lessee's plant that is in future to be situated at the demised
premises is and/or will by the date of receipt of possession of
the demised premises under the terms of this agreement, be an
approved enterprise under the Encouragement of Capital Investments
Law. APPENDIX 4 to this agreement is a true photocopy of a letter
of approval granted to the lessee's enterprise under the said law
by the Investment Center. The said approval remains in force and
has not been revoked and the lessee is continuing to comply with
the terms thereof.
(d) The lessee acknowledges that as its plant is an approved
enterprise pursuant to the Encouragement of Capital Investments
Law, the basic consideration taken into account by the lessor in
considering whether to let the demised premises to the lessee and
in determining the terms of such letting and that if such approval
is not granted, or for as long as it is not granted or if it is
revoked in the future or if the lessee's plant is not an approved
enterprise under the Encouragement of Capital Investments Law, for
any reason whatsoever, the basic rent will be increased by such
(principle) sum in NIS as is equivalent on the date of signature
of this agreement to $1 (one US Dollar) per square meter of the
area of the demised premises, including its proportion of the
public areas of "Beit Hermon" and which will be linked in its
entirety to such increases as shall occur in the Consumer Prices
Index from the date of publication of "The Base Index" until the
date on which the "The Prescribed Index" is published prior to the
date of actual payment.
It is hereby clarified that the aforesaid increase in the rent
shall only apply in respect of the relevant letting period in
respect of which the lessee's plant is not considered to be "an
approved enterprise" under the Encouragement of Capital
Investments Law.
(e) Subject to the demised premises being delivered into the
possession of the lessee in accordance with the terms of this
agreement, the lessee for its
part hereby declares and undertakes that it has seen, examined and
inspected "the land", "Beit Hermon" and its plans, the demised
premises and all such areas as are included therein and/or are
appurtenant thereto, whether exclusively or in common with others
and all their surroundings including the means of access thereto
and the infrastructure thereof including connection to water,
electricity, drainage and sewage, and that it has found the
demised premises and all its constituent parts and infrastructure
thereof to be in proper working order and suitable for all the
lessee's requirements and purposes in respect of the use thereof
in accordance with "the object of the letting" and that the lessee
hereby completely, finally, fully and absolutely waives any claim
as to defect and/or apparent discrepancies in connection with the
aforesaid building and/or the demised premises and as regards the
surroundings thereof and all subject to the lessor's declarations
as specified above in Clause 4.
(f) The commission of a breach by the lessee of this Clause 5 and/or
of any of the sub-clauses and sub-paragraphs thereof shall be
deemed to be a fundamental breach of this agreement.
THE TENANCY AND EXCLUSION OF THE TENANTS PROTECTION LAWS AS REGARDS THE LETTING.
6.
(a) The lessor undertakes to let the demised premises to the lessee,
following completion of construction thereof, and the lessee
undertakes to take a letting thereof from the lessor, and to do so
- by means of a tenancy to which the Tenants Protection Laws shall
not apply, for the letting period specified in this agreement and
on such terms as are stipulated in and are specified in this
agreement. Possession of the demised premises shall be delivered
to the lessee in accordance with the provisions specified
hereafter in Clause 8.
(b) The parties declare that on the date of signature of this
agreement the construction of "Beit Hermon" and of the demised
premises has not yet been completed, that they constitute "a new
building" as the same is defined in the Tenants Protection Law
(Consolidated Version) 5732-1972 - the construction of which will
only be completed after signature of this agreement, and in any
event after 5728 (20th August 1968) and will be let after such
date, and that accordingly neither the Tenants Protection Law or
any law replacing the same, nor any of the regulations and/or
orders that have been made and/or will in future be made pursuant
thereto, shall be applicable to the letting of the demised
premises, and the lessee shall have no protection as afforded
under the Tenants Protection Law and regulations thereunder, and
shall make no claim pursuant thereto.
(c) The lessee hereby declares that it is not paid any key money to
the lessor for the demised premises and/or in connection with the
letting which is the subject of this agreement, that it has not
undertaken to pay any key money for the letting of the demised
premises, that is has not participated in any
way in the construction of the demised premises and/or has not
given any consideration in respect of the demised premises which
could be deemed to be key money under the law, that it is aware
that on the date of signature of this agreement the demised
premises was in the exclusive possession of the lessor, that no
other person or body apart from the lessor is entitled to such
possession and that the Tenants Protection Laws, including "The
Law" will not confer any protection whatsoever on the lessee as a
protected tenant in respect of the letting of the demised premises
in accordance with this agreement.
In addition, and for the avoidance of doubt, it is emphasized and
hereby agreed that investments in, building additions and
improvements that are made to the demised premises by the lessee,
if any, shall not in any way be deemed to be payment of key money
for the demised premises and neither shall the same be deemed to
constitute the giving of consideration to the lessor that could be
deemed to be key money according to the law even if the same are
left at the demised premises after the demised premises have been
vacated by the lessee.
(d) The lessee hereby expressly declares that it is aware that this
agreement has been prepared in accordance with Sections 10 and 14
of "The Law" as the demised premises constitutes a new property
and/or a property that has become vacant and/or will be vacant of
any occupier apart from the lessor, prior to the commencement of
the letting which is the subject of this agreement.
(e) It is hereby agreed that a breach of this Clause 6 and/or a breach
of any of its sub-clauses and sub-paragraphs thereof shall
constitute a fundamental breach of this agreement.
THE DEMISED PREMISES.
7. The demised premises is an area of approximately 1718 square meters
(net), which is situated on Xxxxx 00 (xxxxxx xxxxx) of "Beit Hermon", the
height of the ceiling on this floor being approximately 3.60 meters and
of an additional area of 34.50 square meters situated in the vicinity of
the said area, on Xxxxx 00 xx "Xxxx Xxxxxx" but whose ceiling height in
such area is approximately 2.50 meters only, and in all a total area of
1752.50 square meters and which is marked on the plan attached to this
agreement as APPENDIX 2 delineating the extent thereof colored in yellow.
The lessor hereby undertakes to allow the access of lorries to the
demised premises for the purpose of loading and unloading and that for
such purpose the lessor will install, in the rear section of the demised
premises (on the north side), two rolling electrical doors of the
"Panels" type of "Paz-Gal" (or equivalent value) for direct access from
the unloading area to the interior of the demised premises.
Provided that for the purpose of calculating the rent which the lessee
will be liable to pay to the lessor under the terms of this agreement,
there shall also be added to the aforesaid area of the demised premises a
further area of about 244 square meters constituting the share of the
demised premises in the public areas of "Beit Hermon", and that the
(gross) area of the demised premises, including its share of the public
areas of "Beit Hermon" shall therefore be deemed to be an area of 1996.50
square meters. The area (gross) of the demised premises shall not be
enlarged because of the parking spaces that are attached to the demised
premises in accordance with the terms of this agreement.
It is further agreed that 15 (fifteen) parking places shall be allocated
to the lessee in the parking area on the open floor level of "Beit
Hermon" as well as 30 (thirty) additional parking places which are marked
on APPENDIX 2 - 1 in green color. The lessor and/or the Management
Company shall also be entitled to change the location of the said parking
places which have been allotted and/or are to be allotted from time to
time to the lessee, and also to transfer them from "Beit Hermon" to
another location which shall be situated not more than 150 (one hundred
and fifty) meters from Beit Hermon". For the avoidance of doubt it is
hereby declared that the monthly fee for use of one COVERED parking space
shall amount to a monthly sum in NIS that is equivalent to a monthly sum
of $65 (sixty five US Dollars) whereas the monthly rent for AN OPEN
(non-covered) place shall amount to a monthly sum in Shekels equivalent
to a monthly sum of $50 (fifty US Dollars) and all with the addition of
lawful VAT. The aforementioned substitute parking spaces shall be
situated in parking areas that are let in the "industrial park" and/or in
a separate parking building which will be constructed therein at a
distance of no more than 150 (one hundred and fifty) meters from "Beit
Hermon".
For the avoidance of doubt it is hereby agreed and declared that the said
demised premises, together with all the said parking spaces that are
allocated from time to time to the lessee shall be referred to in this
agreement as "the demised premises".
For the avoidance of doubt it is hereby agreed and declared that in
determining the aforesaid area of the demised premises all the width of
the external walls of the demised premises have been included in the area
of the demised premises, as well as one half (1/2) of the widths of all
the internal walls of the demised premises bordering on other demised
premises in"Beit Hermon", but the entire widths of the partitions or the
walls of the demised premises that border the public areas of "Beit
Hermon", together with "the proportionate share" of the demised premises
in the common property of "Beit Hermon".
It is also hereby agreed and declared that the expression "the
proportionate share" in this clause means: the proportionate share in the
ratio that the area of the demised premises itself, excluding its share
of the public areas, bears to the total area of all the areas that are
let or that are intended for letting or exclusive use in the building
even without parts of such public areas as aforesaid.
It is hereby agreed that a breach of this clause - shall be deemed to be
a fundamental breach of this agreement.
DELIVERY OF POSSESSION OF THE DEMISED PREMISES TO THE LESSEE.
8.
(a) The demised premises is to be built by the lessor and will only be
delivered to the lessee when it has been constructed to the
external cladding stage, with points for connection to the
electrical, water and sewage systems, with an automatic sprinklers
system having been installed in the whole area in accordance with
the requirements of the fire brigade and which has been connected
to the sprinkler's system of "Beit Hermon", with moving passenger
elevators serving it, and when connection can be made to the
refrigeration installations (chillers) which are to be installed
on the roof of "Beit Hermon" (including a vertical pipe and piers
with exit and entrance from and to the demised premises). The
lessor shall also install at the demised premises, a complete
system of toilet facilities for men and women to a high standard,
including, INTER ALIA, floor tiling and ceramic walls, a
decorative acoustic ceiling, suspended toilets with hidden
flushing facilities, wash basins with granite surfaces and crystal
mirrors and decorative light fittings.
All the remaining works required for the lessee to adapt the
demised premises to its requirements, including the erection of
internal partitions, installation of air conditioning units within
the demised premises, and the execution of electrical works,
plumbing, water and drainage at the demised premises shall be
carried out by the lessee and entirely at its own expense.
Internal works at the demised premises, including its internal
division, shall be undertaken by the lessee in accordance with the
technical specification attached to this agreement as APPENDIX 3
and in accordance with the plans that shall be furnished by the
lessee to the lessor by 1.2.2002 and which shall be subject to
prior and written approval of the lessor which shall be given in
accordance with the provisions specified hereafter in Clause 9
(b) The date for completion of the construction of the external
cladding of the demised premises and delivery of possession of the
demised premises to the lessee with the demised premises built in
accordance with the technical specification of the demised
premises to the cladding stage, which is attached to this
agreement as APPENDIX 3-1, shall be no later than 1.12.2001
(hereinafter - "DATE OF DELIVERY OF THE DEMISED PREMISES").
It is further agreed that for a period of 3 (three) calendar
months which shall be counted from the date of delivery of the
demised premises, the lessee shall be exempt from payment of rent
to the lessor and management fees to the Management Company in
respect of its possession of the demised premises as such period
of time is intended to enable the lessee to execute "the lessee's
works" at the demised premises as specified hereafter in Clause 9.
(c) Where notice has been given to the lessee that on "date of
delivery of possession of the demised premises", "the building" as
a whole will not yet
be internally finished and complete, and that a part or parts
thereof, or the systems serving such parts or parts thereof, will
be constructed or installed subsequently, the lessee acknowledges
and agrees to this, provided that within 3 (three) months which
shall be counted from "date of delivery of possession of the
demised premises" to the lessee, the external cladding of the
demised premises and a reasonable and safe access way is completed
and the lessor ensures that temporary or permanent connections of
electricity, water and air conditioning to the demised premises
have been made, and all subject to the provisions hereafter in
Clause 8(g).
For the avoidance of doubt it is hereby clarified and emphasized
that the installation and operation of elevators in "Beit Hermon"
will be completed by 31.1.2002.
It is further hereby agreed and emphasized that on "date of
delivery of possession of the demised premises" to the lessee
under the terms and the provisions of this agreement the
development works and works in the public areas of "Beit Hermon"
will not yet be complete but that the lessor will take action so
as to afford the lessee reasonable access to the demised premises
in order to complete its construction and/or use thereof in
accordance with the "object of the letting". The lessor undertakes
to complete such development works in "Beit Hermon" within 6
months from date of delivery of possession of the demised
premises.
(d) The lessor shall notify the lessee of the date of delivery of
possession of the demised premises by notice by telephone and in
writing at least 7 days in advance. It should be made clear that
the date of delivery of possession of the demised premises that is
stated in such notice shall be no later than 1.12.2001 but this
shall be subject to the provisions hereafter in Clause 37.
(e) Before notice as aforesaid is given as to the "date of delivery of
possession of the demised premises" and as a condition for
delivery of possession thereof, the lessee shall furnish the
lessor with all such certificates of insurance as the lessee is
bound to produce in accordance with the provisions set out
hereafter in Clause 16(b).
(f) On such day and at such time as are specified in the lessor's
notice as being the date of delivery of possession, the lessee
shall attend at the demised premises in order to receive
possession thereof and the lessor shall deliver up possession of
the demised premises to the lessee at such time provided that the
lessee has previously delivered to the lessor, post dated checks
as security for full payment of the rent in the first year, as
provided in Clause 12(a)(4) hereafter, if the same have not yet
been delivered, and the lessee will also at such time furnish the
aforesaid checks to the lessor as well as such bank guarantee as
is required for the performance of the lessee's obligations under
this agreement and as provided in this clause and hereafter in
Clause 27.
(g) At the time of the delivery of possession of the demised premises
a Minute of such delivery and as to the condition of the demised
premises shall be prepared (hereinafter - "Minute of Delivery".)
In such "Minute of Delivery" all such matters as require to be
completed or repaired, if any, shall be stated and the lessor will
complete the repair thereof as soon as possible and within 7 days
from the date of delivery of the demised premises even though the
demised premises is then in the possession of the lessee. The
provisions of this clause are conditional on such defects as
prevent the execution of the "lessee's works" at the demised
premises being repaired by the lessor prior to delivery of
possession of the demised premises to the lessee and in such a
case the date of delivery of possession of the demised premises
shall be deferred until completion of such repairs as aforesaid
and the foregoing provisions of Clause 8(b) shall apply.
(h) Without derogating from the provisions of Clause 8(g) above, if
the lessee does not attend as provided above to receive possession
of the demised premises at such date and time as has been notified
to him as aforesaid (other than if the lessor previously agrees in
writing to change the aforesaid date), the "Minute of Delivery"
shall be prepared in the absence of the lessee, noting that the
demised premises being ready for delivery, the readiness of the
lessor to deliver up possession thereof to the lessee and the
failure of the lessee to appear to receive it. Such Minute shall
serve as prima facie proof of the correctness of the foregoing
matters set out therein and possession of the demised premises
shall be deemed to be delivered to the lessee and the commencement
of the "letting period" shall be deemed to have commenced on the
same day on which the lessee actually receives possession of the
demised premises on what ever date it may be and provided that
possession of the demised premises shall be delivered to the
lessee immediately upon his attendance to receive the same as
aforesaid.
(i) If the lessee does not furnish the checks to secure payment of the
rent as provided in Clause 12(a)(4) hereafter, or does not provide
the securities and guarantees for the due performance of its
obligations as provided in Clauses 8(f) above and 27 below, in
that event the lessee shall not be entitled to receive possession
of the demised premises for as long as it has not furnished the
lessor with all such checks and guarantees, even if the lessee
attends at such date and time as has been prescribed as the date
of delivery of the demised premises, and the lessee shall be
deemed to have not attended to receive possession of the demised
premises until such checks and guarantees are furnished by the
lessee as aforesaid.
