Exhibit 4.6
That
was executed in Tel Aviv on the 26th of June 2002
-Between-
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A.Z.
Baranovitz – Properties and Leasing Ltd.
A registered company according to the
Companies Ordinance
00 Xxxxxxx Xxxxx, Xxx Xxxx
(hereinafter: the “Landlord”) |
Party of the first part
-And between-
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Eltak
Ltd
A company registered according to the Companies Ordinance
From
the industrial zone Sgula, Petach Tikva
(Hereinafter:
the “Tenant”) |
Party of the second part
| Whereas: |
The
Landlord together with the company Neca Chemicals 1952 Ltd. (hereinafter:
"Neca") is the owner and lessor of a part of parcel 13 in block
6354 in the industrial zone in Sgula Petach Tikva (hereinafter: the
"Property"); |
| And whereas: |
The Tenant wishes to lease from the Landlord a building in the areas of approx. 9,000
square meters and a yard surrounding the building located on the Property, as marked in
the plan attached to this agreement as appendix “A” and which constitutes an
integral part hereof (hereinafter: the “Plan”), in the area of approx. 9,000
square meters gross approximately (hereinafter this area shall be referred to as the
“Leased Property”); |
| And whereas: |
The Landlord declares that except for Neca, which jointly holds the Property together
with the Landlord in partnership, no other person or entity has any rights to the Leased
Property before the signing of this agreement; |
| And whereas: |
The Landlord declares that between Neca and the Landlord mutual lease deeds were signed
which were registered in the Land Registration Office on the 26th of March
1972 according to which the Landlord is entitled to lease the Leased Property without the
need for Neca’s consent; |
| And whereas: |
The Tenant wishes to lease the Leased Property from the Landlord for periods in
accordance and for consideration as specified in this agreement hereafter. |
Therefore, the parties have
decided and agreed as follows:
| 1. |
The
preamble of this agreement constitutes an integral part hereof and it binds the
parties. |
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“The
Property” – |
Parcel 13 in Block 6354. |
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“The
Building” – |
An industrial building in which there is a basement and 3 floors
that are divided into 2 wings (a northern wing and a southern wing) which was built on
the Property, in the area of approximately 9,000 square meters. |
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“The
Leased Property” – |
The building and the yard surrounding the building as marked
in the Plan, except for the storage room. |
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“The
Storage Room” – |
A basement in the area of approximately _______ (not readable)
which is marked on the plan and is used by Landlord. |
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A. |
The
lease periods according to this agreement are as follows: |
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(1) |
For
an area of approx. 7,470 square meters marked in the Plan by the color red
– starting from the 1st of January 2002, until the 31st of
December 2011. |
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(2) |
For
an area of approx. 1.530 square meters and which is marked in the plan by the
color blue – starting from the completing of the adjustment works as
mentioned in section 4 hereafter until the 31st of December 2011. |
| 3. |
Accept
as mentioned in sections 6 and 21 of this agreement, and as long as it was not
agreed otherwise in writing, the Tenant shall not be entitled during the entire
lease period to terminate the lease and he shall be obligated to continue to
pay the Landlord full rent and the other payments and obligations that he must
pay pursuant to this agreement until the end of the lease period, whether he
used the Leased Property or whether he did not use the Leased Property. |
| 4. |
It
is agreed between the parties that the Landlord shall perform adjustment works
in the area specified in section 3 (a)(2) above, according to the
specifications attached hereto as appendix B of this agreement (hereinafter:
the “Specifications”). The completion date of the adjustment works as
mentioned in section 3 (a) (2) above shall be determined as the date on which
Xx. Xxxx Xxxxx from the company Enosh Management and Engineering Systems Ltd.
confirmed that all of the adjustment works have been executed in accordance
with the specifications. |
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The
Tenancy Protection Laws Do Not Apply |
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| 5. |
The
parties declare and confirm and the Tenant declares and confirms that he was
informed that the Leased Property was first leased after the 20th of
August 1968 and that there was no Tenant in the Leased Property who is entitled
to possess it before the signing of this agreement, and therefore the
provisions of the Law of Protected Tenancy (Consolidated Version) – 1972
and the tenancy protection laws that were prior to this law, shall not apply to
the lease according to this agreement. (Hereinafter: the “Law”). |
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The
parties declare and confirm that the Leased Property was vacant from any Tenant entitled
to possess it before the signing of this agreement, the Tenant did not pay any payment as
key money for the Leased Property, he did not participate and he shall not participate in
any part of the construction costs of the Leased Property, and therefore the provisions of
the Law shall not apply to this lease or any other law that shall take its place. |
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The
Tenant declares and confirms that he is aware that he shall not be protected according to
the law and the Tenant’s undertakings to vacate the Leased Property at the end of the
lease period shall especially remain valid. |
| 6. |
A. |
The purpose of the lease according to this agreement is to manage and operate
an industrial plan of the Tenant to create printed circuit boards,
electronic components and electro – chemical products and a light
industry of a similar nature or that serves the Tenant’s plan only
and this is subject to the provisions in sections 24 and 25 hereafter. The
Tenant undertakes not to use the Leased Property for any other purpose
(hereinafter: the “Purposes of the Lease”). |
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B. |
The
Tenant undertakes to handle and obtain at his responsibility and at his
expense all of the permits required pursuant to any law from any of the
authorized authorities to manage in the Leased Property the business
according to the Purposes of the Lease, including a license and/or
business licenses, licenses from the local authority, kashrut
certificates, and any other authority whose authority is required for
managing the business in the Leased Property. The Landlord shall cooperate
with the Tenant in obtaining the permits and licenses and shall sign any
document if his signature shall be required for this purpose, subject to
any law. If the Tenant shall not receive a required license for the
purpose of running his business in the Leased Property due to an action
and/or omission of the Landlord, after the Tenant made his best efforts
for obtaining such license as mentioned, the Tenant shall have the
possibility to cancel this agreement, by a prior written notice to the
Landlord 60 days in advance. Notwithstanding the aforesaid, if the Tenant
shall not be given a license required for managing his business in the
Leased Property as a result the non issuance of a completion certificate
