Eshibit 10.16
LEASE AGREEMENT
Entered into and signed in ___________on ____of the month of December, 1999
between:
B.A.T.M. Real Property (1994) Ltd.
of 00 Xxxxxxxxx Xxxxxx, Xxxxx I.Z., Rosh Ha'ayin
P.O.B. 11387, Rosh Ha'ayin 48091
(hereinafter - "the Lessor") OF THE FIRST PART
And:
Given Imaging Ltd., a private company
No. 00-000000-0
of Xxxxxxxx Xx. 0, Xxx Xxxxxxxxxx Xxxx, Xxxxx'xx
P.O.B. 258, Yokne'am 20692
(hereinafter - "the Lessee" OF THE SECOND PART
Whereas the Lessor is the owner of rights pursuant to a long term lease
agreement with the Israel Land Administration, in a plot of land known as plot
No. 6 pursuant to Detailed Plan ___________ in block 11495 parcel 13, in the New
Industrial Zone, Yokne'am (hereinafter - "the Plot");
And whereas the Lessor is erecting on the Plot a 5-storey hi-tech building on
pillars (hereinafter - "the Building");
And whereas the Lessee is desirous of leasing areas in the Building as marked in
the drawing attached to this Agreement as ANNEX A , and as hereinafter
specified;
On floor 2 - 507.50 sq.m.; on floor 3 - 522.80 sq.m.; on floor 4 - 479.80 sq.m.
The Lessee's proportional share in the public areas is (15%) - 226.15 sq.m.,
making a total of 1736.60 sq.m. (hereinafter - "the Premises");
And whereas the Lessee declares and confirms that it has inspected the Premises
and the surrounding thereof and is interested in leasing the Premises for the
purpose prescribed in this Contract and sign a contract with the Management
Company in the form hereto attached;
And whereas no key-money has been paid and the Tenant's Protection Laws will not
apply to the lease forming the subject of this Contract;
And whereas the Lessor declares that it agrees to lease out the Premises to the
Lessee pursuant to the provisions in this Contract;
NOW, THEREFORE, IT HAS BEEN DECLARED AND AGREED BETWEEN THE PARTIES AS FOLLOWS:
1. PREAMBLE
The Preamble to this Contract and the annexes attached thereto form an
integral part thereof.
2. THE LEASE
A. Subject to the following provisions and subject to full
compliance by the Lessee of his obligations on time, the Lessor
hereby leases out to the Lessee and the Lessee hereby leases
from the Lessor the Premises under an unprotected lease for the
purpose of the lease as hereinafter specified and pursuant to
the other conditions of this Contract.
B. The parties declare that there exists no legal and/or economic
and/or other impediment to their entering into this Contract and
the discharge of their obligations in full thereunder in time
and precisely.
C. The Lessor hereby grants to the Lessee a right of first refusal
to lease further areas available for lease in the same wing of
the Building in which the Premises are located, under the same
conditions as are proposed by a potential third party lessee or
under the conditions set out in this Contract, as opted by the
Lessor.
3A. RENT
The rent for the Period of Lease shall be paid as specified in ANNEX "B"
hereto attached.
4. PERIOD OF LEASE
The original period of lease is 5 years, commencing on 1.4.2000.
Should the Lessee receive a demand from any competent authority
whatsoever to vacate the Premises due to the non-receipt of a business
License for reasons beyond its control, it shall be entitled to curtail
the Period of Lease and terminate this Contract by 60 days' prior notice
in writing.
5. RECEIPT OF PREMISES
A. The Lessee declares that it has inspected and approved the
location of the Premises, the structure and details thereof
pursuant to the annexes to this Contract, and the receipt of
full details with respect to the standard of the finishes in the
Premises to be delivered thereto, and the Lessee declares that
it found the Premises suitable and fit for its objects. For the
avoidance of doubt, it is declared that the finish standard of
the Premises is identical to the finish standard in the Lessor's
area in the first wing of the Building.
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B. The Lessee declares that it has seen and examined the planning
condition of the Premises and the development and/or long-lease
agreement and/or Town Building Plan applicable thereto, and it
waives all claims of incompatibility with its needs and that it
is aware that the designation of the Premises under the
aforesaid is that of craft and industry purposes only and that
any payment of any class whatsoever chargeable on the Premises
in respect of the Lessee's specific use of the Premises shall be
borne by the Lessee.
C. The Lessor shall deliver the Premises to the Lessee not later
than 1.4.2000. Notwithstanding the aforesaid, the Lessee is
aware that the Premises are located in a new building which as
of the date of execution of this Contract is still under
construction, and according to the forecast of the building
progress received by the Lessor from the building contractors,
the Premises are said to be completed by 1.4.2000.
Nevertheless, the Lessor reserves the right to delay the
delivery date of the Premises by 30 days if the contractor fails
to complete the Building in time and/or if same is not completed
for other external reasons, as for example, the non-receipt of
"Form 4", the failure to connect the Building to the electricity
and water supply network, and the Lessee shall have no claims
and/or demands in respect thereof.
D. Should the Lessee not appear on the appointed day for the
delivery of possession of the Premises, same shall be deemed as
if delivery has been made on the appointed day and all the
Lessee's obligations under this Contract shall apply as from
that day.
E. The receipt of possession of the Premises by the Lessee under
this clause (including under sub-clause D. above) shall
constitute a declaration by the Lessee that it has received
the Premises pursuant to the provisions of this Contract.
F. The Lessee declares that it is aware that the Building in which
the Premises are located does not enable the operation and
housing thereof without receiving the approvals of the
authorities and compliance with their requests.
6. THE PREMISES - TECHNICAL DESCRIPTION AND ALTERATIONS
A. Should the Lessee wish to make any alteration in the Premises,
it shall submit to the Lessor a specified request for
alterations and the Lessor shall inform it within a reasonable
time, whether it agrees to the requested alterations and the
conditions for the performance of the said alterations,
including the duration of the extended period of the lease of
the Premises, or of any delay of the time of delivery, the
price payable by the Lessee, the date of payment and such
other conditions as may be resolved upon by the Lessor in
respect thereof. The Lessee undertakes to
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obtain all the approvals required and/or to be required in the
future from the competent authorities for the purpose of the
performance of the alterations.
B. The Lessor shall connect the Premises to the air-conditioning
system in the Building. The cost of such connecting is grossed
up in the rent prescribed in Annex "B" to this Contract.
The Lessee shall bear all the expenses of the operation of the
air conditioning in the Premises and the operation of the
system, as for example, water, electricity, repairs and
maintenance expenses etc.
C. Insofar as the Lessor permits to the Lessee to perform repairs
and/or alterations in the Premises by itself, either during
the period of the construction of the Premises or during the
Period of Lease, such alterations shall be performed by the
Lessee as a licensee only and after the receipt of the prior
written consent of the Lessor, the approval of the
professional consultants of the Lessor and the presentation of
an insurance policy approved in advance by the Lessor.
D. The Lessor shall be entitled to remove or demolish any
alteration or addition in the Premises made by the Lessee
without its consent, and the Lessee shall bear all the expenses
incurred by the Lessor in connection therewith.