(j) Without derogating from the provisions of this agreement, the day
that has been prescribed in the lessor's notice as the date of
delivery of possession of the demised premises shall be deemed to
be the date on which the letting commences, whether or not the
lessee has attended in order to receive possession of the demised
premises and all the lessee's liabilities under this agreement,
including those for payment of the rent (subject to the foregoing
provisions of Clause 8 (b)), compulsory payments,
and the other payments for which it is liable under this agreement
shall apply from that date unless the lessor has agreed to fix
another date for the delivery of possession and has issued a
further written notice to the lessee, in which case that day shall
be the date of commencement of the letting.
(k) If for any reason connected with the lessee the aforementioned
"Minute of Delivery" is not prepared, in such event actual receipt
of delivery of the demised premises by the lessee shall be deemed
to be confirmation on the part of the lessee and as prima facie
proof that the demised premises has indeed been delivered to the
lessee by the lessor in accordance with the provisions of this
agreement and to the complete satisfaction of the lessee.
(l) It is hereby agreed that a breach of this Clause 8 and/or a breach
of any of its sub-clauses and sub-paragraphs shall be deemed to be
a breach of this agreement.
THE LESSEE'S WORKS AT THE DEMISED PREMISES.
9.
(a) The parties hereby agree that the lessee shall be entitled to
complete the internal construction of the demised premises when it
has been delivered to the lessee in a condition of finish of the
external cladding stage, as provided above in Clause 8, and to
execute therein all the interior works including erection of
internal partitions and also to carry out adapting works to the
demised premises, additions and other works, which shall be
specified in APPENDIX 3 to this agreement, in order to adapt the
demised premises to its requirements. The lessee hereby undertakes
that the works that are to be undertaken by it at the demised
premises shall be of a high standard, backed by the use of
materials approved solely in accordance with the Israeli Standard,
conforming exactly, and subject as hereinafter provided, to the
plans and specifications that are approved in writing by the
lessor and/or by its duly authorized representative and shall be
undertaken strictly in full compliance with and observance of all
the laws and statutes that are relevant to the execution of such
works.
Changes that are not substantive in relation to what is specified
in Appendix C including a departure of up to 5% from the same -
shall not oblige the lessee to obtain further prior approval from
the lessor provided that the lessee shall report in writing to the
lessor about any change and/or departure in relation to those
specified in APPENDIX C to this agreement.
The lessor will permit the lessee to enter the demised premises in
order to execute the lessee's works at the demised premises
commencing from the date specified in Clause 8(b) above.
In addition to the foregoing provisions of Clause 8 (a) and 8(b),
it is hereby agreed that the lessee shall be entitled to execute
further works, changes or additions within the area of the demised
premises (hereinafter - "the lessee's works") subject to the
following provisions.
(b) Plans of the "lessee's works" and their technical specification
shall be delivered to the lessor at least 45 (forty-five) days
before the date of commencement of execution of "the lessee's
works" at the demised premises and shall require the lessor's
prior and written approval.
The lessor shall not refuse to grant its approval for "the
lessee's works", its plans or specification other than on
reasonable grounds. The response of the lessor's engineer shall be
given within 30 (thirty days) from the date on which the lessee
delivers such plans for the execution of the lessee's works at the
demised premises, to the lessor.
In addition, the lessor's engineer may and is duly authorized to
give appropriate instructions to the lessee if it is apparent that
"the lessee's works" at the demised premises do not conform with
such plans and/or specification and/or the terms of this
agreement, and this - without imposing any obligation and/or
liability on the lessor in respect of the same. The lessee for its
part hereby undertakes to comply with such instructions
immediately on receipt thereof.
(c) The lessor shall accede to a request of the lessee to permit him
to carry out the "lessee's works" at the demised premises, or any
part thereof, commencing from "the date of delivery of possession
of the demised premises" to the lessee and subsequently, only if
all the following pre-conditions are fulfilled and subject to the
performance thereof.
(1) The lessee furnishes the lessor with a "construction works
insurance" certificate, as provided in Clause 16(b)(1)
hereafter.
(2) The lessee makes the first payment of rent to the lessor,
as provided hereafter in Clause 12(a)(3) and also furnishes
a "insurance of the demised premises" certificate as
provided hereafter in Clause 16(b)(2), prior to being
permitted to commence the execution of any of the lessee's
works at the demised premises.
(3) The lessor's engineer previously confirms and in writing
that the execution of the lessee's works, or that part of
such works as are approved, will not cause any disturbance,
delay or inconvenience to the construction works of the
demised premises itself.
The decision of the lessor's engineer on the subject in
question including his decision not to permit the execution
of the lessee's works before delivery of possession or that
only some of them may be carried out, shall be final and
shall not be the subject of any argument or appeal against
such decision, unless the lessee views such decision as
having been given on unreasonable grounds.
(4) The lessee shall effect all such insurance cover as shall
be necessary and proper to effect pertaining to the
execution of the lessee's works in the aforementioned
circumstances as determined and required by the lessor in
accordance with the provisions of this agreement,
including contractor's insurance, third liability
insurance, employer's insurance and the lessee shall
furnish the lessor with a certificate by the insurer that
all the aforementioned insurance cover has been effected,
such certificate to be in the form attached to this
agreement as APPENDIX 5. In addition the lessee undertakes
to furnish the lessor with all such insurance policies as
have been issued, or true photographic copies thereof,
within 60 (sixty days) which shall be counted from the date
of receipt of possession of the demised premises.
(5) The lessee will make payment to the lessor in advance, or
will undertake to do so, or instead of the lessor, all at
the option of the lessor, of all such additional payments
as shall be required by contractors or other operators who
carry out works for the lessor at the demised premises or
in "Beit Hermon", in respect of which the lessee is
authorized to execute "the lessee's works" or any part
thereof that is approved prior to the completion and
delivery of works to the demised premises or the building
or due to additional works or trouble or delays that are
caused to them as a result of "the lessee's works", except
where such request for payment is made on unreasonable
grounds. In the event of dispute as to the reasonableness
of such a request a final and binding decision shall be
made in respect thereof by a qualified land assessor who
shall be appointed jointly by both parties.
(d) "The lessee's works" which are executed at the demised premises
commencing from "the date of delivery of possession of the demised
premises" and thereafter, and which will permanently connect the
demised premises, shall be treated in the same way as changes or
additions that the lessee has made in the demised premises, with
the agreement of the lessor, within "the letting period" as
provided hereafter in Clauses 19(a) to 19(d), and they shall
become the property of the lessor at the end of the tenancy which
is the subject of this agreement, without consideration, unless
the lessor requests that they be removed, or partially removed at
the end of the tenancy which is the subject of this agreement, and
in that event - the lessee shall be bound to remove all the
lessee's works, or such part of them as it has been asked to
remove, and to restore the demised premises to the condition that
it was in, or that it should be in under the terms of this
agreement in accordance with the relevant appendices thereto.
(e) It is hereby agreed that a breach of this Clause 9 and/or a breach
of any of the sub-clauses thereof shall be deemed to be a
fundamental breach of this agreement.
THE OBJECT OF THE LETTING AND THE USE OF THE DEMISED PREMISES.
10. The lessor hereby lets the demised premises to the lessee and the lessee
hereby takes a tenancy of the demised premises and does so solely for
"the object of the letting" that is specified in the preamble to this
agreement.
The lessee shall be entitled to use the demised premises solely for "the
object of the letting" and shall not be entitled to use the demised
premises, or any part thereof, or permit the same or any part thereof to
be used for a purpose which is not the aforesaid "object of the letting"
without the previous and written consent of the lessor thereto.
The lessee further hereby undertakes not to make any change in the
"object of the letting" without obtaining the prior and written consent
of the lessor thereto.
It is also agreed between the parties that subject to the provisions
hereafter in Clause 32, a breach of this clause shall be deemed to be a
fundamental breach of the agreement which will confer on the lessor the
right to claim the immediate eviction of the lessee from the demised
premises without prejudice to any other rights of the lessor under this
agreement and/or by law.
THE CONTRACTUAL PERIOD.
11
(a) Subject to the foregoing provisions of Clause 8(g) the parties
hereby agree that the letting period of the demised premises in
accordance with the terms of this agreement is for a total period
of 63 (sixty three) months only, commencing 1.12.2001 and
terminating on 28.2.2007 (hereinafter - "THE LETTING PERIOD".
(b) The lessee is hereby granted an option (hereinafter- "THE OPTION")
to extend the "the letting period" for an additional period
totaling 60 (sixty) months, commencing on 1.3.2007 and terminating
on 28.2.2012 (hereinafter - "the extended letting period"),
provided that this is on condition that the lessee gives prior
written notice to the lessor by 31.8.2006 (namely - at least 6
(six) months prior to the date of expiration of the "letting
period", by virtue of which the lessee fully exercises its right
under "the option", and extends the "letting period" until the
expiration of the "extended letting period".
(c) For the avoidance of any doubt it is hereby agreed and emphasized
that in addition to the conditions referred to above in Clause
11(b) the parties hereby agree that the lessee shall not be
entitled to continue the tenancy in accordance with "the option",
and shall not be entitled to any extension of the tenancy that is
the subject of this agreement, if the lessee does not perform the
principal terms of this agreement in their entirety and on the due
dates and including if the lessee does not make payment in full of
all such payments and rent which it has undertaken to pay in
accordance with the terms and provisions of this agreement.
Provided that lateness in giving notice regarding exercise of "the
option" and/or in making of any payment of rent, which does not
exceed 15 (fifteen) days from the date prescribed as the date for
payment of such relevant payment under the terms of this agreement
- shall not deprive the
lessee of the right to continue the tenancy in accordance with
"the option" and in accordance with all the other terms of this
agreement.
(d) It is hereby agreed and emphasized that all the provisions of this
agreement as regards the letting in "the letting period" shall be
applicable to the letting during the "extended letting period",
provided that this shall be subject to such changes as apply as
regards the level of the rent during the "extended letting
period", or as the case may be, and in accordance with the terms
of this agreement.
(e) The lessee shall not be entitled to shorten the "letting period"
and/or the "extended letting period" in the event of the option
being lawfully exercised in respect of the same in accordance with
the terms of this agreement and all this - without receiving the
previous written consent to the same from the lessor.
It is further hereby agreed that if the lessee leaves the demised
premises for any reason whatsoever before the end of the "letting
period" or before the end of "the extended letting period" as the
case may be, and does so without obtaining the previous and
written consent from the lessor, in such event and in addition to
all the provisions in this tenancy agreement the lessee shall be
bound to continue paying the rent in full to the lessor as
specified hereafter in this agreement for all the remainder of the
"letting period", and if the option is exercised - also for all
the remainder of "extended letting period", all as the case may
be.
It is hereby clarified and agreed that the foregoing provisions of
this sub-clause shall not apply in a case in which the lessee
lawfully rescinds this agreement, in accordance with the
provisions thereof or by law.
(f) For the avoidance of any doubt it is hereby expressly agreed and
stipulated that the obligation of the lessee to take a letting of
the demised premises throughout the letting period, and in the
case of exercise of "the option" by the lessee - also throughout
the extended letting period, including the lessee's obligations to
pay the rent to the lessor and all such other payments as are due
to the lessor under this agreement, throughout "the letting
period" and in the case of exercise of "the option" - also
throughout the extended letting period, as well as the lessee's
obligations to pay all such other taxes, municipal taxes, levies,
compulsory payments and various payments that it must pay under
this agreement to the authorities or to a third party, shall
continue to remain in force until the end of the "letting period",
and in the event of exercise of the "the option" by the lessee -
also to the end of "extended letting period", and the lessor shall
be entitled to compel the lessee to make all such payments and the
lessee shall be bound to continue to pay them until the end of the
"letting period" and in the case of exercise "the option" by the
lessee - also until the end of the "extended letting period" even
where the lessee gives notice of termination of the letting and
even where the lessee vacates the demised premises or any part
thereof or ceases in practice to use the same, before the end of
the relevant period. Provided that the foregoing provisions of
this sub-clause shall not
apply as regards a case in which the lessee duly rescinds this
agreement, whether under the provisions of this agreement or by
law.
(g) Where the lessee vacates the demised premises or any part thereof,
or ceases in practice to use the same, prior to the end of the
relevant letting period, as provided in Clause 11(f) above, but
except in a case of the lawful rescission of this agreement by the
lessee, the lessor shall act in good faith in letting the demised
premises that has been vacated or any part thereof which is
vacated by the lessee, to another tenant, and the lessee's
obligations to continue to pay the rent under this agreement shall
even then continue to remain in force until the end of the letting
period, and in the event of exercise of the "option" by the
lessee, also until the end of the "extended letting period",
except that in such a case the lessor shall deduct from such sums
as the lessee is liable to pay under the terms of this agreement,
all such amounts as are paid by the new tenant in respect of the
same liabilities up to the amount of the rent for which the lessee
is liable under the terms of this agreement.
(h) Nothing by virtue of the foregoing provisions of Clauses 11(e),
11(f) and 11(g) shall impose any liability on the lessor to let
the demised premises or any part thereof in the event that it is
vacated by the lessee earlier than the end of "the letting period"
and in the event of exercise of "the option" by the lessee - where
the demised premises are vacated by the lessee earlier than the
end of the "extended letting period" as aforesaid, and the lessor
shall be entitled to enforce the tenancy agreement against the
lessee and to treat the lessee as being bound to comply with all
such obligations and liabilities for which the lessee has accepted
responsibility, until the end of "the letting period" and in the
event of exercise of "the option" by the lessee - until the end of
"extended letting period", without having to attempt to re-let it
to another tenant.
It is further hereby clarified and agreed that the provisions of
this sub-clause shall not apply in a case in which the lessee
lawfully rescinds this agreement either in accordance with the
provisions of this agreement or by law.
In the event that the demised premises or any part thereof that is
vacated by the lessee prior to the end of the relevant letting
period, is let to another tenant as provided in Clause 11(g)
above, this shall not be deemed to be a waiver by the lessor of
any of such rights as are available to it under this agreement, or
any of them, and the lessor shall be entitled to claim
compensation from the lessee for any damages caused to the lessor
as a result of such a breach of this agreement by the lessee.
(i) A breach of this Clause 11 and /or a breach of any of the
sub-clauses thereof shall be deemed to be a fundamental breach of
this agreement.
THE RENT - THE AMOUNTS THEREOF, TERMS AND DATES OF PAYMENT
12.
(a) The lessee hereby undertakes to pay the rent to the lessor for the
demised premises as follows:
1. (a) The lessee shall be exempt from payment of the rent and
management fees for the first 3 (three) months of "the
letting period".
(b) The monthly rent for each and very one of the further
successive 60 months of the "letting period" shall amount
to a monthly (principle) sum of NIS 89,019 (eighty-nine
thousand and nineteen new shekels).
These entire monthly rents shall be fully linked to such
rises as occur in the Consumer Prices Index in accordance
with the details specified hereafter in this agreement, and
VAT shall be added thereto in accordance with the details
specified hereafter in Clause 22 (d). The lessor shall
furnish a lawfully raised tax invoice to the lessee
immediately after payment has been made.
2. The monthly rent for each of the 60 (sixty) months of the
"extended letting period" shall amount to a monthly
(principle) sum of NIS 97,921 (ninety seven thousand nine
hundred and twenty one new shekels) (namely an increase of
10% to the (principle) amount of the rent specified in
Clause 12 (a) (1) (b) above).
These entire monthly rents shall be fully linked to such
rises as occur in the Consumer Prices Index in accordance
with the details specified hereafter in this agreement, and
VAT shall be added thereto in accordance with the details
specified hereafter in Clause 22 (d). The lessor shall
furnish a lawfully raised tax invoice to the lessee
immediately after actual payment has been made of each any
every payment to the lessor.