for the building due to actions that the Tenant performed in the Leased
Property, the Tenant shall not be entitled to cancel the lease agreement
according to this subsection. |
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The
Tenant undertakes to pay all of the taxes, the fees and the obligatory payments involved
in obtaining the permits and the licenses for the day to day operations of the Leased
Property. |
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The
Tenant shall compensate and indemnify the Landlord for any lawsuit, payment or damage that
shall be caused to the Landlord according to a judgment for an action or omission of the
Tenant not in accordance with the provisions of this subsection (b) provided the Landlord
notified the Tenant of any claim for payment or damage that is about to be caused or that
was caused and shall give him reasonable time in advance from the date that he was
informed of the possibility to defend oneself against these lawsuits. |
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| 7. |
A. |
In consideration for the fulfillment of all of the Landlord’s
undertakings pursuant to this agreement, the Tenant undertakes to pay the
Landlord fundamental monthly rent for the first lease period in the amount
of NIS 238,464 (two hundred thirty eight thousand, four hundred sixty four
NIS) per month (hereinafter: “the Fundamental Rent”) with
additional linkage differences to the index as defined hereafter
(hereinafter: “Linkage Differences”) and with additional Value
Added Tax at the rate stipulated in the law on the date of payment. |
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B. |
For
clarification purposes the parties declare that the fundamental rent was
determined by the following calculation: |
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The
amount in NIS equals $6 per square meter with additional Vat per month multiplied by 9,000
square meters totaling $54,000 per month with additional Vat multiplied by the
representative rate of $1- 4.416 NIS. Total of NIS 238,464. |
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C. |
(1) |
Fundamental rent with additional Vat and with additional linkage difference
for the lease period shall be paid for each period of two (2) months in
advance on the first day of each calendar month, on the 1st of
January, on the 1st of March, on the 1st of May, on
the 1st of July, on the 1st of September and on the 1st of
November of each lease year. |
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(2) |
Notwithstanding
the aforesaid in subsection (1) above, it is hereby agreed that out of the
amount of rent specified above, the rent for the part of the Leased
Property specified in section 3 (a) (2) above which constitutes the amount
of NIS 40,539 with additional Vat which equals the amount of $9,180 with
additional Vat, shall be paid from the date of the completion of the
adjustment works mentioned in section 4 above. |
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|
In
order to alleviate collection the Tenant hereby gives the Landlord at the
signing of this agreement 9 post dated checks in which the amounts for
payment are written for the part of the Leased Property specified in
section 3 (a) (1) above and which are dated in accordance with subsection
(1) above, for the first 18 months of rent. The Tenant undertakes to pay
the Landlord at the payment dates of these checks, in addition to the
amounts stipulated in these checks, the Vat differences if such shall
exist in accordance with the law and the linkage differences for each such
payment. At the date of the payment of each said check the Landlord shall
issue to the Tenant a legal tax invoice for the payment mount which is
stipulated in the check and with the additional differences whose payment
is required as mentioned above. |
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Once
every 18 lease months the Tenant shall give the Landlord 9 post dated checks as mentioned
above. |
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D. |
The
Tenant undertakes to pay in addition to the fundamental rent the linkage
differences, Vat at the rate that was stipulated in the law at any time of
the actual payment, against a tax invoice of the Landlord. |
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“The
Index” – |
Means the consumer price index that is published by the central bureau
of statistics and which includes this same index even if it was published by a different
body or institution that shall take its place, whether it is comprised from the same data
or not. If another index shall take its place and the bureau will not determine the ratio
between it and the replacing index, economic experts that shall be elected by the parties
will determined the ratio between the index and the replacing index and if the parties
shall not elect these experts they will be appointed at the request of party, by the
General Managers of Bank Hapoalim Ltd. and Bank Leumi Ltd. and their decision will be
binding. |
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“The
Basic Index” – |
The Index of the month of November 2001 that shall be published
on the 15th of December 2001. |
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“The
New Index” – |
The Index knows at the date of the actual payment of any amount of
rent or any other amount. |
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F. |
The
Tenant undertakes to pay the Landlord, in addition to the fundamental rent,
linkage differences at the rate of 100% to the consumer price index, and
at any payment date the Landlord will make a calculation of the linkage
differences starting from the Basic Index until the New Index, and the
Tenant shall pay the linkage differences as mentioned for the previous
payment together with the fundamental rent. |
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G. |
The
parties agree that on the 31st of December 2006 (hereinafter: the
“New Date”) the amount of fundamental rent shall be examined and
determined again in the following manner:- |
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If
at the New Date it will turn out that the amount of the fundamental rent including the
difference between the basic index and the new index that was valid in the month previous
to the New Date, lower or higher than the amounts that can be received as rent for
industrial buildings in the industrial area of Sgula in Petach Tikva, for a building which
is identical or similar as much as possible to the Building from the aspect of its quality
and type, between a willful Landlord and a willful Tenant, these amounts of rent shall
constitute from this New Date the fundamental rent as defined in this agreement. |
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The
rent that can be received between a willful Landlord and a willful Tenant as mentioned,
shall be discussed between the parties during the month of September 2006. If by the
30th of September 2006 the parties shall not reach an agreement each one of the
parties shall have the right to request the head of the Appraisers Office in Israel so
that he will appoint an appraiser who will determine the amount of this said rent,
provided the appraiser that shall be appointed as mentioned is not engaged and/or was not
engaged by any of the parties of this agreement during the year prior to the date of the
first request to the head of the Appraisers Office. The appraiser shall act in accordance
with the following provisions: |
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(1) |
The
appraiser shall not, for any reason, be in a situation of conflict of interests
