Deed of Trust Made and signed in Netanya on September 20, 2007
Exhibit 4.4
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TRANSLATION
FROM HEBREW
THE
BINDING VERSION IS THE HEBREW
VERSION
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Deed
of Trust
Made
and signed in Netanya on September 20, 2007
Between:
of 00
Xxxxxxxx Xxxxxx, Xxxxxxx
(hereinafter:
“the
Company”)
of
the one part;
And:
Hermetic
Trust (1975) Ltd.
Private
company no. 00-000000-0
of 000
Xxxxxxxx Xx., Xxx Xxxx
Telephone:
00-0000000
Fax:
00-0000000
Email:
xxxxxxxx@xxxxxxxx.xx.xx
Contact:
Meirav Xxxx Xxxx, joint CEO
(hereinafter:
“the
Trustee”) of the other
part:
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Whereas:
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The
board of the Company decided, on September 19, 2007, to approve the issue
of Debentures (Series D), according to the conditions of the Prospectus;
and
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Whereas:
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The
Trustee is a limited shares company that has been incorporated in Israel
according to the Companies Law/ Ordinance, whose principle goal is to
engage in Trust; and
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Whereas:
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The
Trustee has declared that there is no impediment in accordance with the
Securities Law 5728 – 1968 or any other law to its entering into an
engagement with the Company pursuant to this Deed of Trust, and that it
fulfills all of the requirements and conditions for competency stated in
the Securities Law to serve as a trustee for the issue of the Debentures
(Series D) covered by the Prospectus; and
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Whereas:
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Within
the Prospectus, the Company shall issue Debentures (Series D) of a par
value that will be as determined in accordance with Section 2.2 of the
Prospectus; and
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Whereas:
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The
Company has requested that the Trustee serve as the trustee for the
Debenture Holders (Series D), and the Trustee has agreed thereto, subject
to the terms of this Deed of Trust;
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Now
therefore it has been agreed, declared and stipulated between the parties as
follows:
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1.
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Preamble,
interpretation and definitions
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1.1
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The
preamble to this Deed of Trust and the appendices attached hereto constitute a
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| material and integral part hereof. | ||
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1.2
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The
division of this Deed and Trust into sections and the titling of the
sections are for the sake of convenience and as references only and may
not be used for construction purposes.
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1.3
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The
provisions hereof in plural apply to singular and vice versa; the
provisions hereof in masculine gender apply to feminine and vice versa,
and all statements regarding natural persons also refer to corporations,
wherever this Deed does not implicitly and/or explicitly state otherwise
and/or if the content of context of the statements does not necessitate
otherwise.
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1.4
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In
this Deed of Trust and in the Debentures (Series D), the following
expressions will have the meaning beside them, unless another meaning is
implied by the content or context of the
statements:
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“This deed” or the
“Deed of
Trust”
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–
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This
Deed of Trust, including the appendices attached hereto, which constitute
an integral part hereof;
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The “Prospectus”
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–
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The
prospectus of the Company that is due to be published, inter alia, for the
issue of the Debentures (Series D)
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The “Debentures (Series D)”
or the “Debentures”
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–
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The
Debentures (Series D) of the Company, registered to name, that will be
issued in accordance with the Prospectus;
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The “Trustee”
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–
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Hermetic
Trust (1975) Ltd. and/or any party serving from time to time as a trustee
of the Debenture Holders (Series D) pursuant to this
deed;
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“Register”
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–
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Register
of the Debenture Holders (Series D) as stated in Section 25
hereof;
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The “Debenture Holders (Series D)”
and/or the “Debenture Holders” and/or
the “Debenture Owners
(Series D)” and/or the “Debenture
Owners”
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–
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The
persons whose names are listed at the time in question in the register of
the Debenture Holders (Series D) and in the case of a number of joint
Holders, the joint Holder first listed in the
register;
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The “Debenture Certificate (Series
D)”
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–
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A
Debenture certificate (Series D) whose form appears as
the first addendum to this deed;
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The “Law” or the “Securities
Law”
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–
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The
Securities Law, 5728 – 1968 and the regulations thereby, as effective from
time to time;
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“Business
day”
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–
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A
day on which most of the banks in Israel are open for conducting
transactions;
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“Principal”
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–
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The
par value of the Debentures (Series D)
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The “Consumer Price Index”
(“Index”)
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–
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The
price index known by the name of "the Consumer Price Index", which
includes fruit and vegetables, as published by the Central Bureau of
Statistics, including that index even if published by another official
body or institute, and including any official index that replaces it,
whether composed of the same data as the existing index or not. If it is
replaced by another index that is published by such a body or institute,
and that body or institute did not determine the ratio between it and the
index thus replaced, the ratio will be determined by the Central Bureau of
Statistics, and in the case of such a ratio not being determined, it will
be determined by the Trustee, who will determine, following consultation
with the Company and economic experts of his choice, the ration between
the other index and the replaced index;
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The “Known Index”
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–
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The
last known consumer price index;
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The “Basic Index”
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–
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The
consumer price index for August 2007 that was published on September 12,
2007.
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The “Payment Index”
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–
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The
consumer price index known on the date of making any payment on the
account of the principal and/or the
interest;
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“Trade
Day”
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–
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A
day on which transactions are executed on the Tel Aviv Stock Exchange
Ltd;
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The “Stock Exchange”
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–
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The
Tel Aviv Stock Exchange Ltd;
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“Meeting”
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–
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A
meeting of the Debenture Holders, including a class
meeting.
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“Class
meeting”
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–
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A
meeting of the Debenture Holders, who have an interest that is materially
different from the interest of other Debenture Holders on the matter that
is being discussed in the meeting.
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“The
Nominee Company”
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–
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The
Israel Discount Bank Nominees Ltd.
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2.
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Issuance of the
Debentures and the Applicability of the Deed of
Trust
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The
Company shall issue a series of registered to name Debentures (Series D),
to an unlimited sum, bearing annual interest at a rate that is to be
determined in accordance with Section 2.2 of the Prospectus, linked
(principal and interest) to the Basic Index, for repayment in 5 equal
annual installments on July 1 of each of the years 2013 to 2017
(inclusive). The interest on the Debentures will be paid in annual
installments on July 1 in each of the years 2008 to 2017
(inclusive).
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3.
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Terms of the Issuance;
Self-Purchase
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3.1
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The
Company shall issue the Debentures according to the conditions specified
in the Prospectus and in the Debentures and will not secure them with any
collateral.
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3.2
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The
Company reserves the right to purchase at any time, within or without the
Stock Exchange, Debentures (Series D) at any price of its choosing,
without prejudice to the obligation of repayment of the Debentures
remaining in circulation as specified above. The Debentures that will be
purchased by the Company will be cancelled and delisted from trade on the
Stock Exchange, and the Company will not be allowed to re-issue
them.
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3.3
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A
subsidiary of the Company and/or the controlling share Holder and/or
companies under the control of the controllers of the controlling share
Holder of the Company (“ Affiliated Company”) are allowed to purchase
and/or sell from time to time within or without the Stock Exchange,
including by way of issuance by the Company, Debentures at any price of
their choosing and sell them accordingly. The Debentures thus held by the
Affiliated Company will be considered as an asset of the Affiliated
Company, and if they are listed for trading, they will not be delisted
from trade on the
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| Stock Exchange other than subject to the rules of the Stock Exchange. | ||
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On
the matter of holding Meetings of Holders of Debentures, the provisions of
Section 2.19 of the second addendum to this Deed will
apply.
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3.4
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The
Company is allowed, at any time and from time
to time, without needing the consent of the Debenture Holders or the
Trustee, to issue, including to an Affiliated Company, Debentures of a
different type and/or of different series and/or other Debentures
securities, whether secured or unsecured, whether granting a right of
conversion into shares of the Company or not granting such right, whether
by public offering pursuant to a prospectus or otherwise, under terms of
redemption, interest, linkage, discounting, repayment rate in the case of
liquidation and other conditions, as the Company sees fit, whether they
are preferable to the terms of the Debentures (Series D) issued pursuant
to the prospectus, equal to them or inferior to them.
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3.5
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Without
derogating from the foregoing, the Company is allowed, at any time and
from time to time, without needing the consent of the Debenture Holders or
the Trustee, to issue, including to an Affiliated Company, additional
Series D Debentures. The additional Debentures that will be issued, to the
extent issued, including their conditions and resulting rights, will be
identical and as the existing Debentures, and will together constitute one
series for all purposes (it is clarified that in the case of such
issuance, the offerees to which additional Debentures will be issued will
not be entitled to payment of principal and/or interest whose determinant
payment date preceded the issuing date). The provisions of the Deed of
Trust will apply to these additional Debentures. The Company will publish
an immediate report on such an issuance of additional Debentures and will
apply to the Stock Exchange in an application to list these additional for
trading these additional Debentures therein. In the case of expansion of
the series of the Debentures (Series D) as above, the fee of the Trustee
shall be increased in proportion to the increase of the size of the
series.
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The
Company shall inform the Trustee and the Debenture Holders of the issue of
these additional Debentures.
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This
right of the Company does not exempt the Trustee from examining such an
issuance, to the extent that such a duty is imposed on the Trustee by law,
and it does not derogate from the rights of the Trustee and of the Meeting
of the Debenture Holders according to the Deed of Trust, including their
right to make the Debentures immediately repayable as stated in Section 6
hereof.
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3.6
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The
Debentures have been issued in their par value, i.e. without discount. The
Company reserves the right to allocate the Debentures following an
expansion of the series at a different discount rate (higher or lower)
than the discount rate of the
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| Debentures then in circulation (including due to issuance at a price that reflects a different discount rate). The discounted allocation of the Debentures originating from expansion of the series of the Debentures at a rate exceeding the discount rate established for the Debentures before the expansion may adversely affect the state of the Debenture Holders. | ||
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3.7
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The
provisions of this Section 3 above itself do not bind the Company or the
Debenture Holders to purchase Debentures or sell the Debentures in their
possession.
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3.8
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Wherever
the rules of the Stock Exchange apply or will apply to any action
according to this Deed of Trust, they will have preference over the
provisions hereof, and the dates of such an action will be determined in
accordance with the rules of the Stock
Exchange.
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4.
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Undertakings of the
Company
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4.1
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The
Company undertakes hereby towards the Debenture Holders, through the
Trustee, to pay, on the dates set thereto, all of the sums of the
principal, the interest and the linkage differences that will be payable
pursuant to the terms of the Debentures, and fulfill all of the other
conditions and undertakings imposed thereupon pursuant to the terms of the
Debentures and this Deed.
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4.2
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The
Company hereby warrants that the capital raised that it will hold until
the date of their use according to the designation of the issuance
remuneration as stated in chapter 3 of the Prospectus, will be deposited
and invested by the company as it deems fit, as long as each investment is
made in solid channels, including, but not limited to, an interest-bearing
monetary deposit, a foreign currency deposit, Debentures with a rating of
not less than BBB-, and so on. For this purpose, an investment in shares
or basket certificates whose base asset is shares or share indices or
options in the Maof or the purchase or writing of positions in
derivatives, will not be considered as an investment in solid
channels.
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4.3
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Securing of the
Debentures
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4.4
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The
undertaking of the Company to repay the Debentures (principal, interest
and linkage differences) is not secured by any
collateral.
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4.5
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The
Company will be allowed to pledge its assets, in part or in full, by any
pledge and in any way, including to any third party, without the need for
any consent from the Trustee and/or the Debenture
Holders.
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4.6
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The
Company will be allowed to sell, lease, assign, deliver or transfer in any
other way its assets, in part or in full, in any way, for benefit of any
third party, without the need for any consent of the Trustee and/or the
Debenture Holders.
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4.7
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For
the removal of doubt, it is clarified that the Trustee has no duty to
examine, and in fact the Trustee has not examined, the need for providing
collateral for securing the payments to the Debenture Holders. In its
entering the engagement in this Deed of Trust, and with the consent of the
Trustee to serve as the trustee for the Debenture Holders, the Trustee
does not express its opinion, implicitly or explicitly, as to the ability
of the Company to fulfill its undertakings towards the Debenture Holders.
The foregoing does not derogate from the duty of the Trustee by law and/or
Deed of Trust, nor does it derogate from the duty of the Trustee (to the
extent that this duty applies to the Trustee according to any law) to
examine the effect of changes in the Company from the date of the
Prospectus onwards, to the extent that these may adversely affect the
ability of the Company to fulfill its undertakings to the Debenture
Holders.
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4.8
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The
Debentures will be in an equal pari passu degree of
security among themselves concerning the undertakings of the Company
pursuant to the Debentures, without precedence or preference over each
other.
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5.
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Delisting of the
Debentures from trade initiated by the Stock Exchange
If
the Stock Exchange decides to delist the Debentures (Series D) because the
value of the series falls below the minimum sum stated in the guidelines
of the Stock Exchange, the Company will not perform immediate redemption
of the Debentures (Series D), but the Debentures will be delisted from
trade.