3. The rent which the lessee is liable to pay to the lessor in
accordance with the terms of this agreement, both for the
letting of the demised premises for the whole of the
"letting period" and in the event of exercise of "the
option" by the lessee in accordance with the terms of this
agreement - also for the letting of the demised premises
throughput the "extended letting period" - shall be paid by
the lessee to the lessor in continuous and successive
quarterly payments, on each occasion by payment of the rent
in full in advance for 3 (three) months letting.
The first payment, for payment in advance of the full rent
for the first quarter of the "letting period" shall be paid
by the lessee to the lessor on the date of signature of
this agreement, whereas the payment dates
of all the other remaining quarterly payments which the
lessee is liable to make to the lessor under the terms of
this agreement shall be on the 1st (first) day of each of
the calendar months of March, June, September and December
and which shall apply with effect from the end of eight
months from the date of delivery of possession of the
demised premises and until the end of the letting that is
the subject of this agreement in accordance with all the
terms and provisions of this agreement.
If the "letting period" commences or comes to an end in the
middle of one of the aforesaid 4 (four) calendar quarters -
then the rent shall be paid by the lessee to the lessor for
the actual letting period in that quarter.
4. In order to facilitate the collection of the full amount of
the rent which the lessee is liable to pay to the lessor
and/or which he will be liable to pay to the lessor in
accordance with the terms and provisions of this agreement,
the lessee shall deliver to the lessor, by no later than 14
(fourteen) days prior to the commencement of each relevant
12 (twelve) calendar months letting period, 4 (four) checks
signed by the lessee, made out to the order of the lessor
and for the full total of the rent, index linked in
accordance with the terms of this agreement, which relates
to the same 12 (twelve) relevant calendar months of the
letting, except for the last payment which shall be for a
total of three months letting.
It is hereby clarified that the rent that is to be actually
paid to the lessor on the date of signature of this
agreement shall be linked to "the index".
The payment dates of the aforementioned checks shall
coincide with the payment dates specified above in Clause
12 (a) (3).
Differentials linked to the Consumer Prices Index shall be
applicable because of the linkage of the full rental
payments to such rises as occur in the Consumer Prices
Index in accordance with the details specified below in
Clause 13 and shall be paid in full by the lessee to the
lessor, and in practical terms on the payment dates for the
payments referred to above in Clause 12 (a) (3).
For the avoidance of doubt it is hereby agreed and
emphasized that delivery of the aforesaid checks to the
lessor shall not in any way be deemed to be any payment
whatsoever on account of the rent which the lessee is
liable to pay and/or which it will become liable to pay to
the lessor under the terms of this agreement, and that only
the actual payment in full of the amount of the said checks
in the lessors hands shall deemed to be payment on account
of such rent as is due to the lessor from the lessee in
accordance with the terms and provisions of this agreement.
A check that is given as security for a payment which will
actually be made by the lessee by way of bank transfer to
the lessor's account - shall be returned by the lessor to
the lessee after the lessor's account is actually credited
with the relevant payment in respect of which the relevant
check was given as security.
(b) The parties hereby agree that in any case in which the lessee is
late in making any payment of those payments of rent which the
lessee has undertaken to pay to the lessor in accordance with the
terms and provisions of this agreement, and which is late for a
period that exceeds 90 (ninety) days from the prescribed date for
the making of such payment under the terms and provisions of this
agreement, as the case may be, and notwithstanding that the lessee
has received a 14 (fourteen) days written warning about the same
from the lessor, then in such circumstances of such lateness in
payment as aforesaid, the full balance of the rent due to the
lessor under this agreement shall become payable for the 12
(twelve) subsequent months of the letting which shall be counted
from the date on which the relevant default in payment occurs, of
the rent for which the lessee is liable to pay the lessee under
the terms and provisions of this agreement, and the lessee shall
be bound, without any further delay, to pay the lessor the full
amount of the rent that it undertook to pay to the lessor under
this agreement in respect of that same 12 (twelve) relevant
letting months.
(c) For the avoidance of any doubt, the parties agree that the lessee
shall be liable to pay the lessor the full rent that is due from
it to the lessor under this agreement for the rental of the
demised premises, even if the lessee has not made any use of the
demised premises.
It should be made clear that the provisions of this sub-clause
shall not be applicable in respect of a case in which, the lessee
has lawfully rescinded this agreement.
(d) Without prejudice to the right of the lessor to rescind the
agreement as a result of a fundamental breach in any case in which
any of the amounts of the rent has not been paid by the lessee on
time, as aforesaid, and subject to the provisions hereafter in
Clause 32, the parties agree in any case of late payment of the
rent which exceeds 7 (seven) days, or default in the payment of a
check given as security for the same, the amount in arrears shall
bear interest at the maximum rate charged at that time by Bank
Hapoalim Ltd. on overdrafts which are in excess of an approved
credit framework, or, at the election of the lessor, the amount in
arrears shall bear index linked differentials with the addition of
interest at the maximum permitted rate for linked value loans in
accordance with the Interest (Fixing of the Maximum Interest Rate)
Order 5730-1970 - , or any other order replacing it, or where
there is no longer any such order in force - interest at the
maximum rate charged on the relevant date by Bank Hapoalim Ltd. on
liabilities in arrears that are linked to "the index".
The charging of interest on arrears shall be made to the effect
that such interest is added to the payment which the lessee is
liable to make to the lessor following the date of the payment
that is in arrears, and shall be deemed, together with such
subsequent payment and index linked differentials in respect
thereof, to be "principle' for the purposes of calculation of such
interest on arrears in the future.
Nothing by virtue of the foregoing provisions of Clause12 shall be
construed as conferring any right on the lessee to be in arrears
with any payment of rent under this agreement.
(e) A breach of this Clause 12 and /or a breach of any of the
sub-clauses and/or sub-paragraphs of the sub-clauses thereof shall
be deemed to be a fundamental breach of this agreement.
LINKAGE OF PAYMENTS TO RISES IN THE CONSUMER PRICES INDEX
13
(a) The parties hereby agree that all payments of the rent which the
lessee is liable to pay to the lessor under this agreement,
including the rent referred to above in Clause 12, and the
sub-clauses thereof, and sub-paragraphs thereof shall be paid by
the lessee to the lessor linked entirely to all rises that occur
in the Consumer Prices Index to the effect that if the rate of the
Consumer Prices Index last published before the date for payment
in full and in practice of any of the aforesaid payments to the
lessor which the lessee has undertaken to pay to the lessor under
the terms of this agreement, or as the case may be, (hereinafter -
"THE NEW INDEX"), increases as compared with the rate of the
Consumer Prices Index which was published on 15.10.2001 for the
month of September in the year 2001 (hereinafter - "THE BASE
INDEX"), the lessee will make all such payments to the lessor as
are referred to in Clause 12 above and in its sub-clauses and
sub-paragraphs, with increases in such payments in the same
proportion as that by which the rate of the "New Index" rises in
comparison with the rate of the "base index", and all this as the
case may be, and having regard to the date of full and actual
payment to the lessor of each and every one of the aforesaid
payments.
If the rate of "new index" is reduced as compared to the "base
index" all the monthly payments of rent (principle) referred to in
the aforementioned Clause 12 (including its sub-clauses and
sub-paragraphs) shall be paid without any reduction therein.
(b) Notwithstanding the foregoing and for the avoidance of doubt it is
hereby agreed and emphasized between the parties that in no case
shall the amount of any payment which the lessee is liable to make
to the lessor be reduced in respect of (principle) rent which is
the subject of the letting under this agreement, specified in
Clause 12 above.
(c) The expressions "Consumer Prices Index" or "Cost of Living Index"
or "Index" referred to in this agreement mean as follow: -
Consumer Prices
Index, as defined in the preamble in this agreement. In the
absence of an index that is published by the Central Bureau for
Statistics and Economic Research, or such other body as replaces
it and which determines the relationship between the other index
to the one it replaces, the said relationship shall be determined
by an Accountant who shall be appointed by the Head of the Israel
Certified Public Accountants Institute.
It is further hereby agreed and emphasized that in any case of an
"administrative freeze" of "the index" or in any case for whatever
reason that the "index" is not published in the manner specified
above, in such event the rate of the relevant cost of living index
shall be determined by such Accountant as aforesaid.
(d) The parties agree that all rent which the lessee is liable to pay
to the lessor under all the terms and provisions of this agreement
shall be linked to such rises as occur in the Consumer Prices
Index as specified above in this agreement.
For the avoidance of doubts it is hereby agreed and emphasized
that lawful VAT at such rate as is applicable on the date of
payment and in practice to the lessor shall be added to all the
aforesaid payments of the rent that are made on account of rent to
the lessor which the lessee is liable to pay to the lessor in
accordance with all the terms and provisions of this agreement.
The lessee shall pay VAT to the lessor against receipt of a duly
raised tax invoice. The lessee shall pay such VAT to the lessor on
such date as is specified hereafter in Clause 22(d).
(e) It is hereby agreed that a breach of Clause 13 and/or a breach of
any of its sub-clauses and/or sub-paragraphs of such sub-clauses
shall be deemed to be a fundamental breach of this agreement.
PERMITTED USES, PROHIBITED USES AND CLEANING OF WASTE AT THE DEMISED PREMISES.
14
(a) The lessee shall be entitled to use the demised premises solely
for "the object of the letting" as defined above, and for no other
use whatsoever unless the lessee obtains the previous written
approval from the lessor to change "the object of the letting".
Apart from the use of the demised premises and the parts
appurtenant thereto, and the common property of "Beit Hermon" and
of the "Industrial Park" the lessee shall not be entitled to use
any other parts of Beit Hermon and/or "the Industrial Park".
Furthermore, the lessee shall not be entitled and shall not be
authorized to permit any third party, including also the servants
agents and/or representatives of such third party, and including
its employees, contractors and /or sub-contractors, its invitees,
customers and any licensees who come to the demised premises
and./or are present at the demised premises
on behalf of such person to make any use whatsoever of the demised
premises other than in accordance with "the purpose of the
letting" and/or to make any use of any other parts of Beit Hermon
and/or the Industrial Park.
(b) In addition and without derogating from the generality of all the
foregoing, the lessee hereby undertakes as follows:
1. Not to allow its employees to, and to use its best
endeavors to prevent its customers and suppliers from
parking vehicles and cars in the industrial park other than
in the parking area that is marked in green on the car
parking plan which is attached to this agreement as
APPENDIX 2 -1 or in such other alternative parking area
which is allocated to the lessee in accordance with the
provisions of Clause 7.
2. Not to place any goods, equipment, merchandise, stock,
chattels, items of furnishings, packaging material and
packaging equipment and refuse of any kind, outside the
area of the demised premises.
(c) The lessee hereby undertakes to strictly maintain proper and good
neighborly relations with all the other tenants and/or users and
occupants of demised premises and/or units that are contained
within "Beit Hermon" and/or in "the project", and in addition also
to strictly adhere to the preservation of the good order and
cleanliness of the area of the demised premises and all such other
areas as are intended for the use of the lessee and/or the use of
all his representatives and/or agents under the terms of this
agreement.
The lessee also undertakes not to cause, or permit to be caused,
any disturbance and/or unreasonable congregating of persons and/or
nuisance in the said demised premises and/or in "Beit Hermon"
and/or in "The Industrial Park".
The lessee further hereby undertakes to furnish the lessor, in the
event that the lessor requests that he do so as a result of a
demand and/or complaint made to the lessor, certificates of
confirmation of the Ministry of Health and of the Ministry for the
Quality of the Environment that the lessee's enterprise that is
being conducted at the demised premises meets all such standards
of the aforementioned Ministries in relation to the emission of
waste and/or pollutant materials into the environment.
(d) The lessee is responsible for the storage of all waste from its
plant and all its other garbage or refuse, or from its plant which
is not normal office refuse, including that which contains
pollutant and/or contaminated materials and for their removal from
the demised premises and from the area of the "Industrial Park"
without delay, and the lessee shall also be bound to ensure
entirely at its own expense that the same are stored in suitable
and separate containers for the storage of such refuse and garbage
from its plant until they are removed from the site, and the
evacuation and removal of such refuse and garbage from the area of
the "Industrial Park" as soon as possible, and this without
causing any disturbance to the use of
tenants occupants and other users in "Beit Hermon" and in "the
Industrial Park", and in coordination with the local authority and
the lessor.
Notwithstanding the foregoing, non pollutant waste and waste that
does not contain poisonous and/or dangerous materials and which is
not normal office refuse, in average monthly quantities that shall
be calculated according to the average amount of monthly refuse of
the general body of tenants and/or users of the units in "Beit
Hermon" and in the proportion that the area of the demised
premises bears to the areas of the general body of the units in
"Beit Hermon" - shall be removed by the Management Company.
(e) It is hereby emphasized and agreed that all supply of petroleum
fuel and/or gas to the demised premises shall be subject to
receipt of previous and written approval thereof from the lessor.
(f) A breach of the aforesaid Clause 14 and/or of any of its
sub-clauses shall be deemed to be a fundamental breach of this
agreement.
LICENSING, LAWFUL USE AND CONDUCT OF BUSINESS AT THE DEMISED PREMISES.
15.
(a) The lessee hereby undertakes to use and manage the demised
premises in accordance with the requirements of any law, statute,
regulations and such other municipal and other by-laws as apply
and/or will be applicable as regards business premises, according
to the nature of the business that is to be managed by the lessee
at the demised premises in accordance with the "object of the
letting".
The lessee undertakes to comply with the provisions of all such
laws, regulations, by-laws and instructions LAWFULLY MADE by the
competent authorities regarding the demised premises and the
conduct of the lessee's business at the demised premises,
including all such regulations and standards as apply and/or will
be applicable from time to time concerning matters of safety,
security, fire prevention, safety at work, quality of the
environment, cleaning and sanitation, prevention of nuisance, and
any other matter and also as regards the compliance with any
regulation or instruction lawfully issued concerning any matter
whatsoever.
The lessee hereby further undertakes to obtain, entirely at its
own expense all such approvals, permits, licenses which may be
required, if at all, by all the competent authorities for the
conduct of its business in the building of the demised premises
and to make, to the extent that the same is necessary and required
by law - all such payments without exception that are incidental
thereto.
The lessor for its part shall cooperate in good faith, in the
event that it is requested to do so by the lessee, and sign all
such applications and documents as may be required in order to
obtain all such permits, approvals
and licenses as may be necessary for the conduct of the lessee's
business at the demised premises. Without derogating from the
foregoing, the lessor undertakes that up to and no later than
31.1.2002, the lessor will have obtained Form 4, including the
following approvals:
1. Approval from the Fire Authorities.
2. Approval from Home Front Command.
3. Approval from the Ministries of Health and Quality of the
Environment - if required.
In the event that it is not possible for the lessee to obtain all
such permits, approvals and licenses as are required by law for
the conduct of his business due to the non-receipt of the
aforementioned Form 4 by 31.1.2002, the lessee shall be entitled
to terminate this agreement after giving and additional 3 (3)
months advance written warning, and all without derogating from
such remedies as are available to the lessee by law, and provided
that the lessee does not receive the said Form 4 in relation to
the demised premises within such additional 3(3) months, which
shall be counted from the date of the giving of such warning to
the lessor.
(b) In addition, and without derogating from the foregoing provisions
of Clause 15(a), and for the avoidance of any doubt, it is hereby
agreed and emphasized that the entire and sole responsibility for
the conduct of business and/or use of the demised premises without
a license, permit and/or any approval, should such a situation
arise, shall be that of the lessee and it is the lessee who shall
pay any fines that are imposed, if at all as a result thereof, and
the lessee shall indemnify the lessor for any expense and/or
payment and/or fine for which the lessor is lawfully charged with
payment by any third party including by a Court and/or other
competent authority in respect and/or as a result of the conduct
of the lessee's business in the demised premises building without
a business license and/or without obtaining any other lawfully
required permit and/or approval. The obligation of indemnity as
aforesaid is conditional on the lessor having notified the lessee
of the existence of a demand and/or claim and/or liability and
affording the lessee an opportunity, in so far as the same is
within the lessor's control, of defending the same.