with respect to the appraisal question or with any of the parties. |
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(2) |
The
appraiser must act towards the parties with fairness and faith. |
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(3) |
The
appraiser is entitled to instruct the parties to disclose and furnish documents
and to do anything else which is involved in conducting an appraisal. |
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(4) |
If
the appraiser has requested from a party of this agreement anything that is
involved in conducting the appraisal, and without any justified reason this
party did not fulfill the request, the appraiser is entitled, after he warned
this party as mentioned, to determine the said rennet without his request being
fulfilled. |
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(5) |
The
appraiser shall not hold a meeting with one of the parties without the other
party unless the appraiser warned the other party – in writing or orally,
that he hold discussions without his presence if he shall not appear. |
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(6) |
The
appraiser will make his appraisal findings and any other material that was
collected by him within the framework of his duties available to the parties of
this agreement, at any reasonable time, for review and to copy. |
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(7) |
The
appraiser shall act in the matter that seems to him to be most affective for a
just decision and shall determine according to his best knowledge the amount of
the said rent according to the material that is before him. |
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(8) |
The
appraiser must determine the amount of the said rent within three months after
the date he was appointed. |
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(9) |
Any
document that was sent to the appraiser or to one of the parties by registered
mail with a certificate of receipt, shall be regarded as delivered to the
addressee at the date registered in the certificate of receipt or in the
certificate of refusal to accept the document. |
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(10) |
The
appraiser is required to explain his decision. |
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(11) |
The
costs of the appraisal shall be paid equally by the parties. In order to
eliminate doubt, it is hereby clarified that the amounts that shall be
determined by agreement in advance by the parties as remuneration of the
appraiser is the only, final and absolute remuneration for the appraisal
services and no consideration or any other benefit shall be paid to the
appraiser, whether directly or indirectly with respect to the performance of
the appraisal, except for the remuneration to which the parties agreed in
advance. |
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The
appraiser shall sign an undertaking in which he confirms that he read this section 7 (g)
and that he undertakes to comply with its provisions. Notwithstanding all of the
aforesaid, if the appraiser did not sign such undertaking as mentioned, his appointment
shall be cancelled and a new appraiser shall be elected in accordance with the provisions
of this section. |
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In
order to eliminate doubts it is declared and agreed that the provisions of this section,
regarding linkage of fundamental rent to the index, shall apply also to the new
fundamental rent that shall be determined as mentioned above. |
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In
order to remove doubt the determination of the rent as mentioned above shall be performed
by the New Date, and starting from this date the Tenant shall pay the amount of rent that
was determined. |
| 8. |
A. |
The Tenant declares and confirms that before the signing of this agreement he
saw, examined and inspected the Leased Property and all of its parts and
devices, the surroundings, the location, and the access ways to the Leased
Property and he found them suitable to his needs, and he agrees to lease
the Leased Property in its current condition and he hereby waives towards
the Landlord any claim due to unsuitability of any type and/or one claim
and/or evidence and/or claim of defect and/or any other claim, all subject
to the provisions of sections 4 and 10 H of this agreement and the Landlord’s
representations according to this agreement. |
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B. |
The
Landlord declares and confirms that: |
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(1) |
His
signature on this agreement and its performance do not conflict with any
other undertaking of the Landlord towards any third party with respect to
the Leased Property; |
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(2) |
After
performing the adjustments and the works as mentioned in sections 4 and 10
H of this agreement the Leased Property shall be in a proper state and
shall fit the plans that were attached to this agreement, except for
adjustments that were performed in the Leased Property by the Tenant; |
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(3) |
There
is no decision, order, judgment, instruction from any judicial authority
that prevents the performance of this agreement in full; |
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(4) |
Use
of the storage room shall be only for storing office equipment and no other
use shall be made of the storage room including use that prevents or
interferes with the purposes of the lease in any way. |
| 9. |
A. |
During the entire lease period the Tenant undertakes to maintain the Leased
Property and all of its parts including its sanitary and electrical
devices and any other devices, in good clean and proper condition, and in
good working order and the Tenant undertakes to repair at his expense all
of the damages the mishaps and the defects without any exception, that
shall be caused to the Leased Property, to its devices during the entire
duration of the lease period and this is immediately after they occurred
or were caused, except for damages that result from regular wear and tear
whose repair will apply to the Landlord and this is immediately after he
received a notice of this in writing from the Tenant. |
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In
order to eliminate doubt the Tenant declares and confirms that the Landlord notified him
and he agrees that the air conditioning system that is installed as of today in the
southern wing of the building is a system that is capable of supplying to the Leased
Property a maximum amount of up to 200 tons of cooling. |
7
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B. |
If
one of the parties did not fulfill his undertakings according to this section
(hereinafter in this subsection: the “Party in Breach”) all or
in part, the other party is entitled if he wishes, even though he is not
required to do so, after giving a written warning in which the Party in
Breach will be given the possibility to repair the breach within a
reasonable time according to the circumstances of the matter, to perform
himself or by others the required repairs in the Leased Property, and the
other party shall be entitled to collect from the party in breach all of
the costs that he spent for the repairs with additional interest at the
maximum rate customary at banks at that time for unapproved overdrafts and
with full compensation for the damage that were caused to the Leased
Property as mentioned, and the party in breach shall be required to pay
these amounts to the other party upon his demand to do so. |
| 10. |
A. |
