Exhibit 4.18
[Unofficial
Translation]
This Deed of Trust was
made and entered into on the 5th day of August 2003
| Between: |
|
BLUE
SQUARE – ISRAEL LTD.
(hereinafter: “the Company”) |
of the one part
| And: |
|
ISRAEL
DISCOUNT BANK TRUST COMPANY LTD.
(hereinafter: “the Trustee”) |
of the other part
| WHEREAS: |
|
The
board of directors of the Company resolved on July 31, 2003 to issue by way of a private
placement, to a group of investors who are investors of the type mentioned in the First
Schedule to the Securities Law, 5728-1968, a series of debentures as described below: (1)
a series of NIS 200,000,000 par value registered debentures (Series A) of NIS 1 par value
each; (2) a series of NIS 200,000,000 par value registered debentures (Series B) of NIS 1
par value each, all in the manner and according to the conditions as stipulated in this
Deed of Trust; and |
| WHEREAS: |
|
The
Company decided to issue the debentures, as defined below, in the manner described below
and to agree with the Trustee on the terms and conditions of the
trust as set forth below; and |
| WHEREAS: |
|
The
parties have declared that there is no bar or impediment at law to their entering into
this Deed of Trust; and |
| WHEREAS: |
|
The
Trustee has agreed to act as trustee and to sign this deed as a trustee for the holders
of the debentures as defined below; |
Now
therefore it is agreed between the parties and declared as follows:
| 1. |
Preamble,
interpretation and definitions |
| |
1.1 |
The
preamble to this deed as well as the appendices hereto form an integral part hereof. |
| |
1.2 |
The division of this deed into clauses and also the use of captions to clauses is solely
for purposes of convenience and is intended to serve as a place finder alone; no
cognizance shall be taken thereof for purposes of interpreting the deed. |
1
| |
1.3 |
In this deed, including the annexes hereto, the following terms will have the following
meanings, unless a different intention is to be implied from the context: |
| |
“The
Trustee” or “the Trustees” – the term “trustee” in this
deed, whether used in the singular or in the plural, is anyone who acts from time to time
as a trustee for holders of debentures pursuant to this deed. |
| |
“The
Debentures” or “the bonds” – Debentures (Series A) and/or (Series
B) which will be issued by the Company in accordance with the aforesaid resolution, as
well as additional debentures that may be issued within the framework of any of the
aforesaid series, if same are issued. |
| |
“Debenture
holders” or “owners of the Debentures” – the persons whose names
are registered for the time being at the relevant time in the register of debenture
holders of each of the series, A and B, who are mentioned below as owners of Debentures,
and in the case of joint holders the joint holder whose name stands first in such
register. |
| |
“The
register” or “the register of Debenture holders” – a register of
holders of the Debentures of each of the series A and B, which is maintained in accordance
with the terms and conditions of this Deed of Trust. |
| |
“The
registered office” – 0 Xx-xxxx Xxxxxx, Xxxx Afeq, Rosh Ha’ayin, or any
other place to which the registered office of the Company may be moved in the future. |
| |
“Debenture
certificate” – a Debenture certificate (Series A) and (Series B) the text of
which appears in the First Schedule to this deed. |
| |
“This
Deed” or “this Deed of Trust” – this Deed of Trust, including the
schedules attached hereto which form an integral part hereof. |
| |
“Special
resolution” – a resolution passed by the owners of the Debentures of the
relevant series by at least a three-quarters majority of the unpaid balance of the
principal of the Debentures of the relevant series present and voting at the general
meeting. |
| |
“The
Consumer Price Index” or “the Index” – the index known by the name
of the Consumer Price Index, including fruit and vegetables, which is published by the
Central Bureau of Statistics and including such index even if it is published by another
official body or institution, and also including any official index which may replace it,
whether or not such replacing index is structured on the same data on which the existing
index is structured. If another index should replace it which is published by such body or
institution, and such body or institution has not specified the ratio between such index
and the replaced index, the ratio will be determined by the Central Bureau of Statistics.
In the event that such ratio is not determined as aforesaid, the Company, in consultation
with the economic experts who will be chosen by, and with the consent of the Trustee, will
determine the ratio between the other index and the replaced index. |
2
| |
“The
Basic Index” – the Consumer Price Index published on July 15, 2003 in
respect of the month of June 2003.
“The Payment Index” – the index
which is known on the date of payment. However, if the Payment Index is lower than the
Basic Index the Payment Index will be the Basic Index. |
| |
“Trading
day” – A day on which there is trading in securities on the Tel Aviv Stock
Exchange. |
| |
1.4 |
Everything stated in this deed in the singular shall also include the plural, and vice
versa, and everything stated in the masculine shall also include the feminine, and vice
versa, and everything importing a person shall also include a body corporate, and vice
versa, unless there is an express provision to the contrary in this deed, or unless the
essence of the matter or the context is inconsistent with such meaning. |
| 2. |
Issue
of the Debentures and the Terms and Conditions thereof |
| |
The
Company will issue two series of debentures, as described below: |
| |
2.1 |
Debentures
(Series A) |
| |
2.1.1 |
A
series of 200,000,000 registered Debentures (Series A) of NIS 1 value each. The principal
of the Debentures will be repayable in 3 equal annual payments on the 5th day
of August, of each of the years 2012 until 2014 (inclusive), and bears annual interest at
a rate of 5.9%. |
| |
The
interest on the principal as aforesaid will be paid once every six months on the 5th of
the month of February and August of each year in respect of the six-month period ended on
the last day preceding such day. The first interest payment will be effected on February
5, 2004 (in respect of the period from the date of payment in respect of the Debentures
(Series A) and up to such date), and the last payment will be paid together with the last
payment on account of the principal. The Debentures (Series A) will be linked (as to
principal and interest) to the basic index as specified in the conditions of indexation
in Clause 2.3 below. |
| |
The
Debentures (Series A) will not be convertible. |
3
| |
2.1.2 |
Notwithstanding
the foregoing, on the 5th day of August of each of the years 2006, 2008 and
2010, the Company will anticipate repayment of the principal of the Debentures, the
linkage differentials which have accrued thereon and the interest which has accrued
thereon and has not yet been paid, to holders of Debentures (Series A) who so request,
provided that on each of the aforementioned dates (hereinafter: “the Date of Early
Repayment”), the Company will not repay more than one-third of the par value of the
Debentures (Series A), all subject to and in accordance with the conditions set forth
below: |
| |
2.1.2.1 |
An
application by a holder for early repayment as aforesaid shall be submitted to the
Company in writing at its registered office, not later than 14 days prior to the relevant
Date of Early Repayment, and shall relate to a maximum of one-third of the total number
of Debentures held by the holder on the date such notice is given. |
| |
2.1.2.2 |
It
is hereby expressly clarified that the right to early repayment as aforesaid cannot be
accumulated, and such right will lapse after each relevant Date of Early Repayment and in
relation thereto, whether or not it has been exercised. In other words, on every Date of
Early Repayment as aforesaid, a holder will be limited to repayment of up to a third of
the total number of Debentures held by him at that date, even if he did not exercise a
right to early repayment on the Dates of Early Repayment which preceded the relevant Date
of Early Repayment on which an application for early repayment was submitted by the
holder. |
| |
2.1.2.3 |
All
the Debentures (Series A) which are held by a holder who has served an application for
early repayment shall be blocked for transfer from the date of service of the application
respect thereof and up to the early repayment thereof as aforesaid. |
| |
Debentures
(Series A) which have been repaid by early repayment as aforesaid, shall be taken out of
circulation as from the date on which the date of their repayment, and shall be
completely null and void, and shall not confer any right whatsoever, subsequent to the
Date of Early Repayment, and the holders who effected early repayment as aforesaid will
have no claim and/or allegation and/or demand against the Company in respect of
Debentures (Series A) that were repaid by early repayment as aforesaid. |
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| |
2.2 |
Debentures
(Series B) |
| |
2.2.1 |
A
series of 200,000,000 registered Debentures (Series B) of NIS 1 value each. The principal
of the Debentures will be repayable in 3 equal annual payments on the 5th day
of August, of each of the years 2007, 2009 and 2011 (inclusive), and bear annual interest
