Exhibit 99.5
LOAN AGREEMENT
("the Loan Agreement")
between
SW of 0 Xxxxxx Xxxxxxxxx Xx.,
Xxx-Xxxx, Xxxxxx (hereinafter called “the Borrower”)
and
EQUILEX TRUST REG. AS TRUSTEE OF
THE CAPRI TRUST whose registered office is at Kastanienhof, Xxxxxxxxxxxx 00, FL –
9490 Vaduz, Principality of Liechtenstein (hereinafter called “the Lender”)
WHEREAS the Borrower wishes to
obtain a loan (“the Loan”) of $5,000,000USD (Five Million United States
Dollars) for the purchase of 2,816,901 shares in Optibase Ltd, NASDAQ Ticker XXXX
(“the Shares”), from the Lender and the Lender is prepared to advance such sum
on the terms set out below.
NOW IT IS AGREED AS FOLLOWS:
| 1.1 |
The
Lender agrees to make available to the Borrower a Loan Facility (“The Loan”)
in the sum of $5,000,000USD (Five Million United States Dollars), subject to
clause 4 hereunder. |
| 1.2 |
The
Lender shall transfer any advances made hereunder by telegraphic transfer to the Borrower’s
account or to such other account as the Borrower may from time to time specify and the
costs of all such transfers, shall be paid by the Borrower. |
| 2. |
Interest
and Repayment |
| |
The
Lender will charge interest on the day to day balance outstanding under the Loan at a rate
of 4% per annum. All interest payable pursuant to this agreement shall accrue from
day to day and shall be calculated on the basis of a year of 365 days. |
| |
Subject
to withholding taxes prevailing at any time and any other deductions that the Borrower
shall lawfully be required to make, all accrued interest shall be paid on the date of the
sale of the Shares as stipulated in clause 4 hereunder. |
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| |
Subject
to Paragraph 6 of this Loan Agreement, the Borrower will repay the Loan including interest
upon the sale of the Shares. |
| 5. |
Voluntary
early repayment |
| 5.1 |
The
Borrower may at any time repay the Loan or any part thereof. |
| 5.2 |
No
amount repaid under paragraph 5.1 or otherwise may be redrawn. |
| 6. |
Early
repayment on default |
| 6.1 |
If
any of the events referred to in the Appendix 1 to this Loan Agreement occurs, the Lender
may demand repayment of all sums owed by the Lender pursuant to the terms of this Loan
Agreement, including interest and charges. |
| 6.2 |
On
any such demand, all sums owed by the Borrower to the Lender pursuant to the terms of
this Loan Agreement, including interest and charges, will become immediately due and
payable. |
| 6.3 |
No
failure on the part of the Lender to exercise and no delay in exercising any right
hereunder shall operate as a waiver thereof. |
| 7.1 |
Any
notice or other communication to be given under this Agreement (hereafter, ‘Notice’)
shall be sufficiently served on the Parties if delivered to the above address of the
party or to such other address as may be notified in writing by either party from time to
time; any Notice shall be effective on receipt, except for Notice sent by airmail
pre-paid post, which shall be deemed to have been received five working days after the
same was posted. |
| |
Any
Notice may be given by hand delivery, courier service, airmail pre-paid post, or telefax. |
| |
Either
party shall be entitled to act upon (and the other party shall be bound accordingly by)
any Notice believed by such party to have been given or made by a person or persons duly
authorised to give or make the same. |
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| 7.2 |
If
any provision of this Agreement or part thereof is rendered void, illegal or
unenforceable in any respect under any law, the validity, legality and enforceability of
the remaining provisions shall not in any way be impaired thereby. |
| 7.3 |
The
Lender may in his sole discretion upon the Borrower’s application in writing extend
this Loan Agreement and may in granting the extension vary any of the terms of this Loan
Agreement. |
| 7.4 |
Termination
of this Agreement for any cause shall not release a party from any liability which at the
time of termination has already accrued to another party or which thereafter may accrue
in respect of any act or omission prior to such termination. |
| 7.5 |
Each
party shall bear its own costs and expenses incurred by it in connection with this Loan
Agreement. |
| 7.6 |
This
Agreement constitutes the entire agreement between the parties and save as otherwise
expressly provided no modification, amendment or waiver of any of the provisions of this
Agreement shall be effective unless made in writing specifically referring to this
Agreement and duly signed by the parties hereto. |
| 7.7 |
The
Lender may assign or transfer any of its rights or obligations under this Agreement but
the Borrower may not assign or transfer any of its rights or obligations hereunder
without the written consent of the Lender. |
| 7.8 |
Nothing
in this Agreement shall be deemed to constitute a partnership between the parties hereto
nor constitute any party the agent of the other party for any purpose. |
| 7.9 |
Neither
the Lender nor the Borrower shall be liable in respect of any breach of this Loan
Agreement due to any cause beyond its reasonable control including, but not by way of
limitation, any act of God, lightning fire, industrial action, lock-outs, acts of
omissions of governmental authorities, highway authorities, or other competent authority,
terrorism, war, military operation or civil failure or the act of omission of any party
for whom either party is not responsible. In the event of such occurrence or any such
circumstance affecting either party such party shall promptly give notice in writing
thereof to the other party and shall likewise give notice forthwith on the cessation of
such circumstances. |
| 7.10 |
In
order to guarantee that any and all of the Borrower’s duties and obligations under
this agreement are duly discharged, a deed of pledge over the Shares is executed
simultaneously with this agreement. |
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| 7.11 |
This
Loan Agreement shall be governed by and construed in all respects according to the laws
of the State of Israel, and the parties hereto submit to the exclusive jurisdiction of
the Courts of the State of Israel. |
IN WITNESS WHEREOF the parties
hereto have executed this Loan Agreement this day, June 18th, 2008.