Without derogating from the aforesaid in this agreement, the Tenant
undertakes not to do by himself and/or by others and/or not to allow any
changes or additions or improvements in the Leased Property or in any part
of it without receiving the Landlord’s consent in writing subject to
everything mentioned in this agreement. If the Tenant shall request from
the Landlord permission to make changes or additions or renovations or
adjustments in the Leased Property for needs that suit the purpose of the
leased, and only if the Landlord shall give the Tenant permission for this
in a written consent in advance, the Tenant undertakes to obtain at his
expense and at his responsibility all of the permits required from the
authorized authorities for performing the changes to the Leased Property,
to which the Landlord shall agree as mentioned. Notwithstanding the
aforesaid, the Landlord shall not abstain from giving his consent if the
changes or the additions or the improvements in the Leased Property are
required by virtues of the provisions of any law or by virtue of the
instructions of a judicial authority and provided the investment in the
change or the addition or the improvement as mentioned shall be paid by
the Tenant. If the Landlord shall object to the changes and/or additions
and/or improvements in the Leased Property which are required by virtue of
the provisions of any law or by virtue of the instructions of a judicial
authority after the Tenant made efforts to cancel the demand to make such
change or addition or improvement, then the Tenant shall be able to cancel
this agreement, by a written notice to the Landlord 60 days in advance. |
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B. |
If
the Tenant shall request from the Landlord permission to make changes or
additions or renovations or adjustments to the Leased Property and the
Landlord shall give the Tenant prior written consent to make these said
changes as specified in the written consent, the provisions of subsections
(c) to (g) hereafter shall apply. |
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C. |
The
Tenant undertakes to pay all of the taxes, the levies, the fees and all of
the obligatory payment that are involved in obtaining al of the permits
for performing all of the provisions of this section, and he shall take
care to obtain, at his expense and under his responsibility all of the
permits that shall be required as mentioned for the performance of
everything mentioned in this section, and for the purpose of obtaining a
business license for the Leased Property. The Landlord shall cooperate
with the Tenant in obtaining the permits and the licenses, and he shall
sign any document that requires his signature for this, subject to the
other provisions of this subsection. |
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The
Tenant shall compensate and indemnify the Landlord according to a judgment for any claim,
payment or damage that shall be caused to the Landlord for any action or omission of the
Tenant not in accordance with the provisions of this agreement, provided the Landlord
notified the Tenant of this in writing within a reasonable time in advance, in order to
allow the Tenant to defend oneself against such claims. |
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D. |
Upon
the end of the lease periods, the Tenant shall have the right to perform
with respect to any change, addition, improvement, adjustment and
installation that were performed in the Leased Property (hereinafter: the
“Additions”) one of the following actions: |
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(1) |
To
leave the Addition in the Leased Property; or |
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(2) |
To
dismantle the addition and to take it with him while restoring the building
to its previous condition. |
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In
order to eliminate doubt the Landlord hereby approves and declares that the air
conditioning that was installed on the north side of the roof of the building by the
Tenant, except for the air pipes from the air conditioning system to the rooms of the
Leased Property, can be dismantled without damaging the building and he recognized the
right of the Tenant to dismantle it and take it. |
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E. |
Without
derogating from the generality of the aforesaid, the Tenant undertakes not
to make any changes that could affect the external appearance of the
building such as: painting external walls or the Leased Property,
including pillars or internal walls that are adjacent to windows or
installing blinds on windows etc.. |
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F. |
It
is hereby emphasized that subject to the provisions in subsection (d) above,
any addition or change that shall be made to the Leased Property by the
Tenant shall be considered as the Landlord’s Property except for
systems installed in the Leased Property by the Tenant at his expense such
as: air conditioning systems and which can be removed from the Leased
Property without causing damage to the Leased Property however the
Landlord shall be entitled to demand their removal from the Tenant in
writing at the end of the lease period and if the Tenant shall not comply
with the demand the Landlord shall be entitled to remove them at the Tenant’s
expense. |
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G. |
Without
derogating from the generality of the aforesaid, the Tenant is entitled to
install electric installations, electric points or switches and any
installations of external or internal telephones in places intended for
this and/or of communications between computers, provided the building
shall not be harmed and these installations shall be performed according
to the provisions of any law. |
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The
Tenant is also entitled to install signs or other advertisement materials on the front of
the building or on an external wall of the building, after he first receives the written
consent of the Landlord, in places that shall be coordinated with the Landlord. |
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H. |
The
Landlord undertakes that until the 31st of October 2002, he shall
give the Tenant plans to renovate the Leased Property and to perform the
following works: |
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A. |
Covering
the part of the front that turns to the south part of the building (Gliss
Street) until the entrance area of the building, according to the plans that
are attached to the agreement that constitute an inseparable part of it and
which are marked as appendix “C”. |
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B. |
Painting
the other external walls of the building and the revealed pipes. |
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C. |
Paving
asphalt on all of the parking area and marking parking spaces. |
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D. |
Repairing
and renovating external fences. |
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The
Landlord undertakes that he shall start the performance of the works specified in this
subsection not later than 30.11.2002. If all the works specified in this subjection or
part of them shall not be performed and/or completed until the 31st of March
2003, for any such work as mentioned the Tenant shall have the possibility according to
his discretion: (1) to postpone, starting from the 1st of April 2003 until the
date of completion of the performance of the works as mentioned, the payment of rent to
the Landlord in the amount equal to 125% – of the cost of completing the performance