(c) Without derogating from the foregoing provisions of Clause 15(a)
it is hereby agreed and emphasized that the lessee shall be liable
for payment in full of the rent for the letting of the demised
premises even if it does not actually use the demised premises as
a result of the failure to obtain all such approvals permits and
licenses as are and/or may in future be required by law from time
to time, and by all the competent authorities for the conduct of
its business at the demised premises and the use of the demised
premises in accordance with the "object of the letting" and in
accordance with all the other terms and conditions of this
agreement, and all in the case of failure to obtain such licenses
and/or approvals an/or permits arising from reasons not within the
lessor's control.
(d) A breach of Clause 15(a) and/or a breach of Clause 15(b) and/or a
breach of Clause 15(c) above shall be deemed to be a fundamental
breach of this agreement.
INSURANCE AND LIABILITY.
16.
(A) THE LESSOR'S INSURANCE COVER.
Without derogating from the liability of the lessee under this
agreement and/or by law the lessor undertakes to effect and
maintain, either itself or through the Management Company,
throughout the letting period, and in the event of exercise "the
option" by the lessee, also throughout the "extended letting
period", the insurance cover specified hereafter, and to such
scope of cover as is set out alongside the same (which shall
hereinafter be called - "THE LESSOR'S INSURANCE POLICIES"), with a
duly authorized and reputable insurance company in Israel, and the
lessee shall reimburse the lessor for its proportionate share of
any insurance premiums and expenses of such aforementioned
insurance, as specified hereafter as follows:
1. Insurance of the demised premises building and its
appurtenances (except for any repair, change, improvement,
renovation and additions to the demised premises that have
been made or are to be made by the lessee or on its behalf
other than through the lessor or the Management Company)
against loss or damage usually insured against including
fire risks, explosion, earthquake, malicious damage, xxxxx,
xxxxxxx, flooding and water damage, impact by aircraft,
riots, strikes, supersonic boom damage, impact by vehicles,
collision damage, breakage of glass, mechanical breakage,
burglary and etc., all at the sole discretion of the
lessor, in the full replacement value of the building and
the demised premises, in such value as estimated by the
lessor.
The aforesaid insurance shall contain a condition by which
the insurer waives any right of subrogation against the
lessee and any person acting on its behalf provided that
the damage was not caused with malicious intent and on
condition that the lessee's insurance policies contain a
corresponding clause.
2. Insurance for loss of rent, parking fees and management
fees as a result of such risks as are covered in the
property insurance specified in Clause 16(a) (1) above, for
a period of indemnity that shall not be less than 12
calendar months, and the sum insured shall be updated from
time to time by the lessor and/or by "the Management
Company" all at their sole and absolute discretion. The
said insurance shall include a clause concerning a waiver
of the right of subrogation as against the lessee and/or
any person acting on its behalf, except as regards a person
who has caused damage with malicious intent.
The lessee undertakes to pay a proportionate share of such
insurance premiums within 30 (thirty) days counted from the
date on which the lessor requests the same. In such a case
the lessee shall be exempt from payment of the basic rent
and management fees in such cases and for such period
during which the insurance company pays the lessor and/or
the Management Company, as the case may be, the full amount
of such payments of rent and management fees on the due
dates thereof.
The amount of the proportionate share of the lessee of such
insurance premiums shall be determined by the lessor in the
relation that the (gross) area of the demised premises
bears to the (gross) area of the total amount of the
demised premises and buildings that are insured under the
same insurance, and the lessee shall pay its proportionate
share of such insurance premiums at the lessor's request,
and in accordance with such terms and payments as are
prescribed by the lessor. The lessee shall be entitled to
inspect at the lessor's offices, all insurance policies
that are issued as aforesaid and to scrutinize all such
liabilities as pertain to the amount he is charged for
payment of such share of the insurance premiums.
3. Third party liability insurance covering the liabilities of
the lessor, the Management Company and the lessee for any
injury and/or damage that may be caused to the person
and/or property of any person and/or body in the public
areas of the land which are adjacent to "the building" and
the demised premises (which are not areas in respect of
which the lessee has an exclusive right of user under this
agreement), in appropriate sums insured at the lessor's
discretion provided that the limit of liability shall not
be less than a total of $2,000,000 (two million US Dollars)
per event and per annual period of insurance.
The insurance shall not be subject to any restriction as to
liability stemming from fire, explosion, panic, poisoning
any harmful matter in food and in drink, lifting devices,
loading and unloading, defective sanitary installations and
subrogation claims by the National Insurance Institute.
The insurance shall be subject to a cross liability clause
under which the insurance shall be deemed to be effected
separately for and on behalf of each of the insured
individuals.
4. Employer's liability insurance for the lessor's and the
Management Company's liabilities to all persons employed by
them and on their behalf in respect of bodily injury or
illness caused to them during the course of and as a result
of their employment, to the usual maximum level of
liability in Israel as at the date of inception of such
insurance which shall not in any event be less than a total
of $5,000,000 (five million US Dollars) per case and per
annual period of insurance.
This insurance shall not contain any restriction as regards
contractors, sub-contractors and their employees, baits and
poisons, and any matter concerning youth employment.
The said insurance shall be extended to cover the lessee in
the event that the lessee is deemed to be the employer of
the lessor's and/or the Management Company's employees.
5. The lessor declares that neither it or the Management
Company shall have any claim and/or demand and/or action
against the lessee and those acting on its behalf for any
damage in respect of which they are entitled to an
indemnity under the insurance policies effected by them, or
by either of them, in accordance with Clauses 16(a)(1) and
16(a)(2) above and/or under any additional insurance that
is effected by the lessor and/or the Management Company and
the lessee shall pay its proportionate share in respect
thereof, and that they hereby exempt the aforementioned
from any liability for such damage, except for such
personal excess for which the lessor and/or Management
Company are liable under the policy, provided that such
provisions as to waiver of the right of subrogation shall
not apply for the benefit of a person who has caused
malicious damage.
6. If during "the letting period" and/or "the extended letting
period" the lessor continues with and/or carries out
building works or works for completion of "the building" or
carries out building and/or construction works of other
buildings in "the project" and /or on "the land", or other
works in "the project" ,in respect of which it can be
reasonably anticipated that the execution thereof is liable
to cause any damage to the lessee, its employees, invitees,
or to the building or the demised premises itself, the
lessor undertakes either itself or through the Management
Company, to effect and maintain, with a duly authorized and
reputable insurance company in the name of the lessor and
in the name of contractors and sub-contractors, a
"construction works all risks" insurance policy which shall
include the following sections:
(a) "All risks" construction works insurance, covering
the building including all its systems in their full
value. This section will be subject to a clause as
to waiver of the right of subrogation as regards the
lessee and/or those acting on its behalf in all
matters pertaining to damage to the aforesaid works,
provided that such provision as to waiver of the
right of subrogation shall not apply in favor of a
person who has caused damage with malicious intent.
(b) Third party insurance, covering the liability of the
lessor, its contractors, sub-contractors for any
bodily injury and/or damage to the property of any
person and/or body to a limit of liability which
shall not be less than a total of $1,000,000 (one
million US Dollars) per event and in aggregate
during the
insurance period. Such insurance shall not be
subject to any exception concerning tremor and
weakening of support, adjacent property and
properties in which persons are working.
(c) Employer's liability insurance covering the lessor's
liability to persons that it employs in construction
works for any bodily injury or illness caused to
them during the course of and as a result of their
work, to the maximum usual limit of liability in
Israel on the date of inception of such insurance.
The insurance shall not be subject to any exception
concerning working at height or at depth, baits and
poisons, contractors, sub-contractors and their
employees, and any restrictions concerning youth
employment.
The insurance shall contain an express condition to the
effect that it shall not be cancelled or reduced unless a
reasonable period of notice in writing is given to the
lessee, provided that such condition shall not operate for
the benefit of a person who has caused damage with
malicious intent.
The lessee shall be liable for any damage that is caused to
the area of the demised premises as a result of the conduct
of its business, or even outside the area of the demised
premises if the same is as a result of any negligent acts
and/or omissions of the lessee, its employees, duly
authorized representatives and/or any other person or body
acting on its behalf.
(B) THE LESSEE'S INSURANCE COVER.
Before the date of receipt of possession of the demised premises
and/or prior to the commencement of the execution of any works at
the demised premises by the lessee and/or any person on its behalf
- whichever shall be the earlier of the two dates - the lessee
undertakes to effect and maintain, "construction works insurance"
as specified hereafter in Clause 16(b) (1) with a duly authorized
and reputable insurance company, covering any work that is to be
undertaken by the lessee including in respect of equipment,
systems and machinery and in respect of all such renovations,
repairs and additions as are made to the demised premises.
1. "CONSTRUCTION WORKS INSURANCE" shall be effected in the
name of the lessee, the lessor, the Management Company, the
lessee's contractors, and sub-contractors and shall include
the following sections of insurance cover:
(a) "All risks" insurance of construction works insuring
the full value of all the works carried out by the
lessee, and the cost of all such repairs,
renovations, improvements, alterations and additions
that are made in the demised premises (other than
through the lessor and/or the Management Company).
This section shall include a specific extension as
to property in which persons are
working, or adjacent property, to a limit of
liability that will cover the full value of the
works, without exception, that are being undertaken
by the lessee at the demised premises, and of an
amount that shall not be in any event less than a
total of $1,000,000 (one million US Dollars).
(b) Third party insurance covering the lessor's
liability for any injury or damage to the person
and/or property of any person and/or body in
connection with the execution of construction works,
to a limit of liability which shall not be less than
the total of $1,000,000 (one million US Dollars) per
event and in aggregate during the period of
insurance. The property of the lessor and/or the
Management Company shall be deemed to be third party
property for the purposes of this section.
This section shall be extended so as to indemnify
the lessor and the Management Company in respect of
their liability for the acts and/or omissions of the
lessee subject to a cross liability clause under
which separate insurance shall be deemed to have
been effected in respect of each and every one of
the insured parties referred to above.
(c) Employers liability insurance covering the lessee's
liability to all persons employed by it in the
execution of the building works in respect of any
bodily injury or illness caused to them during the
course of and as the result of their employment, to
the maximum usual limit of liability in Israel on
the date of inception of such insurance provided
that in no case shall such insurance be less than a
total of $5,000,000 (five million US Dollars) per
event and per insurance period.
This insurance shall not be subject to any exception
concerning works at height and at depth, baits and poisons,
contractors, sub-contractors and their employees, and any
restriction as to youth employment.
The construction works insurance shall contain an express
condition by virtue of which it takes precedence over any
insurance, which has been effected by the lessor and/or the
Management Company, and that the insurer waives any claim as to
double insurance or participation in the lessor's insurance
policies. Such insurance shall also contain an express condition
whereby it shall not be cancelled or reduced unless a reasonable
period of advance written notice has been given to the lessor
provided that such condition shall not apply for the benefit of a
person who has caused damage with malicious intent.
By no later than the date of delivery of possession of the demised
premises or the date of commencement of execution of the
construction works (which ever is the earlier of 2 dates) the
lessee undertakes to furnish the lessor with a certificate as to
the inception of "construction works
insurance" in accordance with the form attached to this agreement
AS APPENDIX 5, and which is signed by the insurer.
The parties agree that the furnishing of "certificate of
construction works insurance" is a condition precedent for the
execution of the works or delivery of possession of the demised
premises to the lessee. The lessor shall be entitled to prevent
the lessee from carrying out any work in the demised premises
and/or the delivery of possession of the demised premises to the
lessee in the event that such aforementioned certificate is not
furnished to the lessor on the date referred to above.
2. Prior to the date of the opening of the lessee's business
at the demised premises, or prior to the date of the entry
of any property whatsoever into the demised premises (other
than property that is included in the works that are
insured under Clause 16(b)(1) above) - which ever is the
earlier of the 2 dates - the lessee undertakes to effect
and maintain throughout the period in which this agreement
is in force all such insurance cover as is specified
hereafter (which shall hereinafter be called - "INSURANCE
OF THE DEMISED PREMISES") with a duly authorized and
reputable insurance company in Israel, and as follows:
(a) Insurance of the contents of the demised premises,
including insurance of any equipment serving the
demised premises and which is owned by and/or for
which the lessee is responsible either outside the
demised premises or within the area of "the land"
and insurance of the lessee's works any repair,
alteration, improvement, renovation and addition to
the demised premises that has been made and/or will
be made by the lessee and/or on its behalf, and
insurance of any furnishings, equipment,
installations, stocks of any kind or type, against
loss or damage by fire, lightning, explosion,
earthquake, riots, strikes, malicious damage,
flooding, storm and tempest damage, damage from
impact by aircraft, water damage, sonic boom damage,
damage from other leakage and gases, collision
damage, breakage of glass and burglary.
The insurance will include an express condition
under which the insurer waives any right of
subrogation as against the lessor and/or the
Management Company and as against the other tenants
and/or occupants of the building whose insurance
policies contain a corresponding clause as to waiver
of the right of subrogation as regards the lessee,
provided that the foregoing provision as to waiver
of the right of subrogation shall not apply in favor
of a person who has caused damage with malicious
intent.
(b) Insurance for loss of income (except for rent,
parking fees, advertising fees and management fees)
as a consequence of the risks insured in the
foregoing clause for a period of indemnity that
shall not be less than 12 (twelve) months.
The aforesaid insurance shall include an express
condition under which the insurer waives any right
of subrogation as against the lessor and/or the
Management Company and as against the other tenants
and/or occupants of "the building" whose insurance
policies contain a corresponding clause as to waiver
of the right of subrogation as regards the lessee,
provided that the foregoing provision as to waiver
of the right of subrogation shall not apply in favor
of a person who has caused damage with malicious
intent.
(c) Third party liability insurance covering the
liability of the lessee for any injury or damage to
the person or property of any person or body to a
limit of liability that shall not be less than a
total in NIS that is equivalent to a total of
$1,000,000 (one million US Dollars) per event and
per annual insurance period.
This insurance shall not be subject to any
restriction concerning liability arising from fire,
explosion, panic, lifting devices, loading an
unloading, defective sanitary installations,
poisoning, any harmful matter in food or in drink,
and as regards claims by the National Insurance
Institute.
The insurance shall be extended so as to indemnify
the lessor and/or the Management Company for their
liability for the acts and/or omissions of the
lessee, and this - subject to a cross liability
clause under which the insurance shall be deemed to
have been effected separately for and on behalf of
each of the insured individuals.
(d) Employer's liability insurance for the lessee's
liability in respect of all employees engaged by the
lessee and on its behalf to a limit of liability
that shall not in any case be less than a total of
$5,000,000 (five million US Dollars) per case and
per period of insurance. This insurance shall not
contain any restriction as to contractors,
sub-contractors and their employees, baits and
poisons and any matter concerning youth employment.
(e)
1. "INSURANCE OF THE DEMISED PREMISES" shall
contain an express condition to the effect
that such insurance takes precedence over any
other insurance which has been effected by
the lessor and/or the Management Company and
whereby the lessee's insurer waives any claim
of double insurance or participation in
"insurance of the demised premises". The
insurer also undertakes not to reduce or
cancel the policies, that they shall not
expire and shall be kept in force throughout
the period of insurance unless at least 60
(sixty) days advance notice is given by
registered mail to the lessor.