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6.
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Immediate
repayment
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6.1
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In
one or more of the events enumerated below:
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6.1.1
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If
the Company does not repay any sum that is due from it in connection to
the Debentures within 45 days of the maturity of that
sum.
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6.1.2
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A
temporary liquidator has been appointed by a court, or if a valid
resolution has been adopted to liquidate the Company (other than
liquidation for merging with another company and/or restructuring of the
Company) and this appointment or resolution is not cancelled within 30
Business Days of being given.
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6.1.3
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If
an attachment is imposed on some or all of the material assets of the
Company and the attachment is not removed within 60
days.
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6.1.4
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An
execution action is carried out against a material asset of the Company,
in part or in full, and the action is not cancelled within 90
days.
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6.1.5
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If a
receiver is appointed for the Company and/or some or all of its material
assets, and the appointment is not cancelled within 90
days.
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6.1.6
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If
the Company ceases the payments of the Debentures and/or announces its
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| intent to cease the payments of the Debentures. | |||
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6.1.7
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If
the Company discontinues its business affairs or managing its business
affairs, as they are from time to time, and/or announces its intent to
cease in engaging in or managing its business affairs as shall be from
time to time.
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6.1.8
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If
another series of Debentures that the Company has issued is called for
immediate repayment other than according to a resolution of the
Company.
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6.1.9
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If
an order for staying of proceedings is given or if a motion has been filed
concerning the Company to make an arrangement with the creditors of the
Company pursuant to Section 350 of the Companies Law (other than for
merging with another company and/or restructuring of the Company) against
the Company and this order or motion is not cancelled within 90 days of
commencement thereof.
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6.1.10
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If
the Company is wound up or struck for any reason.
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6.1.11
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A
fundamental breach of the terms of the Debentures and the Deed of Trust,
including if it is found that the undertakings of the Company in the
Debentures or herein are incorrect and/or incomplete, provided a notice
has been given to the Company to rectify the violation and the Company
does not correct such a violation within 14 Business Days of issue of the
notice, and provided that the payments to the Debenture Holders and/or the
rights thereof are infringed or may be infringed as a
result.
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6.1.12
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If
there is material concern that the Company will discontinue the payments
of the Debentures and/or there is material concern that it will cease
managing its business affairs as shall be from time to
time.
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6.1.13
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In
the occurrence of any other event that constitutes material infringement
and/or may cause material infringement of the rights of the Debenture
Holders (Series D).
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6.2
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In
the occurrence of any of the events listed in Section 6.1 above, the
following provisions will apply:
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6.2.1
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(A)
In the case of any of the events in Sections 6.1.1 to 6.1.10
(inclusive) above, the Trustee will be required to call a Meeting of the
Debenture Holders (Series D); or
(B)
In the case of any of the events in Sections 6.1.11 to 6.1.13
(inclusive)
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above,
the Trustee will be allowed (but not required) to call a meeting of the
Debenture Holders (Series D), but the Trustee will be required to call a
Meeting of Holders by a written request of Holders of at least ten percent
(10%) of the par value of the unsettled balance of the principal of the
Debentures in circulation, as specified in Section 1.1 of the second
addendum hereto.
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6.2.2
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The
date of convening the meeting, which will be called in accordance with the
provisions of Section 6.2.1 A or B above, will be 30 days after the date
of its calling (or a shorter term in accordance with the provisions of
Section 6.2.5 below), whose agenda will have a resolution concerning
calling for immediate repayment the entire unsettled balance of the
Debentures (Section D), due to the occurrence of any of the events
specified in Section 6.1 above, as relevant.
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6.2.3
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In
the case that until the date of convening of the Meeting, none of the
events specified in Section 6.1 above has been canceled or removed, and
the Meeting of the Debenture Holders as stated resolve to call all of the
unsettled balance of the Debentures for immediate repayment as a Special
Resolution (as defined in the second addendum hereto), the Trustee will be
required, within a reasonable time, to call all of the unsettled balance
of the Debentures (Series D) for immediate repayment, as long as it has
given the Company at least 15 days written warning of its intent to do so
and the event for which the resolution was adopted has not been canceled
or removed within this period.
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6.2.4
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A
copy of the
notice for calling the Meeting will be sent by the Trustee to the Company
as soon as the notice is published and will constitute advance written
warning to the Company of the intent to act to call the Debentures for
immediate repayment.
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6.2.5
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The
Trustee is entitled, at its discretion, to reduce the count of 30 days (in
Section 6.2.2 above) and/or the said 15 days of warning (in Section 6.2.3)
in the case of the Trustee opining that any deferral in calling the debt
of the Company for repayment endangers the rights of the Debenture Holders
(Series D), but in any case the Trustee shall not do so without first
applying to the Company in writing 7 Business Days before the date of the
meeting, indicating the reasons for reducing the time, at the discretion
of the Trustee in the circumstances at hand.
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6.2.6
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The Trustee will be
responsible for reporting to the Debenture Holders of the occurrence of
any of the events specified in Sections 6.1.11 to 6.1.13 (inclusive)
above, whether pursuant to publications that the Company has made or
according to a notice of the Company that will be sent to it according to
the
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provisions
of Section 24 below, soon after it being brought to its attention or
delivered to it.
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7.
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Claims and Proceedings by the Trustee | |
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7.1
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Without
derogating from any other provision of the Deed of Trust, the Trustee
shall be allowed, at its discretion, and will be required to do so by a
special resolution that is adopted by a meeting of the Debenture Holders
and after issue of written notice to the Company immediately after the
adoption of the resolution, to take all of the proceedings, including
legal proceedings and motions for receiving orders as, it deems fit and
subject to the provisions of the law, for enforcing the undertakings of
the Company according to the Deed of Trust, exercising rights of the
Debenture Holders and protection of their rights according to the Deed of
Trust. The Trustee shall be allowed to instigate legal and/or other
proceedings even if the Debentures are not called for immediate repayment,
for protecting the rights of the Debenture Holders and subject to the law.
Notwithstanding the provisions of this section, the right of calling for
immediate repayment will apply only in accordance with the provisions of
Section 6 of thus Deed and not pursuant to this
section.
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7.2
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The
Trustee is allowed, at its exclusive discretion and without a need for
notice to the Company, to apply to the appropriate court for a motion for
receiving orders on any matter that is related to and/or arises from this
Deed of Trust, whether before or after the Debentures are called for
immediate repayment.
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7.3
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Subject
to the provisions of the Deed of Trust, the Trustee is allowed, but not
compelled, to call at any time a general Meeting of the Debenture Holders
in order to discuss and/or receive its instructions on any matter related
to the Deed of Trust, and is allowed to call it
repeatedly.
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7.4
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The
Trustee is allowed, at its exclusive discretion, to delay the execution of
any action thereby pursuant to this Deed of Trust, for applying to the
Meeting of the Debenture Holders or the court until it receives
instructions from the Meeting of the Debenture Holders and/or orders from
the court on how to act. Notwithstanding the foregoing, the Trustee is not
allowed to delay proceedings for calling for immediate repayment that have
been decided upon by a Meeting of the Debenture Holders pursuant to the
provisions of Section 6.2 hereto.
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8.
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Distribution of the Receipts | |
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8.1
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All
of the receipts that are received by the Trustee as a result of calling
the Debentures for immediate repayment and/or as a result of proceedings
that it takes, if it takes any, against the Company, will be by it in the
trust and will serve it for the following purposes and in the following
order of priority:
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Firstly,
for settling all expenses, payments, duties and undertakings expended by
the Trustee, imposed thereupon or caused due to or as a result of the
actions of the Trust or in another manner otherwise connected to the terms
of this Deed, including the fee thereof (on the condition that the Trustee
does not receive a double fee from both the Company and the Debenture
Holders); secondly – in order to pay the Debenture Holders the arrears
interest due to them in accordance with the terms of the Debentures and
subject to the terms of the linkage in the Debentures, pari passu, in
proportion to the sum of the arrears interest due to each of them, without
preference or priority for any of them; thirdly, in order to pay the
Debenture Holders the sums of the principal that are due to them pursuant
to the Debentures held thereby, pari passu, and subject
to the terms of linkage in the Debentures, whether the principal sums have
matured or not, in proportion with the sums due thereto, without any
preference concerning priority in time of issue of the Debentures by the
Company or otherwise, and the surplus, if any, will be paid by the Trustee
to the Company or the successors thereof. Withholding tax will be deducted
at source from the payments to the Debenture Holders, to the extent that
there is a duty to deduct it by law.
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8.2
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Payment
of the sums by the Trustee to the Debenture Holders out of the receipts
that are received thereby, will be subject to rights of other creditors of
the Company, which precede or are equal to those of the Debenture Holders
by law, relative to the said receipts, if there are any, in accordance
with the provisions of the law.
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9.
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Authority to Delay Distribution of Money | |
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9.1
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Notwithstanding
the provisions of Section 8 of this Deed, if the sum of money that is
received as a result of taking the proceedings stated above that is
available for distribution at any time, as stated in that section, will be
less than ten percent (10%) of the balance of the unsettled principal of
the Debentures and the interest, subject to the terms of the linkage in
the Debentures, the Trustee shall not be required to distribute it and it
will be allowed to invest the said sum, in part or in full, in investments
that are permitted according to the Deed of Trust and replace these
investments from time to time with other permitted investments, as it sees
fit.
|
|
|
9.2
|
On
the first payment date of the principal and/or the interest to the
Debenture Holders that is paid after receipt of the sum stated in Section
9.1 above by the Trustee, or earlier, once the aforementioned investments,
with their profits and other sums that are received by the Trustee for the
said purpose, reach a sum that will suffice to pay at least ten percent
(10%) of the unsettled balance of the principal of the Debentures and the
interest (subject to the terms of linkage in the Debentures), the Trustee
shall pay them to the Debenture Holders as stated in section 8
hereof.
|
|
|
10.
|
Notice of Distribution and Depositing with the Trustee | |
-11-
|
10.1
|
The
Trustee shall inform the Debenture Holders of the day and place on which
any payment is made out of the payments stated in Sections 8 and 9 of this
Deed, by 14 days prior notice that is delivered in the manner stated in
section 23 to this Deed hereof.
|
|
|
10.2
|
After
the day stated in the notice, the Debenture Holders will be entitled to
interest for the Debentures in accordance with the rate stated in the
Debentures only for the balance of the principal sum (if any) after
deducting the sum that has been paid or offered to them for such
payment.
|
|
|
11.
|
Abstention from Payment for a Reason that does not depend on the Company | |
|
11.1
|
Any
sum that is due to the debenture Holder that is not actually paid for a
reason that does not depend on the Company, while the Company was prepared
to pay it, will cease to bear interest and linkage differences from the
date stated for its payment, whereas the debenture Holder will be entitled
only to the sums that it would have been entitled to on the date stated
for repayment of that sum on the account of the principal, the linkage
differences or the interest.
|
|
|
11.2
|
The
Company will deposit with the Trustee by no later than 14 business days
from the date stated for that payment, the sum of the payment that has not
been paid for a reason that does not depend on the Company, and such a
deposit will be considered as settlement of that payment, and in the case
of settlement of all dues pursuant to the debenture, as redemption of the
debenture.
|
|
|
11.3
|
The
Trustee shall deposit in a bank the sums that will be transferred thereto
as stated in Section 11.2 of this Deed, to the credit of those Debenture
Holders and will invest it in investments permitted hereby that are
securities of the State of Israel or other securities that the laws of the
State of Israel permit investment of the trust money in, as the Trustee
deems fit and subject to the provisions of the law. Should the Trustee do
so, it will not owe the beneficiaries sums other than the remuneration
that is received from realizing the investments less the expenses,
commissions and mandatory payments, if any that are related to the said
investment in managing the trust account less its fee.
|
|
|
11.4
|
The
Trustee shall transfer to each debenture Holder for which sums and/or
funds due to the Debenture Holders have been deposited with the Trustee,
out of sums thus deposited, less all expenses, commissions, the mandatory
payments and its fee, against presentation of the proof that is required
by the Trustee, to the full satisfaction thereof.
|
|
|
11.5
|
The
Trustee shall keep these sums and invest them in the above mentioned
manner until one year elapses from the final redemption date of the
Debentures. After this date, the Trustee shall transfer to the Company
these sums, including profits that result from their investment, less its
expenses and other expenses expended in accordance with the
|
|
-12-
| provisions of this Deed of Trust (such as service provider fees, etc.) to the extent that these remain in its possession on that date. The Company will keep these sums in trust for an additional year from the day of their transfer thereto by the Trustee, for the Debenture Holders that are entitled to those sums, and with regard to the sums that are transferred thereto by the Trustee as stated above, the provisions of Section 11.3 of this Deed of Trust will apply, mutatis mutandis. Upon the transfer of the sums from the Trustee to the Company, to the satisfaction of the Trustee, the Trustee shall be exempt from payment of such sums to the entitled Debenture Holders. The Company will approve to the Trustee in writing the holding of the sums and the receipt thereof in trust for the said Debenture Holders, and will indemnify the Trustee for any claim and/or expense and/or damage of any type that it sustains due to and for the said money transfer, as long as the Trustee has acted reasonably. The Company will keep these sums in trust for the Debenture Holders that are entitled to these sums for an additional year from the day of their transfer to it from the Trustee. Sums that are not demanded from the Company by a Debenture Holder two years from the final repayment date of the Debentures will be transferred to the Company, which will be entitled to use the remaining sums for any purpose. | ||
|
12.