E. For the avoidance of doubt, it is agreed that any alteration or
addition in the Premises shall be the exclusive property of the
Lessor and the Lessee shall not be entitled to request and
receive from the Lessor any consideration whatsoever in respect
thereof and they shall not be deemed as key-money. Moreover, the
Lessee shall not be entitled to make any alteration therein
without the Lessor's consent, except for such alterations and
additions as have been expressly agreed upon that they be the
property of the Lessee.
F. Notwithstanding the aforesaid, insofar as so requested by the
Lessor, the Lessee undertakes at the end of the Period of
Lease, to dismantle any addition made in the Premises and
restore the Premises to their previous condition as they were
before the making of the addition, provided that the Lessee
shall cause no damage to the Premises by the dismantling of
the addition and restore the Premises to a proper condition
and fit for immediate leasing, by the end of the Period of
Lease, unless the Lessor informs it that it agrees to the
remaining of the addition in the Premises, and in such event,
ownership in the additions shall remain with the Lessor
without the payment of any consideration therefor.
G. The fixing of sign-posts in the Premises shall be made by the
Management Company on behalf of the Lessor in coordination with
the Lessee, subject to the receipt of all the permits and
payment of all the taxes and fees in connection therewith. The
Lessee shall pay its
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proportional share in the said expenses. The Lessor shall be
entitled to fix a signpost in the Premises on its own behalf.
7. PURPOSE OF LEASE
A. The purpose of the lease is to operate a business of
development, production and marketing of products
(integration) in the hi-tech field.
B. The Lessee declares that it is aware of the Town Building Plan
provisions applicable to the region. It is aware that the
designation of the region is industry and craft and that it
will be exclusively responsible to obtain a license for the
management of its business in the Premises. Nevertheless, the
non-issue of a business license as aforesaid, shall not
constitute a breach of the contract with the Lessor. For the
avoidance of doubt, however, same shall also not exempt the
Lessee from its obligations under this Contract. The Lessor
shall cooperate with the Lessee for the purpose of receiving
the business license, without being obligated to invest any
funds and/or labor for such purpose.
C. The Lessee undertakes to manage its business in accordance with
the provisions of any law, obtain the licenses required for the
management of its business in the Premises subject to the
provisions in sub-clause (c) above and not to alter the object
of the lease without receiving the Lessor's prior approval in
writing.
8. EXTENSION OF PERIOD OF LEASE
A. The Lessee is hereby granted an option to extend the Period of
Lease by two additional periods, the first, of 24 months, as
from the end of the Period of Lease ("the Extended Period of
Lease"), and the second, of 34 months, as from the end of the
first Extended Period of Lease, provided that it gives six
month's advance written notice of its wish to do so before the
end of the original Period of Lease under this Contract and/or
any Extended Period of Lease, and provided further that the
Lessee has complied with all the conditions of the Contract
until that date. If no notice is given as aforesaid, the
Period of Lease and/or the Extended Period of Lease will be
terminated as provided in this Contract.
B. If the Lessee elects to extend the Period of Lease as provided
in sub-clause A. above, the rent during the whole Extended
Period of Lease shall be as follows:
B.1 for the first Extended Period of Lease (the sixth and
the seventh year of the lease), the monthly rent shall
be in the amount of the basic rent (as defined in Annex
"B") for the last month of the last preceding year of
lease, plus 2.5% increase oo the dollar amount, plus
VAT.
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B.2 for the second Extended Period of Lease, the monthly
rent shall be in the amount of the basic rent (as
defined in Annex "B") of the last preceding year, plus
2.5% increase on the dollar amount, plus VAT.
C. All the other conditions of this Contract shall apply to the
Extended Period of Lease, mutatis mutandis, including the
provision of guarantees and securities for the extended period
and the extension of the period of insurance.
D. In any case, the rent in the option periods shall not be
higher than the rent normally charged in the "Tavor" Building.
9. TAXES, CHARGES AND COMPULSORY PAYMENTS
A. All the taxes, local rates, payments, fees, maintenance fees,
levies and charges of all kind (hereinafter - "the Taxes"),
whether municipal, governmental or others, imposed now or
hereafter on or in connection with the Premises and the
management of the Lessee's business in the Premises during the
Period of Lease or in connection therewith, whether they are
chargeable on a lessee and/or an occupier, shall be borne and
paid by the Lessee as from the Date of Delivery. In the event
in which the Lessor shall, for any reason whatsoever, pay any
amount whatsoever which is to be borne by the Lessee under the
provisions of the Contract, the Lessee shall be obligated to
refund to the Lessor any amount paid thereby as aforesaid,
provided that the Lessor delivered thereto a written notice
specifying the payment required and gave the Lessee a 14 days
time-extension for the payment of the Taxes.
Notwithstanding the aforesaid, the Lessor shall pay any tax
and/or charge chargeable on property owners, as e.g. property
tax.
B. The Lessee shall bear during the Period of Lease all the
payments and expenses for the supply of electricity, water, gas
and telephone to the Premises and any other payment which may be
charged in respect of the use of the Premises, including
payments to the Management Company as specified in the
Management Agreement hereto attached.
C. Value Added Tax charged on the Lessor or the Lessee in respect
of the present lease shall be borne and paid by the Lessee
only, against a tax invoice.
D. Without derogating from the provisions in clause 10 A. - C.
above, the Lessee undertakes to pay all the amounts charged
thereon under clauses A. - C. on the dates prescribed by law.
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10. SECURITIES
A. As security for the discharge of all the obligations of the
Lessee under this Contract, the Lessee shall provide the
Lessor upon the execution of this Contract, with an
unconditional autonomous bank guarantee, linked to the dollar,
in a form acceptable by the Lessor, in an amount equal to $
60,000, to the order of the Lessor. The guarantee shall be in
force for a period of up to the end of the first year of lease
and the guarantee shall be extended for additional one year
periods, by and not later than 30 days prior to the end of
each one year period as aforesaid.
B. It is stipulated between the parties that the extension of the
guarantee in time as aforesaid, is a fundamental obligation of
the Lessee under this Contract.
C. It is hereby expressly emphasized that the receipt of the bank
guarantee by the Lessor shall not be deemed as payment of the
rent, and it is designed as security only to secure the
discharge of the Lessee's obligations under this Contract.
D. In any case in which money will be due to the Lessor from the
Lessee under this Contract and/or under the Management
Agreement and the Lessee will fail to pay same notwithstanding
the Lessor's demand (within 15 days from the Lessor's demand),
the Lessor shall be entitled to enforce the bank guarantee and
collect therefrom all the amounts due to the Lessor at the
time and/or cover the damage caused to the Lessor and/or the
Premises by the Lessee, provided that the Lessor notifies the
Lessee of its intention to enforce the guarantee and gives a 7
days time-extension to the Lessee in order to rectify the
claimed breach and/or damage.