The lessee undertakes to update from time to time
the sum insured in respect of the insurance that is
effected pursuant to this clause and which relates
to the aforementioned property insurance, in order
that it shall constantly reflect the full value of
the property insured thereunder.
2. The lessee declares that he shall not have any claim
and/or demand and/or action against the lessor
and/or the "Management Company" and/or against other
tenants of "the building" and/or of any other rented
premises in "the project" and/or of "the land" for
any damage in respect of which it is entitled to an
indemnity, or in respect of which it would have been
entitled to an indemnity but for the personal excess
specified in the policy, under the insurance
policies that the lessee undertook to effect
pursuant to the aforementioned clauses and/or
pursuant to any additional insurance which may
actually be effected, and the lessee hereby exempts
the lessor and/or the Management Company and/or all
the other tenants and/or occupants of the areas of
the project and/or in such buildings as are
constructed and/or will be constructed on "the
land", from any liability for such damage as
aforesaid, provided that - as regards such other
tenants and occupants whose tenancy or other
agreements confer on them rights in the building, in
"the project" and/or in the buildings constructed
and/or which are to be constructed on "the land", a
corresponding clause is included in favor of the
lessee as to exemption from such liability. The
foregoing provision as to exemption from liability
shall not apply for the benefit of a person who has
caused malicious damage.
3. Without the need for any request on the part of the
lessor, the lessee hereby undertakes to furnish the
lessor with a certificate as to the inception of
insurance of the demised premises in accordance with
the form of "certificate of insurance of the demised
premises" which is attached to this agreement and
marked as "APPENDIX 6 AND which is signed by the
insurer, by no later than the date of opening of the
lessee's business at the demised premises, or prior
to the date of the entry of any property into the
demised premises (apart from such property as is
included in the works insured in accordance with
Clause 16 (b)(1) above), which ever shall be the
earlier of the 2 dates.
The lessee declares that he is aware that the
furnishing of "a certificate of insurance of the
demised premises" as aforesaid is a condition
precedent and stipulation for the opening of the
business of the lessee at the demised premises
and/or the entry of any property into the demised
premises (apart from such property as is included in
the insured works in accordance with Clause 16(b)(1)
above) and that the lessor will be entitled to
prevent the lessee from opening its business at the
demised
premises and/or from bringing any property into the
demised premises in the event that such certificate
is not forthcoming. It is hereby emphasized that
failure to furnish such insurance certificate on the
date as required as aforesaid shall not prejudice
the lessee's obligations under this agreement
including and without prejudice to the generality of
the foregoing and liability to make a payment for
which the lessee is liable, and the lessee
undertakes to perform all its obligations under this
agreement even if it is prevented from executing the
lessee's works and/or from obtaining possession of
the demised premises and/or bringing property into
the demised premises and/or opening its business at
the demised premises, because of the failure to
produce such certificates on the required date under
the terms of this agreement.
4. The lessee hereby undertakes to fulfil all the above
specified insurance policy conditions, to pay the
insurance premiums in full and on the due dates, and
to ensure and verify that the insurance policies of
the demised premises are renewed from time to time,
as necessary and are maintained in force throughout
the "letting period" and in case of exercise of "the
option" in accordance with the terms of this
agreement - also throughout the "extended letting
period".
By no later than 14 days prior to the date on which
the period of insurance of the demised premises
expires, the lessee undertakes to deposit with the
lessor a new "certificate of insurance of the
demised premises" in respect of the extension of the
force and effect of all such policies of insurance
as are specified above, for a further calendar year.
The lessee undertakes to repeat the production of a
new and updated "certificate of insurance of the
demised premises", on the specified dates, in every
year of insurance, and for as long as this agreement
remains in force.
The lessee shall, at the lessor's request, furnish
the lessor with a photocopy of such insurance policy
as has been issued to it in respect of each of the
insurance policies that the lessee has accepted
responsibility for effecting and maintaining in
force, as aforesaid.
The lessor may examine such insurance certificates
and/or insurance policies furnished to it by the
lessee as aforesaid, and the lessee undertakes to
make any change or amendment that may be required in
order to render the same compatible with the
lessee's obligations.
5. The lessee declares and undertakes that the lessor's
right of inspection as regards the insurance
certificates and insurance policies, and the
lessor's right to inspect the said policies and to
give instructions for amendments thereto as
specified above, shall not render the lessor or any
person acting on its behalf liable for any
obligation and any liability as regards such
insurance certificates and the said insurance
policies, the nature, scope and validity thereof or
as regards the absence thereof and nothing by virtue
thereof shall derogate from any obligation imposed
on the lessee under this clause.
The lessee hereby undertakes not to do or permit to
be done any act or omission in the demised premises
and/or in any of the areas of "the building" and/or
"the land" and including also not within any
constructed area on "the land", which are a
departure from the routine activity of the lessee as
defined in this agreement, which are liable to cause
an explosion and/or combustion and/or which could be
construed as increasing the costs of the insurance
for which the lessor and/or the Management Company
and/or the other tenants are liable for insurance of
"the building" or for the insurance of any other
demised premises situated in "the building" and/or
constructed on "the land".
The lessee undertakes that in the event of the
lessor and/or the Management Company being liable
for payment of additional insurance premiums beyond
what is usual as a result of the lessee's activity,
the lessee shall pay the lessor and/or the
Management Company, as the case may be, such
additional amount, immediately upon receipt of first
demand for the same from either of them.
It is hereby agreed and declared that the inception
of the insurance cover as provided above in this
agreement shall not diminish or derogate in any way
from the obligations of the parties under this
agreement.
For the avoidance of doubt, it is clarified that the
intervention of the lessor in all matters pertaining
to the inception of the various insurance policies
by the lessee, including such categories of
insurance and/or the determination of the limits of
minimum liability, shall not be construed as
rendering the lessor liable at all in any matters
pertaining to such insurance cover, its scope or
compatibility.
(C) LIABILITY FOR DAMAGE.
1. The lessee shall be legally liable for all loss and/or
damage and/or harm that is caused to the demised premises
and to the areas adjacent thereto and/or connected thereto
and/or the contents thereof and/or to any person and/or
corporation, including employees and/or the lessee and/or
any person acting on its behalf and/or to the general body
of customers and/or any other person stemming directly from
the conduct of the
lessee's business at the demised premises and/or from the
possession and/or use of the demised premises, and/or from
any other act of the lessee and/or any person acting on its
behalf, or with its permission, including during the period
of execution of the lessee's works at the demised premises.
2. It is agreed and clarified between the parties that the
lessor shall bear no responsibility whatsoever for bodily
injury and/or damage to property of any kind that is caused
to the lessee's employees, customers, visitors, invitees
and/or any other third party, including to businesses in
the vicinity of the demised premises, which is caused as a
result of and/or because of the use of the demised premises
by the lessee and/or the lessee's duly authorized
representatives, unless such damage has been caused as a
result of a negligent and/or intentional act or omission of
the lessor and/or its duly authorized agent and/or person
acting on its behalf.
3. The lessee undertakes to indemnify the lessor for any
payment of damages and/or payment which he is lawfully
obliged to pay including damage or expense caused to it by
reason of a claim in proceedings brought against it, in
respect of any damage or loss falling within the scope of
the lessee's liability as specified in Clause 16(c) (1)
above, and this on condition that the lessor notifies the
lessee as soon as it becomes aware of such a claim or
demand as aforesaid, and affords the lessee an opportunity
of defending such claim and cooperates with the lessee in
defending the same as aforesaid.
(D) It is hereby agreed that wherever the expressions "the lessor"
and/or "the Management Company" are referred to in this agreement,
they shall also refer to the contractors and/or sub-contractors
acting on their behalf and/or on behalf of either of them.
(E) It is hereby agreed that a breach of any sub-clause and/or
sub-paragraph in Clauses 16 (a) to and including 16(c) above -
shall be deemed to be a fundamental breach of this agreement.
PROHIBITION OF TRANSFER OF THE LESSEE'S RIGHTS IN THE DEMISED PREMISES.
17.
(a) The lessee shall not be entitled to transfer and/or assign its
rights and/or obligations, wholly or partially, under this
agreement, either directly or indirectly to any other person
and/or legal body, without first obtaining the prior written
consent of the lessor thereto.
(b) The lessee further hereby undertakes not to part with possession
of or sub- let the demised premises or any part thereof, or permit
the same to be sub-let or to permit the same to be used by any
person or legal body, whether incorporated or unincorporated, or
to share possession of the demised premises with any such person
or body - and all - whether with or without consideration, unless
it first obtains the previous and written consent of the lessor
thereto.
Provided that notwithstanding the foregoing, the lessee shall be
entitled to engage employees to and for the conduct of its
business at the demised premises in accordance with the terms of
this agreement on condition that no obligations shall thereby be
created as regards such employees on the part of and/or as against
the lessor, and provided further that such employees shall not
acquire any rights whatsoever in the demised premises.
(c) It is hereby emphasized that the lessor is not obliged to give its
consent to a transfer by the lessee of its rights and/or
obligations as provided in Clauses 17 (a) and/or 17(b) above, and
shall not be obliged to give reasons for or to explain its refusal
of such consent. Provided that if after the first 24 (twenty-four)
months letting of the "letting period" have elapsed, the lessee
wishes to transfer the whole and/or part of its rights and
obligations under this agreement to a third party, the parties
shall conduct negotiations in good faith in connection with the
same to the effect that under no circumstances shall the lessors
position the worse from the standpoint as regards the rent levels
and/or the terms of the letting in relation to those specified in
this agreement. It is further hereby agreed in any such event the
lessor shall be entitled, but not obliged, to recover possession
of the demised premises for itself and to terminate the tenancy
which is the subject of this agreement, and all at its sole and
absolute discretion.
(d) A breach of Clause 17 as above and/or a breach of any of its
sub-clauses and/or sub-paragraphs of such sub-clauses- shall be
deemed to be a fundamental breach of this agreement.
MAINTENANCE OF THE DEMISED PREMISES
18
(a) The lessee hereby undertakes to use the demised premises in a
careful and reasonable manner and to keep the structure of the
demised premises unharmed and in proper condition throughout the
existence of the letting which is the subject of this agreement
and until the demised premises is returned to the lessor.
(b) Any breakdown or damage that is caused by the lessee, its
employees, agents, representatives invitees, visitors, to the
structure of the demised premises, save for reasonable and normal
wear and tear caused by the lessee to the demised premises as a
result of normal and reasonable use of the demised premises for
the "object of the letting", shall be repaired by the lessee
within a reasonable time, and at the lessee's expense.
The lessee hereby undertakes to keep the demised premises in a
constant good state of repair and condition and to carry out
therein any works that are necessary from time to time in order to
preserve the state and maintenance thereof (including the
installations and fixtures and fittings therein) to an appropriate
standard. All such works, including painting,
plastering, and renovation shall be carried out by the lessee, and
entirely at its expense.
(c) In the event that the lessee does not within a reasonable time
repair all such damage and breakdowns and faults which the lessee
is liable to repair under the terms of this agreement, the lessor
may repair them after having given the lessee a written extension
of time of 7 (seven) days in which to repair them, and the lessee
shall bear all the expenses incurred in effecting such repairs as
are carried out at the demised premises and shall pay the same to
the lessor and/or to the lessor's order within 7 days from the
date of receiving receipts for such repairs that are furnished to
him by the lessor, together with an additional handling charge of
15% (fifteen per cent) of the total of all such expenses as are
incidental to the execution of such repairs.
(d) A breach of Clause 18 as above and/or a breach of any of its
sub-clauses and/or sub-paragraphs of Clause 18(a) to and including
Clause 18 (c) above - shall be deemed to be a fundamental breach
of this agreement.
(e) If breakdowns and faults occur during the letting period which
stem from fair wear and tear and which prevent the reasonable use
of the demised premises for the "object of the letting" (such as,
but without prejudice to the generality of the foregoing, burst
pipes in the demised premises, breakdowns in the air conditioning
systems and/or in the electrical and water systems, and for
reasons that are not connected with the lessee, and/or in the
execution of the "lessee's works" at the demised premises), or
defects that emanate from structural defects in the demised
premises and in the building - the lessee shall give written
notification thereof to the lessor, and as early as possible, and
the lessor will take action to repair the same at its expense
within a reasonable time. Where the lessor has not taken action to
repair such fault or breakdown and has not actually repaired it
within a reasonable time, the lessee may repair the same at the
lessors expense, after having furnished the lessor with a written
price quotation as to the cost of such repair, 15 days before
carrying out the necessary repair, or as soon as possible
beforehand in a case of an urgent repair, and shall be entitled to
reimbursement of its expenses from the lessor, in accordance with
the details specified in such price quotation and with the
addition of a handling charge amounting to 15% (fifteen per cent)
of the amount quoted in the said price quotation.
CHANGES IN THE DEMISED PREMISES.
19.
(a) Without derogating from the provisions of Clause 9 above, the
lessee hereby undertakes not to make any material changes in any
way in the structure of the demised premises, whether the same are
by way of improvement or harmful, nor introduce any other changes
in the demised premises (other than those which are enumerated in
APPENDIX 3 of this agreement) without first obtaining the previous
written consent of the lessor thereto. For the avoidance of doubt
it is hereby agreed and clarified that the lessee shall not be
entitled to make any changes in the external walls of the
structure of the
demised premises and/or in the walls bordering premises demised to
other tenants of the areas that are included in "the building",
and neither shall the lessee make any other changes in the
skeleton and/or construction pillars of the demised premises.
The lessee hereby undertakes to exclusively to pay all such
expenses in their entirety, without exception, as are incidental
to the execution of the "lessee's works", as they are defined in
Clause 9 (a) above, the changes and improvements that are
specified in the list attached to this agreement as APPENDIX 3
(above and hereinafter - "the works") and also including payment
of all such expenses as are incurred by the lessee for the purpose
of engaging architects, consultants and all kinds of
sub-contractors and this so as to adapt the demised premises to
the lessee's requirements as requested by the lessee. In addition
it is hereby agreed that all the "works" specified in Appendix 3
to this agreement shall be executed in accordance with the
requirements of any law pertaining to the execution thereof, and
the lessee shall be legally liable for any act, omission, damage
and or expense incidental to the execution thereof.
The lessor for its part hereby consents to the execution of "the
lessee's works" and/or "the works" by the lessee. It is hereby
clarified and agreed that subject to the provisions as the
beginning of Clause 19 (a) above, the lessor shall not refuse,
other than on reasonable grounds which shall be stated by the
lessor, to consent to the making of internal changes by the lessee
in the demised premises.
At the end of the tenancy which is the subject of this agreement
all "the works" and/or the aforesaid "lessee's works", and any
changes, improvements and additions which are carried out to the
structure of the demised premises by the lessee with the lessor's
consent, as well as all other fixtures and fittings and systems
which are permanently installed and/or are connected permanently
to the demised premises (including the flooring, ceiling or walls
thereof), shall be deemed to be the property of the lessor,
without the lessor being required to give the lessee any
consideration and/or pay any money for them.
Provided that it is hereby agreed that fixtures and fittings and
equipment which are installed in the structure of the demised
premises by the lessee and at its sole and entire expense, and
which can be dismantled and removed from the structure of the
demised premises without causing any damage thereto may be
dismantled and removed from the demised premises on condition that
any damage caused to the demised premises as a result of such
dismantling shall be repaired by the lessee forthwith and at the
sole expense of the lessee.
Subject thereto, the lessee hereby undertakes to leave in place
all "the lessee's works" and/or "the works", changes,
improvements, additions, and permanent connections, as aforesaid,
provided that, on the specific request of the lessor the lessee
shall be bound at the entire expense of the lessee to restore the
demised premises to its former condition.
The obligation to restore the structure of the demised premises to
its former condition shall not apply as regards changes in the
structure of the demised premises which the lessor has expressly
and in writing permitted the lessee to carry out.