|
Receipt from the Debenture Holders as Proof | |
|
12.1
|
A receipt from the
Debenture Holder for the sums of the principal, the interest and the
linkage differences that have been paid thereto by the Trustee for that
Debenture will release the Trustee categorically in all matters related to
payment of the sums stated on the receipt.
|
|
|
12.2
|
Until
the end of the period specified in Section 11.5 above, a receipt from the
Trustee concerning the deposit of the sums of the principal, the interest
and the linkage differences in its possession to the benefit of the
Debenture Holders as stated in this Deed will be considered as a receipt
from the Debenture Holders for the sums specified
therein.
|
|
|
12.3
|
The
sums distributed as stated in Sections 11 and 12 hereof will be considered
as payment on the account of the repayment of the
Debentures.
|
|
|
13.
|
Presentation of a Debenture to the Trustee and Noting Concerning Partial Payment | |
|
13.1
|
The
Trustee shall be entitled to demand that a Debenture Holder present to the
Trustee, at the time of payment of any interest or partial payment of
principal, interest and linkage differences in accordance with Sections
8-10 hereof, the debenture for which the payments are being
made.
|
|
|
13.2
|
The
Trustee shall note on the Debenture a comment concerning the sums paid as
above and the date of payment
thereof.
|
|
-13-
|
13.3
|
The
Trustee shall be entitled, in any special case, at its discretion, to
waive the presentation of the Debentures after it is given a statement of
indemnification letter and/or a sufficient guarantee, to its satisfaction,
for damages that may be sustained due to not noting the said comment, as
it deems fit. In such a case, the Company will not assume any liability
for the payments stated in Section 13.1 towards that
Holder.
|
|
|
13.4
|
Notwithstanding
the foregoing, the Trustee shall be entitled, at its discretion, to make
notes in other ways concerning such partial
payments.
|
|
14.
|
Reporting and Undertakings of the Company towards the Trustee | |||
|
14.1
|
The Company hereby undertakes towards the Trustee, for as long as the Debentures (including linkage differences thereupon) have not been repaid, as follows: | |||
|
14.1.1
|
To inform the Trustee upon its notice to the public in writing of reasonable concern on the part of the Company that any or all of the events specified in Section 6.1 above may occur and the occurrence of any or all of the events specified in Section 6.1 above. | |||
|
14.1.2
|
To give to the Trustee by no later than 30 days of the date hereof an amortization table for payment of the Debentures (principal and interest) in an Excel file. | |||
|
14.1.3
|
To inform the Trustee in a written notice signed by the Company's senior financial officer, within 4 Business Days, of effecting any payment to the Debenture Holders and the balance of the Sums that the Company will owe on that date to the Debenture Holders after effecting this payment. | |||
|
14.1.4
|
To give to the Trustee immediately upon their publication a copy of the annual audited and consolidated financial statements (including the periodical statement) and the reviewed consolidated financial statements of the Company. | |||
|
14.1.5
|
To deliver to the Trustee, immediately upon its delivery, any statement that it must submit to the Securities Authority. | |||
|
14.1.6
|
To deliver to the Trustee notices concerning the purchase of Debentures by the Company or the subsidiary, as stated in this Deed of Trust. | |||
|
14.1.7
|
On December 31 of each year, as long as the Deed of Trust is in effect, the Company will provide the Trustee with a confirmation signed by the CEO of the Company whereby to the best of his knowledge, the Company has not violated the Deed of Trust (including violation of the terms of the Debenture), unless explicitly stated otherwise. | |||
|
14.1.8
|
To give the Trustee copies of notices and invitations that the Company gives to the shareholders in the Company and the Debenture Holders, as stated in | |||
-14-
| Section 23.1 hereof. | ||||
|
14.1.9
|
To cause a senior financial officer in the Company to give, within a reasonable time, to the Trustee and/or the persons as he instructs, any explanation, document, calculation or information related to the Company, its business affairs and/or assets that are reasonably required for the purpose of inquires conducted by the Trustee for protecting the Debenture Holders. | |||
|
14.1.10
|
To keep regular account books in accordance with generally accepted accounting principles. To keep the books and the documents used for them as references (including deeds of pledge, mortgage, bills and receipts) and allow the Trustee and/or the party that the Trustee appoints in writing for this purpose, to inspect at any reasonable time any such book and/or document and/or confirmation, to the extent required for protecting the Debenture Holders. The Trustee undertakes to inform whichever party is appointed thereby as above that the Trustee has undertaken to keep information that is given to it in confidence. | |||
|
14.1.11
|
To allow the Trustee or a party that is appointed by the Trustee in writing for this purpose to enter its offices and anywhere where its assets may be found, at any reasonable time, for inspecting its assets, at the discretion of the Trustee, for protecting the Debenture Holders. | |||
|
14.1.12
|
To summon the Trustee to all of its general meetings (whether annual general meetings or special general meetings of the shareholders of the Company), without granting the Trustee a voting right in these meetings. | |||
|
14.1.13
|
To give the Trustee, upon his demand, an affidavit and/or declarations and/or documents and/or details and/or information, as required by the Trustee, in accordance with its reasonable discretion, for applying and exercising the authorities, powers and authorizations of the Trustee and/or its proxies according to this Deed of Trust. | |||
|
14.1.14
|
The Trustee undertakes, by signing the Deed of Trust, to keep in confidence all information that is given to it by the Company and any information that the Trustee and/or its representative and/or agent and/or proxy has inspected and not make any use thereof other than for the fulfillment of its undertakings according to this Deed. Notice of the authorization of a representative and/or agent for the Trustee shall be given to the Company in advance and in writing. The Trustee declares that any representative and/or agent and/or proxy on its part will be committed towards the Trustee and towards the Company to keep in confidence the information that reaches it in its activities for the Trustee. It is | |||
-15-
| clarified that subject to the law, the transfer of the relevant information only to the Debenture Holders for making a decision that is related to their rights in accordance with the Debentures or for giving a report on the state of the Company does not constitute a violation of its undertaking for confidentiality. | ||||
|
15.
|
Additional Undertakings | |||
|
15.1
|
After and to the extent that the Debentures are called for immediate repayment, as defined in Section 6 hereof, the Company will perform, from time to time and at any time it is required to do so by the Trustee, all of the reasonable actions in order to provide for the exercising of all of the authorities granted to the Trustee, and in particular the Company will perform all of the following actions, to the extent that they are reasonable. | |||
|
15.1.1
|
It will declare the declarations and/or sign all of the documents and/or execute and/or have executed all of the actions that are necessary and/or required by law for validating the exercise of the authorities, the powers and the authorizations of the Trustee and/or the agent thereof. | |||
|
15.1.2
|
It will give all of the notices, the orders and the instructions that the Trustee considers beneficial and will demand them. | |||
|
15.1.3
|
For the purposes of this section – a written notice signed by the Trustee that confirms that an action that is required thereby, within his authorities, is a reasonable action, will constitute prima facie evidence thereof. | |||
|
16.
|
Agents | |||
|
16.1
|
The Company hereby irrevocably appoints the Trustee as its agent, to effect and execute on its behalf and in its place all of the actions that it will be required to execute according to the conditions of this Deed, and in general to act on its behalf with regard to the actions that the Company is required to perform according to this Deed, which it has not performed, or exercise some of the authorities granted thereto, and appoint any other person as the Trustee deems fit for performing its duties according to this Deed, subject to the Company not having performed the actions that it must perform pursuant to the terms of this Deed within a reasonable time from the date of the demand of the Trustee, provided it has acted in good faith and reasonably. | |||
|
16.2
|
The appointment pursuant to Section 16.1 above does not bind the Trustee to perform any action. | |||
|
17.
|
Other agreements | |||
| Subject to the provisions of the law and the restrictions imposed on the Trustee by law, the performance of the duty of the Trustee according to this Deed or pursuant to its status as a | ||||
-16-
| Trustee will not prevent it from associating with the Company by various contracts or executing transactions with it within the normal course of its business affairs. | ||||
|
18.
|
Reporting by the Trustee | |||
|
18.1
|
The Trustee shall prepare, at the end of each year following the date hereof, an annual report on the trust affairs (the “Annual Report”) | |||
|
18.2
|
The Annual Report will include a breakdown of the following subjects: current details of the course of affairs of the Trust in the elapsing year; a report on extraordinary events concerning the Trust that have occurred during the elapsing year. | |||
|
18.3
|
The Debenture Holders will be allowed to review the Annual Report in the offices of the Trustee during acceptable business hours and will be allowed to receive a copy thereof upon demand. A copy of the report will be provided to the Company along with it being made available for review by the Debenture Holders. | |||
|
18.4
|
The Trustee shall give the Debenture Holders notice of the date of submission of the report as stated in Section 23 hereof. Should the Trustee learn of a material violation hereof on the part of the Company, it will inform the Debenture Holders of the violation and of the steps that it has taken for preventing it or for fulfilling the undertakings of the Company, as relevant. | |||
|
19.
|
Fee and coverage of expenses of the Trustee | |||
|
19.1
|
The Company shall pay the Trustee for its services hereby as elaborated below: | |||
|
19.1.1
|
For the first year of Trust, i.e. until 12 months from the date of the issue, a sum of NIS 12,000. This sum will be paid within 30 days of the end of the month on which the Company has received from the Trustee a proforma invoice for this payment. The Trustee will be allowed to provide the Company with a proforma invoice within one business day of publishing the results of the issue. | |||
|
19.1.2
|
For each of the years from the second year (i.e. from the end of 12 months from the date of issue) in which Debentures (Series D) will be in circulation and not yet paid up, a sum of NIS 10,000, linked to the index known on the date of publication of the Prospectus, but in any case the sum will not be less than the sum specified above (“the Annual Fee”). The Annual Fee will be paid to the Trustee within 30 days of the end of the month on which the Company received from the Trustee a proforma invoice for the Annual Fee. The Trustee will be allowed to provide the Company a proforma invoice at the beginning of each year of Trust. The Annual Fee shall be paid to the Trustee for the period through to the end of the term of the Trust hereby even if a receiver and/or administrative receiver is appointed for the Company and/or if the Trust hereby | |||
-17-
| is managed under the supervision of a court. | ||||
|
19.1.3
|
If the tenure of the Trustee expires, as stated in Section 27 below, the Trustee will not be entitled to payment of the fee thereof from the day of the expiry of its tenure. If the tenure of the Trustee expires during the Trust year, the fee that was paid for the months for which the Trustee did not serve as the trustee of the Company will be refunded. It is clarified that this refund will not apply to the first year of Trust. | |||
|
19.2
|
The Trustee is entitled to a refund of reasonable expenses incurred within the performance of its duty and/or by the authorities granted thereto hereby, including for publications in the press, as long as for the expenses of an expert opinion, as elaborated in Section 20.2 below, the Trustee will give advance notice of its intent to receive an expert opinion. | |||
|
19.3
|
The Trustee is entitled to additional payment, for an action that results from a violation hereof by the Company or for an action of calling the Debenture (Series D) for immediate repayment and for special actions that it will be required to perform, if required, for fulfillment its duties hereby, without prejudice to the entirety of this Section 19. | |||
| It is agreed hereby between the parties that the Trustee will be entitled to a fee of 120 US dollars for each hour of work that is required as stated above. | ||||
|
19.4
|
For each annual meeting of shareholders or Meeting of Debenture Holders that the Trustee participates in, an additional fee of NIS 500 per meeting will be paid, linked to the Index in accordance with the provisions of Section 19.1.2 above. | |||
|
19.5
|
If changes occur in the provisions of the Law whereby the Trustee will be required to perform actions and/or checks and/or prepare additional reports, the Company undertakes to bear all of the reasonable expenses that the Trustee incurs as a result, including reasonable fee for these actions. The Trustee will inform the Company in advance and in writing before incurring the expenses, of changes as stated in this section. | |||
|
19.6
|
VAT, if charged, will be added to the payments that are due to the Trustee pursuant to the provisions of this section and will be paid by the Company. The Trustee will transfer to the Company a tax invoice for these payments, within 14 days of the date of payment thereof to the Trustee by the Company. | |||
|
20.