By: /s/ Equilex Trust Reg.
as Trustee of the Capri Trust
——————————————
Equilex Trust Reg.
as Trustee of the Capri Trust
——————————————
for and on behalf of
Equilex Trust Reg.
As Trustee of the Capri Trust
|
|
By: /s/ Xxx X. Xxxxx
——————————————
Xxx X. Xxxxx
——————————————
TW |
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APPENDIX 1
EVENTS OF DEFAULT
The Loan and interest accrued shall
become immediately due and payable on demand by the Lender on the occurrence of any of the
following, namely:
| 1. |
If
the Borrower fails to pay any sum of money or fails to discharge any liability
which the Borrower may now or at any time in the future owe to the Lender when
it is due. |
| 2. |
If
the Borrower is in breach of any of the terms and conditions contained in this
Loan Agreement or in any other agreement or document entered into pursuant to
this Loan Agreement. |
| 3. |
If
any representation or warranty made by the Borrower pursuant to this Loan
Agreement or in any statement delivered or made pursuant to it is incorrect
when made. |
| 4. |
If
the Borrower is in default in respect of any of the Borrower’s other
facilities (if any) with the Lender. |
| 5. |
If
the Borrower is in breach of any other agreement to which he is a party with
any other person in relation to the Borrower’s borrowing or other
financial obligations. |
| 6. |
If
the Borrower enters into any arrangement with its creditors generally. |
| 7. |
If
the Borrower has a creditor levy distress or execution on, or any other person
seeks to enforce his security or judgement or order over, the whole or any
material part of the Borrower’s assets. |
| 8. |
If
the Borrower has a bankruptcy petition presented against him. |
| 9. |
If
the Borrower becomes, in our reasonable opinion, bankrupt or insolvent. |
| 10. |
If
the Borrower becomes, in the Lender’s reasonable opinion, bankrupt or
insolvent. |
| 11. |
If
the Borrower ceases to carry on all or a material part of his business. |
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| 12. |
If
any event occurs which would affect the Borrower or the Borrower’s
business so as to render the Borrower unable to comply fully with his
obligations to the Lender pursuant to this Loan Agreement and any other
document entered into pursuant to this Loan Agreement. |
| 13. |
If
the Borrower has a receiver appointed over any of the Borrower’s property
or assets. |
| 14. |
If
the Borrower ceases, or threatens to cease, to carry on business or dispose of
all or any substantial part of its business or (except in the ordinary course
of business) its assets. |
| 15. |
If
it becomes unlawful or impossible for the Lender to make, maintain or fund the
Loan or if any of the Borrower’s obligations under this Loan Agreement
cease to be valid, legal and binding and enforceable against the Borrower in
accordance with their terms. |
| 16. |
If
in the reasonable opinion of the Lender, circumstances have so changed since
the Loan was made available, or such new information has come to light, as
could justify the Lender requesting the immediate repayment by the Borrower of
the Loan. |
| 17. |
If
the Borrower gave the Lender any false or misleading information in its
application for the Loan Agreement. |
| 18. |
If
there is, in the Lender’s sole opinion, any change in the legal or
beneficial ownership of the Borrower. |
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