at a rate of 5.9%. The interest on the principal as aforesaid will be paid once every six
months on the 5th of the month of February and August of each year in respect
of the six-month period ended on the last day preceding such day. The first interest
payment will be effected on February 5, 2004 (in respect of the period from the date of
payment in respect of the Debentures (Series B) and up to such date), and the last
payment will be paid together with the last payment on account of the principal. The
Debentures (Series B) will be linked (as to principal and interest) to the basic index as
specified in the conditions of indexation in Clause 2.3 below. |
| |
2.2.2 |
Debentures
(Series B) will be convertible at any time, commencing from the date of their issue to
the holders and until July 20, 2011 (inclusive), except between January 20 until February
5 (inclusive) and between July 20 and August 5, (inclusive) of each of the years 2004
until 2011 (inclusive) into registered ordinary shares of NIS 1 par value each of the
Company on a basis that every NIS 49.5 par value Debentures (Series B) shall be
convertible into 1 ordinary share of NIS 1 par value of the Company, subject to the
adjustments specified in this Deed of Trust and the Schedules hereto mentioned below. |
| |
The
shares emanating from the conversion of the Debentures (Series B) shall be subject to
restrictions on resale in accordance with the provisions of the Securities Law 5728-1968
as set forth in the conditions overleaf, which are attached to this Deed of Trust as an
integral part hereof. For the avoidance of doubt it is hereby clarified that the holders
will not be entitled to make an application to the Company to register the shares arising
from a conversion of the Debentures (Series B) for trade in the USA (on the New York
Stock Exchange on which some of the shares of the Company are listed for trade at the
date of signing of this Deed of Trust), and accordingly it will not be possible to list
such shares for trade in the USA, nor will the holders be entitled to sell and/or to
trade in and/or to effect any transaction in the USA in the Debentures (Series B) and/or
in the shares arising from the conversion of the Debentures (Series B). |
| |
Without
derogating from the foregoing, Debentures (Series B) and/or the shares arising from
the Debentures (Series B) have not been registered with the Securities and Exchange
Commission in the USA or with another securities authority in any states of the
USA and therefore it will not be possible to offer or to sell such debentures or shares
according to law in the USA until after the submission of an appropriate registration
statement in accordance with the provisions of the Securities Act of 1933 as
amended or pursuant to an exemption from the registration requirements in the USA, or
in the scope of a transaction which is not subject to the registration requirements under
the Securities Act in the USA and in accordance with the provisions of the laws on
securities which are binding in the relevant state of the USA. |
5
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2.3 |
Conditions
of Linkage of the Principal and the Interest of the Debentures (Series A and Series B) |
| |
The
principal and the interest of the Debentures (Series A and Series B) will be linked to the
Consumer Price Index. If it transpires on the date of payment of principal and/or interest
on the Debentures as aforesaid, according to the payment index as defined above, that the
payment index is higher than the basic index, as defined above, such amount will be paid
where it is increased proportionately by the percentage rise in the payment index as
against the basic index. Should the payment index be lower than the basic index, the
payment index will be the basic index. |
| 3. |
The
Companies Undertakings |
| |
The
Company undertakes to the Trustee to make payment on the dates specified for the purpose
of all the amounts payable under the Debenture, and to fulfill all the conditions and the
other obligations imposed on it pursuant to the Debenture and pursuant to this Deed of
Trust. |
| 4. |
Conditions
of the Issue |
| |
4.1 |
The consideration for the Debentures (Series A and Series B) shall be deposited in a trust
account which will be opened by the Trustee at the Israel Discount Bank Ltd. (hereinafter:
the Trust Account). The consideration for the Debentures as aforesaid will be transferred
to the Company against the issue of the Debentures which will be effected subject to the
condition that the approval in principle is obtained from the Tel Aviv Stock Exchange Ltd.
(hereinafter: “The Stock Exchange”) for the listing for trade of the shares
which emanate from exercise of Debentures (Series B) and obtaining the approval of the
Stock Exchange in the USA – the New York Stock Exchange (hereinafter:
“NYSE”) to a listing application that will be submitted to it in accordance with
the provisions of the law in the USA and to the extent that is required in relation to the
shares emanating from the exercise of the Debentures (Series B). After receipt of the
approval of the Stock Exchange and the approval of the NYSE as aforesaid, the Trustee
shall transfer to the Company the consideration for the issue together with the fruits
which have accrued thereto, to such bank account as the Company shall instruct the
Trustee. For the avoidance of doubt it is hereby clarified that the approval of the NYSE
as aforesaid shall not derogate from the provisions of the last portion of Clause 2.2.2
above. |
| |
If
for any reason the approval of the Stock Exchange and/or the approval of the NYSE is not
obtained as aforesaid by the end of 45 days from the date of deposit of the consideration
for the Debentures as aforesaid in the Trust Account, the Trustee shall refund to each of
the depositors the monies that have been received from them, together with the fruits that
have accrued thereon (if such fruits have accrued). The moneys that will be held by the
Trustee shall be invested by it in daily shekel deposits. |
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4.2 |
It is hereby clarified, for the avoidance of any doubt, that the Company will be entitled
to encumber its property, in whole or in part, by way of any encumbrance and in any manner
in favor of any third party, without the necessity for any consent from the Trustee and/or
the Debenture holder. |
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4.3 |
The Company reserves the right to purchase Debentures of this issue at any time, at any
price it sees fit, without prejudice to the obligation for repayment which is imposed on
it. Debentures which have been purchased by the Company will lapse. A subsidiary of the
Company, or other corporation under its control, will be entitled to buy and/or sell
Debentures of this issue, at any time, in its discretion. Debentures which are held by a
subsidiary or by a corporation controlled by the Company will be deemed to be an asset of
such company or corporation. |
| |
The
Company shall notify the Trustee about every event of a purchase of Debentures as
aforesaid immediately after such purchase. |
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4.4 |
Without derogating from the generality of the foregoing, the Company reserves the right to
issue, at any time and without requiring the consent of the Trustee and/or the Debenture
holders, additional debentures and/or additional series of debenture (“the
additional series”) including additional debentures of Series A and B under the
same conditions of redemption, interest, linkage, preferential ranking for repayment in
the case of a winding-up and other conditions, as the Company shall deem fit, and whether
same rank preferentially or pari passu to the terms and conditions of the Debentures or
are inferior thereto. For the avoidance of doubt, it is hereby clarified that an issue of
additional Debentures of Series A and Series B shall be effected within the framework of
this Deed of Trust and the provisions of this Deed of Trust shall apply thereto. |
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4.5 |
The Debentures shall have an equal security ranking, pari passu, as between themselves,
without any preference or priority of one over the other. |
| |
4.6 |
It is hereby agreed between the parties that if the Company’s shares are expunged
from trading on the Tel Aviv Stock Exchange Ltd. and/or in the event that the
Company’s shares will no longer be held by the public and/or in the case in which
Maalot Israel Securities Rating Company Ltd. (hereinafter “Maalot”) should
reduce the Company’s rating to BBB or lower, then, subject to the provisions of any
law (including the Company meeting the profit test as set forth in the provisions of the
Companies Law, 5759-1999), the Company shall, within 3 months from the occurrence of one
of the events mentioned above, offer to purchase the Debentures (Series A and Series B)
from the holders thereof at a price for Debentures of such series which reflects a yield
of 2.5% above the yield on a government bond having an average life span similar to the
average remaining life span of the Debentures of that series, as this applies at the time
of purchase as aforesaid, but under no circumstances more than the adjusted value of the
Debentures of such series. |
7
| 5. |
Circumstances
in which the Debentures will be immediately due and payable |
| |
Subject