E. It is agreed between the parties that the Lessor will return the
bank guarantee to the Lessee within 60 days after the
termination of the lease and after the return of the Premises by
the Lessee, provided that all the certificates proving that the
Lessee paid all payments due therefrom to any third party or
authority as specified in this Contract, are presented to the
Lessor, and that no damage has been caused to the Premises by
the Lessee for which it is liable under this Contract..
11. LIABILITY AND INSURANCE
With respect to liability and insurance, the provisions and conditions
set out in ANNEX "C" attached to this Agreement as an integral part
thereof, shall be complied with.
12. ASSIGNMENT OF RIGHTS
A. The Lessee undertakes not to deliver or transfer and/or assign
and/or grant as a gift and/or charge and/or transfer
otherwise, all or any of its
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rights under this Contract and not to deliver the possession
and/or the use of the Premises and/or let the Premises and/or
any part thereof by way of a sub-lease and/or otherwise and
not to permit any person and/or corporation, except for the
Lessee's workers and/or employees, to use the Premises and/or
any part thereof, either directly or indirectly, unless it
receives the prior written consent therefor from the Lessor,
and the provisions of section 22 of the Law of Hire and Loan
shall not apply to the lease. The Lessor shall not withhold
its consent except on reasonable grounds. The Lessor shall not
object to any changes in the ownership of the Lessee.
B. The Lessor shall be entitled to transfer the Premises and/or the
Lessor's rights under this Contract, in whole or in part, to any
person and/or body whosoever, without the need of the Lessee's
consent, provided that its rights under this Contract shall not
be affected. The Lessee undertakes to sign all documents
required, if any, in respect of the transfer of the Lessor's
rights in the Premises.
13. PROVISIONS WITH RESPECT TO THE USE OF THE PREMISES
A. The Lessee shall be entitled to use the Premises (and any one
of the parts thereof) for the purpose of the lease and for no
other purpose whatsoever.
B. The Lessee shall maintain order and cleanliness in the Premises
and the surrounding thereof and shall comply with the Lessor's
instructions in respect of the cleaning procedure, the manner of
removal of debris and garbage and the maintenance of the
draining and sewage system in the Premises. The non-provision of
instructions as aforesaid shall not exempt the Lessee from its
obligations under this clause.
C. The Lessee declares that by the commencement of the Period of
Lease, it will obtain all the approvals and licenses required
for the use of the Premises pursuant to the provisions of this
Contract, the provisions of the Town Building Plan applicable
to the Premises and the provisions of any law, and that it
will maintain all the provisions of the law and the
regulations in respect thereof and it shall always be equipped
with appropriate licenses and approvals in respect of any
activity related to the use of the Premises and requiring an
approval or license under any law. The non-receipt of the said
licenses and/or any part thereof shall not constitute grounds
for the revocation of this Contract and/or the non-discharge
of the Lessee's obligations thereunder, and especially, the
non-payment of the rent and other payments thereunder,
provided that the non-receipt of the said approvals does not
emanate from the Lessor's failure to comply with its
obligations under this Contract. Notwithstanding the
aforesaid, the non-receipt of a business license for reasons
independent of the Lessee, shall not constitute a breach of
the Contract with the Lessor and in the event of a request
from a competent
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authority for the Lessee's vacation due to the non-receipt of
the business license as aforesaid, section 4.B above shall
apply.
D. If the Lessee fails to comply with its aforesaid obligations
in Sub-clause A - D, the Lessor or the Management Company
shall be entitled (but not obliged) to perform by itself the
maintenance and repairs which are to be borne by the Lessee,
provided that it has given written notice to the Lessee and
allowed it 14 days to perform the required maintenance and
repairs, and the Lessee shall reimburse the Lessor all the
expenses which it incurred for such purpose, immediately upon
the first demand thereof and pursuant to the provisions in
such demand.
E. 1. Any sign-posts on behalf of the Lessee or other means of
publicity or presentation on the external walls of the
Premises or in the common areas in the Building and the
vicinity thereof, shall be made in such format and size
as prescribed in the Sign-post Annex - Annex "--".
2. The Lessor shall be entitled to remove at the Lessee's
cost any sign-post fixed by the Lessee in violation of
this clause.
3. The Lessee shall bear any tax or fee in respect of the
fixing of the sign-post and the maintenance thereof and
it shall also bear the duty to obtain any permit
required for the fixing of the sign-post.
F. The Lessee shall comply with the instructions of the Lessor
and any other competent authority relating to the rules and
procedure of fire extinguishing and prevention of fire, civil
defense, safety and security, and shall acquire and/or install
at its cost, pursuant to the instructions of the said body,
all the preventive and safety equipment required for the
application and maintenance of the said instructions and
resulting from the management of the Lessee's business. The
equipment shall remain the property of the Lessee, which may
remove it from the Premises upon the termination of the Period
of Lease and it shall do so if so requested by the Lessor.
G. The Lessee shall use the Premises whilst avoiding any
disturbance to its neighbors and the creation of any nuisance
in the Premises or the surrounding thereof.
H. The Lessee shall use only the access ways fixed by the Lessor
and shall park all cars and trucks only at such places as
prescribed by the Lessor. It shall not use any motor or other
vehicles which are liable to damage the access ways and the
parking lots and shall follow the instructions given by the
Lessor or the Management Company in respect of the access and
parking procedure within the limits of the Plot.
I. Without derogating from the aforesaid, the Lessee shall use
the Premises with proper care, maintain same in good and
proper condition (including
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whitewashing and painting) during the whole Period of Lease,
comply with all the instructions of the manufacturers and the
Lessor with respect to the maintenance of the Building and the
facilities thereof, avoid the causation of any damage or fault
to the Premises and repair forthwith and at its cost all the
repairs required in order to comply with its obligations under
this clause, except for wear and tear resulting from the
regular and reasonable use of the Premises and/or the systems
thereof.
J. The Lessor may prescribe to the Lessee a date for the repair of
any damage which the Lessee is obligated to repair under this
Contract. If the Lessee fails to repair the damage to the
satisfaction of the Lessor's engineer within the time
prescribed, the Lessor shall be entitled to repair same at the
Lessee's cost.
K. The Lessee shall inform the Lessor of any damage to the
Premises within 48 hours from the time of discovery thereof.
L.. Without derogating from the generality of the aforesaid, the
Lessor shall be bound to repair any constructional damage
preventing the use of the Premises, caused to the Premises
otherwise than as a result of an act or omission of the Lessee,
within a reasonable time from the date of receipt of notice of
the said damage. .
M. In addition to all the Lessee's obligations under this Contract,
the Lessee shall, upon signing this Contract, also sign a
Management Agreement with the Management Company to be formed by
the Lessor, attached to this Contract.
N. In addition to all the aforesaid, the Lessee shall comply with
all the use procedure and the rules published from time to time
by the Lessor and/or the Management Company, including rules of
the use of the Premises.
14. ELECTRICITY AND WATER
A. The Lessee confirms that it is aware that the connecting of the
Premises to the water network is conditional upon the entering
into an agreement between it and the local authority and that
the payment for the water meter shall be borne by the Lessee.