of the work as mentioned according to an appraisal of the Tenant’s appraiser, or
alternatively (2) to perform and/or finish the work as mentioned, himself and/or by
others, and the actual cost of performing and/or finishing the work as mentioned with
additional interest at the maximum rate customary at banks at the time on unauthorized
overdrafts shall be reduced from the rent paid to the Landlord according to this
agreement. |
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I. |
The
Landlord undertakes that during the entire period of the lease he shall do
everything necessary so that the external appearance of the Leased
Property, including the walls, the parking lot and the fences shall be
clean and suitable for the Tenant’s use. |
| 11. |
The
Tenant shall be entitled to put into the Leased Property devices, equipment
and moveable furniture that are not attached to the Leased Property
itself, at his responsibility his expense, and without the need to obtain
the Landlord’s written agreement. |
| 12. |
The
Landlord undertakes to pay with respect to the Property all of the Property
taxes, the levies, the obligatory payments, municipal and governmental
that apply to a owner of the Leased Property, if such taxes apply, during
the entire lease period. |
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| 13. |
The
Landlord undertakes to pay with respect to the Leased Property all of the
municipal and governmental taxes that apply to the Tenant of the Leased
Property. The Tenant undertakes to pay for the water, garbage,
electricity, telephones and all of the other payment applicable to
Tenants, during the entire lease period for using the Leased Property. |
| 14. |
A. |
The Landlord undertakes to perform the day to day maintenance of the air
conditioning system in the southern wing of the building and the Tenant
undertakes to pay the Landlord for this maintenance as mentioned in the
amount of NIS 2,840 for each month. This payment as mentioned shall be
paid at the beginning of each month for which the maintenance is given
within 14 days from the receipt of each xxxx. |
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B. |
The
parties agree and confirm that (1) the day to day maintenance of the
building includes the day to day maintenance of the air conditioning
system that was installed by the Tenant, security services, maintenance of
elevators and preserving the cleanliness shall be performed at the Tenant’s
expense and responsibility, (2) the Landlord shall perform by himself and
at his expense all of the day to day maintenance of the building and he
shall maintain it in good condition for its purpose, including reasonable
wear and tear in the Leased Property, and the day to day maintenance of
the air conditioning system installed in the southern wing of the building
as mentioned above. |
| 15. |
A. |
Liability and Indemnification |
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1. |
The
Tenant shall bear the obligation imposed on him according to any law for any
damage or harm that might be caused to the body and/or Property of a
person or entity including the Landlord and/or those on his behalf. The
Tenant shall be responsible to repair at his expense any loss of damage
that shall be caused to the building of the Leased Property and its
contents as a result of the Tenant’s negligent action or omission or
of anyone on his behalf. |
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2. |
The
Tenant shall be responsible towards the Landlord and/or towards any third
party for any bodily damage or damage to Property or damage of any kind
that shall be caused to them as a result of the activities in the Leased
Property. |
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3. |
The
Tenant hereby exempts the Landlord from any responsibility for any loss
and/or resultant damage of any kind including consequential damages and
damages that are due to the inability to use the Leased Property due to
the loss or damage to the Leased Property, its equipment and its contents,
if the duty to repair the loss and/or the damage is applicable to him (the
Tenant) as mentioned in subsection (1) above. |
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(1) |
The
Tenant undertakes to take out and maintain for the duration of this
agreement the insurances specified hereafter (hereinafter: the
“Tenant’s Insurances”): |
11
| |
(1.1) |
Insurance
of the contents of the Leased Property – including, equipment that
serves the Leased Property owned and/or under the responsibility of the
Tenant and which is located in the Leased Property and in its immediate
surroundings, and any repair, change, improvement, renovation and addition
to the Leased Property that was done and/or that shall be done by the
Tenant and/or for him, and furniture, equipment, devices and inventories,
of any type or kind, at reinstatement value against loss or damage as a
result of fire, smoke, lightening, explosion, earthquake, storm, flood,
damage from liquid and the splitting of pipes, damage as a result of
impact, damage by aircraft, strikes, disturbances and malicious damage. |
| |
The
insurance shall include an explicit condition according to which the insurer waives every
right of subrogation towards the Landlord provided the aforesaid regarding waiver of the
right of subrogation shall not apply to benefit a person who caused maliciously caused
the damage. |
| |
(1.2) |
Third
party liability insurance according to any law, with limited liability
that shall not be less than the amount of $5,000,000 (five million U.S.
dollars) per event and for the insurance period. This insurance shall not
be subject to any limitation regarding liability that as a result of fire,
explosion, shock, lifting machines, uploading and unloading, defected
sanitary devices, poisoning, everything damaging in food or drink, strikes
and subrogation claims by the Institution for National Insurance. The
insurance shall be extended to include the Landlord for his liability for
the Tenant’s actions and/or omissions, and this is subject to a cross
liability clause according to which the insurance shall be considered as
if it was taken out separately for each of the individuals of the insured. |
| |
(1.3) |
Employers
liability insurance for the Tenant’s liability towards all of his
employees that are employed by him at the liability limit of no less than
$5,000,000 (five million U.S. dollars) per event and for the insurance
period. This insurance shall not include any limit regarding works at
height or at depth, work hours, contractors, sub contractors and their
employees, and regarding the employment of youth. This insurance shall be
extended to indemnify the Landlord if he shall be considered as the
employer of any of the company’s employees. |
| |
(1.4) |
Insurance
of consequential damage as a result of damage covered according to section
15 B. (1.1) above for an indemnification period that is not less than six
months. This insurance as mentioned shall include a waiver of the
subrogation right towards the Landlord. However the parties agree that the
Tenant is entitled not to take out insurance according to this subsection
provided that then the exemption stipulated in section 15 (B2) hereafter
will apply as if this insurance was taken out. |
12
| |
(2) |
The
Tenant declares that he shall not have any claim and/or demand and/or
lawsuit against the Landlord for damage for which he is entitled to
indemnification according to the insurance that he took out according to
subsection (1.1) and (1.4) above, and he hereby exempts the Landlord of
any liability for such damage. The aforesaid regarding the exemption from