to the conditions of Clause 6 of this Deed of Trust, the Trustee will be entitled to make
the full unpaid balance of one or more of the series of Debentures A and B immediately due
and payable and the Trustee will be obliged to do so with respect to either of the
aforesaid series on requisition in writing by the holders of the Debentures of such series
who represent at least one-fifth (20%) of the unpaid balance of the principal of the
Debentures of such series, or, if it is called upon to do so by a special resolution
passed at a general meeting of the owners of Debentures of such series, on the occurrence
of one or more of the following events: |
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5.1 |
If the Company has not paid any amount which is due from it in connection with the
Debentures of such series on the due date of payment of such amount. |
| |
5.2 |
If an order is granted by a court, or if a valid resolution is passed, for the winding up
of the Company, save for a winding-up for purposes of merging with another company and/or
a voluntary winding-up and/or a change in the structure of the Company, and provided that
the Company’s obligations under this Deed of Trust and the Debentures will be
secured. |
| |
5.3 |
If a receiver is appointed for the Company and/or over its assets, in whole or over a
substantial part thereof, and the Trustee confirms in writing that this is likely to have
an adverse effect on the rights of the Debenture holders. |
| |
5.4 |
If an attachment is imposed or if an Execution Office operation is executed on assets
which in the opinion of the Trustee are material assets of the Company (for purposes of
this clause “material assets” – an attachment in an amount representing the
5% or more of the equity capital of the Company at the time of imposition of the
attachment) or if an Execution Office operation is executed against such assets and the
attachment is not removed or the operation is not set aside within 60 days after the
attachment was imposed or the operation was executed, and the Trustee regards this as a
danger to the rights of the Debenture holders. |
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5.5 |
If a provisional liquidator is appointed for the Company and such appointment is not set
aside within 45 days. |
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5.6 |
If the Company ceases, or is about to cease, its payments or ceases, or is about to cease,
conducting business or if in the Trustee’s opinion there is a genuine risk that the
Company will cease conducting business and the Trustee regards any of such events as a
danger to the rights of the Debenture holders. |
| |
5.7 |
If
the Company is liquidated or expunged for any reason. |
| |
5.8 |
If the Company breaches or fails to abide by any condition or obligation which binds it
under the terms and conditions of the Debentures of such series and the terms and
conditions of this Deed of Trust, in such manner that, in the Trustee’s opinion,
there will be a material prejudice to the rights of the holders of Debentures of such
series. |
8
| 6. |
What
notice the Trustee is obliged to give before making the Debentures immediately
due and payable |
| |
6.1 |
Notwithstanding the contents of Clause 5 above, the Trustee shall not make the Debentures
of any of the series immediately due and payable, until after the Trustee has given the
Company prior warning of his intention to act in such manner, as described below, and the
Company does not comply with the matters set forth in the warning notice within 14 days
from the date of receipt thereof. In the aforesaid warning notice the Company will be
called upon to pay the amounts which are in arrears or to comply with the other provisions
of this Deed of Trust and the Debentures the breach or non-fulfillment of which
constitutes grounds for the Trustee’s actions as aforesaid, or to reverse the
situation which constituted grounds for the Trustee’s actions to their condition
status quo. |
| |
6.2 |
Notwithstanding the foregoing, if the Trustee is of the opinion that a postponement as
referred to in sub-clause 6.1 will endanger the rights of the Debenture holders, the
Trustee will be entitled to shorten the period of the warning notice, or even not to give
any warning notice, to the extent that this appears to it to be necessary in order to
prevent the aforesaid risk to the rights of the owners of the Debentures, and on condition
that it confirms this to the Company by written notice that shall be delivered to the
Company simultaneous with the Debentures being made immediately due and payable as stated
in Clause 5 above. |
| 7. |
Claims
and proceedings by the Trustee |
| |
7.1 |
At any time after the Debentures of any series becomes immediately due and payable, the
Trustee will be entitled, in its discretion and without giving further notice, to
institute legal claims as it sees fit in order to realize and to execute the trusts
described in this deed, including rights of owners of the Debentures of such series in
connection with repayment of the capital, the interest and the linkage differentials (if
there are any) of the debentures, and subject to the provisions of this clause the Trustee
will be obliged to do so on a requisition in writing by the owners of Debentures of such
series who hold at least one-fifth (20%) of the overall par value of the Debentures of
such series which have not yet been redeemed, or in accordance with a demand by a special
resolution of the owners of the debentures of such series. The Trustee will also be
entitled to apply to court even if the Debentures are not made immediately due and
payable, for the grant of any order in relation to the management of the aforesaid trusts,
in such manner as the Trustee shall deem fit and all subject to any law. |
| |
7.2 |
The Trustee will be entitled, and if called upon to do so according to the contents of
Clause 7.1 above, will be obliged, to commence any legal proceeding and to institute any
legal claim in its discretion, or as required in accordance with this deed, and it will be
entitled, subject to the provisions of any law and the conditions of the aforesaid demand
and subject to the provisions of Clause 24.2 below, to waive the performance of any of the
Company’s obligations, under such terms and conditions as it deems appropriate. |
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7.3 |
The Trustee will be entitled to indemnity from the Debenture holders in respect of
reasonable expenses it has incurred and/or may in the future incur, as the case may be, in
connection with the actions it has performed and/or it is obliged to perform by virtue of
its duty under the terms and conditions of the Deed of Trust or on a requisition by the
owners of the Debentures, provided that: – |
| |
7.3.1 |
It
will not be entitled to demand same in advance in an urgent matter that cannot be
postponed, and – |
| |
7.3.2 |
The
obligation for indemnity may also contain an indemnity in respect of liability in tort
for which the Trustee has become liable to a third party who is not an owner of
Debentures, provided that this obligation for indemnity shall apply under the following
conditions: |
| |
7.3.2.1 |
The
expenses in respect of liability in tort are reasonable. |
| |
7.3.2.2 |
The
Trustee acted in good faith and such act was performed in the framework
of fulfilling its function. |
| |
It
is hereby clarified that if the expenses incurred by the Trustee in connection with an
act performed pursuant to a requisition by Debenture holders of a particular series, or
some of the series, or in connection with acts relating to a particular series only, or
to some of the series, the indemnity will only be given by the holders of Debentures of
that series or of those series pro rata to the par value amounts in circulation of each
such series, as the case may be. Where expenses have been incurred in connection with the
Trustee’s action which pertain to each of the series, the indemnity will be given by
the holders of the Debentures of each of the series pro rata to the par value amounts
which are in circulation of each and every series. |
| 8. |
Distribution
of receipts |
| |
Out
of the moneys which will be received by the Trustee as a result of performing trust acts
pursuant to this deed, the Trustee shall first liquidate or retain in its hands an amount
which will be sufficient to discharge the expenses, payments, levies and obligations that
have been incurred by it or imposed on it or caused in the course of or as a result of
actions for executing the trust or in another manner in connection with the conditions of
this Deed of Trust, including the Trustee’s remuneration, and shall use the balance
in order to pay holders of the Debentures of such series the amounts of the principal, the
interest and the linkage differentials (if there are such) which are due to them under the
Debentures held by them, pari passu and in a manner proportionate to the amounts which are
due to them, and without giving any preference in connection with priority in time of the
issue of the Debentures by the Company or otherwise, and the surplus, if there is such,
shall be paid by the Trustee to the Company or to its successors-in-title. |
10
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Payment
of the amounts by the Trustee to the Debenture holders as aforesaid, is subject to the
equal or preferential rights of other creditors of the Company (if there are such in