B. The Lessor will fix in the Premises a separate electricity meter
for the Lessee, provided that the Lessee enters into a contract
with the Electric Corporation and pays the costs of the
connecting and the installation of the meter by the Israel
Electric Company.
C. The electric connection will be 3 X 25 amperes or as
prescribed by the Lessor's engineer.
15. MAINTENANCE OF PREMISES
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A. The Lessee shall not bring into the Premises any equipment which
is liable to cause damage to the Premises or overload the floor
of the Premises in excess of the load for which it is designed.
The load permitted on each floor is as prescribed by the
engineer on behalf of the Lessor.
B. In any case of special or concentrated loading or
consolidation of machinery, the Lessee must submit a plan and
receive the prior written approval of the Lessor's engineer.
C. The construction of the roof of the Premises is not calculated
for any load and the use thereof for any purpose whatsoever is
absolutely prohibited and dangerous. -
16. MANAGEMENT OF THE PROPERTY
A. The Lessor shall manage the property via a Management Company
which will control the maintenance of the communal property, the
public areas, the access ways to the buildings, the Premises
etc. The Management Company shall prescribe rules and working
procedure in coordination with the Lessee, which will be brought
up to date from time to time, and these will bind the Lessee and
the other users of the Building.
B. The Lessee undertakes to sign a Management Agreement with the
Management Company, under which it will receive therefrom the
usual services and additional services as for example,
security services, signposting, removal of industrial refuse,
a communication center, gardening, current maintenance and
cleaning, handling of parking lots and/or garages and
insurance, all within the limits of the Plot and the buildings
erected thereon (hereinafter - "the Management Agreement").
The form of the Management Agreement is hereto attached as
ANNEX "D".
C. The Lessee undertakes to pay to the Management Company the
payments due in respect of the supply of services under the
Management Agreement. These payments shall be fixed according to
the actual management and maintenance costs, with the addition
of 15% overhead, profit and management fees. The management fee
per sq.m. collected from the Lessee will not exceed that
collected from other lessees in the buildings, and in any case,
will not exceed the amount of $ 1.5 per sq.m. per month (without
air conditioning).
D. The Lessee shall be able to inspect the Management Company's
books after prior coordination with its managers.
17. PARKING AREAS
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The Lessee and/or its employees and/or visitors shall be entitled to use
the parking places in the area, so long and insofar as they are not
designated for the exclusive use of any third party whosoever.
In addition, the Lessor shall make available for the Lessee's use 15
roofed/unroofed parking places, at the Lessor's choice, at no extra
charge.
The parking places made available to the Lessee will be marked in the
Drawing, Annex A.
18. INAPPLICABILITY OF THE TENANT'S PROTECTION LAWS
A. The Premises and the lease are not protected under the
provisions of the Secured Tenant Law (Consolidated Version)
5732-1972 nor under the provisions of any other law dealing with
the secured tenants and/or securing the Lessee in any form
whatsoever.
B. Secured tenancy does not apply to the present lease, since the
conditions mentioned in the Secured Tenant Law (Consolidated
Version) 5732-1972 or any part thereof, have been fulfilled,
namely:
1. The Premises constitute a separate unit.
2. On the date of commencement of the period of the present
lease, there was no tenant on the Premises who was
entitled to duly occupy them.
3. No key-money or any other consideration was paid to the
Lessor, either directly or indirectly, for the grant of
the lease.
The Premises were built after the date of commencement
of the Secured Tenant Law (Miscellanous Provisions)
5728-1968 and were let for the first time after the said
date.
C. The Lessee declares and confirms that its expenses of and
investments in making the alterations in the Premises, the
addition or renovations, or any other investment made to adjust
the Premises to its objects, shall in no way and form be deemed
as key-money of any class whatsoever and shall not confer upon
it any right whatsoever and these investments shall not affect
the above provisions, according to which no law of the secured
tenancy laws shall apply to the Premises.
19. RIGHT OF ENTRY INTO THE PREMISES
The representatives of the Lessor and the Management Company shall have a
right of entry into the Premises during reasonable hours and after prior
coordination with the Lessee, in order to check the measure of compliance
with the provisions of this Contract and/or in order to perform such acts
and take
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such means as are prescribed in this Law or in any other law, requiring
the entry into the Premises.
20. VACATION OF PREMISES
A. Not later than the date of termination of the Period of Lease
and/or the Extended Period of Lease, as the case may be, and
prior thereto, in any case of the revocation or termination of
the lease pursuant to the provisions of this Contract, the
Lessee shall vacate the Premises and restore the possession
thereof to the Lessor, same being unoccupied by any person and
object (except for equipment and fittings belonging to the
Lessor) and in good and proper condition, as they were delivered
thereto, except for reasonable wear and tear.
B. If the Lessee fails to vacate the Premises as provided in
sub-clause A. above, then, in addition to and without affecting
thereby any remedy or other relief available to the Lessor, the
Lessee shall pay to the Lessor pre-determined and pre-estimated
compensation at the rate equal to 200% of the rent for each
month of delay, and an additional proportional share in respect
of the additional days of arrears, and this, with the addition
of linkage differentials between the basic index and the index
published recently before the actual payment.
In addition thereto, the Lessee shall pay to the Lessor any
direct expense and/or damage and/or loss sustained by the Lessor
or any third party as a result of the delay in vacating the
Premises and the leasing thereof to a new tenant by the Lessor.
C. In the event of the Lessee vacating or abandoning the Premises
before the end of the Period of Lease or the breach of this
Contract without the Lessor's prior consent in writing, the
Lessee shall continue to pay to the Lessor the rent and the
other payments applicable thereto pursuant to this Contract,
until the end of the Period of Lease, as if it continued to
occupy and use the Premises. The provisions of this clause
shall not derogate from the Lessor's right to terminate the
Contract on the basis of its other rights under this Contract
and under the law.
The aforesaid provisions shall not apply in the case of the
revocation of this Contract by the Lessee under the law and/or
pursuant to the provisions of this Contract.
21. BREACH OF CONTRACT
A. Without derogating from the provisions of any law, each one of
the following acts or omissions shall be deemed as a
fundamental breach of the Contract by the Lessee:
1. the use of the Premises otherwise than for the purpose
of the lease, as provided in clause 7 above.
13
2. The transfer of the Lessee's rights in the Premises to
another, in violation of clause 12 above.
3. The failure to pay any amount which the Lessee is
obligated to pay to the Lessor or any third party under
this Contract and/or the Management Agreement, on the
date prescribed for payment.
Arrears of payment of up to 10 days, however, shall not
constitute a fundamental breach of the Contract.
4. The issue of an order of receivership or a winding up
order or the appointment of a receiver over the property
of the Lessee or any part thereof, provided that the
order and/or the appointment are not canceled within 60
days from the date of issue thereof.
5. The failure to remove a nuisance after the receipt of a
written caution from the Lessor 14 days in advance.
6. The failure to restore possession of the Premises in
time, in the manner and condition specified above.
7. The non-acceptance of possession of the Premises on the
date of delivery for any reason whatsoever, except for
the case of a delay of delivery of the Premises as a
result of the act or omission of the Lessor.