liability shall not apply to benefit a person who maliciously caused
damage. |
| |
(3) |
The
Tenant undertakes to furnish the Landlord confirmation regarding the
issuance of such insurance policies as mentioned legally signed by the
insurer and this is not later than 14 days after the signing of this
agreement. |
| |
(4) |
The
Landlord undertook to take out and maintain at his expense the insurances
specified hereafter at a legally authorized and reputable insurance
company in Israel (hereinafter: the “Landlord’s Insurance”): |
| |
(4.1) |
Structure
insurance of the Leased Property based on its reinstatement value against
the customary risks extended fire insurance, including loss or damage as a
result of fire risks, smoke, lightening, explosion, earthquake, storm, flood,
damage from liquid and the splitting of pipes, damage as a result of
impact, damage by aircraft, breaking and entering. This insurance shall
include a section regarding waiver of the subrogation right towards the
Tenant, provided the provisions regarding the waiver of the right of
subrogation shall not apply to benefit a person who maliciously caused the
damage, The purpose of this section the term the structure of the Leased
Property shall include all of the systems that constitute an inseparable
part of the structure and it explicitly shall not include the contents of
the leased properties and any addition, improvement, or extension that
were done in the leased properties by or for the Tenant, and which are
insured by the Tenant. |
| |
(4.2) |
Third
party liability insurance for the Landlord’s duty for damage to the
body and/or Property of any person and/or any body whatsoever, with
limited liability that shall not be less than the amount of $5,000,000
(five million U.S. dollars) for an insurance event and in the aggregate
for an annual insurance period. This insurance shall not be subject to any
limitation regarding liability that as a result of fire, explosion, shock,
lifting machines, uploading and unloading, contractors and sub
contractors, defected sanitary devices, poisoning, everything damaging in
food or drink, the performance of additions and improvements in the Leased
Property strikes and subrogation claims by the Institution for National
Insurance. The insurance shall be extended to indemnify and/or for the
Landlord’s actions and/or omissions and anyone on his behalf subject
to a cross liability clause. |
13
| |
(4.3) |
Employers’ liability
insurance for the Landlord’s liability towards his employees for
damage caused while and as a result of their employment by the Landlord at
the liability limit of no less than $5,000,000 (five million U.S. dollars)
per event and for the insurance period. This insurance shall be extended
to indemnify the Tenant if he shall be considered as the employer of any
of the Landlord’s employees. |
| |
(4.4) |
Consequential
loss insurance (insurance of loss of rent, management fees and other
costs) that shall be caused to the Landlord, as a result of damage that
was caused to the Leased Property and/or its content and/or the courtyard
of the Leased Property at their full value, as a result of the above
mentioned risks in subsection (4.1) above for an indemnification period
that shall not be less than 6 months. The insurance shall included a
section regarding the waiver of the insurer of the subrogation right
towards the Tenant and all of those acting on its behalf (all of the
sub-Tenants on his behalf and provided that the waiver of the subrogation
right as mentioned shall not apply to benefit a person that maliciously
caused the damage. |
| |
In
spite of the aforesaid it is hereby agreed that the Landlord is entitled not to take out
consequential damage insurance however the provisions in section 15 B. 5 hereafter shall
apply with respect to consequential damage as mentioned above as if insurance was taken
out for such damage. |
| |
(5) |
The
Landlord declares that he shall not have any claim and/or demand and/or
lawsuit against the Tenant for damage for which the Landlord is entitled
to indemnification or for which he was entitled to indemnification
according to the insurance that was taken out according to subsection
(4.1) until (4.4) above, and he hereby exempts the Tenant from any
liability to any such damage. The aforesaid regarding the exemption from
liability shall not apply to benefit a person who maliciously caused the
damage. |
| |
(6) |
The
Landlord’s insurances shall include a specific condition according to
which the insurer waives any claim and/or demand regarding the
participation of the Tenant’s insurances. Furthermore the insurer
shall undertake that the Landlord’s insurance policies shall not be
reduced or cancelled, unless a prior written notice of this shall be
delivered to the Tenant 60 days in advance. |
14
| |
(7) |
The
Landlord undertakes to fulfill the terms of the insurance policies of the
Landlord to pay the premiums in full and on time, and to ascertain that
the Landlord’s insurance policies shall be renewed from time to time
according to need and they shall be valid for the entire duration of the
lease period. |
| |
(8) |
The
Landlord undertakes to furnish to the Tenant confirmation regarding the
policies issued legally signed by the insurer and this is no later than 14
days after the signing date of this agreement. |
| 16. |
The
Tenant undertakes: – |
| |
A. |
To
tend to the cleanliness of the Leased Property and its surroundings. |
| |
B. |
Not
to make and/or cause a nuisance to the Landlord and the neighbors in the
Leased Property near him. |
| |
C. |
Taking
the purpose of the lease into consideration, to maintain the Leased
Property in good and proper condition, not to do and not to allow anything
that could cause damage to the Leased Property, to the building or to its
installations insofar as this depends on him or that could cause a
nuisance to the other Tenants in the building or any other person. |
| |
D. |
Not
to place outside of the Leased Property containers, any packages or any
other chattels unless it is in places stipulated for this purpose in
appendix F. |
| 17. |
The
Tenant shall be regarded as the sole possessor of the Leased Property during
the entire lease period, for purposes of criminal or civil liability only,
except if the Landlord is liable as a result of his actions or omission
with respect to criminal or civil liability. |
| 18. |
Each
of the parties of this agreement undertakes (hereinafter in sections 18 and
19: the “Party in Breach”): – |
| |
A. |
To
compensate and indemnify the other party for any damage, loss or cost that
shall be caused to him according to a judgment as a result of a third
party lawsuit or demand, including a lawsuit of the government or
municipal authorities or a lawsuit of any other authorized authority, due
to an action or omission on the part of the party in breach or at his
fault or at the fault of anyone on his behalf, provided the other party
shall notify the party in breach of any lawsuit, payment or damage that is
about to be caused or that was caused and shall give him reasonable time
in advance, from the date that he was aware of the possibility to defend
oneself against these lawsuits. |
| |
B. |
To
refund to the other party any amount that was spent by him for performing
repairs that the party in breach should have performed according to this
agreement. |
| |
C. |
To
refund to the other party any payment that was spent by the other party, and
which the party in breach should have paid according to the provisions of
this agreement. |
15
| 19. |
A. |
Any payment or cost that apply according to this agreement to the party in
breach and which the party in breach did not fully pay on time, including