It is hereby further agreed that even if the lessee is exempted
from the obligation to restore the demised premises to its former
condition, in such circumstances the granting of such an exemption
by the lessor shall not confer any right on the lessee to receive
money and/or payment and/or other rights whatsoever from the
lessor.
In the event that the lessee commits a breach of any of the
obligations specified above in this clause, the lessor shall be
entitled to and may after giving the lessee a written extension of
time of 7 (seven) days, to immediately restore the demised
premises to the condition that it was in, the lessor shall be
bound to restore the demised premises in accordance with the
foregoing provisions of this clause, and this at the lessee's
expense, and the lessor shall also be entitled to claim an
additional 15% (fifteen per cent) from the lessee of the total of
all the expenses incidental thereto and which shall be paid to the
lessor as a refund of expenses in respect of the lessor's handling
of the restoration of the demised premises to its former
condition. The lessee shall also be liable for any direct damage
that is caused to the demised premises and/or sustained by the
lessor as a result of the execution of "the works" and changes as
aforesaid.
(b) Subject to the provisions of Clause 19(a) above it is hereby
agreed that all "the lessee's works" and/or the "works" as well as
any alteration addition renovation repair etc. that is done and/or
made by way of permanent connection to the structure of the
demised premises shall be deemed to be the lessor's property,
without the lessee being entitled to receive any money in respect
thereof from the lessor. In addition, if the lessee is requested
by the lessor to remove the same and to restore it to its previous
condition, the lessee shall do so at its expense and upon first
demand from the lessor.
(c) Upon termination of the validity of this agreement for any reason
whatsoever the lessee shall return the demised premises to its
former condition as the same is described in the "Minute of
Delivery" all as specified in Clause 8 (g) of this agreement,
provided that this shall be subject to the foregoing provisions of
Clauses 19(a) and 19(b). The demised premises shall be returned
taking into account fair wear and tear that has occurred as a
result of normal and reasonable use of the demised premises in
accordance with the terms of this agreement.
(d) For the avoidance of any doubt it is hereby agreed and emphasized
that the lessee shall not be entitled, at the end of the letting
which is the subject of this agreement, to any payment at all from
the lessor in respect of money that the lessee has spent in
connection with the execution "the lessee's works" and/or "the
works" and/or in connection
with changes and/or additions and/or renovations and/or
improvements and/or in connection with the repair of damage and
any breakdowns and faults that have occurred in the demised
premises and/or "the building" during the existence of the tenancy
under this agreement.
(e) A breach of Clause 19 above and/or a breach of any sub-clause or
sub-paragraph thereof shall be deemed to be a fundamental breach
of this agreement.
VACATION OF THE DEMISED PREMISES.
20
(a) Without derogating from the foregoing provisions of Clause 19, the
lessee hereby undertakes to vacate the demised premises at the end
of the letting which is the subject of this agreement, including
in a case of THE LAWFUL termination of the tenancy which is the
subject of this agreement or rescission of the agreement by the
lessor in such circumstances as confer the right to do so on the
lessor, and to return the demised premises to the lessor vacant
and free of any person or object, in good condition, and in a
proper and useable state, as it was received in accordance with
the "Minute of Delivery" referred to above, and having regard to
normal and reasonable wear and tear, provided that the demised
premises shall include all the "works" executed in accordance with
the lessee's obligations specified in this agreement and all such
changes, improvements and additions as have been made and added by
the lessee to the structure of the demised premises with the
permission and consent of the lessor, and all such items, fixtures
and fittings and systems as have been installed in the demised
premises and connected thereto permanently during the execution of
"the works" and subsequently.
Provided that the lessee shall be entitled to remove from the
demised premises such fixtures fittings and equipment as it has
installed in the demised premises and which are capable of being
dismantled and removed without causing any damage to the demised
premises.
(b) An inspection of the demised premises shall be carried out by the
lessor (or by its representative) 60 (sixty) days before the
demised premises is returned to the lessor by the lessee, and a
list shall be prepared in conjunction with the lessee, of repairs
for which the lessee is liable, including repairs to damage and
faults and/or repairs and changes pertaining to the restoration of
the demised premises to its former condition as provided in this
agreement, and taking into account fair and reasonable wear and
tear that has occurred to the demised premises as a result of
normal, careful and reasonable use thereof by the lessee
(hereinafter - "the repairs") and the value of such repairs shall
be determined in the aforesaid list. In the event of disputes
regarding the repairs and the expense of carrying them out - the
same shall be decided by a qualified land assessor who shall be
appointed by joint agreement between the two parties and in the
absence of such agreement within 10 days from one of the parties
requesting the same of the other - by a land assessor as aforesaid
who shall be appointed by the Head
of the Israel Institute of Land Assessors upon the application of
one of the parties and/or upon the joint application of both
parties.
(c) The lessee hereby undertakes to execute all such repairs for which
he is liable according to the list referred to above in Clause 20
(b), to the satisfaction of the lessor, and to do so by the date
on which the demised premises is vacated in accordance with the
provisions of this agreement.
(d) In any case in which the lessee does not carry out the repairs by
the date on which the demised premises are vacated under the terms
of this agreement - they shall be carried out by the lessor at the
lessee's expense, and the lessor shall commence to carry them out
at such time as is possible in practice depending upon the
position as regards possession of the demised premises
(hereinafter - "the date of commencement of the repairs"), in such
a case the period of the repairs shall be deemed to have commenced
from "the date of commencement of the repairs" and in the event
that the same extends beyond the date of termination of the
tenancy under the provisions of this agreement - the lessee shall
be deemed not to have vacated the demised premises on time during
the continuation of such excess period, and the provisions of
Clause 21 hereafter shall apply throughout such excess period.
If such repairs are executed by the lessor, the lessee shall be
liable to pay to the lessor an additional handling charge
amounting to 15% (fifteen per cent) of the total of all the
expenses that are incidental to the execution of such repairs.
(e) A breach of any of the obligations specified above in Clause 20
and/or in any sub-clause and/or sub-paragraph thereof, shall be
deemed to be a fundamental breach of this agreement.
FAILURE TO VACATE THE DEMISED PREMISES ON TIME.
21.
(a) Where the lessee does not vacate the demised premises at the end
of the tenancy which is the subject of this agreement and/or where
the lessee does not perform its obligations in accordance with the
foregoing provisions of Clause 20, then in addition, and without
prejudice to all such relief and remedies to which the lessor is
entitled by law and/or under this agreement, the lessee shall pay
the lessor in respect of all such further period in which it
continues in possession of the demised premises, and in respect of
the excess period referred to above in Clause 20 (d), a rent of an
amount that is equivalent to twice the amount of the rent last
paid by the lessee to the lessor for the corresponding period
throughout such additional period or the aforesaid excess period.
Both parties declare that the aforesaid amount constitutes agreed
compensation which has been determined jointly and in advance in
good faith by both parties to this agreement and after both
parties had evaluated
such amount as being the damage caused to the lessor as a result
of default or lateness occurring in the vacation of the demised
premises by the lessee.
(b) For the avoidance of any doubt it is hereby expressly declared
that nothing in the foregoing provisions of this clause shall be
construed as any waiver of the lessor's rights and/or as agreement
to such default or lateness of the lessee in any way in vacating
the demised premises. Vacation of the demised premises on time and
its actual return to the possession of the lessor are of the
essence of this agreement and upon the termination or expiration
or LAWFUL rescission of the tenancy as provided in Clause 20 of
this agreement, the lessor shall be entitled to evict the lessee
forthwith from the demised premises.
(c) A breach of Clause 21(a) and/or Clause 21(d) above shall be deemed
to be a fundamental breach of this agreement.
PAYMENTS OF TAXES AND EXPENSES
22. All such taxes, expenses and all such other payments that are applicable
to the demised premises, the use thereof and to the letting under this
agreement, shall be the responsibility of and be paid as follows:
(a) 1. Property tax if applicable, and/or any other tax which is
at the date of signature of this agreement, lawfully levied
on the owners of rented premises who are not in possession
of the demised premises - shall be the liability of and be
paid in full by the lessor.
2. Subject to the foregoing provision of Clause 22 (a)(1) the
lessee hereby undertakes that with effect from the date on
which actual possession of the demised premises is
delivered to it (including all such areas as are
appurtenant thereto, including the parking places referred
above in Clause 7) under the terms of this agreement, the
lessee will pay all such taxes, fees, municipal taxes,
compulsory payments levies and other payments of any kind,
whether they be of a governmental or of a municipal or any
other nature which currently apply and/or will in future
lawfully apply, and at such rate as shall be lawfully
applicable from time to time, and which apply throughout
the "letting period" and in the event of exercise of "the
option" by the lessee - also throughout the "extended
letting period", as regards an occupier and/or user of
premises let on an unprotected tenancy, and which relate to
the demised premises and/or to the use thereof and/or to
the occupation of the demised premises throughout the
"letting period" and in the event of exercise of "the
option" by the lessee - also throughout the "extended
letting period", and/or that apply in respect of the
letting which is the subject of this agreement, and this on
the lawful dates for the making of such payments.
The lessee will also bear all such expenses, of whatever
nature, that are incidental to the possession of the
demised premises and the systems contained therein, and to
possession of all the permanent systems that are to be
installed therein and/or which are to be assembled and/or
constructed in the demised premises by the lessor and/or by
the lessee, whether prior to the commencement of the
"letting period" or during the existence of the letting
which is the subject of this agreement, and all as the case
may be, and without prejudice to the generality of the
foregoing, the lessee will bear payment of all the ongoing
expenses for electricity, general rates, water rates,
(including for ongoing drainage and sewage charges) that
relate to the demised premises and/or the proportionate
share of the lessee in "the building" (hereinafter - "the
payments"). The lessee shall, at its own expense, install a
separate electricity meter in the demised premises, and a
separate water meter within 14 days from the date of
receiving possession of the demised premises and within
such 14 days the lessee shall take action to register
itself with the electricity company and the local authority
as the occupier of the demised premises and as the party
with sole responsibility for all the payments, including
payments of such taxes and municipal rates as are
applicable in respect of the use and occupation of the
demised premises by the lessee throughout any period during
the subsistence of the letting which is the subject of this
agreement.
In addition the lessee will bear A PROPORTIONATE SHARE of
all such taxes, municipal taxes, fees, levies, compulsory
payments and all other payments as are imposed and/or apply
because of the ongoing maintenance of the public areas that
are included in "the building" and in "the industrial park"
and including, but without exception, payments of general
rates to the local authority for the aforesaid areas in the
proportion that the area of the demised premises building
bears to the total areas that are included in "the
building" and/or the "industrial park", as the case may be.
The Electricity Company shall effect the supply of
electricity to the demised premises after the lessee signs
a "customer agreement". For its part the lessee hereby
undertakes to make payment direct to the Electricity
Company on time in an orderly manner of all electricity
bills pertaining to the demised premises and/or the use
thereof by the lessee, and this in addition to the lessee's
obligation to pay the lessor and/or "the Management
Company" its proportionate share according to the area of
the demised premises of such electricity bills as relate to
"the public areas" of Beit Hermon and of "the industrial
park".
For the avoidance of doubt it is hereby agreed that subject
to "Beit Hermon" being lawfully connected to the National
Electricity Grid the lessee hereby waives any claim on any
grounds and any complaint and/or demand of any kind that it
might have against the lessor and/or against the
"Management Company" and/or against their representatives
in all matters relating to the failure to supply
electricity to the demised premises and/or as a result of
disruptions and/or stoppages in the supply of electricity
to the demised premises. It is clarified that the foregoing
shall only apply in a case in which such failure of
electricity supply is due to reasons that are outside the
lessor's control.
Provided that it is hereby emphasized and agreed that the
lessee shall not be entitled to ask the Electricity Company
to increase the electrical connection to the demised
premises without receipt of prior and written approval from
the lessor, or beyond such approval - if the same is
granted.
3. Alternatively, it is hereby agreed that the lessor shall be
entitled to and may request the lessee to make the payments
referred to in Clause 22 (a)(2) above wholly or partially
to the lessor direct, by virtue of a notice of charge that
is sent by the lessor to the lessee and which shall include
the amounts of such requested payments, the method of
calculating the same and the last date for payment thereof
which shall not be less than 15 (fifteen) days and which
shall be counted from the date of dispatch of such notice.
Any payment that is made by the lessee to the lessor in
accordance with the foregoing shall be paid by the lessee
to the lessor with the addition of lawful VAT. The lessor
shall furnish the lessee, following the making of such
payment, with a lawful tax invoice.
4. The lessee undertakes to produce to the lessor from time to
time at the lessor's written request, true photographic
copies of all such receipts and/or certificates as are
evidence that the lessee has indeed made such payments for
which he is liable under this agreement and upon the
termination of the letting which is the subject of this
agreement, the lessee undertakes to pass to the lessor at
its request all the original receipts and/or bills and/or
clear photographic copies of such documents. The lessee
undertakes to produce to the lessor at its written request
photocopies of receipts and/or certificates that are
evidence of payments made by the lessee following the
expiration of the "letting period", and in the event of
exercise of "the option" by the lessee, also in respect the
aforesaid payments that have been made by the lessee after
the expiration of the "extended letting period".
5. If the lessor, for any reason makes any payment which it is
compelled to pay, under the terms of this agreement, and
which is the lessee's responsibility, and which the lessee
has not paid despite receiving a 14 days advance written
warning to pay it, the lessee shall be bound to reimburse
the lessor with any amount that is paid by the lessor as
aforesaid immediately upon first demand of the lessor in
writing to the lessee, with the addition of late payment
interest at such rate as is prescribed in Clause 12(d)
above, and this from the date of payment by the lessor and
until the date on which the lessor is actually reimbursed.
The provisions of this Clause shall apply MUTATIS MUTANDIS,
in a case where the lessee makes a payment which he is
obliged to make under the provisions of this agreement and
for which the lessor is responsible and which the lessor
has refrained from paying notwithstanding having received a
prior written warning of at least 14 days.
6. Where such payment as aforesaid has become due in respect
of a full year of which only part thereof falls within the
"letting period" and/or "the extended letting period" as
the case may be, the lessee shall pay the proportionate
part of the aforesaid payment which is referable to the
period in which the lessee ACTUALLY rented the demised
premises from the lessor.
7. Subject to the foregoing provisions of Clause 22(a)(1) and
for the avoidance of doubt, it is clarified and agreed
between the parties that if following the lessor's
signature of this agreement the lessor is rendered liable
as owner of the demised premises and/or Beit Hermon and/or
the land, and/or on the letting which is the subject of
this agreement, for taxes, municipal taxes, levies or
compulsory payments pertaining to the demised premises
and/or to "Beit Hermon" and/or to "the land" and which were
not levied at the time of signature of this agreement
(hereinafter - "THE ADDITIONAL TAXES") the lessor shall be
entitled to require the lessee to pay or to reimburse it
with one half (1/2) of all the "additional taxes" that are
imposed on the demised premises or one half (1/2 ) of such
proportionate part of the "additional taxes" as relate to
the demised premises, as the case may be, in addition to
the rent and all the other payments for which the lessee is
liable under the terms of this agreement, other than where
the relevant law explicitly and directly excludes the right
of the lessor to charge the lessee with the full payment
thereof.
In addition, it is hereby agreed and clarified that if it
becomes evident that the charging of the lessee with
payment of one half as aforesaid of the "additional taxes"
will exceed 20% (twenty per cent) of the rent which the
lessee is liable to pay to the lessor under the terms of
this agreement, in such a case the lessor will be
responsible for payment of such of the lessee's proportion
of payment of the "additional taxes as EXCEEDS a sum that
is equivalent to 20% of the rent which the lessee is liable
to pay to the lessor under the terms of this agreement.