8. A fundamental breach of the Management Agreement.
9. The failure of performance by the Lessee of the
maintenance and repairs which the Lessee is obligated to
perform in the Premises, provided that the Lessee has
been given 22 days' prior notice in writing and it did
not comply therewith.
10. Any other breach of this Contract which, by its extent,
nature and/or circumstances at the time of the breach,
may be deemed as a fundamental breach, provided that the
Lessee has been given 14 days' prior notice in writing
and it did not comply therewith.
B. If the Lessee commits a breach of any of the above principal
conditions, the Lessor shall be entitled to revoke this Contract
after serving a written notice and a time-extension of 14 days,
during which period the breach is not corrected, and this
Contract shall be deemed as revoked from the date prescribed in
the Lessor's notice.
C. If the Lessor gives notice of revocation of the Contract, the
Lessee shall vacate the Premises and restore the possession
thereof to the Lessor, same being unoccupied and free of any
occupier, within 30 days from the receipt of the notice of
revocation of this Contract.
14
D. The provisions in this clause shall not derogate from other
rights of the Lessor under this Contract or under the law.
E. Any party violating any of the conditions of this Contract shall
be obligated to pay to the complying party all the damage and
losses caused thereto, without affecting the right of the
injured party to any other remedy under this Contract or under
the law, including the revocation of the Contract or the
enforcement thereof.
F. In any event in which the Lessee commits a fundamental breach of
any of the conditions of the Contract and/or fails to pay the
rent in time and does not cease to violate the Contract after a
notice is delivered thereto, the Lessor shall be entitled to
dispossess the Lessee from the Premises and cancel the Lessee's
possession of the Premises.
22. CONTRACT EXPENSES AND LEGAL COSTS
A. Stamp duty in respect of the Contract, if any, shall be borne by
the parties in equal shares. Stamp duty in respect of the notes,
guarantees and the other expenses of this Contract shall be
borne by the Lessee and paid to the Lessor upon demand.
B. It is agreed and declared between the parties that in the event
of the Lessee not vacating the Premises at the end of the Period
of Lease or after a notice is sent thereto of the revocation of
the lease pursuant to the provisions of this Contract, the
Lessee shall, in addition to all the remedies prescribed in this
Contract and in the law, bear all the direct expenses incurred
by the Lessor in respect of the legal handling of any legal
proceeding or claim or act in the Office of Execution, including
the Lessor's lawyer's fee.
C. The Lessee shall pay to the Lessor all the expenses as aforesaid
immediately after the delivery of a written demand, with the
addition of interest on arrears, at the highest rate prescribed
by the Bank of Israel, as from the delivery of the letter of
demand to the payment in fact.
D. The Lessor shall be entitled to set off all the amounts due
thereto under this Contract, including the expenses as
aforesaid, against all the balances standing to the Lessee's
credit and/or deduct same from the guarantees and/or the
securities in its possession, and this, without affecting its
right to collect such expenses from the Lessee.
E. Each party shall bear its own legal fees.
23. MODIFICATION OF CONTRACT
Any modification of and/or amendment to this Contract shall be made only
by an express written document, signed by the parties to this Contract.
15
24. DEVIATION
The consent of any party to this Contract to deviate from its conditions
in a certain case or in a series of cases, shall not constitute a
precedent and no analogy shall be drawn therefrom with respect to that
case or any other case in the future.
25. NOTICES AND CAUTIONS
A. Any notice and caution sent by one party to the other with
respect to this Contract, shall be sent by registered mail or
delivered personally, at the addresses of the parties stated in
the Preamble to this Contract (or such other address of which
due notice is given in writing), and any notice or caution as
aforesaid shall be deemed as if delivered to the addressee upon
the delivery thereof in fact - if delivered personally, and if
sent by registered mail - within 48 hours from the date of
dispatch.
B. The parties are as specified in the Preamble to this Contract.
26. FURTHER MEASURES
The parties shall take all the additional measures (including the signing
of additional documents) required for the implementation of this Contract
according to its word and spirit.
27. MISCELLANEOUS
A. Any waiver, abandonment, disregard, or failure to take legal
action or delay of exercising any rights on the part of the
Lessor in a certain case, shall under no circumstances be deemed
a waiver, consent or instructions on the part of the Lessor. The
Lessor shall be entitled to exercise at any time any of its
rights under this Contract, pursuant to the law, whenever it may
deem fit, notwithstanding any preceding waivers, concessions or
abandonment.
B. The parties to this Contract shall not be bound by any
declaration, representation, agreements and obligations made in
writing and orally, which are not included in this Contract and
which were made prior the signing thereof. Any modification of
and addition to this Contract shall be made in writing and
signed by both parties, otherwise shall be of no effect.
C. It is hereby expressly agreed between the parties that the
courts in Tel-Aviv shall have exclusive jurisdiction over all
the differences and/or disputes arising between the parties.
16
D. The Lessee declares that it is aware that the office of
Advocates Rami, Lahavi and Co. represents the Lessor only and
that it has been notified of its right to be represented by a
lawyer on its behalf.
In witness of all the aforesaid the parties hereto have hereunto set
their hand:
(-) (-)
B.A.T.M. REAL ESTATE (1994) LTD. GIVEN IMAGING LTD.
-------------------------------- ------------------
The Lessor The Lessee
17
ANNEX A
A detailed drawing will be provided upon the completion of the architectural
planning.
18
ANNEX B
Rent and Terms of Payment
The rent for the Premises and the terms of payment thereof shall be as set out
in Annex "C" to this Contract.
A. The monthly rent during the Period of Lease shall be an amount in NIS
equal to USA $ 10.- per square meter of the Premises and totaling $ 17,366
a month (hereinafter - "the Basic Rent").
In addition, the Lessee shall pay a management fee in an amount equal to $
1.5.- per sq.m. and totaling $ 2,605 a month.
The amounts stated above shall be paid to the Lessor in NIS at the
representative exchange rate of the dollar known on the date of each
payment.
B. In any case, the monthly rent shall not be lower than the rent paid in the
preceding quarter.
C. For the avoidance of doubt, it is agreed that the rent shall be paid in
full even if the Lessee has not used the Premises, in whole or in part,
during the Period of Lease or the Extended Period of Lease, as the case
may be, in whole or in part.
D. The Lessee undertakes to pay the rent to the Lessor with the addition of
Value Added Tax against a tax invoice for the Period of Lease, in the
following manner:
1. The rent and the Value Added tax during the Period of Lease and
during the Extended Period of Lease, as the case may be, for three
months in advance.
If the prescribed date of payment is a public holiday, payment shall
be advanced to the last workday preceding the public holiday.
2. The first payment shall be made by the Lessee on 1.4.2000 or on the
date of delivery of possession of the Premises to the Lessee, and so
forth on the first of each quarter thereafter.
E. Any payment in arrears shall bear interest at the highest rate customarily
charged at that time by Bank Hapoalim Ltd. in a current loan account for
drawings exceeding approved overdrafts or linkage differentials and
permissible interest thereon, whichever is the higher amount, as elected
by the Lessor, as from the first date of the arrears to the date of
payment in fact.