|
Special Authorities | |||
|
20.1
|
The Trustee shall be entitled to deposit all of the deeds and documents that attest, represent and/or determine its right concerning any asset then in its possession, in a | |||
-18-
| safe and/or in any other place of its choice, in the possession of any banker and/or any banking company and/or an advocate. | ||||
|
20.2
|
The Trustee is entitled, within the performance of the Trust affairs hereby, to act in accordance with the opinion and/or advice of any advocate, certified public accountant, appraiser, assessor, surveyor, mediator or other expert, whether such an opinion and/or advice has been prepared at the request of the Trustee and/or by the Company. The Trustee shall allow the Company to review any such opinion that the Company as paid for, upon demand. The provisions of this section do not exempt the Trustee of its responsibility by law. | |||
|
20.3
|
Any such advice and/or opinion may be given, sent or received by a letter, telegram, facsimile and/or any other electronic data transfer medium. | |||
|
20.4
|
The Trustee shall not be required to inform any party of the signing of this Deed of Trust and is not allowed to intervene in any way in the management of the business or affairs of the Company other than pursuant to the authorities that have been granted to the Trustee herein. | |||
|
20.5
|
The Trustee shall faithfully use the powers, authorizations and authorities granted thereto hereby in good faith and reasonably. | |||
|
21.
|
Authority of the Trustee to Employ Proxies | |||
| The Trustee shall be entitled to appoint a proxy/ies for acting in its place, whether an advocate or another party, in order to perform or participate in the performing of special actions that must be performed concerning the Trust, including, but not limited to, taking legal proceedings. In addition, the Trustee shall be entitled to settle, at the expense of the Company, the reasonable fee of any such proxy, and the Company will return to the Trustee immediately upon the first demand thereof any such reasonable expense, on the condition that the Trustee gives the company advance notice of such appointment of proxies. | ||||
| The Company will be allowed to object to such an appointment on reasonable grounds, including in the case of the proxy competing directly or indirectly with the business of the Company. | ||||
| The Trustee is allowed at any time to delegate from the Trusteeships, powers, authorizations and authorities granted thereto hereby, in part or in full, to another person or persons, and any such delegation will be made under the conditions and instructions (including permission for a proxy to appoint a proxy) that the Trustee deems suitable, but such delegation of authority will not release the Trustee from any responsibility assumed thereby in case the authorities were not delegated. | ||||
| Such proxies and/or delegates will be bound by the confidentially provisions stated in Section | ||||
-19-
| 14 above. | ||||
|
22.
|
Indemnification of the Trustee | |||
|
22.1
|
The Trustee shall be entitled to receive indemnification from the Debenture Holders or from the Company, as relevant, for reasonable expenses that it has incurred and/or will incur in connection with the actions that it has performed or must perform pursuant to its duty hereby, and/or by law and/or by order of a competent authority and/or any statute and/or upon the demand of the Debenture Holders and/or according to the demand of the Company. Notwithstanding the above, it is clarified and agreed hereby that: | |||
|
22.1.1
|
The Trustee shall not be entitled to demand such indemnification in advance on a matter that is urgent. | |||
|
22.1.2
|
The Trustee shall be entitled to indemnification for liability for torts, in the case of being found thus liable by a final court ruling or a concluded settlement towards a third party that is not one of the Debenture Holders. | |||
|
22.2
|
The Indemnification right detailed in section 22.1 above will be subject to the following terms: | |||
|
|
22.2.1 The expenses for liability for damages is reasonable. | |||
|
|
22.2.2 The Trustee acted in good faith and the appropriate care, and the action was preformed within the fulfillment of its duty, according to the provisions of law and this Deed.22.3 Subject to the provisions of Sections 22.1 and 22.2 above, without prejudice to the rights to compensation and indemnification that are granted to the Trustee by law and/or the commitments of the Company and the Debenture Holders hereby, the Trustee, its proxy, manager, agent or other person appointed by the Trustee hereby will be entitled to receive indemnification out of the sums that are received by the Trustee out of the proceedings taken and/or otherwise hereby, concerning undertakings that they have assumed, concerning expenses they incurred due to the performance of the Trust or related to such actions, which in their opinion were required for executing the aforesaid and/or concerning the exercising of authorities and authorizations granted hereby and concerning all kinds of legal proceedings, opinions of advocates and other experts, negotiations, discussions, expenses, claims and demands concerning any matter and/or thing that are made and/or not made in any way concerning the subject matter, and the Trustee may withhold the funds that are in its possession and pay out of them the sums that are necessary for payment of the said indemnification. The said sums will take precedence over the rights of the Debenture Holders, subject to the provisions of the law. | |||
|
22.3
|
For as long as the Trustee is required pursuant to the terms hereof an/or any statute | |||
-20-
|
|
and/or an order of a competent authority and/or the law and/or upon the demand of the Debenture Holders and/or the demand of the Company to perform any action, including, but not limited to instigating proceedings or filing claims upon the demand of the Debenture Holders, as stated herein, the Trustee shall be allowed to abstain from taking any such action until it receives, to its satisfaction, a letter of indemnification from any or all of the Debenture Holders, and if the action is performed owing to a demand of the Company, from the Company, for any liability for damages and/or expenses that may be incurred by the Trustee and by the Company or either of them, due to performing such an action. It is clarified that the foregoing does not exempt the Trustee from taking an urgent action that is required for preventing material infringement to the rights of the Debenture Holders. | |||
|
22.4
|
Notwithstanding the provisions of this Section 22, as long as the trustee deems it right for protecting and/or exercising the rights of the Debenture Holders, and/or it is required hereby and/or by law and/or by an order of a competent authority and/or any statute and/or upon the demand of the Company and/or the Debenture Holders, to take legal proceedings, in the case of taking such an action due to a demand of the Company, the Company will deposit in the hands of the Trustee a sum that will be determined by the Trustee as the expected sum of the expenses of the Trustee concerning the proceedings. In any other case, the Trustee shall immediately call a Meeting of Debenture Holders in order to confirm their responsibility for covering the expenses involved in proceedings that the Trustee takes. In the case of the Debenture Holders refusing to assume the expenses involved in taking proceedings by the Trustee, the Trustee shall assume no duty to take such proceedings. In addition, all of the sums that are received from the realization proceedings will also be used for refunding and covering expenses that the Debenture Holders thus undertake to bear. It is clarified that the foregoing does not exempt the Trustee from taking an urgent action that is required for preventing material infringement of the rights of the Debenture Holders. | |||
|
23.
|
Notices | |||
|
23.1
|
Any notice from the Company and/or the Trustee to the Debenture Holders, as relevant, shall be given as follows: | |||
|
23.1.1
|
By reporting in the MAGNA system of the Securities Authority; the Trustee is allowed to instruct the Company and the Company will be required to report forthwith in the MAGNA system on behalf of the Trustee any report in the format as forwarded in writing by the Trustee to the Company); and by | |||
|
23.1.2
|
A notice that will be published in two widely distributed daily newspapers that are published in Israel in Hebrew; | |||
-21-
| Any notice or demand from the Trustee to the Company may be given by a letter that is sent by registered mail to the address stated herein, or to any other address that the Company informs the Trustee of in writing, or by transmission by facsimile or by courier and any such notice or demand will be considered as having been received by the Company: (1) in the case of sending by registered mail – three business days from the day of mailing thereof; (2) in the case of transmission by facsimile (along with a telephone check of receipt thereof) – one business day from the day of its transmission; (3) and in the case of sending by courier – upon its delivery by the courier to the addressee or the offering thereof to the addressee for receipt, as relevant. | ||||
|
23.2
|
Any notice or demand from the Company to the Trustee may be given by a letter that is sent by registered mail to the address stated herein, or to another address that the Trustee informs the Company of in writing, or by transmission by facsimile or by electronic mail (“email”) or by courier and any such notice or demand will be considered as having been received by the Trustee: (1) in the case of sending by registered mail – three business days from the day of mailing thereof; (2) in the case of transmission by facsimile or email (along with a telephone check of receipt thereof) or of sending by courier – upon its delivery by the courier to the addressee or the offering thereof to the addressee for receipt, as relevant. | |||
|
23.3
|
Copies of notices and invitations that the Company gives to the Debenture Holders will also be sent by the Company in an Immediate Report, a copy of which will be given to the Trustee. | |||
|
24.
|
Waiver; Settlement; and Changes in the Terms of the Deed of Trust | |||
|
24.1
|
Subject to the provisions of the Law and the regulations promulgated and/or that will be promulgated thereby, the Trustee shall be allowed, from time to time and at any time, if it is convinced that this does not in its opinion infringe upon the rights of the Debenture Holders, to waive any violation or non-fulfillment of any of the terms hereof by the Company, as long as these do not relate to the terms of repayment of the Debentures and the grounds for calling for immediate repayment as specified in Section 6 hereof. | |||
|
24.2
|
Subject to the provisions of the Law and the regulations promulgated and/or that will be promulgated thereby, the Trustee is allowed, whether before or after the principal of the Debentures is called for immediate repayment, to settle with the Company concerning any right or claim of the Debenture Holders and agree with the Company to any arrangement concerning the rights of the Debenture Holders, including waiving any right or claim of the Debenture Holders towards the Company hereby. If the Trustee settles with the Company after having received prior approval of the Debenture | |||
-22-
| Holders as stated above, the Trustee shall be exempt of liability for this action, as approved by the general Meeting. The foregoing does not exempt the Trustee from responsibility for its actions until the date of making a decision of the Meeting of the Holders and/or its actions concerning its application. | ||||
|
24.3
|
Subject to the provisions of the Law and the regulations promulgated and/or to be promulgated thereby, the Trustee and the Company may, whether before or after the principal of the Debentures is called for immediate repayment, change the Deed of Trust (including a change in the conditions of the Debentures), if one of the following is fulfilled: | |||
|
24.3.1
|
The Trustee is satisfied that the change does not adversely affect the Debenture Holders. | |||
|
24.3.2
|
The Debenture Holders have agreed to the proposed change, by a special decision as specified in Sections 2.4 and 2.10 of the second addendum hereinafter. | |||
|
24.4
|
The Trustee shall be entitled, at the request of the Company from time to time, to make changes in the Deed of Trust and/or in the Debentures, as required by a Securities Authority and/or the Stock Exchange and/or any other governmental authority, for the purpose of listing the Debentures for trade on the Stock Exchange, as long as the Trustee is satisfied that the change does not cause a material adverse effect to the Debenture Holders. | |||
|
24.5
|
The Company shall give the Debenture Holders a notice of any such change, in accordance with Section 23 hereof, as soon as possible after its execution. | |||
|
24.6
|
The general meetings as stated in this section above will be convened, as stated in the second addendum hereto. | |||
|
24.7
|
In any case of use of the right of the Trustee in accordance with this section above, the Trustee shall be entitled to demand that the Debenture Holders give to it or to the Company their certificates, for noting a comment concerning any such settlement, waiver, change or amendment and according to the demand of the Trustee, the Company shall note such a comment in the certificates that are given to it. In any case of use of the right of the Trustee pursuant to this section, the Trustee shall announce this, within a reasonable time, in writing, to the Debenture Holders. | |||
|
25.
|
Register of Debenture Holders and Transfer of Debentures | |||
|
|
||||
|
25.1.1
|
The Company shall keep and maintain in its Registered office a register of the Debenture Holders, listing the names of the Debentures Holders, their addresses and the number and par value of the Debentures registered to their name. The | |||
-23-
|
|
register will also list any transfer of title to the Debentures. The Trustee and any Debenture Holder will be entitled, at any reasonable time, to inspect this Register. The Company is entitled to close the register from time to time or for a period or periods that do not exceed an aggregate of thirty (30) days a year. | |||
|
25.1.2
|
The Company will not be required to note in the Registers of Debenture Holder any notice concerning explicit, implicit or putative Trust, or hypothecation or pledging of any kind or any equity, claim or offset right or any other right, concerning the Debentures. The Company will only recognize the ownership by the person whose name the Debentures are listed under, as long as the legal heirs, administrators of estate or executors of the will of the registered owner or any person who will be entitled to the Debentures due to the bankruptcy of any registered owner (and in the case of a corporation - due to the liquidation thereof) will be entitled to register as the Holders thereof, after giving evidence that in the opinion of the Company is satisfactory for proving the right of any of the above to be registered as the Holder thereof. | |||
|
26.
|
Release | |||
|
26.1
|
Once it is proved to the satisfaction of the Trustee that all of the Debentures have been paid up, redeemed or when the Company deposits in the trust of the Trustee sums of money that are enough for redeeming all of the Debentures, and once it is proved to the satisfaction of the Trustee that all of the undertakings and expenses made or sustained by the Trustee concerning the Deed of Trust and the instructions thereof have been fully paid up, the Trustee shall be required, upon the first demand of the Company, to act with the sums that have been deposited for Debentures whose redemption is not required according to the conditions stated herein. | |||
|
27.