The foregoing provisions of Clause 22(a) (6) shall apply
MUTATIS MUTANDIS in relation to this sub-paragraph.
It is further hereby clarified that an increase in the
income tax rates that applies to the lessor due to the
receipt of rent from the lessor - shall not be deemed to be
an imposition of "additional taxes".
8. For the avoidance of doubts it is hereby clarified and
agreed that betterment levy in respect of the receipt of
additional building rights for "Beit Hermon" and/or
development levies that are imposed on "Beit Hermon" such
as for the surfacing of a highway, sidewalk, for drainage
and sewage - shall be the liability of the lessor and shall
paid in full by the lessor.
(b) It is further hereby agreed that all the remaining payments,
without exception, including payment of taxes and such other
expenses as are incidental to the
conduct of the lessee's business at the demised premises, and
inclusive of business tax, if applicable, and also signboards tax,
shall be the responsibility of and be paid by the lessee in full
on the due dates.
(c) The lessee hereby undertakes to pay in full and on the due dates,
all such payments, without exception, as are incidental to the use
and./or maintenance of telephone subscriber lines that are
installed, if any, in the demised premises by the lessor, and this
for the duration of any period of the letting which is the subject
of this agreement, and until the demised premises is vacated by
the lessee and returned to the possession of the lessor.
In addition, the lessee hereby undertakes to keep the said
telephone subscriber lines in proper working order and to return
them to the lessor at the end of the letting which is the subject
of this agreement in good working order and fit for immediate use.
Provided always and it is hereby agreed that nothing by virtue of
the foregoing shall be construed as obligating the lessor to
install any telephone lines in the demised premises.
The lessee shall be entitled entirely at its own expense to
install subscriber telephone lines in the demised premises in
accordance with its requirements.
Such telephone lines as are installed in the demised premises by
the lessee at its expense shall belong solely to the lessee and
the lessee shall be entitled to remove them from the demised
premises at the end of the letting which is the subject of this
agreement.
(d) Value Added Tax which applies to and/or will in future apply to
the letting and/or to any other payment including management fees
and payment for electricity consumption which the lessee will be
liable to pay to the lessor under this agreement and any amount
that is lawfully applicable from time to time shall be the
liability of and shall be paid in full on the due date by the
lessee.
For the avoidance of any doubt it is hereby emphasized and agreed
that the lessee will pay the full amount of Value added Tax that
applies in respect of payments of rent due to the lessor under
this agreement, at such rate as is lawfully applicable from time
to time, by and no later than 2 (two) days prior to the date on
which the lessor is liable by law to pay the VAT to the Value
Added Tax Authorities.
For the avoidance of doubt it is hereby agreed that the check in
payment of the said VAT shall be delivered to the lessor together
with payment of the rent, provided that the date for payment of
such check shall be as specified above.
For the avoidance of any doubt it is agreed and emphasized that
VAT as aforesaid shall be added to the rent referred to above in
Clause 12 and in the sub-clauses thereof.
In respect of additional payments as to which the lessee will be
liable for VAT to the lessor in accordance with the terms of this
agreement and all the Appendices thereto, the lessee shall pay the
full amount of such VAT for which he is liable from time to time
and at such rate as shall be applicable from time to time, on the
date that he is liable to make the relevant payment in respect of
which he will also be liable as aforesaid for payment of VAT.
In respect of all the aforementioned payments referred to in this
sub-clause, which are to be paid by the lessee to the lessor, the
lessee shall receive a lawful tax invoice duly issued by the
lessor.
(e) At the time of signature of this agreement the lessee hereby
undertakes to sign "THE MANAGEMENT AGREEMENT" which is attached to
this agreement as APPENDIX 8 AND which shall regulate the
management of the demised premises, of "the building" of which the
demised premises forms part, and of "the land" and "the project"
and all that is built and/or is to be built thereon. The
undertaking by the lessee to sign the "Management Agreement" which
is attached as APPENDIX 8 to this agreement, constitutes a
condition precedent to this agreement coming into force (above and
hereinafter "THE MANAGEMENT AGREEMENT").
For the avoidance of any doubt it is hereby agreed and clarified
that the lessor reserves the right to require the lessee to sign
the aforesaid "Management Agreement" whether the management is
undertaken by the lessor itself or through a company that it
controls and/or is controlled by its shareholders, or through any
other body (above and hereinafter in this agreement - "the
Management Company").
The lessee for its part undertakes to sign "the Management
Agreement" and to perform all its obligations thereunder,
including payment of expenses and/or management fees, and this in
addition to and without prejudice to its obligation to pay the
rent in full and such other payments as apply to and/or will apply
to the lessee under the terms of this agreement.
The lessee hereby declares that it is aware that under the
aforesaid "Management Agreement" it will undertake, INTER ALIA, to
pay maintenance and management fees to the lessor and/or to
whoever is managing the maintenance of "the building", "the
project", and "the land" and/or to "the Management Company" which
is to manage "the building" and/or the project and/or "the land",
wholly or in part, and this in accordance with such terms as are
specified in "the Management Agreement".
The said maintenance fees and management fees shall consist of the
amount of all such costs and expenses as are incurred by the
"Management Company" in providing the services that are the
subject of "the
Management Agreement" with the addition of management fees at a
rate of 15% (fifteen per cent), meaning - cost + 15%.
It is hereby clarified and agreed that management fees in
accordance with the "the Management Agreement" which apply during
the first 29 (twenty nine) months of the "the letting period"
shall not exceed a monthly total in NIS that is equivalent to a
monthly total of $2.75 (two Dollars and seventy five cents US) per
1 square meter of the demised premises, with the addition of
lawful VAT. Provided that it is hereby emphasized and agreed that
there shall be added to the said management, fees payments for
full consumption of electricity that is required for the operation
of the air conditioning systems that are installed in the demised
premises and/or which are associated with the same.
The undertaking of the lessee to sign the "Management Agreement"
and to perform all the terms and provisions thereof on time shall
be treated as also constituting a contractual obligation for the
benefit of a third party, namely for the "Management Company".
(f) The expenses of stamping this agreement shall be the liability of
and shall be paid in full by the lessee.
(g) A breach of any of the Clauses 22 (a) and 22(f) above shall be
deemed to be a fundamental breach of this agreement.
MANAGEMENT OF THE BUILDING AND INSPECTION OF THE DEMISED PREMISES.
23
(a) The lessee hereby declares that it acknowledges the supreme
importance that the lessor attributes to the management of "the
demised premises", "the project" and "the land", and to the proper
maintenance thereof.
The lessee accordingly hereby declares that it is aware that the
provisions of the "Management Agreement" as updated from time to
time by the lessor shall apply to the general body of tenants and
occupants of "the building".
The lessee hereby undertakes to fully perform as required, all the
provisions of the "Management Agreement" and/or any instruction,
directive, permit and/or prohibition that applies or shall from
time to time apply in respect of "the building" and/or in respect
of "the land" and/or in respect of all such rented premises as are
contained in "the building" and/or which are let by the lessor in
the areas of "the land" and/or as regards the use thereof,
including any repair and/or alteration therein as shall be
prescribed from time to time at the sole and absolute discretion
of the lessor and/or the "Management Company" and provided that
none of the same shall disturb the ongoing functioning of the
demised premises during such normal working hours as shall be
prescribed by the Management Company, and provided further that
the rights of the lessee under this agreement shall not be
materially prejudiced.
The lessee shall use its best endeavors in order to ensure that
neither it nor those acting for and/or on its behalf, without
exception, shall act in contravention of the provisions of the
"Management Agreement" and/or the instructions of the "Management
Company".
(b) The lessee hereby undertakes to permit the lessor and/or its
representatives to enter the demised premises at reasonable times
to inspect the state and condition of the demised premises, and
for the passage through the demised premises of pipes, wiring and
systems belonging to "Beit Hermon" (subject to the obligation of
the lessor and/or the Management Company to take action entirely
are their own expense to restore the demised premises to its
former condition), and also to carry out such repairs to the
demised premises as are specified above in this agreement and/or
in the "Management Agreement", and all this during normal working
hours and in prior coordination with the lessee provided that the
affording of reasonable use of the demised premises by the lessee
shall not thereby be prejudiced.
In addition it is agreed that the lessor and/or its duly
authorized agents shall be entitled to enter the demised premises
at reasonable times during normal working hours and with prior
coordination with the lessee, in order to show the demised
premises to third parties who are interested in renting and/or
purchasing the same.
(c) It is hereby agreed that the placement and/or fixing of any
signboards on "the building" and/or on "the demised premises"
and/or on "the land" including directional signs and/or signs
advertising the lessee's business at the demised premises - shall
require prior and written approval of the lessor and of its
signboard consultants and/or of the Management Company.
The right of the lessee to place signboards in the demised
premises building shall be in accordance with the specifications
in "THE SIGNBOARDS APPENDIX" which is attached to this agreement
as APPENDIX 9.
(d) A breach of Clause 23(a) and/or of Clause 23(b) and/or of Clause
23 (c) above shall be deemed to be a fundamental breach of this
agreement.
TRANSFER OF RIGHTS IN THE DEMISED PREMISES.
24 The lessor, and only the lessor may transfer its rights under this
agreement, either wholly and/or in part, to such other persons or bodies
as it shall see fit, but this is on the express condition that the same
shall not prejudice the rights of the lessee under the terms and
provisions of this agreement.
BREACH OF CONTRACT BY THE LESSEE
25.
(a) If the lessee commits a breach of and/or fails to perform any one
of the fundamental terms of this agreement, and in particular if
the lessor does not pay within 10 (ten) days from the date
prescribed for the payment thereof, any amount and/or other
payment that the lessee is obliged to make under
the provisions of this agreement, the lessor, after giving the
lessee 14 (fourteen) days written warning notice to remedy the
breach, shall be entitled to rescind this agreement, claim the
immediate evacuation of the demised premises by the lessee and the
return of possession of the demised premises to the lessor. The
lessor shall be entitled to let the demised premises to another
person or person and nothing by virtue thereof shall be construed
as canceling the lessee's obligation to continue to pay the rent
at the rate specified in Clause 21(a) above until the demised
premises is let to such other person or persons an/or for payment
of the difference in the rent in the event that the demised
premises are let to such other person or persons for an amount of
rent that is lower than the rent paid by the lessee.
Nothing by virtue of the generality of the foregoing shall
prejudice any right of the lessor to claim the enforcement of the
provisions of this agreement and to claim and obtain from the
lessee in any event, compensation for damage of any kind caused to
the lessor as a result of such breach of the agreement by the
lessee.
(b) In the event that the lessee does not make any of the payments
that he is liable to make under the provisions of this agreement,
on the due date thereof, and also refrains from paying the same
notwithstanding receipt from the lessor of a 14 (fourteen) days
written warning notice to pay it, the lessor shall be entitled to
make any such payment instead of the lessee and the lessee shall
reimburse any such payment to the lessor immediately on receiving
first demand from the lessor for such payment and against
presentation of a receipt as to the actual making of such payment
by the lessor.
For the avoidance of doubt it is hereby declared that nothing in
the provisions of this sub-clause shall be construed as creating
any obligation on the part of the lessor to make any such payment
instead of and/or on behalf of the lessee.
(C) Notwithstanding the foregoing it is agreed between the parties
that a delay of up to 10 (ten) days in making any payment shall
not constitute a fundamental breach of this agreement. Subject
thereto, a breach of Clause 25 (a) and/or 25 (b) above shall be
deemed to be a fundamental breach of this agreement.
26. Without prejudice to and/or in derogation of the lessor's rights under
this agreement, and in addition to all such remedies as are prescribed
therein, it is hereby agreed that the happening of one or more of the
following events shall be deemed to be of the essence of and a
fundamental breach of this agreement in respect of which the lessor may,
at its sole and absolute discretion, terminate the tenancy under this
agreement, and demand the immediate evacuation of the lessee from the
demised premises, and all this without prejudice to the lessee's
obligation to comply with the obligations under this agreement and the
lessee undertakes to vacate the demised premises and return it to the
lessor immediately upon first demand from the lessor to do so, and all
this so that the demised premises shall be vacant of any person or
object, in good condition
taking into account normal and reasonable wear and tear and subject to
the performance of all the other terms and provisions of this agreement:
(a) If the lessee does not make a payment of rent on the due date for
payment thereof. (Provided that a delay in payment, which does not
exceed 10 days from the prescribed date of payment, shall not
entitled the lessor to exercise the right to evict the lessee from
the demised premises).
(b) If a receiver or a receiver and manager is appointed (temporary or
permanent) for the business and/or material property of the lessee
or any material part thereof, and such appointment has not been
revoked within 90 (ninety) days.
(c) If a liquidator (temporary or permanent) is appointed for the
lessee and such appointment has not been revoked within 90
(ninety) days.
(d) If the lessee grants a right of use of the demised premises or any
part thereof to any third party contrary to the terms and
provisions of this agreement
(e) If the lessee commits a fundamental breach or does not fulfil one
or more of the terms or provisions or clauses of this agreement
and has not remedied such breach within 21 (twenty one) days from
the date on which a written warning demanding that he do so, is
sent to the lessee by the lessor.
(f) If the lessee does not actually conduct its business at the
demised premises in accordance with the "object of the letting"
for a period that exceeds 90 (ninety) days.
BANK GUARANTEE.
27. On the occasion of the signing of this agreement the lessee hereby
undertakes to deposit with the lessor, an unconditional and unqualified
autonomous bank guarantee of a recognized bank lawfully operating in
Israel. Such guarantee will not be negotiable and/or transferable and/or
capable for assignment to a third party, and shall be made out in favor
of the lessor only.
Such bank guarantee shall be for the principle sum of NIS 937,377 (nine
hundred and thirty seven thousand three hundred and seventy seven New
Shekels) (equivalent to the principle sum of rent for the first 9 (nine)
months of the letting with the addition of lawful VAT. Such bank
guarantee shall be linked to rises that occur in the Consumer Prices
Index in the relation that such rise in the Consumer Prices Index known
at the time of the realization of the guarantee bears to the amount of
the "base index" as defined in Clause 13(a) above (hereinafter - "THE
BANK GUARANTEE").
The "bank guarantee shall continue to remain in force throughout the
"letting period" plus a further 3 (three) calendar months.
If the lessee exercises "the option" and the "letting period" is extended
for the "extended letting period" then by the time that 6 (six) full
months of the letting remain until the end of "the letting period" the
lessee shall furnish the lessor with a written extension to the validity
of the "bank guarantee" for the duration of the "extended letting period"
with an additional 3 (three) calendar months.
In any case of lawful rescission of this agreement whether in accordance
with the provisions thereof or by law, the bank guarantee shall be
returned to the lessee within 90 days from the date of such lawful
rescission of this contract.
All such expenses, without exception, and including expenses of stamping
and bank commissions that are charged for and/or in connection with the
issue and/or extension of the validity of "the bank guarantee" - shall be
the liability of and shall be paid for in full by the lessee.
It is hereby emphasized and agreed between the parties that "the bank
guarantee" shall be a financial, autonomous, unconditional and
unqualified guarantee, capable of immediate realization. It is hereby
agreed and clarified that the lessor shall be entitled to demand the
immediate payment of the "bank guarantee" wholly or partially, in any
case of a fundamental breach of this agreement by the lessee, provided
that the lessor shall give the lessee A WRITTEN warning of its intention
to realize such "bank guarantee" at least 15 (fifteen) days in advance.
It is hereby agreed that a breach of this Clause shall be deemed to be a
fundamental breach of this agreement.
GUARANTORS OF THE AGREEMENT.
28. THIS CLAUSE IS CANCELLED.
ADDITIONAL BUILDING RIGHTS OF THE LESSOR AND ADDITIONAL OBLIGATIONS OF THE
LESSEE.