19
ANNEX "C"
Third party Liability and Insurance
1. Without derogating from the provisions in each clause of this Contract
above, the Lessee shall be liable for any damage caused as a result of its
negligence and/or the negligence of any person acting on its behalf
(hereinafter - "Lessee's Liability"):
A. to the Building (including the Premises).
B. to any third party staying in the Premises or the Building or
outside the Building, and without derogating from the generality of
the aforesaid, also visitors and invitees of the Lessee;
C. to the Lessee's employees and the employees of the Lessor and the
Management Company.
2. The Lessee alone shall be liable to the Lessor for any damage caused
thereto, to the Premises or to any third party, and also for any claim
filed against the Lessor and/or the Management Company by any party
whosoever in respect of any act or omission on the part of the Lessee in
the Premises.
The Lessee undertakes to indemnify the Lessor for any amount which the
Lessor will be ordered to pay to any person or legal body, in consequence
of the Lessee's liability as aforesaid, including legal costs and legal
fees, payments in respect of proceedings before any judicial body
whatsoever.
3. The Lessor shall not bear any liability whatsoever or any indebtedness
whatsoever for any damage and/or loss and/or damage to property or capital
of any class whatsoever (either direct or indirect, including but not
limited to the loss of rent) caused to the Lessee and/or its workers
and/or employees and/or agents and/or customers and/or visitors and/or
invitees and/or any other person, all those staying on the Premises (or at
such other place occupied by the Lessee with the permission of the Lessor)
or in the area adjacent to the Premises or on the way to the Premises,
and/or for any damage to person or property suffered by the Lessee's
neighbors in the Premises, unless caused by the fault of the Lessor,
The Lessee alone shall be liable to the Lessor for any damage caused
thereto, to the Premises or to any third party, and also for any claim
filed against the Lessor and/or the Management Company by any party
whosoever in respect of any act or omission on the part of the Lessee in
the Premises. The Lessee shall indemnify the Lessor for any damage or
expenses caused thereto, unless caused by the fault of the Lessor,
4. Without derogating from the Lessee's liability as provided above or under
any law, the Lessee undertakes to take out and maintain at its cost the
insurance as hereinafter specified, during the whole Period of Lease
(hereinafter - "Lessee's Insurance"):
20
A. Insurance of the contents of the Premises (including the renovations
therein) on a reinstatement value basis in the form normally used by
insurance companies in Israel, against extended risks of fire,
including earthquakes and natural disasters. Coverage shall also
include a condition with respect to the waiver of the right of
substitution against the Lessor, the Management Company and all
those acting on their behalf.
B. Third party liability insurance to cover the Lessee's Liability for
damage to person or property to any person or any legal body
whosoever (including the Lessor and the Management Company), as a
result of the Lessee's activity in the Premises, within a limited
liability which shall be not less than US $ 500,000 per event and in
aggregate for the coverage period.
The insurance shall not include any exception with respect to
liability resulting from fire, explosion, panic, lifting appliances,
unloading and loading, sanitary facilities, poisoning, harmful
substances in food or drink, strikes and lockouts, weakening of
foundations or supports of any building whatsoever, as well as
claims of the National Insurance Institute.
21
MANAGEMENT AGREEMENT
Entered into and signed in ___________on ____of the month of December, 1999
between:
B.A.T.M. Real Property (1994) Ltd.
of 00 Xxxxxxxxx Xxxxxx, Xxxxx I.Z., Rosh Ha'ayin
P.O.B. 11387, Rosh Ha'ayin 48091
(hereinafter - "the Company") OF THE FIRST PART
And:
Given Imaging Ltd., a private company
of Xxxxxxxx Xx. 0, Xxx Xxxxxxxxxx Xxxx, Xxxxx'xx
P.O.B. 258, Yokne'am 20692
(hereinafter - "the Lessee") OF THE SECOND PART
Whereas the Company is the owner of leasehold rights in a plot of land known as
plot No. 6 pursuant to Detailed Plan ___________ in block 11495 parcel
13, in the New Industrial Zone, in Yokne'am (hereinafter - "the
Property"), on which a building has been erected (the area of the
Property and the building thereon will hereinafter collectively be
referred to as - "the Building");
And whereas the Lessor leased on _________ from the Company a hall comprising
an area of about 1,736.60 sq.m. in Building Wing No. B - (hereinafter -
"the Premises") pursuant to a Lease Agreement (hereinafter - "the Lease
Agreement") of which this Agreement forms an integral part;
And whereas the Company leased and/or will lease in the future and/or
occupies by itself and/or through persons or bodies acting in its name
and on its behalf, other units in respect of additional parts in the Plot
of land (hereinafter - "the Other Premises");
And whereas the parties are desirous of regulating between them the
management of the Building, payment of the management and/or maintenance
and/or operational fee and/or publicity expenses and/or any other
expenses or payments required from the Lessee as an occupier and user of
the Premises in the Building;
And whereas the Building has not yet been parcelated and the rights have not
been registered in the Land Registrar, and the parties seek to ensure in
the future the registration of this Management Agreement to secure the
rights, duties and manner of use specified in this Agreement;
And whereas the parties wish to regulate their mutual obligations with
respect to the management and implementation of the provisions above and
below in this Agreement;
22
NOW, THEREFORE, IT HAS BEEN AGREED AND DECLARED BY AND BETWEEN THE PARTIES
AS FOLLOWS:
1. PREAMBLE, ANNEXES AND HEADINGS
1.1. The Preamble to this Agreement and the declarations of the parties
therein form an integral part thereof. -
1.2 The annexes to this Agreement form an integral part of the
conditions thereof.
1.3 The headings of the clauses are inserted to facilitate the reading
only and are not to be used for the interpretation of the Agreement.
2. DEFINITIONS
2.1 For the purpose of this Agreement, the expressions hereinafter set
out shall have the meaning set opposite them:
"Facilities" - including air condition facilities, elevators and
escalators, electricity, fire detecting systems,
plumbing, lighting, water, sewage, canalization,
sign-posting and other facilities in the Building
insofar as they exist now and/or will exist in the
future in the Building, provided that they are not
subject to the exclusive possession of the Lessee or
any other occupier whosoever.
"The Areas" - the facilities and the areas in the Building which
exist now and/or will exist in the future which are
not subject to the exclusive possession of the
Lessee or any other occupier whosoever and which form
common property, including the passages of the
Building, roofs, entrances and exits, pavements,
public conveniences, unloading and loading areas,
elevators and escalators, shelters, access roads,
pavements, traffic islands, gardens and flora and any
other area in the Building constituting common
property or used by the general body of occupiers of
the Building or by the public visiting and using
same.
"Services" - the management, operation, repair, maintenance,
cleaning, overhauling, lighting, guarding, replacing,
gardening, publicity, insurance and maintenance of
the areas and such other operations as the Management
Company may elect to manage, perform, provide,
initiate or handle or which it may be required by the
competent authorities to manage, perform or provide
in the Areas, Building and the surrounding thereof.