accordance with everything stated in this Deed of Trust). |
| 9. |
Notice
of distribution |
| |
9.1 |
The Trustee shall notify the Debenture holders as to the date and place at which each or
any payment will be made under Clause 8 above, by way of 14 days prior notice, which shall
be delivered in the manner mentioned in Clause 23 below. After the date specified in the
notice the Debenture holder will be entitled to interest only on the unpaid balance on the
amount of the principal (if there is such) after deduction of the amount that has been
paid or has been offered to him for payment as aforesaid. |
| |
9.2 |
Any amount due to a Debenture holder which was not actually paid on the date specified for
the payment thereof for a reason which is not dependent on the Company, in circumstances
where the Company was prepared to pay it, shall cease to bear interest and linkage
differentials (to the extent that same exist) from the date fixed for the payment thereof,
and the Debenture holder will be entitled only to those amounts to which he was entitled
on the date specified for settlement of such payment on account of the principal, the
interest and the linkage differentials (if there are such). |
| |
9.3 |
The Company shall deposit with the Trustee the amount of the payment that was not paid on
its due date, as referred to in sub-clause 9.2 above, not later than 15 business days from
the date fixed for such payment, and shall give notice in writing according to the
addresses in its possession to the Debenture holders of such deposit, and the aforesaid
deposit shall be deemed to be a discharge of such amount and in the case of a discharge of
everything due in respect of the Debenture, shall also be deemed to be redemption of the
Debenture. |
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9.4 |
The Trustee shall invest the moneys transferred to it as stated in sub-clause 9.3 above in
investments permissible for the Trustee, as stated in Clause 12 below. Once the Trustee
has done so, it will be liable to the entitled parties to such amounts solely for the
proceeds that will be obtained from a realization of the investments, less the expenses
connected with the aforesaid investment and with the management of the trust accounts, the
commissions and compulsory payments imposed on the trust account. The Trustee shall hold
the aforesaid amounts and shall invest same in the abovementioned manner until the end of
one year from the date of final redemption of the Debentures. After that date the Trustee
shall repay the amounts that have accrued in its hands, including profits arising from the
investment thereof, less its expenses, to the Company which shall hold these amounts in
trust for the Debenture holders. |
11
| |
The
Company shall confirm to the Trustee in writing the holding of the amounts and the fact of
receipt thereof in trust for the Debenture holders and shall indemnify the Trustee in
respect of any claim and/or expense and/or damage of whatsoever nature that may be
incurred by the Trustee as a result and in respect of the transfer of the aforesaid
moneys. |
| |
9.5 |
The Trustee shall transfer the moneys that have accumulated to the credit of the Debenture
holders, as stated in sub-clause 9.4 above, against receipt of proof and confirmations
regarding their right to such amounts, to the Trustee’s full satisfaction. |
| |
The
amounts which have been distributed as stated in Clause 9 above will be deemed to be a
payment on account of repayment of the Debentures. |
| 11. |
Presentation
of Debenture to the Trustee and registration in connection with partial payment |
| |
A
Debenture holder will be obliged to present to the Trustee at the time of partial payment
of principal or interest or linkage differentials (to the extent that same exist) under
Clause 8 above the Debenture certificate in respect of which the payments are being made
and the Trustee shall record on the Debenture certificate a note regarding the amounts
that were paid as aforesaid and the date of payment. The Trustee will be entitled in any
special case, in its discretion, to waive the presentation of the Debenture certificate,
after it has been given a deed of indemnity or sufficient guarantee to its satisfaction in
respect of damages likely to be incurred as a result of the failure of record such note,
all as the Trustee shall deem fit. Notwithstanding the foregoing, the Trustee will be
entitled to maintain records in another manner, in its discretion, with regard to partial
payments. |
| |
All
the moneys which require to be invested under the terms and conditions of this Deed of
Trust shall be invested in the name or to the order of the Trustee, in securities of the
State of Israel, or shall be deposited in the name of the Trustee at a bank or at banks
under conditions prevailing at such bank or banks, all as the Trustee shall deem
appropriate, unless a contrary provision has been expressly stipulated in the Deed or in
the First Schedule to this Deed and the conditions written overleaf, and subject to any
law which cannot be excluded. |
| 13. |
The
Company’s obligation to the Trustee |
| |
The
Company takes upon itself the following obligations vis-a-vis the Trustee, so long as
Debentures of any of the aforesaid series have not yet been fully repaid: |
| |
13.1 |
To
continue to conduct its business in a regular and proper manner. |
12
| |
13.2 |
To notify the Trustee in writing about the occurrence of one or more of the events
mentioned in Clause 5 above. |
| |
13.3 |
To notify the Trustee immediately it becomes aware thereof of any instance in which an
attachment has been imposed on the assets of the Company, in whole or in part, in an
amount reflecting 5% or more of the equity capital of the Company at the date of
imposition of the attachment or appointment of a receiver over the assets of the Company,
in whole or in part, and also in every instance in which a receiver is appointed for its
assets, in whole or in part, or a special administrator and/or provisional or permanent
liquidator is appointed, and immediately and at its expense to take all the steps required
in order to remove such attachment or for the setting aside of the receivership, the
liquidation or the administration, as the case may be. |
| |
13.4 |
To give and to instruct its accountants to give to the Trustee and/or to persons it may
direct, all information connected with its business or its assets which may be required,
in the Trustee’s discretion, for the protection of the Debenture holders. It is
hereby clarified that the Trustee shall at its expense bear the expenses of the
accountants in connection with such information which the Trustee demands for a period
which exceeds twelve months. |
| |
The
Trustee hereby undertakes to keep all information given as aforesaid confidential and not
to disclose and/or to make over such information to others and/or to make any use thereof
except for purposes of passing on information to a meeting of Debenture holders for
purposes of passing a resolution relating to their rights under the Debenture or for
purposes of giving a report on the condition of the Company, provided that the making over
of information as aforesaid shall not constitute prejudice to the Company’s trade
secrets. |
| |
13.5 |
To keep proper books of account in accordance with generally accepted accounting
principles, to keep the books and documents connected with its business at its offices,
and to enable the Trustee and/or anyone who may be appointed by the Trustee in writing for
such purpose to inspect the books of account and the aforesaid documents at any reasonable
time. |
| |
The
Trustee hereby undertakes to keep all information given as aforesaid confidential and not
to disclose and/or to make over such information to others and/or to make any use thereof
except for purposes of passing on information to a meeting of Debenture holders for
purposes of passing a resolution relating to their rights under the Debenture or for
purposes of giving a report on the condition of the Company, provided that the making over
of information as aforesaid shall not constitute prejudice to the Company’s trade
secrets. |
| |
13.6 |
To give confirmation to the Trustee that all the payments to the Debenture holders have
been made. |
| |
13.7 |
To
keep and maintain its assets in good order and condition. |
13
| 14. |
Additional
obligations |
| |
After
the Debentures have been made immediately due and payable, the Company will from time to
time and at any time it is called upon to do so by the Trustee, perform all the reasonable
acts in order to facilitate the exercise by the Trustee of the powers vested in the
Trustee, and in particular the Company shall perform the following acts: |
| |
14.1 |
It will make the declarations and/or sign all the documents and/or perform and/or cause
the performance of all the acts which are necessary or required in accordance with the law
for giving force and effect to the exercise of the Trustee’s powers and authorities. |
| |
14.2 |
It will give all the notices, commands and instructions the Trustee will deem expedient to
demand. |
| |
For
purposes of this clause – notice in writing signed by the Trustee confirming that an
acting which is demanded by it in the scope of its powers and authorities is a reasonable
act will constitute conclusive proof of the fact. |
| |
15.1 |