|
Appointment of a New Trustee and Expiry of the Tenure of the Trustee | |||
|
27.1
|
The provisions of the Securities Law will apply to the tenure of the Trustee and the expiration thereof and the appointment of a new Trustee. Subject to the provisions of the Law, the Trustee and any Trustee replacing it will be entitled to resign from their functions as Trustees after giving written notice to the Company three (3) months in advance, elaborating the reasons for resignation. | |||
|
27.2
|
The resignation will take effect only after it is confirmed by the court, from the day established in the confirmation. In the case of such resignation or in the case of expiry of the tenure of the Trustee, the court is entitled to appoint another Trustee instead of the Trustee, for a period and under conditions as it deems fit. | |||
|
27.3
|
The court will be entitled to dismiss a Trustee if it does not fulfill its duty properly or if the court finds another reason for the dismissal thereof. | |||
-24-
|
27.4
|
The Holders of ten percent (10%) of the unsettled balance of the Debentures are entitled to call a general meeting of the Debenture certificate Holders owners. Each Meeting thus convened is allowed to decide, according to a vote of Holders of at least fifty percent (50%) of the unsettled balance of the Debentures, for the transfer of Trustee from its duty. | |||
|
27.5
|
The Securities Authority is allowed to apply to the Court with a motion to conclude the tenure of the Trustee, in accordance with Section 35 N of the Law. | |||
|
27.6
|
The Trustee and the Company will submit an immediate report to the Securities Authority of any such event in this section, concerning the tenure of the Trustee. | |||
|
27.7
|
Each new trustee will have the same powers, authorities and other authorizations and may act in all senses as though appointed as the Trustee from the outset, subject to the provisions of Section 35 N of the Law. | |||
|
27.8
|
The Trustee shall transfer to the new Trustee all of its records concerning the Debenture Holders, if there are any, information about the payments made by the Trustee through to that time, if such were effected, any report and any information given hereby and any information that is reasonably required for the new Trustee, and the Trustee shall transfer to the new Trustee any sum that will be held thereby at that time concerning the Debentures. | |||
|
28.
|
Meeting of Debenture Holders | |||
| Meetings of the Debenture Holders will be managed, as stated in the second addendum hereto. | ||||
|
29.
|
Investments of Funds | |||
|
29.1
|
All sums that the Trustee is allowed to invest hereby will be invested thereby in bank/s, in its name or to its order, in investments that the laws of the State of Israel permit investing trust funds in, as it deems suitable, subject to the terms hereof and the provisions of the law, as long as any investment in securities will be in securities that have been given a rating of not less than AA. If the Trustee has done so, it will not owe the beneficiaries of these sums other than the remuneration received from realizing the investments less the expenses related to this investment and managing the trust accounts, the commissions, after deducting the mandatory payments imposed on the trust account. Out of these sums, the Trustee shall transfer sums to the Debenture Holders that are entitled thereto, as soon as possible after the Trustee is provided proof and confirmations of their right to these sums to the full satisfaction of the Trustee, after deducting its expenses and commission at the rate that is generally employed thereby at that time. | |||
-25-
|
30.
|
Applicability of the Law | |||
| This Deed and the Debentures are subject to Israeli law. On any matter that has not been mentioned herein and in any case of a contradiction between the provisions of the law and this Deed, the parties will act in accordance with the provisions of Israeli law. In any case of a contradiction between the provisions described in the Prospectus concerning this Deed and/or the Debentures, the provisions hereof will take precedence. | ||||
|
31.
|
Exclusive Jurisdiction | |||
| The only court that will be authorized for hearing matters related hereto and to the Debentures attached as an appendix hereto will be competent court in Tel Aviv Yaffo. | ||||
|
32.
|
General | |||
| Without derogating from the other provisions hereof and of the Debentures, any waiver, extension, accommodation, silence, abstention from action (“waiver”) on the part of the Trustee concerning the non-fulfillment or partial or incorrect fulfillment of any of the undertakings towards the Trustee hereby and in accordance with the Debenture will not be considered as a waiver by the Trustee of any right but as limited consent for the particular instance on which it has been given. Without derogating from the other provisions hereof and the Debenture, any change in the undertakings to the Trustee necessitates receipt of the prior written consent of the Trustee. Any other consent, whether oral or by waiver or abstention from action or in any way that is not in writing, will not be considered as any consent. The rights of the Trustee hereby are independent and unconditional of each other and are in addition to any right that the Trustee has and/or will have by law and/or agreement (including this Deed and the Debenture). | ||||
|
33.
|
Addresses | |||
| The addresses of the parties will be as specified in the preamble hereto, or any other address for which an appropriate written notice is given to the counterparty. | ||||
|
34.
|
Certification for MAGNA | |||
| In accordance with the provisions of the Securities Regulations (Signing and Electronic Reporting) 5763 2003, the Trustee hereby approves that the competent party of the Company report electronically to the Securities Authority of this Deed of Trust. | ||||
In
witness whereof the parties have set their hands hereunto
| Cellcom Israel Ltd. | Hermetic Trust (1975) Ltd. |
I, the
undersigned, Xxxxx Xxxxx, Adv., confirm that this Deed of Trust has been signed
by Cellcom Israel Ltd. by Messrs. Tal Raz and Xxxx Xxxxxxxxx Xxxxxxx and that
their signature binds the Company concerning this Deed of Trust.
| Xxxxx Xxxxx, Adv. |
-00-
Xxxxxxx
Xxxxxx Ltd.
First
Addendum
Debentures
(Series D)
Issue of a
series of up to NIS ________________________________ par value of
registered to name Debentures (Series D), bearing annual interest at a rate of
__%, linked (principal and interest) to the consumer price index published in
August 2007, for repayment in 5 equal annual installments on July 1 of each of
the years 2013 to 2017. The interest on the Debentures will be paid once a year
on July 1 in each of the years 2008 to 2017 (inclusive).
Registered
to name Debentures (Series D)
Number
1
Part value
NIS ______________
Interest
of __% annually.
|
1.
|
This
certificate attests that Cellcom Israel Ltd. (hereinafter: “the Company”) shall pay
the Israel Discount Bank nominees Ltd. or any party that will be the
registered owner of this Debenture (hereinafter: the “Debenture Holder (Series
D”) at the end trading on June 19 of each year before the date of
payment of the appropriate installment for the Debentures (Series D) out
of the principal of the par value of the Debentures (Series D) that are in
circulation, subject to the terms of linkage and all other terms listed in
the terms of the overleaf.
|
|
2.
|
The
payments of the principal of the Debentures and the payments of the
interest will be made against delivery of the Debenture to the Company at
its registered office, as stated in the conditions of the overleaf or at
any other place announced by the company by no later than five Business
Days before the payment date.
|
|
3.
|
Debentures
(Series D) are issued pursuant to the Deed of Trust (hereinafter: the
“Deed of Trust”)
of September 20 that has been signed between the Company and Hermetic
Trust (1975). (hereinafter: the “Trustee”).
|
|
4.
|
The
Debentures are not secured by any collateral. All of the Debentures
(Series D) will have an equal degree of security among each other (pari passu) concerning
the undertakings of the Company pursuant to the Debentures (Series D),
without a preferential right or priority over one
another.
|
|
5.
|
This
Debenture (Series D) is issued subject to the conditions listed in the
overleaf, the conditions listed in the Deed of Trust and in the
Prospectus.
|
Signed
with the stamp of the Company, affixed
on__________________________________
Chairman
of the board: _________________________
-27-
|
The Conditions Listed
Overleaf
|
|
1.
|
General
|
In this
Debenture (Series D), the following expressions will have the following
meanings, unless another meaning is implied by the context, as
follows:
|
“The
Company” and/or "the
Issuer"
|
–
|
||
|
The
“Deed of
Trust”
|
–
|
The
Deed of Trust that was signed between the Company and the Trustee on
September 20, 2007, including the appendices attached thereto, which
constitute an integral part thereof;
|
|
|
The “Prospectus”
|
–
|
The
prospectus of the Company that is due to be published, inter alia, for the
issue of the Debentures (Series D);
|
|
|
The “Debentures (Series D)”
or the “Debentures”
|
–
|
The
Debentures (Series D) of the Company, registered to name, that will be
issued in accordance with the Prospectus;
|
|
|
The “Trustee”
|
–
|
Hermetic
Trust (1975) Ltd. and/or any party serving from time to time as a trustee
of the Debenture Holders (Series D) pursuant to the Deed of
Trust;
|
|
|
“Register”
|
–
|
Register
of the Debenture Holders (Series D) as stated in Section 25 of the Deed of
Trust;
|
|
|
The “Debenture Holders (Series D)”
and/or the “Debenture Holders”
and/or the “Debenture Owners
(Series D)” and/or the “Debenture
Owners”
|
–
|
The
persons whose names are listed at the time in question in the register of
the Debenture Holders (Series D) and in the case of a number of joint
Holders, the joint Holder first listed in the register;
|
|
|
The “Debenture Certificate (Series
D)” and/or the “Debenture
Certificate”
|
–
|
A
Debenture certificate (Series D) whose text appears as the first addendum
to this deed;
|
-28-
|
The “Law”
|
–
|
The
Securities Law, 5728 – 1968 and the regulations thereby, as effective from
time to time;
|
|
|
“Principal”
|
–
|
The
par value of the Debentures (Series D) in circulation;
|
|
|
The “Consumer Price Index” (“the
Index”)
|
–
|
The
price index known by the name of "the Consumer Price Index", which
includes fruit and vegetables, as published by the Central Bureau of
Statistics, including that index even if published by another official
body or institute, and including any official index that replaces it,
whether composed of the same data as the existing index or not. If it is
replaced by another index that is published by such a body or institute,
and that body or institute did not determine the ratio between it and the
index thus replaced, the ratio will be determined by the Central Bureau of
Statistics, and in the case of such a ratio not being determined, it will
be determined by the Trustee, who will determine, following consultation
with economic experts of his choice, the ration between the other index
and the replaced index;
|
|
|
The “Known Index”
|
–
|
The
last known consumer price index;
|
|
|
The “Basic Index”
|
–
|
The
consumer price index for August 2007 that was published on September 12,
2007.
|
|
|
The “Payment Index”
|
–
|
The
consumer price index known on the date of making any payment on the
account of the principal and/or the interest;
|
|
|
“Business
day”
|
–
|
A
day on which most of the banks in Israel are open for conducting
transactions;
|
|
|
The “Stock Exchange”
|
–
|
The
Tel Aviv Stock Exchange Ltd.
|
|
|
“Trade
Day”
|
–
|
A
day on which transactions are made on the Tel
|
-29-
| Aviv Stock Exchange Ltd; | |||
|
“Meeting”
|
–
|
A
meeting of the Debenture Holders, including a class
meeting.
|
|
|
“Class
meeting”
|
–
|
A
meeting of the Debenture Holders, who have an interest that is materially
different from the interest of other Debenture Holders on the matter that
is being discussed in the meeting.
|
|
|
The “Nominee Company”
|
–
|
The
Israel Discount Bank Nominees
Ltd.
|
|
1.1
|
This
Debenture is one of a series of registered to name Debentures (Series D)
to a total specified sum that will be determined in accordance with
Section 2.2 of the Prospectus. The Debentures of this series will have an
equal, pari passu
degree of security among each other concerning the undertakings of the
Company pursuant to the Debentures (Series D), without a right of
preference or priority of one over another concerning the sums
due.
|
|
|
2.
|
Securing the Debentures (Series D) | |
|
2.1
|
The
undertaking of the Company to repay the Debentures (principal, interest
and linkage differences) is not secured by any
collateral.
|
|
|
2.2
|
The
Company will be allowed to pledge its assets, in part or in full, by any
pledge and in any way, to the benefit of any third party, without the need
for any consent from the Trustee and/or the Debenture
Holders.
|
|
|
2.3
|
The
Company will be allowed to sell, lease, assign, deliver or transfer in any
other way its assets, in part or in full, in any way, for benefit of any
third party, without the need for any consent of the Trustee and/or the
Debenture Holders.
|
|
|
2.4
|
For
the removal of doubt, it is clarified that the Trustee has no duty to
examine, and in fact the Trustee has not examined, the need for providing
collateral for securing the payments to the Debenture Holders. In its
entering the engagement in this Deed of Trust, and with the consent of the
Trustee to serve as the trustee for the Debenture Holders, the Trustee
does not express its opinion, implicitly or explicitly, as to the ability
of the Company to fulfill its undertakings towards the Debenture Holders.