In addition to the aforesaid, the services will also
include
23
the operations which the Management Company is
authorized to perform under the conditions of this
Agreement with respect to the Areas.
3. MAINTENANCE AND MANAGEMENT SERVICES
3.1 The Company undertakes, in consideration of the fulfillment of all
the Lessee's obligations under this Agreement and the fulfillment of
the obligations of the other occupiers of the Building, to manage,
perform and operate the services and the facilities in the Building,
and the Lessee agrees thereto and entrusts the Company with the
exclusive management of the services and facilities in the Building,
and undertakes to deal therewith pursuant to the specified
provisions in this Agreement or otherwise as determined by the
Company. The Lessee undertakes not to perform the services and any
part thereof by itself or through others, except for the Company or
on its behalf, so long as they are supplied by the Company at a
reasonable and proper standard.
3.2 Without derogating from the provisions in clause 3.1 above, the
Company, subject to the fulfillment of the obligations of the Lessee
and the other lessees, shall take care of the following matters as
hereinafter specified:
A. Cleaning, lighting and guarding of the Areas (except for those
in the Premises and the other premises and the business
managed therein).
B. Gardening and handling of the flora in the Areas, maintenance,
repair and improvement of the Areas and the sign-posts
therein, and of the sewage, plumbing, electric, lighting
systems, the elevators and the escalators in the Areas.
C. Whitewashing, painting, maintenance and renewal of the Areas.
D. Insulation, sealing and repair of the Areas, including
external walls and roofs of the Building, except for such as
are linked to certain premises and the tenants of which will
undertake the repair and insulation thereof and they will be
exclusively used by them.
E. Fixing of common signposts for all the occupiers of the
Building.
F. Property insurance of the Areas and the structure of the
Building (expressly excluding the contents of the Premises and
the other premises and repairs, alterations in and additions
to the Premises made by and/or for the Lessee) against risks
of fire, explosion, earthquake, commotion, strikes and
malicious damage, flooding, and water damage as well as
against such additional damage as, in the Company's opinion,
may be required.
24
G. third party insurance against damage that may be caused to
person or property in the Areas (excluding the Premises and
the other premises).
H. Employers liability insurance for employees employed in the
service of the Company in the Building (and expressly
excluding employees of the Lessee or of occupiers of other
premises).
I. Payment of local and governmental taxes chargeable, if any, on
the Areas, excluding the Premises and the other premises.
J. The complete performance of each part of the said operations
and the supply of all or any part of the said services, at the
Company's choice.
Notwithstanding the aforesaid and for the avoidance of doubt,
it is declared and agreed that the Lessee shall be exclusively
responsible for the maintenance of the air conditioning system
in the Premises, including the handling of and service to the
system, insurance of the system against damage and faults, and
it undertakes to restore the system to the Company at the end
of the Period of Lease or at the end of the Extended Period of
Lease, as the case may be, in the same condition in which it
has received same except for reasonable wear and tear.
3.3 For the avoidance of doubt, it is declared and agreed between the
parties that the Company is not liable for any damage or loss caused
to the Premises for any reason whatsoever, including where it is the
result of theft, fire, burglary, water or sewage, unless the damage
is caused by the Company's fault.
3.4 It is hereby expressly agreed that the parking lots in the Building
shall not constitute common property and shall remain under the
Company's ownership. So long and insofar as the Company enables the
use of the parking lots to the general body of the occupiers or the
general body of visitors free of charge, the parking lots shall be
maintained by the Company and shall be deemed as "Areas" for the
purpose of this Agreement. The parking garage shall be maintained by
the Company.
3.5 The Company shall, from time to time at its discretion, be entitled
to determine the extent of the operations to be performed thereby,
the class and nature thereof and which part of the operations
mentioned in clauses 3.1 and 3.2, if any, shall be performed
thereby, and in which period and for how long, provided that it
informs thereof to the Lessee at least one month in advance.
3.6 In order to secure the option of replacing facilities used by all
users in the Building or which also service the Areas or of
performing basic
25
repairs to the facilities and the Areas, the Company shall be
entitled to form and maintain a depreciation and replacement fund,
the moneys of which will be accumulated from the joint contributions
of the Lessee and occupiers of the other premises in the Building
and used for the said purpose. The Company shall be entitled to
invest the moneys of the depreciation fund in such way as its
management may decide, in a reliable manner, in order to maintain
the value thereof.
3.7 In order to enable the Company to exercise its powers under clauses
3.1 and 3.2 above, the Company shall be permitted and the Lessee
shall enable the Company to enter into the Premises and, inter alia,
to open walls, floors, ceilings and other parts, replace and repair
plumbing and pipelines and perform connections therewith, perform
any work which, in the Company's opinion, is required for the
exercise of the powers conferred thereon under this Agreement. In
any case of an operation as aforesaid, the Company shall do its
utmost to coordinate in advance with the Lessee the time of entry of
its employees into the Premises.
The Company shall procure the repair of any damage caused to the
Premises as a result thereof, if any, at its cost, provided that no
real interference is caused with the use of the Premises, except for
the period of the works. The Lessee shall have no claim against the
Company in respect of the interference caused thereto, subject to
the said obligation of the Company.
3.8 For the purpose of discharging its obligations under this Agreement,
the Company shall hire an office and/or occupy an office in the
Building and shall be entitled, at its discretion, to employ in full
or partial position or under a special contract or under such
conditions as it may deem fit: any operator, clerks, accountants,
lawyers, workers, craftsmen, professionals, consultants, engineers,
architects, contractors, advertisers, sub-contractors and such other
persons and bodies as the Company may deem fit to employ and engage
for the purpose of the supply of services to the Areas and the
management of the maintenance company under this Agreement as a
closed economic unit. The Company shall not employ any persons at a
wage or in a quantity exceeding the normal practice in similar
management companies.
4. THE OBLIGATIONS OF THE LESSEE
The Lessee hereby declares and undertakes to the Company as follows:
4.1 To engage with the Company only in respect of all matters relating
to the management and performance of the services under this
Agreement, so long as it performs the said services at a reasonable
and proper standard.
4.2 To avoid by itself or through any other person except the Company,
any act or handling assigned under this Agreement to the Company, so
long as the services are supplied at a reasonable and proper
standard, unless
26
the Company agrees thereto in writing before the performance of the
act or the handling.
4.3 That it and the persons subordinated to it and acting on its behalf
and in its name, shall cooperate with the Company in all cases in
which such cooperation or assistance may be required in order to
enable the regular and proper management and performance of the
services and discharge all its obligations emanating, either
directly or indirectly, from this Agreement.
4.4 To make reasonable and careful use of the Premises in such manner as
shall not affect the Building and the other occupiers and/or users
thereof and/or the external form thereof and/or the high standard at
which it has been built and is maintained.
4.5 Not to place any signposts of any class whatsoever, either on the
internal walls of the Building or on its external walls, without the
prior written approval of the Company.
4.6 To allow the Company and those acting on its behalf and in its name,
to enter into the Premises for the performance of the operations
specified above, for the performance of the operations related to
the management and performance of the services, whether such works
are done for the Premises or for other premises and/or occupiers,
provided that the Company takes measures to reduce the injury and
disturbance to the Lessee.