The Company hereby irrevocably appoints the Trustee as its representative to execute and
to perform in its name and stead all the acts which it is obliged to perform pursuant to
the terms and conditions contained in this Deed, and generally to act in its name for
purposes of implementing all or some of the powers and authorities conferred on the
Trustee, with permission to the Trustee to appoint any other person the Trustee may see
fit to perform its functions under this Deed of Trust, subject to the condition that the
Company has not performed the acts which it is obliged to perform pursuant to this Deed
within a reasonable time from the date of the Trustee’s demand. |
| |
15.2 |
An appointment under sub-clause 15.1 above shall not have the effect of obliging the
Trustee to perform any act, and the Company hereby releases the Trustee in advance, in the
event that any act is not performed, or is not performed at the proper time and in the
proper manner, and the Company waives in advance any allegation against the Trustee or its
agents in respect of any damage that has been incurred or may be incurred by it, directly
or indirectly, on the strength of any act which was performed or was not performed at all,
or which was not performed in time by the Trustee. |
| 16. |
Agreements
and transactions between the Trustee and the Company |
| |
Nothing
shall prevent the Trustee as a result of its holding office as trustee from contracting
with the Company under contracts or from executing transactions with it in the normal
course of its business, and subject to the provisions of Sections 35 K and L of the
Securities Law, 5728-1968, provided that the contractual arrangement or the transaction
shall not be such that, as a result thereof, the Trustee will lose its fitness under
Section 35E(2) of the aforesaid law to serve as Trustee for the Debenture holders. |
14
| 17. |
The
Trustee’s remuneration and reimbursement of expenses |
| |
The
Company will pay the Trustee a remuneration for its services as trustee, as follows: |
| |
17.1 |
In respect of its services as trustee, a one-time remuneration will be paid to the Trustee
in the sum of NIS 15,000 which will be paid shortly after the issue of the Debenture. |
| |
Commencing
from the second year, an annual remuneration will be paid to the Trustee in the sum of NIS
10,000 (linked to the Consumer Price Index) in respect of each of the years in which the
Debentures have not yet been repaid (excluding the first year). The aforesaid amount shall
be paid at the beginning of each trust year. In addition, a remuneration will be paid to
the Trustee in shekels which is equivalent to 100 US dollars for each hour of work in
respect of special operations that may be performed other than in the normal course of
business. |
| |
17.2 |
In addition thereto the Trustee will be entitled to receive a reimbursement of all the
expenses it reasonably incurs in connection with fulfilling its functions as Trustee,
provided that in respect of expenses for an expert opinion as referred to in Clause 18.2
below, the Trustee shall give the Company advance notice of its intention to obtain an
expert opinion. The aforesaid expenses shall be paid up to the end of the trust pursuant
to this Deed and even if a receiver (or a receiver and administrator) is appointed, and
irrespective of whether or not the trust pursuant to this Deed is administered under the
supervision of the court. |
| 18. |
Special
powers and authorities |
| |
18.1 |
The Trustee will be entitled to deposit all the deeds and the documents which witness,
represent or stipulate its rights, in connection with any other property which for the
time being is in its possession, in a safe deposit box or in another place it shall elect,
with any banker or any banking company or with an advocate. Where the Trustee has done so,
it will not be responsible for any loss that may be caused in connection with such
deposit, unless it acted negligently, and it will be entitled to pay all the amounts it is
obliged to pay on account of such deposit or in connection therewith. |
| |
18.2 |
The Trustee is entitled, in the scope of performing its functions under this Deed, to act
according to the opinion or advice of any attorney, accountant, assessor, surveyor,
broker, or other expert, whether such opinion or advice was obtained by the Trustee or by
the Company in another manner, and the Trustee will not be responsible for any loss that
may be caused as a result of any such act and/or omission committed by it, unless it acted
negligently. |
15
| |
18.3 |
Any such advice or opinion may be sent or received by letter, telegram, telephone,
facsimile or other electronic means for the transmission of information, and the Trustee
will not be responsible in respect of acts that are performed on the strength of advice or
an opinion or information which was transmitted in the aforesaid manner, even though there
were mistakes therein or same were not authentic and the Trustee was not aware of this. |
| |
18.4 |
The Trustee will be entitled to receive from the Company a certificate signed by the board
of directors of the Company confirming that the board of directors of the Company resolved
that in the opinion of the directors a transaction, step, act or other matter, done or
intended to be done by the Company, are desirable and are in the best interests of the
Company, and to treat such certificate as adequate proof that the transaction, step, act
or matter are indeed desirable and in the best interests of the Company, and under no
circumstances shall the Trustee be obliged to demand additional proof or other certificate
and will not be responsible for any loss that may arise as a consequence thereof. |
| |
18.5 |
The Trustee will not be obliged to notify any party about the signing of this Deed or to
intervene in any manner in the conduct of the Company’s business or its affairs. |
| |
18.6 |
The Trustee shall exercise the powers and authorities of the trust which have been
conferred on it pursuant to this Deed in its absolute discretion and with a reasonable
degree of caution. Where the Trustee has acted in such manner it will not bear
responsibility for errors in judgment made in good faith and for any loss, expenses and
damages or unpleasantness likely to be caused as a result of any act or omission by it,
unless it is proved that the Trustee was negligent in examining the facts concerned. |
| |
18.7 |
The Trustee has the power to decide in regard to all kinds of questions and doubts which
may arise in relation to any provision of this Deed and any decision by it, regarding a
question which has actually arisen or which is included in the Trustee’s acts and
steps, shall be conclusive and shall be binding on all the persons who have an interest in
this Deed. |
| 19. |
Applications
to court |
| |
The
Trustee will be entitled at any time, in cases in which it is entitled to make Debentures
of any of the series immediately due and payable, as stated in Clause 5 above, to apply to
a court with applications for realizing the rights of the Debenture holders pursuant to
this Deed under the supervision of the court, and the Trustee will further be entitled to
apply to court, whether before or after it has made the Debentures immediately due and
payable as stated in Clause 5 above, as it sees fit, for the grant of any other order in
relation to the administration of the trust as aforesaid. It will further be entitled to
give its consent or approval to any application to a court which is made on a requisition
of a Debenture holder, and the Company shall indemnify the Trustee for all the reasonable
expenses that may be incurred by the Trustee by virtue of such application, and as a
result of acts done in consequence thereof or in connection therewith. |
16
| 20. |
Trustee’s
authority to employ agents |
| |
The
Trustee may, in the scope of administering the business of the trust, appoint, if there is
a necessity for doing so, agents who will act in his stead, either an attorney or any
other person, in order to perform or to participate in the performance of all kinds of
businesses and to do or to participate in the doing of all kinds of acts which require to
be done in connection with the trust, and to pay a reasonable remuneration to every such
agent, with the prior written approval of the Company. |
| 21. |
Indemnity
for the Trustee |
| |
Without
prejudice to the Trustee’s rights to compensation according to law, the Trustee,
after the Debentures have been made immediately due and payable, will be entitled to
charge and collect and to pay itself or to another person appointed by it in accordance
with the terms and conditions of this Deed or to anyone acting on their behalf, out of the
amounts and the investments that are in its possession as a result of performing the trust
under this Deed, all the amounts that may be due to any of the abovementioned entities,
whether for purposes of covering expenses of any sort which may be incurred by it for
performing the trust, or by virtue of an indemnity from the Company, to which any of the
abovementioned entities may be entitled pursuant to this Deed or according to any law, and
the Trustee may retain the amounts in its possession and make payment therefrom of the
amounts required for purposes of payment of the compensation. |
| |
Upon
the demand of the Trustee or its representative or another person who has been appointed
by the Trustee pursuant to this Deed, the Company will pay them or any one of them any