any amount of rent, linkage differences, Vat, service fees and any other
amount that the party in breach had to pay to the other party, including
any amount, payment or other cost that apply according to this agreement
on the party in breach such as taxes, obligatory payments which the other
party had to pay instead of the party in breach after a prior warning of
14 days in advance, the party in breach must pay it to the other party
from the first date of delay and onward including any other cost that was
caused to the other party as a result of this, with additional linkage
differences to the index and with additional interest at the maximum rate
customary at Israeli banks on unauthorized overdrafts including
commissions for issuing credit or index linked loans, whichever is higher. |
| |
B. |
Each
check, deed, payment instruction etc.. shall be considered as payment, if
they were presented for payment on time and paid. |
| 20. |
At
the occurrence of one of the following events the Landlord may terminate this
agreement and demand the immediate payment of the Tenant from the Leased
Property, and these are the events: – |
| |
A. |
The
Tenant did not pay any amount of rent or linkage differences as mentioned in
this agreement or did not pay the taxes and the other obligatory payment
that apply to him, or did not pay insurance premiums or any other amount
or part of it whose payment applies to him in accordance with this
agreement, provided that this payment was not paid as mentioned and was
not settled by him within 30 days after he received a written demand from
the Landlord to do so, or within a period that was determined by the
authority from which the payment demand was received. |
| |
B. |
The
Tenant breached or abstained from complying or from fulfilling the
provisions of sections 15 B (1.2) and (1.3) in this agreement, and within
30 days after receiving a written demand from the Landlord the Tenant did
not repair the breach or abstained from complying or fulfilling the
demand. |
| |
C. |
A
receiver or trustee was appointed for the Tenant or a bankruptcy petition was
filed against the Tenant and it was not cancelled within 60 days after
this action. |
| |
D. |
If
the Tenant is a company – a liquidator was appointed for the Tenant or a
temporary liquidator or a receiver or other similar proceedings were taken
and they were not cancelled within 60 days after these actions. |
| |
E. |
The
Tenant ceased running his business, in a manner that materially affects his
ability to fulfill his undertakings according to this agreement. |
| |
Upon
the occurrence of any of the events listed above, the Landlord shall be entitled to cancel
this agreement immediately, subject to section 28 of this agreement, and to cancel the
lease under this agreement. Thus the Landlord shall be entitled after one of the events
occurred listed in sections 20 (c), (d) and (e) to return to himself and/or to receive the
Leased Property and to enter into the area of the Leased Property without any necessity to
approach the court for an eviction order or any other action and to remove any person,
object from the Leased Property, without this being considered as trespassing and without
derogating from any other claims and or remedies of the Landlord. |
16
| |
In
addition to the Landlord’s right to cancel this lease as mentioned in this section
above and without derogating from it, the Landlord shall be entitled to xxx from the
Tenant compensation for not complying with any undertaking, term or condition included in
this agreement or for not paying any amount that applies to the Tenant or to xxx for
enforcement of any undertaking pursuant to this agreement. |
| |
A
waiver of any event of a breach or more shall not be interpreted as a waiver of any other
event of a breach. |
| 21. |
Upon
the occurrence of one of the event listed hereafter the Tenant may
terminate this agreement and these are the events:- |
| |
A. |
The
Landlord breached or abstained from complying or from fulfilling the
provisions of sections 8 (b), 10 (c), 14 regarding the day to day
maintenance of the air conditioning system (which is installed in the
southern wing of the building) only, 15 B (4) and 24 of this agreement,
and within 30 days after receiving a written demand from the Tenant the
Landlord did not repair the breach or abstained from complying or
fulfilling the demand. |
| |
B. |
A
closing order and/or demolition order and/or any order, or other decision was
given by a body and/or corporation and/or governmental and/or municipal
authority, due to an action or an omission of the Landlord which according
to them does not allow for the existence of the purposes of the lease in
the Leased Property, and this is subject to section 6 (b) of this
agreement. |
| |
C. |
The
Leased Property was transferred to a third party and after such transfer as
mentioned the Tenant abstained from using the Leased Property as he did
prior to the sale date. |
| |
At
the occurrence of one of the events specified above, the Tenant shall be entitled to
cancel this agreement immediately subject to section 28 of this agreement, and to cancel
the leased that was given under it. |
| |
In
addition to the Tenant’s right to cancel this lease as mentioned in this section
above and without derogating from it, the Tenant shall be entitled to xxx from the
Landlord compensation for not complying with any undertaking, term or condition included
in this agreement or for not paying any amount that applies to the Landlord or to xxx for
enforcement of any undertaking pursuant to this agreement. |
| |
A
waiver of any event of a breach or more shall not be interpreted as a waiver of any other
event of a breach. |
| 22. |
The
Tenant hereby undertakes at the end of the lease period according to this
agreement, or at any earlier date in the event of the termination of this
agreement as mentioned in this agreement, to vacate the Leased Property
from any person and object that belongs to the Tenant and to transfer
possession of the Leased Property to the Landlord or to his attorneys in
good and proper condition clean and suitable for use, as it was when it
was delivered to the Tenant, when the Leased Property is empty from any
person or object of the Tenant, and all of the provisions in sections 9
and 10 (d) above shall apply to the delivery of possession of the Leased
Property at the end of the lease. |
17
| 23. |
The
Tenant undertakes to vacate the Leased Property at the date of the end of
the lease period, and in the case of a delay the Tenant hereby undertakes
to pay the Landlord the amount of NIS 10,000 (ten thousand NIS) per day,
with additional linkage differences as specified in section 7 above as
agreed rent of the Leased Property, for every day in which the Tenant
shall be in the Leased Property after the end of the lease period, and
without the need for giving any warning and this is without derogating
from the Landlord’s rights to receive additional legal remedies
against the Tenant. |
| 24. |
A. |
The Landlord is entitled to transfer his rights in the Leased Property at any
time to another or to others (hereinafter: the “Intended Purchaser”)
and the Tenant shall not refuse to such assignment as mentioned unless it
is for reasonable reasons and subject to the fact that the Intended
Purchaser shall accept this agreement upon himself in place of the
Landlord and subject to the fact that no exercise notice (as defined
hereafter) has been received by the Tenant by the time mentioned in
subsection C hereafter. |
| |
B. |
The
Landlord undertakes that if he shall wish to transfer his rights in the
Leased Property and/or in this agreement to the Intended Purchaser he must