4.7 To notify the Company of any fault requiring any action on the part
of the Company.
4.8 To pay to the Company on time any amount which it is obligated to
pay under this Agreement, including maintenance fee as hereinafter
specified.
4.9 That insofar as the Lessee lets any rights of possession and/or the
use of the Premises to another person and/or corporation pursuant to
the provisions of the Lease Agreement (hereinafter - "the Recipient
of the Rights"), it shall, prior to the transfer of the rights as
aforesaid and upon the date prescribed therefor by the Company,
cause the Recipient of the Rights to sign with the Company a
management agreement in the present form. The signing of the
agreement by the Recipient of the Rights with the Company shall not
exempt the Lessee from discharging its obligations under this
Agreement and it shall be liable jointly and severally with the
Recipient of the Rights for the full discharge of its obligations
under this Agreement.
4.10 Without derogating from the aforesaid, in the event of the Lessee
assigning its rights in the Premises under the Lease Agreement, it
shall cause the purchaser to sign with the Company a management
agreement
27
in the present form. If the purchaser of the rights does not sign
the Management Agreement as aforesaid for any reason whatsoever, the
Lessee shall be liable to the Company for all its obligations in
respect of this Contract as if it continued to occupy the Premises.
4.11 To pay the stamp duty in respect of this Agreement, in equal shares
with the Company.
5. MAINTENANCE FEE AND PAYMENT THEREOF
5.1 For the purposes of this Agreement, management fee means:
all expenses involved in the operation of the Company and the
exercise of its powers. Without derogating from the generality of
the aforesaid, there shall be included within the definition of
expenses as aforesaid, financing costs, amounts to be provided for
the depreciation fund as provided in clause 3.6 at such reasonable
rate as shall be determined by the Company, and profit at the rate
of 15% on the total expenses of the Company.
5.2 In addition to the maintenance fee, the Company shall collect in
respect of electricity and water to the Premises and to premises in
which no separate meter is installed according to the consumption of
the Premises and/or according to the Company's meter as the Company
may decide.
5.3 The Company shall, within 4 months from the end of each calendar
year, make the calculation of the maintenance fee having regard to
the annual statement of the maintenance expenses with the addition
of financing costs, profit and provision for the depreciation and
replacement fund in the said calendar year. The said annual
statement as certified by the Company's accountant shall constitute
prima facie evidence of the truth thereof and of the Lessee's
obligation of payment thereunder. The annual statement shall be
delivered to the Lessee immediately upon the drawing up thereof.
5.4 The Lessee undertakes to pay to the Company within 14 days from the
receipt of the calculation of the maintenance fee set out in clause
5.5 above, any difference standing to its debit, if any, between the
amount due therefrom in the light of the annual statement and the
amounts paid thereby on account of that year according to clause 5.3
above, with the addition of the Consumer's Price Index linkage
differentials as published by the Central Bureau of Statistics
(hereinafter - "the Consumer's Price Index"). If the statement shows
a balance to the credit of the Lessee, the Lessee's account shall be
credited with the balance and same shall be set off against the
first maintenance fee due from the Lessee thereafter.
5.5 Value Added Tax at the rate applicable on the date of payment in
fact shall be added to each amount payable by the Lessee under this
Agreement, including the maintenance fee of any kind and class
28
whatsoever, and the Lessee undertakes to pay same together with all
payments, against a valid tax invoice.
5.6 The refusal or unwillingness of the Lessee to receive any service
whatsoever and/or the cessation of the management and performance of
the services by the Company pursuant to the provisions of clause
6.1(a) below, shall not exempt it from the obligation to pay the
maintenance fee pursuant to the conditions of this Agreement.
5.7 For the avoidance of doubt, it is hereby agreed between the parties
that the Company is not obligated to perform any service or execute
any act related to the Lessee or other occupiers of the Building and
which is not related to the entire Building, unless the Company is
of the opinion that it has an interest in providing such services or
performing such acts.
The Company shall be entitled to charge the Lessee for any
additional special services, only if provided upon the express
request or with the consent of the Lessee.
5.8 The Company shall be entitled to invest any surplus funds in its
hands, if any, in connection with the supply of the services, in
such manner and form as its management may decide, provided that
they are invested in reliable investments which maintain the value
thereof.
6. VIOLATIONS
6.1 In any event of the Lessee falling into arrears of any payment
whatsoever due therefrom or to be due therefrom hereafter to the
Company under this Agreement and/or if it violates any of the
conditions of this Agreement, the Company shall be entitled, without
derogating from its right to any other legal remedy and at its
choice, to take any one or more of the following steps, provided
that it sent a notice in writing to the Lessee giving it a 14 day
time-extension to make good the claimed violation:
a. To stop altogether or partially the management and performance
of the services supplied to the Lessee.
b. To add Consumer's Price Index linkage differentials (at the
rate of the increase of the last index known at the time of
payment in fact compared with the index known on the date on
which the Lessee was obligated to pay the said amount), to any
payment or expense due from the Lessee and not paid in time,
with the addition of linked interest at the rate of 8% per
annum or, at the Company's choice, charge the Lessee compound
interest at the rate of exceptional interest customarily
charged by Bank Hapoalim Ltd. for such period.
c. To act in such other manner as it is authorized by law.
29
6.2 All expenses or payments to be borne by the Company in consequence
of the breach of the Agreement by the Lessee and/or the fact that
steps are required to be taken against it, shall be paid by the
Lessee upon demand.
7. ASSIGNMENT OF RIGHTS
7.1 It is expressly agreed between the parties that the Company shall be
entitled to transfer its rights and duties, or any part thereof, to
any other body or person at its exclusive discretion, and the Lessee
hereby grants its prior consent to the transfer of the rights as
aforesaid, provided that the Lessee's rights under this Agreement
shall not be affected.
7.2 Should the Company transfer any rights or duties as aforesaid to any
third party whosoever (hereinafter - "the Transferee"), the
Transferee shall be deemed as if he were a party to the Management
Agreement AB INITIO, and the Company shall be exempted from all its
obligations under this Management Agreement.
8. GENERAL
8.1 The parties undertake to mutually act in order to implement this
Agreement.
8.2 Without derogating from the aforesaid, it is hereby agreed between
the parties that the provisions of this Agreement shall be binding
upon the Lessee and its successors and it undertakes to act so that
its successors shall undertake all its obligations under this
Agreement.
9. ADDRESSES OF THE PARTIES
9.1 The parties hereby state their addresses for the purpose of the
receipt of notices, pursuant to the Preamble in this Agreement,
and any notice sent at any one of the said addresses shall be deemed
as having reached the knowledge and destination of the other party
if sent by registered mail, within three (3) days from the dispatch
thereof and if delivered personally or by facsimile, on the date of
delivery.
(-) (-)
B.A.T.M. REAL ESTATE (1994) LTD. GIVEN IMAGING LTD.
-------------------------------- ------------------
The Company The Lessee