29 The lessee hereby declares confirms and undertakes as follows:
(a) That it has been informed by the lessor that the demised premises
forms part of "Beit Hermon" which is built on "the land" in the
"industrial park" and which forms an additional stage of a wide
ranging construction project which includes, INTER ALIA,
commercial buildings which have already been constructed by the
lessor as part of STAGE 1 of the project, and other buildings
which the lessor is considering in the future on "the land" in the
"industrial park", and also including, if permitted by law basic
improvements and/or extension and/or enlargement of "Beit Hermon"
itself.
The lessor for its part undertakes to afford proper safe and
reasonable access for the lessee and its customers to the demised
premises also during the course of such construction, if and when
the same is carried out on "the
land" in the "industrial park", in order that the demised premises
can be used in accordance with the "object of the letting".
The lessee for its part hereby finally completely, fully and
absolutely waives any claim and/or demand and/or action pertaining
to and/or incidental to the enlargement of "Beit Hermon" and/or
such additional construction including also arising by reason of
inconvenience or nuisance or disturbance of the use of the demised
premises in accordance with the "object of the letting" which is
liable to be caused to the lessee as a result thereof but this is
on condition that the lessee shall not be denied the opportunity
of making reasonable use of the demised premises throughout the
"letting period" and subject to the lessee's rights under this
agreement not being thereby prejudiced.
The lessee shall be precluded from making a claim against the
lessor and the lessor's agents and/or representatives in respect
of the execution of such building works subject to the foregoing
provisions of this clause.
(b) Subject to the lessee's rights under this agreement not being
prejudiced it is hereby agreed between the parties that the lessor
shall be entitled to and may, without receiving any consent from
the lessee, make changes in "the building" and/or additional
construction to "the building" and/or "the land", provided that
this shall be on condition that nothing by virtue of the same
shall constitute a continuing and/or unreasonable disturbance to
the management of the lessee's business at the demised premises in
accordance with the "object of the letting".
In addition it is hereby agreed and clarified that the roof of
"the building" an/or of the demised premises and/or the roof of
the car park on level 7.36 of "Beit Hermon" (hereinafter - "the
parking level"), and the forecourt areas and parking area which is
not included within the area of "the building" marked yellow in
Appendix 1 and/or which are not included in the area marked in
orange color in Appendix 2 -1 of this agreement are not let to the
lessee and do not form part of the common property for all
occupants and/or tenants of the units in "the building", and that
the lessor may and shall be entitled to use such areas at its sole
and absolute discretion as well as the those appurtenances to
particular areas and/or particular rented premises forming part of
"Beit Hermon" and/or in "the project". It is further hereby agreed
that the lessor shall be entitled to and may construct, on the
roof of the building and/or on the parking level, any additional
construction that it is lawfully permitted by the competent
authorities to build. The lessor shall also be entitled to and may
place, on the roof of the building and/or on the parking level
and/or the roof of the parking level, installations and ancillary
equipment, such as air conditioning installations, emergency
generators, aerials, compressors, signboards and advertising
installations and so forth, and may also make other reasonable use
of the building and/or the parking level, all at the sole and
absolute discretion of the lessor, and all on condition that the
lessee's rights under this agreement shall not be materially
affected.
It is further hereby agreed and clarified that the lessor shall be
entitled to assign the use and/or purpose of the parking level to
a floor that is designated for other permitted uses and/or which
will be permissible under the CBP but this on condition that the
lessor makes alternative parking places available to the lessee
and in accordance with the foregoing provisions of Clause 7.
The lessee for its part hereby undertakes not to disturb and/or
prevent the lessor from using the forecourt areas and the
aforesaid parking areas. The lessee also undertakes not to disturb
the lessor in the execution of such construction works and/or in
such use as the lessor makes of the roof of the "building", other
than if the execution of such construction works constitutes a
continuous and/or unreasonable disturbance of the conduct of the
lessee's business in the demised premises in accordance with the
"object of the letting".
(c) The lessee declares that it is clear that neither the lessee nor
any of those acting for and/or on its behalf, without exception
shall be entitled to make any use whatsoever of parts and/or areas
of the building and/or areas of the land and/or areas in the
industrial park which are not included in the demised premises in
the areas appurtenant thereto as defined in this agreement without
first obtaining the previous consent in writing to do so from the
lessor.
(d) The lessee declares that it will indemnify the lessor immediately
upon receipt of first demand from the lessor to do so in respect
of any payment and/or fine for which the lessor is lawfully
charged with payment thereof because of the management of the
lessee's business at the demised premises in contravention of any
law or regulations, orders or rules which have been made by a body
or competent authority acting within the scope of its lawful
authority, and/or in respect of any use made of the demised
premises in contravention of the terms of this agreement, provided
that the lessor shall give the lessee written notice of any claim
concerning such payment as soon as possible after receiving the
same so that an opportunity shall be afforded to the lessee of
defending such aforesaid demand.
(e) A breach of Clause 29 above and a breach of any of its sub-clauses
shall be deemed to be a fundamental breach of this agreement.
MORTGAGE OF RIGHTS.
30
(a) The lessee shall not be entitled, and may not in any way charge
some and/or all of its rights under this agreement.
(b) It is hereby agreed that only the lessor shall be permitted to
mortgage and charge "the building" of which the demised premises
forms part, wholly or partially, including the demised premises,
and also to charge and/or sell and/or transfer to others, its
rights of title to "the land" and/or its rights under this
agreement, including its right to receive some or all of the rent
from the lessee, in any way and form that the lessor shall see fit
from time to time whether the same be with the object of obtaining
finance or for any other purpose all at the sole and absolute
discretion of the lessor. The lessee expressly agrees to accept
responsibility for and to perform all the provisions of this
agreement as regards any other body, if any that replaces and/or
acts on behalf of the lessor.
Provided that it is hereby agreed that a mortgage, charge,
transfer, sale or assignment as aforesaid shall not prejudice
and/or derogate from the lessee's rights under this agreement and
shall not add to the lessee's obligations thereunder.
(c) Without derogating from the provisions of Clause 13(b) above, the
lessee will sign upon first written demand of the lessor, any
document or certificate that may be lawfully required from time to
time, for one of the purposes enumerated in Clause 30(b) of this
agreement, in so far as the same is necessary and provided that
nothing by virtue of such document or certificate as aforesaid
shall impose any additional obligation on the lessee beyond its
obligations under this agreement except for the financial
obligation for payment in accordance with the provisions of this
agreement to the party entitled to receive the same in accordance
with the aforesaid charge. The lessee shall not be entitled to
make its said consent subject to any conditions. Without prejudice
to the lessee's aforesaid obligation, it is hereby agreed that the
lessee hereby exempts the lessor from the requirement of obtaining
an additional or separate consent from the lessee for the
implementation of the foregoing. The lessee also exempts the
lessor from the need for the lessee's signature in connection with
any of the matters referred to in this clause and/or in any of the
sub paragraphs thereof, and this clause, and this agreement, may
be shown by the lessor to any third parties for the foregoing
purposes only and shall constitute the irrevocable consent of the
lessee to the aforesaid actions being carried out.
(d) A breach of any one of the lessee's obligations specified in
Clause 30 above and/or any sub clause and/or sub paragraph of such
clauses shall be deemed to be a fundamental breach of this
agreement.
WORKS OF ADAPTING THE DEMISED PREMISES TO THE LESSEE'S REQUIREMENTS.
31. Without derogating from the binding force of all the provisions specified
in Clauses 9 and 19 above and in the sub-clauses thereof relating to the
execution of the "lessee's works" and/or in relation to the execution of
works and/or any other changes in the demised premises, the parties
hereby agree that in relation to all "the works", "lessee's works"
changes renovations, improvement and additions without exception
(hereinafter - " ADAPTING WORKS" ) which are carried out by the lessee in
the demised premises including for the purpose of adapting the demised
premises to the lessee's requirements, all the following aggregate
conditions shall apply:
(a) The foregoing provisions of Clauses 9 and 19 shall also apply
MUTATIS MUTANDIS in relation to all "the adapting works".
(b) "The adapting works", and any changes which the lessee makes to
the demised premises, shall be executed in accordance with the
provisions of any law that applies and/or will apply from time to
time in relation thereto, and the lessee hereby undertakes to
execute the same entirely at its own expense, and to duly obtain
entirely at its own expense any permit and license required and/or
which may from time to time be required for the execution thereof.
(c) All the plans, technical specifications, drawings, bills of
quantities without exception, that are relevant to the execution
of the "adapting works" shall be furnished by the lessee to the
lessor at least 14 (fourteen) days in advance and shall require
the previous written approval of the lessor and/or of a duly
qualified engineer acting on the lessor's behalf, for the
execution thereof, which shall not be refused other than on
reasonable grounds, before the actual commencement of the
execution thereof by the lessee (and./or the lessee's
representative). The reply of the lessor's engineer shall be given
within 14 (fourteen) days from the date on which the lessee
delivers to the lessor such plans for the execution of "the
lessee's works" at the demised premises.
(d) The entire and sole responsibility for the execution of all the
"adapting works" shall lie entirely with the lessee and the lessee
shall bear legal responsibility for any damage that it causes as a
result of the execution of the adapting works.
(e) It is hereby clarified and emphasized that all other terms of this
agreement shall also apply in relation to the "adapting works" and
including, but without derogating from the generality of the
provisions in this agreement, also to the lessee's obligation to
effect the insurance policies that are required under the terms
and provisions of this agreement.
(f) It is hereby agreed that a breach of anyone of Clauses 31 (a) to
31(e) above shall be deemed to be a fundamental breach of this
agreement.
WARNING PRIOR TO RESCISSION OF THE AGREEMENT.
32. The parties agree that neither party shall be entitled to rescind this
agreement in the event of a fundamental breach of this agreement by the
other party unless the party in breach is given a 21 (twenty one) days
written warning and the party in breach has not remedied the breach
attributed to it within such 21 (twenty one) days which shall be counted
from the date of dispatch of such warning.
MISCELLANEOUS.
33.
(a) Any change or addition to this agreement shall only be valid if
made in writing and signed by both parties. Neither shall any
negotiations, agreement and
compromise between the parties be valid unless the same is
effected in writing and is signed together by both parties.
(b) The abstinence from instituting proceedings for eviction or a
delay in the institution of such proceedings or a delay in taking
other legal proceedings by one of the parties shall not be deemed
to be a waiver of such breach or as acquiescence in such breach or
as a waiver of any relief and remedies to which any party is
entitled as a result of such breach, and the other party shall be
precluded from raising any claim of waiver of such breach.
(c) In this agreement "the lessor" or "the lessee" also means the
plural and the male gender shall be construed as the female or as
the case may be.
(d) The parties determine that the Law Courts in Tel Aviv - Jaffa is
the place of jurisdiction in any matter relating to this agreement
or arising from a breach thereof or pertaining thereto or to the
performance thereof and any claim and proceeding thereunder.
34 The parties hereby agree that in the event of the commission of a
fundamental breach by the lessee of the terms and provisions of this
contract, and the breach alleged by the lessor against the lessee has not
been remedied notwithstanding receipt of a 15 (fifteen) days advance
written warning as provided above in Clause 32, the lessor shall be
entitled to institute proceedings under the "Summary Procedure" for the
immediate eviction of the lessee and all those operating under the lessee
from the demised premises, and this without prejudice to all other rights
conferred upon the lessor in such a case both by this agreement and under
any law.
It is hereby agreed that any financial claim based on a liquidated sum of
money which is made by one of the parties in reliance on this agreement
as well as a claim for eviction brought in reliance on this agreement,
shall be fit to be tried under the "Summary Procedure" within the meaning
of such expression in the Civil Law Procedure Regulations 5744- 1984, and
the amendments thereto.
35. It is hereby agreed and declared that the signature of the parties of
this agreement hereby revokes any agreement and/or document and/or
contractual arrangement previously between them, if any, in relation to
the demised premises and it is hereby emphasized that no such previous
agreement and/or document and/or contractual arrangement shall have any
binding force, neither for the purposes of interpretation of this
agreement and/or any effect on the relationships of the parties as
regards the demised premises from any standpoint whatsoever, and that the
signatures of the parties on this agreement initiates a new set of
relationships between the parties, and totally regulates and represents
all their mutual rights and obligations in relation to the letting of the
demised premises by the lessor to the lessee.
36.
(a) If one of the parties to this agreement has paid and/or in future
pays one of the payments in respect of which liability for payment
lies with the other party, such other party shall refund to the
paying party the full amounts paid by
the paying party as aforesaid, and this immediately upon receipt
of the paying parties demand and against receipt and/or production
of receipts as to the actual payments thereof, and in default
thereof such debt shall bear default interest at the maximum rate
charged on the date prescribed for payment thereof, by Bank
Hapoalim Ltd. in relation to excess drawings on current loan
accounts, and all this in respect of the period commencing from
the prescribed date for such payment and until the date of actual
full payment to the party entitled to receive the same under the
terms and provisions of this agreement.
(b) Any payment as to which it is provided in this agreement as being
linked to increases occurring in the Consumer Prices Index, which
is not paid on the date prescribed for payment thereof under the
terms and provisions of this agreement - shall be paid with the
addition of consumer price index linked differentials and interest
at the rate specified above in Clause 12 (d).
POSTPONEMENT OF THE COMMENCEMENT DATE OF "THE LETTING PERIOD"
37 The parties agree that if, due to the existence of reasons which are not
dependent on and/or are outside the control of the lessor, including
reasons of force majeure and/or a willful act and/or strike and/or
disruption, and/or partial and/or general call up to the I.D.F and/or
natural disasters and/or any other event which the lessor could not have
anticipated in advance, or which is outside the control of the lessor
(hereinafter - "an uncontrollable event"), the lessor is unable to
deliver possession of the demised premises to the lessee for the purposes
of the actual use by the lessee for the "object of the letting" and in
accordance with the other terms of this agreement, in such an event the
commencement date of the "letting period" shall be postponed for a period
of time that is equivalent to such period as is necessary until the
passing of "the uncontrollable event", and also for the purposes of
disposing of such delays and obstacles as are the source of the
"uncontrollable event" as aforesaid, and all this, without the same being
deemed to be a breach of this agreement on the part of the lessor, and
without the lessee having a right to bring any claim against the lessor
in respect of and/or as a result of the same.
In addition to any postponements of the commencement of the "letting
period" that are liable to be caused by reasons that are not dependent on
the lessor and/or under the lessor's control and/or result from an
"uncontrollable event" it is hereby expressly agreed by the lessee that
any postponement, including a postponement, in addition to those
specified above, of up to 60 (sixty) days, for any reason, in the
delivery of possession of the demised premises to the lessee and/or on
the date of commencement of the "letting period" - shall not be deemed to
be a breach of this agreement by the lessor, and shall not confer a right
on the lessee to the receipt of any compensation from the lessor and/or
any right to delay any payments that the lessee is obliged to make to the
lessor under the provisions of this agreement and it appendices, and
neither shall the lessee
acquire any right to any other remedy as against the lessor and/or any
person acting on behalf of the lessor.
ADDRESSES
38
(a) The addresses of he parties for the purposes of this agreement are
as specified in the preamble to this agreement.
Any notice that one party to this agreement sends to the other
party to this agreement to the said addresses, shall be deemed to
have arrived and to have been lawfully served at its destination
after the expiration of 3 (three) days from the date on which it
was delivered for dispatch at a Post Office in Israel.
(b) Each party shall be bound to notify the other party of any change
from time to time in its aforesaid address.
AND IN WITNESS HEREOF THE PARTIES HAVE SIGNED:
/s/ Sha'ar Yokneam Limited Partnership /s/
Given Imaging Ltd
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The Lessor The Lessee