amount of money it is obliged to pay them or him or it from time to time, in accordance
with any provision contained in this Deed, together with interest at the prevailing rate
at banks in respect of revolving overdraft business accounts, from the day on which the
amount was given as a loan or was withdrawn or the due date for payment thereof arrived,
and with regard to the obligations of such persons or of any one or more of them, the
Company will discharge or will pay same upon first demand of the abovementioned entities,
or will procure the release of the Trustee or the other persons aforesaid from such
obligations. |
| 23. |
Notices
and copies of notices |
| |
23.1 |
Any notice on behalf of the Company or the Trustee to the Debenture holders of a
particular series may be given by a notice that will be published in two widely
circulating Hebrew dailies in Israel, or by sending a notice to the holder of Debentures
of that series by registered mail (and in the case of several holders – to the joint
holder whose name stands first in the register), according to the last address of the
holder registered in the register, and any notice sent as aforesaid shall be deemed to
have been delivered to the holder of the Debentures of such series after 72 hours from the
time of its delivery for posting. A notice published in newspapers shall be deemed to have
been delivered on the date of its publication. |
17
| |
23.2 |
Any notice or demand by the Trustee to the Company and/or from the Company to the Trustee
shall be given by registered mail, according to the address set forth at the end of this
Deed of Trust, or according to another address of which one party shall notify the other
in writing, and any such notice or demand shall be deemed to have been received by the
party to whom the notice was sent after 3 business days from the time of its delivery for
posting. |
| |
23.3 |
In order to prove delivery for posting for purposes of sub-clauses 23.1 and 23.2 above, it
shall be sufficient to exhibit the post office receipt. |
| |
23.4 |
Copies of notices that the Company will give to owners of the Debentures shall also be
sent by the Company to the Trustee. |
| 24. |
Alterations
to the Deed of Trust and waiver, compromises and alterations of rights |
| |
24.1 |
Subject to the provisions of any law which cannot be excluded or stipulated upon, the
Company and the Trustee will be entitled, whether before or after the principal of the
Debentures of any of the series becomes due and payable, to alter the Deed of Trust with
respect to a particular series (including an alteration of the terms and conditions of the
Debentures of such series), if one of the following conditions is fulfilled: |
| |
24.1.1 |
The
Trustee is convinced that the alteration does not prejudice the holders of the Debentures
of that series. |
| |
24.1.2 |
The
holders of Debentures of such series have agreed to the alteration by a special
resolution of a general meeting of holders of the Debentures of that series who were
present thereat, either personally or by way of proxy, holding at least fifty percent of
the balance of the par value of the Debentures of that series, or at an adjourned meeting
at which the holders of at least ten percent of the aforesaid balance were present. |
| |
24.2 |
In
addition, subject to the provisions of any law which cannot be excluded or stipulated
upon: |
| |
24.2.1 |
The
Trustee shall be entitled, where this is to the benefit of the Debenture holders, or if
doing so will not constitute prejudice to the rights of the Debenture holders, to waive
any breach or non-fulfillment by the Company of any of the terms and conditions of the
Deed of Trust. Such waiver may be made in respect of all the series of Debentures (A and
B) or in respect of some of them, as the case may be. |
18
| |
24.2.2 |
The
Trustee shall further be entitled, with prior approval by way of a special resolution
passed by the holders of the Debentures of a particular series, to compromise with the
Company in connection with any right or claim of the Debenture holders of that series or
any of them or of the Trustee, in accordance with the Deed of Trust. Where the Trustee
has compromised with the Company after having received prior approval of the Debenture
holders as aforesaid, the Trustee shall be released from all responsibility in respect of
such act. |
| |
24.3 |
In the case of an alteration to the terms and conditions of the Debentures of any of the
series, the Company will be entitled to demand from each of the Debenture holders of that
series to deliver to it the certificates held by such holder, for purposes of adding a
note thereto with regard to the aforesaid alteration. |
| |
24.4 |
The Company shall serve on the Debenture holders notice regarding any such alteration
immediately upon the implementation thereof. |
| 25. |
Delegation
of authorities |
| |
The
Trustee may at any time delegate portion of the trusts, powers and authorities vested in
it under this Deed of Trust, in whole or in part, to another person or to other persons,
and any such delegation shall be made in accordance with the conditions and the provisions
(including permission to an agent to appoint an agent) as the Trustee shall deem fit, but
the delegation of authorities as aforesaid shall not release the Trustee from any
responsibility that would have been imposed on it had it not been for the delegation of
authorities. |
| |
When
it has been proved to the satisfaction of the Trustee that all the Debentures have been
repaid or have been redeemed in full (including principal, interest and linkage
differentials (to the extent that same exist) and/or when the Company deposits in trust
with the Trustee amounts of money which will be sufficient for the redemption of the
Debentures (and subject to the conditions of linkage and interest) which have not been
presented for redemption, and also when it has been proved to the Trustee’s
satisfaction that all the liabilities and expenses that have been incurred or been caused
to the Trustee and/or its officers and/or its agents in connection with this deed have
been paid in full, then and in that event the Trustee will be obliged, upon the
Company’s first demand, to act in relation to the moneys that have been deposited in
respect of Debentures the redemption of which has not been demanded, in accordance with
the terms and conditions of Clause 9.4 above. |
| 27. |
Register
of Debenture holders |
| |
The
Company shall keep separate registers of Debenture holders of each of the series, in which
the names and addresses of the Debenture holders of such series shall be registered, as
well as the serial numbers of the Debentures and their par value, which are held by such
holders. Transfers of ownership of the aforesaid Debentures, in accordance with the
provisions of this Deed, shall also be registered in the aforesaid register. The Trustee
and any Debenture holder will be entitled to inspect the register at any reasonable time
by prior arrangement and coordination with the Company. |
19
| |
Subject
to the provisions of any law that cannot be excluded or stipulated upon, the Company will
be obliged to register in the aforesaid registers any notice regarding a trust, pledge and
encumbrance of whatsoever nature or any right in equity, claim, set-off and any other
right, in connection with the Debentures. The Company shall recognize only the owner who
is registered in the register of Debenture holders as the absolute owner of the Debenture
in regard to any payment and for any other purpose. No contrary notice shall bind the
Company. However the lawful heirs, administrators or executors of the registered holder
and any person who will become entitled to the Debentures as a result of the bankruptcy of
any registered holder, and if it is a corporation, as a consequence of its liquidation,
will be entitled to be registered as holders thereof after providing proof which in the
opinion of the directors of the Company is sufficient to prove their right to be
registered as the holders thereof. |
| |
The
Company shall be entitled to close the registers from time to time at such times and for
such periods as it shall deem fit, on condition that the total number of days of closure
of each register shall not exceed 30 days in a year. |
| 28. |
Certificates
and splitting of certificates |
| |
In
respect of Debentures registered in the name of one holder he will be issued one
certificate, or at his request he will be issued several certificates, each for a total
number of NIS 100 par value Debentures (“the minimum quantity”) or in multiples
of the minimum quantity and an additional certificate in respect of the balance (if any). |
| |
(The
certificates mentioned in this clause will henceforth be referred to as: “the
Certificates”). |
| |
Every
Certificate shall be capable of being split into Certificates in which the total par value
of the Debentures contained therein is equivalent to the aggregate par value of the
Debentures which were included in the Certificate the splitting of which has been
requested, provided that such Certificate shall not be issued other than in the minimum
quantity or in multiples of the minimum quality, together with one additional Certificate
in respect of the balance (if any). The splitting will be done against delivery to the
Company at its registered office of the Certificate the splitting of which is requested.