The foregoing does not derogate from the duty of the Trustee by law
and/or, nor does it derogate from the duty of the Trustee (to the extent
that this duty applies to the Trustee according to any law) to examine the
effect of changes in the Company from the date of the Prospectus onwards,
to the extent that these may adversely affect the ability of the Company
to fulfill its undertakings to the Debenture
Holders.
|
|
-30-
|
2.5
|
The
Debentures will be in an equal pari passu degree of
security among themselves concerning the undertakings of the Company
pursuant to the Debentures, without precedence or preference over each
other.
|
|
3.
|
Date of Repayment of
the Principal of the Debentures (Series D)
|
|
Subject
to all of the other terms of the Debentures (Series D), the principal of
the Debentures (Series D) will be repaid in five (5) equal annual
installments on July 1 in each of the years 2013 to 2017 (inclusive). The
principal of the Debentures (Series D) is linked to the Consumer Price
Index as specified in Section 5 below.
|
|
|
4.
|
The
Interest
|
|
The
unsettled balance of the principal of the Debentures (Series D) in
circulation will bear annual interest at a rate that will be determined in
accordance with Section 2.2 of the Prospectus. The interest for the
Debentures (Series D) is linked to the Consumer Price Index as specified
in Section 5 below.
|
|
|
The
interest for the Debentures (Series D) will be paid in annual
installments, on July 1 of each of the years 2008 to 2017 (inclusive), For
the period of the twelve (12) months ending on the last day before each
such date, except the first interest period, for which the proportionate
part of the interest will be paid (calculated based on 365 days a year)
for the period starting on the first day of trading after the tender (the
settlement day) and ending on June 30, 2008. The first interest payment
for the Debentures (Series D) will be on July 1, 2008.
|
|
|
The
Company will announce by immediate report, within a Business Day of the
date of establishing the interest for the tender, the interest rate during
the first interest period. The last payment of the interest for the
Debentures (Series D) will be made on July 1, 2017, with the last payment
of the principal of the Debentures (Series D), against the handover of the
Debentures Certificates (Series D) to the Company.
|
|
|
Income
tax (see Section 2.3 of the Prospectus) will be deducted from each payment
of interest for the Debentures (Series D), according to the
law.
|
|
|
5.
|
Terms of Linkage of
the Principal and the Interest
|
|
The
principal of the Debentures and the interest for the principal will be
linked to the Consumer Price Index based on the Basic Index, as
follows:
|
|
|
If
it is found, on the date of repayment of any installment on the account of
the principal and/or the interest for the Debentures, that the payment
index for that date has increased relative to the Basic Index, the Company
will pay that installment of principal and/or interest increased relative
to the rate of the change in the Payment Index compared to the Basic
Index. However, if it is found that the Payment Index is identical to the
Basic Index or is lower, the Payment Index will be the Basic
Index.
|
-31-
|
6.
|
Payments of the Principal and the Interest of the Debentures | |
|
6.1
|
Each
installment on the account of the principal for the Debentures (Series D)
will be paid to the Debenture Holders (Series D) whose names are listed in
the Register of Debenture Holders (Series D) of the Company as Holders on
the end of June 19 of each year before the date of payment of the
appropriate installment for the Debentures (Series D) (the “Determinant Day for Payment of
the Principal of the Debentures (Series D)”).
|
|
|
Each
installment on the account of the interest for the Debenture (Series D)
will be paid to the Debenture Holders (Series D) whose names are listed in
the in the Register of Debenture Holders (Series D) of the Company as
Holders on the end of June 19 of each year before the date of payment of
the appropriate installment for the Debentures (Series D) (the “Determinant Day for Payment of
the Interest of the Debentures (Series D)”).
|
||
|
Notwithstanding
the foregoing, the last installment of the principal and the interest for
the Debentures (Series D) will be paid against delivery of the Debentures
Certificates (Series D) to the Company, at its registered office or
anywhere else as advised by the Company, by no later than five (5)
Business Days before the day stated for payment of the last
installment.
|
||
|
6.2
|
In
any case of the date of payment of the last installment on the account of
principal and/or interest falls on a day that is not a Business Day, the
payment date will be deferred to the first Business Day thereafter without
additional payment, interest or linkage.
|
|
|
6.3
|
Payment
to beneficiaries will be made by checks or by bank transfer to the credit
of the bank account of the persons whose names are listed in the Register
of the Debenture Holders and that is indicated in the details that they
give to the Company in writing in advance, in accordance with the
provisions of subsection 6.4 below. If the Company cannot, for any reason
that does not depend thereupon, pay any sum to the entitled parties, the
provisions of Section 7 below will apply.
|
|
|
6.4
|
A
Debenture Holder that will be interested in informing the Company of the
details of the bank account for crediting it with payments pursuant to the
Debentures as stated above, or change these account detail or instructions
concerning the mode of payment, may do so by notice to the company by
registered letter. However, the Company will fulfill the instruction only
if it reaches its registered office at least thirty (30) days before the
determining Date for payment of any installment pursuant to the
Debenture.
|
|
|
In
the case of the notice being received by the Company belatedly, the
Company shall act thereby only concerning installments whose Determinant
Payment Date is after the
|
||
-32-
| date of payment which is near to the day of receipt of the notice. | ||
|
6.5
|
If a
Debenture Holder who is entitled to such a payment has not given the
Company in advance details concerning its bank account, any installment on
the account of the principal and interest will be made out by a check that
will be sent by registered mail to its last address listed in the Register
of the Debenture Holders. Sending of a check to a beneficiary by
registered mail as stated above will be considered, for all intents and
purposes, as payment of the sum specified therein on the date of its
mailing, as long as it is duly paid upon its presentation for
collection.
|
|
|
7.
|
Abstention from Payment for a Reason that does not Depend on the Company | |
|
7.1
|
Any
sum that is due to the debenture Holder that is not actually paid for a
reason that does not depend on the Company, while the company was prepared
to pay it, will cease to bear interest and linkage differences from the
date stated for its payment, whereas the Debenture Holder will be entitled
only to the sums that it would have been entitled to on the date stated
for repayment of that sum on the account of the principal, the linkage
differences or the interest.
|
|
|
7.2
|
The
Company will deposit with the Trustee by no later than 14 business days
from the date stated for that payment, the sum of the payment that has not
been paid for a reason that does not depend on the Company, and such a
deposit will be considered as settlement of that payment, and in the case
of settlement of all dues pursuant to the Debenture, as redemption of the
Debenture.
|
|
|
7.3
|
The
Trustee shall deposit in a bank the sums that will be transferred thereto
as stated in Section 7.2 above, to the credit of those Debenture Holders
and will invest it in investments permitted hereby that are securities of
he State of Israel or other securities that the laws of the State of
Israel permit investment of the trust money in, as the Trustee deems fit
and subject to the provisions of the law. Should the Trustee do so, it
will not owe the beneficiaries for sums other than the remuneration that
is received from realizing the investments less the expenses, commissions
and mandatory payments, if any that are related to the said investment in
managing the trust account less its fee.
|
|
|
7.4
|
The
Trustee shall transfer to each Debenture Holder for which sums and/or
funds due to the Debenture Holders have been deposited with the Trustee,
out of sums thus deposited, less all expenses, commissions, the mandatory
payments and its fee, against presentation of the proof that is required
by the Trustee, to the full satisfaction
thereof.
|
|
|
7.5
|
The
Trustee shall keep these sums and invest them in the above mentioned
manner until one year elapses from the final redemption date of the
Debentures. After this date, the Trustee shall transfer to the Company
these sums, including profits that result from
|
-33-
|
|
their
investment, less its expenses and other expenses incurred in accordance
with the provisions of this Deed of Trust (such as service provider fees,
etc.) to the extent that these remain in its possession on that date. The
Company shall keep these sums in trust for an additional year from the day
of their transfer thereto by the Trustee, for the Debenture Holders that
are entitled to those sums, and with regard to the sums that are
transferred thereto by the Trustee as stated above, the provisions of
Section 7.3 of this Deed of Trust will apply, mutatis mutandis. Upon
the transfer of the sums from the Trustee to the Company, to the
satisfaction of the Trustee, the Trustee shall be exempt from payment of
such sums to the entitled Debenture Holders. The Company shall approve to
the Trustee in writing the holding of the sums and the receipt thereof in
trust for the said Debenture Holders, and will indemnify the Trustee for
any claim and/or expense and/or damage of any type that it sustains due to
and for the said money transfer, as long as the Trustee has acted
reasonably. The Company shall keep these sums in trust for the Debenture
Holders that are entitled to these sums for an additional year from the
day of their transfer to it from the Trustee. Sums that are not demanded
from the Company by a Debenture Holder two years from the final repayment
date of the Debentures will be transferred to the Company, which will be
entitled to use the remaining sums for any purpose.
|
|
|
8.
|
The register of the Debenture Holders and transfer of Debentures | |
|
8.1
|
The
Company shall keep and maintain in its registered office a Register of the
Debenture Holders, listing the names of the Debentures Holders, their
addresses and the number and par value of the Debentures registered to
their name. The register will also list any transfer of title to the
Debentures. The Trustee and any Debenture Holder will be entitled, at any
reasonable time, to review this Register. The Company is entitled to close
the Register from time to time or for a period or periods that do not
exceed an aggregate of thirty (30) days a year.
|
|
|
8.2
|
The
Company will not be required to note in the Debenture Holder registers any
notice concerning explicit, implicit or putative Trust, or hypothecation
or pledging of any kind or any equity, claim or offset right or any other
right, concerning the Debentures. The Company shall only recognize the
ownership of the person whose name the Debentures are listed under, as
long as the legal heirs, administrators of estate or executors of the will
of the registered owner or any person who will be entitled to the
Debentures due to the bankruptcy of any registered owner (and in the case
of a corporation - due to the liquidation thereof) will be entitled to
register as the Holders thereof, after giving evidence that in the opinion
of the Company is satisfactory for proving the right of any of the above
to be registered as their Holder thereof.
|
|
|
9.
|
The Debenture Certificates (Series D), their Split and Transfer | |
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|
9.1
|
For
the Debentures that are listed to one Holder, one certificate will be
issued, or at its request, a number of certificates will be issued (the
certificates referred to in this section will be referred to hereinafter
as: the “Certificates”).
|
|
|
9.2
|
Each
Certificate may be split into certificates whose total principal equals
the sum of the par value of the Debentures that have been included in a
Certificate whose split has been requested, as long as the new Debenture
Certificates that are issued will be to par value sums in whole New
Israeli Shekels, in accordance with a split request that has been signed
by the registered owner of that Debenture Certificate, against the
provision of that Debenture Certificate to the Company at its registered
office for effecting the split. The split shall be made within seven (7)
days of the end of the month on which the Certificate along with its split
request were provided at the registered office of the Company. All of the
expenses and commissions involved in the split, including stamp tax and
other duties, if any, will apply to the party requesting the
split.
|
|
|
9.3
|
The
foregoing will apply accordingly to allocation letters, as long as they
have not been replaced with Certificates.
|
|
|
9.4
|
The
Debentures may be transferred concerning any par value sum, as long as it
is in whole New Israeli Shekels. Any transfer of the Debentures that is
not performed through the trading system of the Stock Exchange will be
made out according to a transfer deed that is made out in a generally
accepted format for transferring shares, duly signed by the registered
owner or the legal representatives thereof, and by the transferee or the
legal representatives thereof, which will be delivered to the Company at
its registered office along with any other proof that is required by the
Company for proving the right of the transferor to their transfer and the
identity thereof. If any stamp tax or other mandatory payment applies to
the deed of transfer of the Debentures, the company will be given proof of
their payment by the requester of the transfer, which will be to the
satisfaction of the Company.
|
|
|
9.5
|
It
is clarified hereby that all of the expenses and commissions involved in
the transfer, including stamp tax and other mandatory payments and duties,
if any, will be borne by the party requesting the transfer only. The
Company shall be allowed to keep the deed of transfer.
|
|
|
9.6
|
In
the case of a transfer of only part of the sum of the specified principal
of the Debentures in the Certificate, the Certificate will be split first
as specified in Section 9.2 above into a number of Debenture Certificates
as required thereby, in such a manner that the total sums of the principal
specified therein is equal to the sum of the specified principal of the
said Debenture Certificate.
|
|
|
9.7
|
After
fulfillment of all of the conditions stated above, the transfer will be
registered in
|
-35-
the Register of the
Debenture Holders.
|
10.
|
Delisting of the Debentures from trade initiated by the Stock Exchange | |
| If the Stock Exchange decides to delist the Debentures (Series D) because the value of the series falls below the minimum sum stated in the guidelines of the Stock Exchange, the Company will not perform immediate redemption of the Debentures (Series D), but the Debentures will be delisted from trade. | ||
|
11.
|
Purchase of the Debentures (Series D) by the Company and/or by a subsidiary | |
|
11.1
|
The
Company shall issue the Debentures under conditions as specified in the
Prospectus and in the Debentures and will not secure them with any
collateral.
|
|
|
11.2
|
The
Company reserves the right to purchase at any time, within or without the
Stock Exchange, Debentures (Series D) at any price of its choosing,
without prejudice to the obligation of repayment of the Debentures
remaining in circulation as specified above. The Debentures that will be
purchased by the Company will be cancelled and delisted from trade on the
Stock Exchange, and the Company will not be allowed to re-issue
them.
|
|
|
11.3
|
A
subsidiary of the Company and/or the controlling shareholder and/or
companies under the control of the controlling shareholder of the Company
(“Affiliated Company”) are allowed to purchase and/or sell from time to
time within or without the Stock Exchange, including by way of issuance by
the Company, Debentures at any price of their choosing and sell them
accordingly. The Debentures thus held by the allied corporation will be
considered as an asset of the affiliated company, and if they are listed
for trading, they will not be delisted from trade on the Stock Exchange
other than subject to the rules of the Stock Exchange.