first offer them to the Tenant at the same terms that Intended Purchaser
intends to purchase them, all in accordance with the specified procedures
in this section hereafter. |
| |
C. |
The
Landlord must deliver to the Tenant a notice of his intention to transfer
his rights in the Leased Property by a written notice. This notice shall
specify the nature of the rights, the price that was offered for them by
the Intended Purchaser, the terms of payment, the name of the Intended
Purchaser, and any other material term of the transaction according to
which the Landlord intends to transfer his rights in the Leased Property
and/or with respect to this agreement to the Intended Purchaser
(hereinafter: the “Offered Terms”). The Landlord shall declare
in this notice that the offered terms described in the notice are correct
and complete. Delivery of this notice shall be considered as an offer to
sell his rights in the Leased Property and/or with respect to this
agreement to the Tenant at the Offered Terms. This offer is irrevocable
until the end of fourteen (14) days after receipt of this notice. Within
fourteen (14) days the Tenant shall notify by a written notice to the
Landlord if he is interested to purchase the rights being sold at the
Offered Terms (hereinafter: the “Exercise Notice”). Once an
Exercise Notice has been given as mentioned, the Landlord hereby
undertakes to sell the rights being sold to the Tenant in accordance with
the Offered Terms. |
| 25. |
A. |
The Tenant undertakes not to transfer this agreement or any right derived
from this agreement, directly or indirectly and not to lease to others the
Leased Property or any part of it and not to give or transfer to others
the Leased Property or any part of it and not to give or transfer to other
s the use of the Leased Property or any part of it, and not to allow or
permit the use of the Leased Property or any benefit of it to others in
any manner whatsoever. |
18
| |
B. |
The
aforesaid shall not apply in the event of the transfer of the Tenant’s
undertakings according to this agreement to a Tenant who is a company
under the control of the Tenant and/or under the control of the current
shareholders of the Tenant, and the Tenant gave a guarantee for the
undertakings of the new Tenant to the Landlord’s satisfaction. |
| |
C. |
The
Tenant shall be entitled to lease the Leased Property or any part of it to a
sub – Tenant provided the Landlord gave prior written consent and the
new Tenant accepted upon himself all of the Tenant’s undertakings
according to this agreement and in any event the Tenant shall continue to
be responsible towards the Landlord for the fulfillment of all of his
undertakings according to this agreement. |
| 26. |
In
any event where one of the parties of this agreement shall not use his rights
that are derived from this agreement, immediately or at all, any delay or
extension shall not be considered a waiver, admission or consent on his part. |
| 27. |
All
amounts and times mentioned in this agreement are fundamental terms of this
agreement. |
| 28. |
If
one of the parties breached this agreement by a fundamental breach or a
fundamental term of this agreement, this agreement may be entirely cancelled
after giving prior written notice of 30 days in advance by the other party in
which the repair of the breach is requested and the breach was not repaired as
required according to this agreement. The provisions of this agreement shall
not harm the rights of any party to receive other relief and remedies
especially an eviction order and the return of the Leased Property to the
Landlord. |
| 29. |
The
Landlord undertakes not to refuse a request made by the Tenant for unreasonable
reasons. |
| 30. |
During
the duration of the lease the Tenant undertakes to allow the Landlord to visit
the Leased Property once per month for inspection and this is following a prior
notice of one day in advance. During the period of 180 days before the end of
the lease period, the Tenant undertakes to allow the Landlord and/or anyone
intended to be new Tenants in the Leased Property, to visit the Leased Property
during acceptable hours during the day after prior coordination with the
Tenant. |
| 31. |
In
order to partly ensure the Tenant’s undertakings according to this
agreement the Tenant shall deposit in the hands of the Landlord at the signing
of this agreement a security check to the order of the Landlord signed by the
Tenant for the amount of NIS 3,500,000. The Landlord shall be entitled to fill
out the missing details of the check and to collect it provided the surplus
amount (in other words the difference between the amount of NIS 3,500,000 and
between the amount that the Tenant owes the Landlord) that shall be collected
by the Landlord pursuant to this check shall be returned to the Tenant within
48 hours from the time it was collected as mentioned. If after the security
check is paid this agreement was not terminated the Tenant shall deposit in the
hands of the Landlord a new security check to the order of the Landlord and
signed by the Tenant for the amount of NIS 3,500,000 and the provisions of this
section shall apply to this security check mutatis mutandis. In order to
eliminate doubt, it is hereby clarified that if the security check shall be
stolen from the Landlord, the Landlord shall compensate the Tenant for any
amount that was collected according to this check. |
19
| |
If
at the New Date the new fundamental rent amount shall be determined according section 7
(g) of this agreement, a new security check shall be given against the receipt of a
security check held by the Landlord, made out to the order of the Landlord and signed by
the Tenant in the amount equal to 12 months of rent according to the new fundamental rent
amount with additional Vat. The remaining provisions of this section shall apply to this
security check mutatis mutandis. |
| 32. |
In
this agreement singular shall include plural and visa versa and male also
includes female and visa versa. However all of the Tenant’s
undertakings or any other duty that applies to him shall be jointly or
separately. |
| 33. |
A. |
Stamp duty that applies to this agreement shall be paid by the Tenant and the
Landlord in equal shares between them. |
| |
B. |
Lawyer’s
fees for drafting this agreement shall be paid by each of the two parties
to their own lawyer. |
| 34. |
This
agreement, including all of its appendixes expresses all of the agreed terms
between the parties. All of the promises, guarantees, agreements whether
written or oral, undertakings or representations regarding this agreement that
were given or that were made by the parties before this agreement was executed
are null and void and they cannot add to the obligations and rights stipulated
in this agreement or that are derived from it, cannot derogate from them or
change them, and the parties shall not be bound by them starting from the date
of this agreement. This agreement cannot grant any third party any right or
remedy pursuant to this agreement. |
| 35. |
Claims
with respect to this agreement or that are derived from this agreement shall be
filed only to the court that has material jurisdiction situated in Tel Aviv. |
| 36. |
The
parties’ addresses for the purpose of this agreement are as specified in
the preamble of this agreement. Any notice that shall be sent by any party to
the other party by registered mail, according to the addresses mentioned above,
shall be considered as if it arrived to its destination within 72 hours. |
20
In witness whereof the
parties have signed: –
A.Z. Baranovitz – Properties and Leasing Ltd.
Stamp and signature
——————————————
The Landlord |
|
Eltak Ltd.
Stamp and signature
——————————————
The Tenant |
21