All the expenses connected with the splitting, including stamp duty and other levies, if
any, will be borne by the party requesting the split. |
| |
Effecting
of the split will be done within thirty days from the end of the month in which the
Certificate was delivered to the registered office of the Company. |
20
| 29. |
Termination
of expiration of the Trustee’s term of office |
| |
29.1 |
The Trustee’s term of office will expire or terminate, as the case may be, in the
cases mentioned in Section 35N of the Securities Law, 5728-1968. |
| |
29.2 |
Subject to the provisions of the aforesaid law, the Trustee and any trustee that may
replace it, will be entitled to resign from their function at any time they wish, after
giving written notice to the Company, setting forth the reasons for the resignation. The
resignation will come into force only after it has been approved by the court and from the
date specified for the purpose in the approval. Where the Trustee or any trustee who may
replace it has acted in the aforesaid manner, they will not be responsible for the
expenses or losses that may be caused as a result of their resignation. |
| |
29.3 |
In the case of the expiration of the Trustee’s term of office for any reason, the
court may appoint another trustee in its stead for such period and on such conditions as
the court sees fit. In such case, the Trustee whose term of office has expired will
continue to serve in its function until the appointment of another trustee. |
| 30. |
Removal
of the Trustee from its office |
| |
A
meeting of the owners of the Debentures of any of the series, which is convened on a
requisition of the owners of Debentures as stated in the Second Schedule to this Deed of
Trust, may decide by a vote, given personally or by proxy, of the holders of at least
fifty percent of the balance of the par value of the Debentures of that series which are
in circulation, on removal of the Trustee from its office as trustee for the Debenture
holders in respect of such series. The removal of the Trustee from its office with respect
to one series will not constitute a removal from office with respect to the other series.
In the case of the removal of the Trustee from its office as aforesaid, the court may
appoint another trustee, and the provisions of Clause 29.3 above will apply. |
| 31. |
Provisions
in the case of appointment of new trustees |
| |
In
the case of the appointment of a new trustee or trustees the following provisions will
apply: – |
| |
31.1 |
It
will be permissible to increase the number of trustees. |
| |
31.2 |
Each new trustee will have the same powers and other authorities and may act in all senses
as though appointed as a trustee from the outset at the time of signing of this Deed of
Trust. |
| |
31.3 |
Notice shall be given to the Debenture holders with regard to removal of a trustee from
its office and of the appointment of a new trustee. |
21
| 32. |
Statements
and approvals |
| |
The
Company shall deliver to the Trustee, so long as the Debentures have not been repaid in
their entirety: – |
| |
32.1 |
Not later than the date specified by law for the publication thereof, the Company’s
audited financial statements for the year ending December 31 of the preceding year, as
well as unaudited but reviewed interim reports, to which a review report of the accountant
addressed to the management of the Company, shall be attached. |
| |
32.2 |
A copy of any document the Company sends to its shareholders or to holders of the
Debentures and details of any information the Company transmits to them in another
fashion, and any additional information at the Trustee’s reasonable request. |
| |
32.3 |
Not later than 14 days after the publication of the annual and quarterly financial
statements to the public, certificates from the chairman of the board of directors of the
Company and from its chief executive officer which relate to the period of such statement,
stating that there is no breach on the part of the Company of this Deed (including the
terms and conditions of the Debentures), unless this is expressly stated in such
certificate. |
| |
It
is hereby clarified that subject to any law which cannot be excluded or stipulated upon,
the restrictions that apply to the Company in its relationship with the owners of the
Debentures or the Trustee are only those restrictions expressly specified in this
Deed of Trust or in the Debentures, and vis-a-vis owners of the Debentures and/or the
Trustee the Company will be entitled to perform any act, unless the act has been
expressly prohibited or restricted under this Deed of Trust and/or in the
Debentures. Accordingly, the owners of the Debentures will not have any right to object to
a particular act on the part of Company, unless this was expressly prohibited in
the Debentures or in this Deed of Trust, and no restrictions or prohibitions which were
not expressly stipulated in this Deed of Trust or in the Debentures shall be read into
this Deed of Trust or the Debenture as implied conditions, unless a law which cannot be
excluded or stipulated upon so allows. |
| |
“Act”for
purposes of this clause means – an act or an omission. |
| |
Stamp
duty in respect of this deed shall be borne by the Company. |
| |
The
addresses of the Company and the Trustee for purposes of this Deed of Trust are: – |
22
| |
The Company: |
0 Xx-xxxx Xxxxxx, Xxxx Afeq, Rosh Ha’ayin. |
| |
The Trustee: |
0 Xxxxxxx Xxxxxx, Xxxxxxxx Pituah. |
| |
Or
any other address of which the parties may give notice in accordance with this Deed of
Trust. |
In witness whereof the parties
have hereunto signed
on the date mentioned at the head of this Deed of Trust:
/s/ Yoram Dar /s/ Xxx Xxxxxxx
———————————————————
Blue Square - Israel Ltd. |
|
/s/ /s/
———————————————————
Israel Discount Bank Trust Company Ltd. |
23
SECOND SCHEDULE
Meetings of Debenture
Holders
| |
1.1 |
“Holder”, “holders”, “Debenture holders” or “holders of
Debentures of such series” mean – the holders of the Debentures (Series A) or
the holders of the Debentures (Series B) a general meeting in respect of which is held or
is intended to be convened, as the case may be. |
| |
1.2 |
The Trustee or the Company may call a meeting of Debenture holders of any of the series
separately and without there being any dependence of the one on the another. If the
Company calls such a meeting, it must send a written notice forthwith to the Trustee
regarding the place, the day and the hour at which the meeting will be held, as well as
with regard to the matters that will be brought for consideration and discussion thereat. |
| |
The
Company will be obliged to call such meeting on a written requisition by the Trustee or on
a written requisition of holders representing at least one-tenth (10%) of the unpaid
balance of the principal of the Debentures of any of the aforesaid series of Debentures
which are in circulation for the time being, and in such case the Company shall be
entitled to demand from the aforesaid requisitioners indemnity, to its satisfaction, for
the expenses involved in convening the meeting on their requisition. |
| |
The
Company will be entitled to attend any meeting of owners of the Debentures. |
| 2. |
Notices
regarding the convening of meetings of Debenture holders |
| |
2.1 |
Prior notice of at least 14 days, or, where the purposes of the meeting is to consider a
proposal for passing a special resolution, prior notice of at least 21 days, shall be
given to the Debenture holders, specifying the place, the date and the hour of the
meeting. The Trustee shall be entitled to shorten the aforesaid period of the prior notice
if it deems that postponing the convening of the meeting constitutes a prejudice to the
rights of the Debenture holders. |
| |
2.2 |
In the case of a meeting the purpose of which is to pass a special resolution, the text of
the proposed resolution shall be stated in the notice. Apart from the matters aforesaid,
the notice shall only mention in general terms the matters that will be considered and
discussed at the meeting. |
| |
2.3 |
No resolution which is passed at such meeting shall be invalidated by virtue of the
inadvertent failure to give notice of the meeting to all the Debenture holders of such
series or if the notice was not received by all the Debenture holders of such series. |
1
| 3. |
The
chairman of the meeting shall be a person appointed by the Trustee. Should the
Trustee fail to appoint a chairman or if the chairman is absent from the
meeting, the holders present shall elect a chairman from amongst their number. |
| 4. |
Quorum
at meetings of Debenture holders |
| |
4.1 |
Unless otherwise stipulated in the terms and conditions of the Deed of Trust, no matters
shall be dealt with at a meeting of holders, unless the required quorum is present at the
time of the start of consideration of the matter. |
| |
4.2 |
Subject to the provisions set forth below regarding a quorum required for passing a
resolution with respect to an amendment to the terms and conditions of the Deed of Trust,
at meetings of Debenture holders a quorum shall be constituted by at least two holders of
Debentures of such series personally present or represented by proxy, who hold at least
10% of the unpaid balance of the Debentures of such series which are in circulation for