|
|
|
On
the matter of holding Meetings of Holders of Debentures, the provisions of
Section 2.19 of the second addendum to this Deed will
apply.
|
||
|
11.4
|
The
Company is allowed, at any time and from time
to time, without needing the consent of the Debenture Holders or the
Trustee, to issue, including to an allied corporation, Debentures of a
different type and/or of different series and/or other securities, whether
secured or unsecured, whether granting a right of conversion into shares
of the Company or not granting such right, whether by public offering
pursuant to a prospectus or otherwise, under terms of redemption,
interest, linkage, discounting, repayment rate in the case of liquidation
and other conditions, as the Company sees fit, whether they are preferable
to the terms of the Debentures (Series D) issued pursuant to the
Prospectus, equal to them or inferior to
them.
|
|
|
11.5
|
Without
derogating from the foregoing, the Company is allowed, at any time and
from
|
-36-
|
|
time
to time, without needing the consent of the Debenture Holders or the
trustee, to issue, including to an affiliated company, additional Series D
Debentures. The additional Debentures that will be issued, to the extent
issued, including their conditions and resulting rights, will be identical
and as the existing Debentures, and will together constitute one series
for all purposes (it is clarified that in the case of such issuance, the
offerees to whom additional Debentures will be issued will not be entitled
to payment of principal and/or interest whose determinant payment date
preceded the issuance date). The provisions of the Deed of Trust will
apply to these additional Debentures. The Company shall publish an
immediate statement on such an issuance of additional Debentures and will
apply to the Stock Exchange in an application to list these additional
Debentures for trading these additional Debentures therein. In the case of
expansion of the series of the Debentures (Series D) as above, the fee of
the Trustee shall be increased in proportion to the increase of the size
of the series.
|
|
|
The
Company shall inform the Trustee and the Debenture Holders of the issue of
these additional Debentures.
|
||
|
This
right of the Company does not exempt the Trustee from examining such an
issuance, to the extent that such a duty is imposed on the Trustee by law,
and it does not derogate from the rights of the Trustee and of the Meeting
of the Debenture Holders according to the Deed of Trust, including their
right to make the Debentures immediately payable as stated in Section 16
below.
|
||
|
11.6
|
The
Debentures have been issued in their par value, i.e. without discount. The
Company reserves the right to allocate the Debentures following an
expansion of the series at a different discount rate (higher or lower)
than the discount rate of the Debentures then in circulation (including
due to issuance at a price that reflects a different discount rate). The
discounted allocation of the Debentures originating from expansion of the
series of the Debentures at a rate exceeding the discount rate established
for the Debentures before the expansion may adversely affect the state of
the Debenture Holders.
|
|
|
11.7
|
The
provisions of this Section 11 above itself do not bind the Company or the
Debenture Holders to purchase Debentures or sell the Debentures in their
possession.
|
|
|
11.8
|
Wherever
the rules of the Stock Exchange apply or will apply to any action
according to this Deed of Trust, they will have preference over the
provisions hereof, and the dates of such an action will be determined in
accordance with the rules of the Stock Exchange.
|
|
|
12.
|
Waiver; Settlement and Changes in the Terms of the Debentures (Series D) | |
|
12.1
|
Subject to the provisions
of the Law and the regulations promulgated and/or that will
|
-37-
|
|
be
promulgated thereby, the Trustee shall be allowed, from time to time and
at any time, if it is convinced that this does not in its opinion infringe
upon the rights of the Debenture Holders, to waive any violation or
non-fulfillment of any of the terms hereof by the Company, as long as
these do not relate to the terms of repayment of the Debentures and the
grounds for calling for immediate repayment as specified in Section 16
below.
|
|
|
12.2
|
Subject
to the provisions of the Law and the regulations promulgated and/or that
will be promulgated thereby, the Trustee is allowed, whether before or
after the principal of the Debentures is called for immediate repayment,
to settle with the Company concerning any right or claim of the Debenture
Holders and agree with the Company to any arrangement concerning the
rights of the Debenture Holders, including waiving any right or claim of
the Debenture Holders towards the Company hereby. If the Trustee settles
with the Company after having received prior approval of the Debenture
Holders as stated above, the Trustee shall be exempt of liability for this
action, as approved by the general Meeting. The foregoing does not exempt
the Trustee from responsibility for its actions until the date of making a
decision of the Meeting of the Holders and/or its actions concerning its
application.
|
|
|
12.3
|
Subject
to the provisions of the Law and the regulations promulgated and/or to be
promulgated thereby, the Trustee and the Company may, whether before or
after the principal of the Debentures is called for immediate repayment,
change the Deed of Trust (including a change in the conditions of the
Debentures), if one of the following is fulfilled:
|
|
|
12.3.1 The Trustee is
satisfied that the change does not adversely affect the Debenture
Holders.
|
||
|
12.3.2 The Debenture
Holders have agreed to the proposed change, by a special decision as
specified in Sections 2.4 and 2.10 of the second addendum
hereinafter.
|
||
|
12.4
|
The
Trustee shall be entitled, at the request of the Company from time to
time, to make changes in the Deed of Trust and/or in the Debentures, as
required by a Securities Authority and/or the Stock Exchange and/or any
other governmental authority, for the purpose of listing the Debentures
for trade on the Stock Exchange, as long as the Trustee is satisfied that
the change does not cause a material adverse effect to the Debenture
Holders.
|
|
|
12.5
|
The
Company will give the Debenture Holders a notice of any such change, in
accordance with Section 17 hereof, as soon as possible after its
execution.
|
|
|
12.6
|
The
general meetings as stated in this section above will be convened, as
stated in the
|
-38-
|
|
second
addendum of the Deed of Trust.
|
|
12.7
|
In
any case of use of the right of the Trustee in accordance with this
section above, the Trustee shall be entitled to demand that the Debenture
Holders give to it or to the Company their certificates, for noting a
comment concerning any such settlement, waiver, change or amendment and
according to the demand of the Trustee, the Company will note such a
comment in the certificates that are given to it. In any case of use of
the right of the Trustee pursuant to this section, the Trustee shall
announce this, within a reasonable time, in writing, to the Debenture
Holders.
|
|
|
13.
|
Meeting of Debenture Holders (Series D) | |
| General meetings of the Debenture Holders (Series D) will be convened and managed, as stated in the second addendum of the Deed of Trust. | ||
|
14.
|
Receipts as proof | |
|
14.1
|
A receipt from the
Debenture Holder for the sums of the principal, the interest and the
linkage differences that have been paid thereto by the Trustee for that
Debenture will release the Trustee categorically in all matters related to
payment of the sums stated on the receipt.
|
|
|
14.2
|
Until
the end of the period specified in Section 7.5 above, a receipt from the
Trustee concerning the deposit of the sums of the principal, the interest
and the linkage differences in its possession to the benefit of the
Debenture Holders as stated in this Deed will be considered as a receipt
from the Debenture Holders for the sums specified
therein.
|
|
|
14.3
|
The
sums distributed as stated in Sections 7 and 14 hereof will be considered
as payment on the account of the repayment of the
Debentures.
|
|
|
15.
|
Replacement of Debenture Certificates | |
| In the case of a Debenture Certificate wearing out, being lost or destroyed, the Company shall be entitled to issue in its place a new Certificate of the Debentures, under the same conditions concerning proof, indemnification and coverage of the expenses sustained by the Company for inquiring as to the right of ownership of the Debentures that the certificate thus replaced relates to, as the Company deems fit, provided that in the case of wear, the worn out Debenture certificate will be returned to the Company before the new Certificate is issued. Taxes, duties and other expenses involved in the issue of the new Certificate will be borne by the party requesting this Certificate. | ||
|
16.
|
Immediate Repayment | |
|
16.1
|
In
one or more of the events enumerated
below:
|
|
-39-
|
16.1.1
|
If
the Company does not repay any sum that is due from it connection to the
Debentures within 45 days of the maturity of that sum.
|
|
|
16.1.2
|
If a
temporary liquidator has been appointed by a court, or if a valid
resolution has been adopted to liquidate the Company (other than
liquidation for merging with another company and/or restructuring of the
Company) and this appointment or resolution is not cancelled within 30
Business Days of being given.
|
|
|
16.1.3
|
If
an attachment is imposed on some or all of the material assets of the
Company and the attachment is not removed within 60
days.
|
|
|
16.1.4
|
An
execution action is carried out against a material asset of the Company,
in part or in full, and the action is not cancelled within 90
days.
|
|
|
16.1.5
|
If a
receiver is appointed for the Company and/or some or all of its material
assets, and the appointment is not cancelled within 90
days.
|
|
|
16.1.6
|
If
the Company ceases the payments of the Debentures and/or announces its
intent to cease the payments of the Debentures.
|
|
|
16.1.7
|
If
the Company discontinues its business affairs or managing its business
affairs, as they are from time to time, and/or announces its intent to
cease in engaging in or managing its business affairs as shall be from
time to time.
|
|
|
16.1.8
|
If
another series of Debentures that the Company has issued is called for
immediate repayment other than according to a resolution of the
Company.
|
|
|
16.1.9
|
If
an order for staying of proceedings is given or if a motion has been filed
concerning the Company to make an arrangement with the creditors of the
Company pursuant to Section 350 of the Companies Law (other than for
merging with another company and/or restructuring of the Company) against
the Company and this order or motion is not cancelled within 90 days of
commencement thereof.
|
|
| 16.1.10 |
If
the Company is wound up or struck for any reason.
|
|
| 16.1.11 |
A
fundamental breach of the terms of the Debentures and the Deed of Trust,
including if it is found that the undertakings of the Company in the
Debentures or herein are incorrect and/or incomplete, provided a notice
has been given to the Company to rectify the violation and the Company
does not correct such a violation within 14 Business Days of issue of the
notice, and provided that the payments to the Debenture Holders and/or the
rights thereof are infringed or may be infringed as a
result.
|
|
| 16.1.12 |
If
there is material concern that the Company will discontinue the payments
of
|
-40-
| the Debentures and/or there is material concern that it will cease in managing its business affairs as shall be from time to time. | |||
| 16.1.13 |
In
the occurrence of any other event that constitutes material infringement
and/or may cause material infringement of the rights of the Debenture
Holders (Series D).
|
||
| For the purposes of this entire section, "Material Asset" is an asset whose value in the books of the Company exceeds 20% of the income of the Company according to its last (audited) consolidated annual statements on the date of the event. | |||
|
16.2
|
In the occurrence of any of the events listed in Section 6.1 above, the following provisions will apply: | ||
|
16.2.1
|
(A) In the
case of any of the events in Sections 16.1.1 to 16.1.10 (inclusive) above,
the Trustee will be required to call a Meeting of the Debenture Holders
(Series D); or
|
|
|
(B) In the case of
any of the events in Sections 16.1.11 to 16.1.13 (inclusive) above, the
Trustee will be allowed (but not required) to call a meeting of the
Debenture Holders (Series D), but the Trustee will be required to call a
meeting of Holders by a written request of Holders of at least ten percent
(10%) of the par value of the unsettled balance of the principal of the
Debentures in circulation, as specified in Section 1.1 of the second
addendum hereto.
|
||
|
16.2.2
|
The
date of convening the Meeting, which will be called in accordance with the
provisions of Section 16.2.1 A or B above, will be 30 days after the date
of its calling (or a shorter term in accordance with the provisions of
Section 16.2.5 below), whose agenda will have a resolution concerning
calling for immediate repayment the entire unsettled balance of the
Debentures (Section D), due to the occurrence of any of the events
specified in Section 16.1 above, as relevant.
|
|
|
16.2.3
|
In
the case that until the date of convening of the Meeting, none of the
events specified in Section 16.1 above has been canceled or removed, and
the Meeting of the Debenture Holders as stated resolve to call all of the
unsettled balance of the Debentures for immediate repayment as a Special
resolution (as defined in the second addendum hereto), the Trustee will be
required, within a reasonable time, to call all of the unsettled balance
of the Debentures (Series D) for immediate repayment, as long as it has
given the Company at least 15 days written warning of its intent to do so
and the event for which the resolution was adopted has not been canceled
or removed within this period.
|
|
|
16.2.4
|
A
copy of the
notice for calling the Meeting will be sent by the Trustee to the
|
-41-
| Company as soon as the notice is published and will constitute advance written warning to the Company of the intent to act to call the Debentures for immediate repayment. | ||
|
16.2.5
|
The
Trustee is entitled, at its discretion, to reduce the count of 30 days (in
Section 16.2.2 above) and/or the said 15 days of warning (in Section
16.2.3) in the case of the Trustee opining that any deferral in calling
the debt of the Company for repayment endangers the rights of the
Debenture Holders (Series D), but in any case the Trustee shall not do so
without first applying to the Company in writing 7 Business Days before
the date of the meeting, indicating the reasons for reducing the time, at
the discretion of the Trustee in the circumstances at
hand.