the time being (in this Schedule: “the total quantity of the Debentures”). |
| |
At
a general meeting the agenda of which includes a special resolution regarding an amendment
to the terms and conditions of the Deed of Trust, the quorum required shall be holders of
at least fifty percent of the balance of the par value of the Debentures of such series
and at an adjourned meeting the quorum shall be holders of at least ten percent of such
balance. |
| |
4.3 |
If no quorum is present within half an hour from the time appointed for the meeting, the
meeting shall be adjourned to the same day in the following week at the same hour and at
the same place (and if such day is not a business day – to the next business day
immediately following such day), without there being an obligation to give notice to that
effect to the Debenture holders, or to any other day or other hour or other place as the
Company shall notify the Debenture holders at least one week in advance. If no quorum is
present at an adjourned meeting as aforesaid within half an hour from the time appointed,
then if the meeting was called on a requisition of the holders, the quorum at the
adjourned meeting shall be two holders personally present or represented by proxy and
jointly holding at least one-tenth of the total quantity of Debentures of such series
which are in circulation for the time being (in other words: the minimum quantity required
for calling a general meeting of the Debenture holders on a requisition of Debenture
holders). In every other case two holders, personally present or represented by proxy,
will constitute a quorum without reference to the par value held by them, provided that
not later than 7 days before the adjourned meeting, notice is given to the Debenture
holders with regard to the holding of the adjourned meeting, in which it shall be stated
that two Debenture holders of such series who are personally present or represented by
proxy will constitute a quorum. |
| |
The
notice regarding the holding of an adjourned meeting (where this is required in accordance
with the foregoing) in the event that no quorum will be present and also the notice
regarding the quorum at such adjourned meeting, may be given in the original notice
convening the general meeting that was adjourned. |
2
| 5. |
The
chairman of the meeting may, with the consent of the meeting at which a quorum
is present, and on a demand by the meeting he shall be obliged, to adjourn the
meeting from time to time and from place to place. If the meeting has been
adjourned for ten days or more, notice of the adjourned meeting shall be given
in the same manner as notice is given regarding the first meeting. Save for the
foregoing, a Debenture holder will not be entitled to receive any notice about
an adjourned meeting and/or regarding the matters that will be considered and
discussed at the adjourned meeting. No matters shall be dealt with at an
adjourned meeting except those that it was possible to deal with at the meting
at which it was decided on the adjournment of the meting. |
| 6. |
Voting
at meetings of Debenture holders |
| |
6.1 |
The
owners of the Debentures are entitled to attend and vote through proxies. |
| |
6.2 |
Every
vote shall be on a poll. |
| |
In
a vote on a poll every holder, personally present or represented by proxy, will have one
vote in respect of every 1 new shekel par value of the unpaid overall nominal capital of
the Debentures pursuant to which he is entitled to vote. The chairman of the meeting will
not have a second or casting vote. |
| |
6.3 |
In the case of joint holders only the vote will be accepted of the senior joint holder
wishing to vote, either personally or by way of proxy, and for this purpose seniority will
be determined according to the order in which the names are recorded in the register of
holders. |
| |
6.4 |
A
vote on a poll shall be held in such manner as the chairman directs. |
| |
6.5 |
In a vote a Debenture holder or his proxy may vote in favor of the proposal on the agenda
in respect of portion of his votes and against the proposal in respect of another portion,
as he sees fit. |
| 7. |
Instrument
of appointment and powers of attorney |
| |
7.1 |
The instrument of appointment appointing a proxy shall be writing and shall be signed by
the appointer or by an authorized representative holding proper written authority, and if
the appointer is a corporation, the appointment shall be made in writing under the seal of
the corporation or under the hand of an officer or authorized representative who is
empowered to do so. |
| |
The
instrument appointing a proxy shall be drawn up in any usual or acceptable form. |
| |
7.2 |
The
proxy need not himself be a Debenture holder of such series. |
3
| |
7.3 |
The instrument of appointment and the power of attorney, or other certificate pursuant to
which the instrument of appointment was signed, or a certified copy of such power of
attorney, shall be lodged at the registered office of the Company not less than 48 hours
before the time of the meeting at which the proxy intends to vote, unless otherwise stated
in the notice calling the meeting. |
| |
7.4 |
A vote given in accordance with the conditions in the document appointing a proxy shall be
valid even if prior thereto the appointer has died, or has been declared legally
incompetent, or the instrument of appointment was revoked, or the Debenture in respect of
which the vote was given has been transferred, unless notice in writing was received at
the registered office of the Company before the meeting with regard to the death of the
appointer, the fact of his being declared legally incompetent, the revocation or the
transfer as aforesaid. |
| 8. |
Any
corporation which is a holder of Debentures may, by written authorization
signed by one of its directors or by its secretary or by one of its business
managers, appoint such person as it deems fit to act as its representative at
any meeting of holders, and the person who has been authorized to do so will be
entitled to act in the name of the corporation he represents as though the
holder of the Debenture in question was personally present at the meeting. |
| 9. |
The
chairman of the meeting shall cause minutes to be kept of the meeting of the
holders which shall be recorded in the minute book to be maintained by the
Trustee. Any such minutes shall be signed by the chairman of the meeting, or by
the chairman of the next meeting, and any such minutes signed as aforesaid
shall serve as conclusive evidence of the proceedings at the meeting and until
the contrary is proved, any resolution passed at such meeting shall be deemed
to have been duly passed. |
| 10. |
A
person or persons who will be appointed by the Trustee, the secretary of the
Company, and any other person or persons who may be permitted to do so by the
Company, will be entitled to attend meetings of the aforesaid Debenture
holders, without having a right to vote. |
| 11. |
A
meeting of holders called in accordance with these conditions shall have the
power and authority, by passing a special resolution as defined below, to do,
inter alia, the following things or any one of them: |
| |
11.1 |
To empower the Trustee to compromise with the Company in connection with any claim of the
Debenture holders of such series, or any of them, or of the Trustee pursuant to the Deed
of Trust. |
4
| |
11.2 |
To agree to any amendment to the provisions of the Deed of Trust, including changes in the
terms and conditions of the Debentures, to which the Company shall agree, if a special
resolution of the Debenture holders is required in order to pass this, and to authorize
the Trustee to sign any additional or new deed of trust for purposes of implementing such
amendment, provided that such alteration shall not be made except by a special resolution
of a general meeting of the Debenture holders, at which holders of at least fifty percent
of the balance of the par value of the Debentures were present, either personally or by
way of proxy, or at an adjourned meeting at which holders of at least ten percent of the
aforesaid balance were present. |
| |
11.3 |
To give the Trustee prior approval, wherever such approval is required under the Deed of
Trust, by way of a special resolution that shall be passed by the Debenture holders, to
compromise with the Company in connection with any claim of the Debenture holders, or any
of them, or of the Trustee, pursuant to the Deed of Trust. |
| 12. |
The
majority required for passing of resolutions |
| |
12.1 |
Except for cases where the law or the Deed of Trust necessitates a special resolution, any
question which is put to such meeting shall be decided by an ordinary resolution. The
majority required for an ordinary resolution is a simple majority of the votes of the
Debenture holders or their proxies present at the meeting and voting thereat. |
| |
12.2 |
A special resolution is a resolution passed at a meeting of Debenture holders, which was
called and held in accordance with the conditions set forth above in regard to the passing
of a special resolution, by a majority of at least three-quarters of the votes of the
Debenture holders or their proxies, who were present at the meeting and voted thereat. |
5