|
|
|
16.2.6
|
The Trustee will be
responsible for reporting to the Debenture Holders of the occurrence of
any of the events specified in Sections 16.1.11 to 16.1.13 (inclusive)
above, whether pursuant to publications that the Company has made or
according to a notice of the Company that will be sent to it according to
the provisions of Section 24 below, soon after it being brought to its
attention or delivered to it.
|
|
17.
|
Notices | ||
|
17.1
|
Any notice from the Company and/or the Trustee to the Debenture Holders, as relevant, shall be given as follows: | ||
|
17.1.1
|
By
reporting in the MAGNA system of the Securities Authority; the Trustee is
allowed to instruct the Company and the Company will be required to report
forthwith in the MAGNA system on behalf of the Trustee any report in the
format as forwarded in writing by the Trustee to the Company); and
by
|
||
|
17.1.2
|
A
notice that will be published in two widely distributed daily newspapers
that are published in Israel in Hebrew;
|
||
|
17.2
|
Any notice or demand from the Trustee to the Company may be given by a letter that is sent by registered mail to the address stated herein, or to any other address that the Company informs the Trustee of in writing, or by transmission by facsimile or by courier and any such notice or demand will be considered as having been received by the Company: (1) in the case of sending by registered mail – three business days from the day of mailing thereof; (2) in the case of transmission by facsimile (along with a telephone check of receipt thereof) – one business day from the day of its transmission; (3) and in the case of sending by courier – upon its delivery by the courier to the addressee or the offering thereof to the addressee for receipt, as relevant. | ||
|
17.3
|
Any notice or demand from the Company to the Trustee may be given by a letter that is | ||
-42-
| sent by registered mail to the address stated herein, or to another address that the Trustee informs the Company of in writing, or by transmission by facsimile or by electronic mail (“email”) or by courier and any such notice or demand will be considered as having been received by the Trustee: (1) in the case of sending by registered mail – three business days from the day of mailing thereof; (2) in the case of transmission by facsimile or by email (along with a telephone check of receipt thereof) or sending by courier – upon its delivery by the courier to the addressee or the offering thereof to the addressee for receipt, as relevant. | |||
|
17.4
|
Copies of notices and invitations that the Company gives to the Debenture Holders will also be sent by the Company in an Immediate Report, a copy of which will be given to the Trustee. | ||
-00-
|
Xxxxxxx
Xxxxxx Ltd.
|
|
Second
Addendum
|
|
Meetings of the
Debenture Holders (Series D)
|
|
1.
|
Calling of Meetings of the Debenture Holders: | |
|
1.1
|
The
Trustee or the Company may call a Meetings of the Debenture Holders. If
the Trustee and/or the Company calls such a Meeting, they must send
immediately a written notice to the Trustee and/or the Company, as
relevant, regarding the site, the day and the time on which the Meeting
will be held and on the matters to be brought for discussion therein, and
the Trustee or the Company, as the case may be, or a representative
thereof, will be entitled to participate in such a Meeting without them
having a voting right. The Company will be required to call a general
meeting by written request of the Trustee or of the Debenture Holders
holding at least ten percent 10%) of the unsettled balance of the
principal of the Debentures in circulation, as relevant. The Trustee shall
be required to call such a Meeting, at the written request of the Holders
of at least ten percent (10%) of the par value of the unsettled balance of
the principal of the Debentures in circulation. If the parties asking to
call the Meeting are the Debenture Holders, the Company and/or the
Trustee, as relevant, are entitled to demand from the requesting parties
indemnification for the reasonable expenses involved
therein.
|
|
|
1.2
|
Fourteen
(14) days advance notice will be given of each Meeting of the Debenture
Holders, which will elaborate the place, the day and the time of the
Meeting, and will indicate in general the subjects that will be discussed
in the meeting. The Trustee is allowed, at its discretion, to shorten the
duration of the advance notice if it sees that a deferral in calling the
Meeting will cause material infringement of the rights of the Debenture
Holders.
|
|
|
1.3
|
In
case of the purpose of the Meeting being a discussion and adopting a
special resolution as defined in Section 2.4 and 2.10 of this addendum
hereinafter, the notice will elaborate, in addition to the foregoing, the
principle of the proposed decision. No resolution that has been duly
adopted in a Meeting thus called will be disqualified if notice is not
given, erroneously to all of the Debenture Holders, or if such notice has
not been received by all of the Debenture Holders.
|
|
|
1.4
|
Any
such notice from the Company and/or the Trustee to the Debenture Holders
will be given by a notice that is published in two (2) widely distributed
daily newspapers that are published in Israel in Hebrew. In addition, an
immediate report will be given by the Company. Any notice that is
published as stated above will be considered as
|
|
-44-
| having been given to the Debenture Holders on the day of its publication as above. | ||
|
2.
|
Meetings of the Debenture Holders: | |
|
2.1
|
The
chairman of the Meeting will be a person who will be appointed by the
Trustee. If the Trustee has not appointed a chairman or he is absent from
the Meeting for half an hour from the determinant time for holding the
Meeting, the attending Debenture Holders will choose a chairmen from among
their number.
|
|
|
2.2
|
A
Meeting of the Debenture Holders will be opened after it is proved that
there is the legal quorum for starting the discussion
present.
|
|
|
2.3
|
Subject
to the legal quorum that is required in a Meeting that is convened for
adopting a special resolution, and subject to the legal quorum that is
required for the dismissal of a trustee pursuant to the Securities Law,
two Debenture Holders who are attending by themselves or by proxy and
together holding or representing at least a tenth (1/10) of the unsettled
balance of the Debentures in circulation at that time will constitute a
legal quorum.
|
|
|
2.4
|
A
special resolution of the Debenture Holder Meeting will be required on the
following issues (“Special
Resolution”):
|
|
|
2.4.1
|
A
change and/or amendment to the Deed of Trust, in the case of this
requiring a resolution of a general Meeting pursuant to the Deed of
Trust
|
||
|
2.4.2
|
Any
amendment, change and/or arrangement of rights of the Debenture Holders,
whether these rights result from the Debenture, the Deed of Trust or
otherwise, or any settlement or waiver concerning these rights, in the
case of a decision of a general meeting being required for this purpose
pursuant to the Deed of Trust.
|
||
|
2.4.3
|
Calling
the Debentures for immediate repayment, in accordance with the terms of
the Deed of Trust.
|
|
2.5
|
In a
meeting that is called for adopting a Special Resolution a legal quorum
will be constituted – if Holders of at least fifty percent (50%) of the
unsettled balance of the Debentures in circulation at that time are
present in the general meeting, or in a deferred meeting, if Holders of at
least ten percent (10%) of the said balance are
present.
|
|
|
2.6
|
If
within an half an hour of the time set for starting a Meeting, no legal
quorum is present, the Meeting will be deferred to the same day in the
following week (and in the case of this day not being a Business Day to
the Business Day immediately following it) to the same place and time,
without there being a duty to announce this to the Debenture Holders, or
to another day, place and time, as chosen by the inviting party,
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| which it will announce to the Debenture Holders at least three (3) days in advance. If no legal quorum is found in a Meeting thus deferred, half an hour after the time established for starting the Meeting, two (2) Debenture Holders attending by themselves or by proxy, regardless of the par value held thereby, will constitute a legal quorum, and other than the legal quorum required for adopting a special resolution, provided that the instruction determining the legal quorum as above is published within the notice of the original Meeting, provided that the notice to the Debenture Holders of the holding of the deferred Meeting is announced in accordance with the provisions of Section 1 hereto above, by no later than seven (7) days before the date of holding the deferred Meeting. Such a notice may be published within the notice of the original meeting (the general Meeting that was deferred). | ||
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2.7
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Other
than the foregoing, a Debenture Holder will not be entitled to receive any
notice of a deferred Meeting and/or of matters that will be discussed in
the deferred Meeting. Only matters that may be discussed in a Meeting will
be discussed in a deferred Meeting.
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2.8
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With
the consent of a majority in a Meeting in which a legal quorum has
attended, the chairman is allowed, and at the demand of the Meeting is
compelled, to defer the continuation of the Meeting from time to time and
from place to place, as the Meeting decides. If the continuation of the
Meeting is deferred by ten (10) days or more, a notice of the continued
Meeting will be given by way of publishing an immediate report in the
MAGNA system only.
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2.9
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In
the vote, each Holder who is present in person or by proxy will have one
vote for each NIS 1 par value of the total specified unpaid principal of
the Debentures by which he may vote.
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2.10
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Each
resolution will be adopted by a counting of votes. The majority that is
required for a regular resolution is a regular majority of the number of
votes represented in the vote of the Meeting (except abstainers). The
majority that is required for a Special resolution in such a Meeting is a
majority of not less than 75% of the number of votes represented in such a
vote (except abstainers).
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2.11
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An
appointment letter that appoints a proxy will be in writing and will be
signed by the appointer or by the proxy thereof who is duly authorized to
do so in writing. If the appointer is a corporation, the appointment will
be made in writing and will be signed by the stamp of the corporation,
along with the signature of the secretary of the corporation or the
advocate of the corporation who has the authority to do so. The
appointment letter of a proxy will be made out in any generally accepted
form. A proxy is not required to be a Debenture Holder by himself. The
appointment letter and the power of attorney or the other certificate by
which the appointment letter is made out
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| or an approved copy of such a power of attorney will be deposited in the registered office of the Company or at another address that the Company announces not less than forty eight (48) hours before the time of the Meeting for which the power of attorney has been given, unless otherwise determined in the notice calling the Meeting. The appointment letter will also be valid concerning any deferred Meeting of a Meeting that the appointment letter relates to, unless stated otherwise in the appointment letter. A vote that is made in accordance with the terms in the document appointing a proxy will also be valid if the appointer has passed away or been declared legally incompetent or if the appointment letter is cancelled or the Debenture that the vote has been given for is transferred prior to the vote, unless a written notice of the death, decisions of legal incompetence, cancellation or transfer, as relevant, received at the registered office of the Company before the Meeting. | ||
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2.12
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Any
corporation that owns a Debenture may, by duly signed written
authorization, empower a person as it deems fit to act as its
representative in any Meeting of the Debenture Holders, and the person who
has been authorized will be allowed to act on behalf of the corporation
that he represents.
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2.13
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Any
proposal for a resolution that is put to the vote in a Meeting of Holders
will be decided by a show of hands, unless a vote using a ballot box is
demanded by the chairman or by at least two (2) Debenture Holders, who are
present by themselves or by their proxy, whether a vote was made
previously with a raise of hands or thereafter and the vote by ballot box
will prevail. In the case of joint Holders, only the vote of the more
senior Holder wishing to vote will be accepted, whether by himself or by
his proxy, for which purpose seniority will be determined by the order in
which the names are listed in the Register of Holders.
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2.14
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The
Trustee shall not have a right to vote in a Meeting of the Debenture
Holder.
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2.15
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In a
vote, a Debenture Holder or the proxy thereof is allowed to vote with some
of its votes in favor of a proposal that is being discussed, and with some
against the proposal, as it deems fit.
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2.16
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Declaration
of the chairman of the Meeting concerning adopting or rejecting a
resolution and recording of this matter in the minutes book will serve as
prima facie
evidence of this fact.
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2.17
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The
chairman of the meeting will have a minute of the Meeting of the Debenture
Holders prepared which shall be written in the book of minutes. Each such
minutes will be signed by the chairman of the meeting or by the chairman
of the Meeting held thereafter, and all minutes thus signed will serve as
conclusive testimony of the proceedings in the Meeting, and as long as it
is not proved otherwise, any resolution
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| adopted in such a Meeting will be considered as having been duly adopted. | ||
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2.18
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A
person or persons who are appointed by the Trustee, the secretary of the
Company and any other person or persons authorized by the Company will be
allowed to be present in Meetings of the Debenture Holders without a
voting right.
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2.19
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Debentures
held by an Affiliated Company will not grant their Holders a voting right
in the general meeting of the Debenture Holders, but they will be
considered for determining the legal quorum in the general meeting, except
Debentures that will be held by an Affiliated Company that is an investor
that is one of the investors listed in the first addendum to the
Securities Law (concerning Section 15A(B)(1) of the Law) that is not
investing for itself (an "Affiliated Institutional Investor”), which will
grant voting rights in a meeting of the Debenture Holders. At the time of
holding the Meeting of the Debenture Holders, the Trustee shall check for
conflicting interests among the Debenture Holders in accordance with the
circumstances at hand and the need for calling Class Meetings in cases in
which there are differing interests among the Debenture Holders, in
accordance with the circumstances at hand. The Company and the Trustee
shall act to call Class Meetings of the Debenture Holders in accordance
with the provisions of the law, the provisions of the Securities Law and
the Regulations and promulgated there under. In the case of holding Class
Meetings, approval of a resolution requires approval in each of the Class
Meetings that are called, and in the Meeting of all of the Holders
Debentures, with the majority that is required by the provisions of the
Deed of Trust and the appendices
thereof.
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