Unofficial Translation] AGREEMENT made and entered into between the parties at Tel Aviv on the 3rd day of June 2010
Exhibit
4.43
[Unofficial
Translation]
made
and entered into between the parties at Tel Aviv
on
the 3rd day of
June 2010
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|
Between:
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TEL
AVIV WHOLESALE AGRICULTURAL PRODUCE MARKET COMPANY
LTD.
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Company
No. 00-000000-0
of
______________ Street, ______________
(hereinafter: “the Company”)
of the one
part;
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And:
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1. LEV
TEL AVIV TOWERS LTD.
|
Pvte.
Co. 514434356
of
______________ Street, ______________
(hereinafter:
“the Housing
Company”)
2. TEL
AVIV CITY MALL LTD.
Pvte.
Co. 514434349
of
______________ Street, ______________
(hereinafter:
“the Mall
Company”)
(the
Housing Company and the Mall Company will be referred to below as: “the Purchaser”)
of the other
part;
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WHEREAS
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Tel
Aviv-Jaffa Municipality (hereinafter: “the Municipality”) is
the registered owner of land known as Parcels 92, 93, 94, 95, 98, 99, 114
and 242 Block 7104 which is also known as the (former) wholesale market
compound, in the triangle formed by Carlebach and Hahashmonaim Streets and
Menahem Begin Road in Tel Aviv (hereinafter: “the Project Lands”);
and
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WHEREAS
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The
Municipality and the Company have, in connection with the Project Lands,
entered into: (1) an agreement dated January 29, 2002 (hereinafter: “the 2002 Agreement”),
(2) an Addendum to the 2002 Agreement dated June 1, 2008 (hereinafter:
“the Addendum to the 2002
Agreement”), (3) an agreement dated April 15, 2010 (hereinafter:
“the 2010
Agreement”);
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The 2002
Agreement, the Addendum to the 2002 Agreement and the 2010 Agreement are
attached to this Agreement as Appendix
C; and
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WHEREAS
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On
September 29, 2005 Detailed Plan No. TA 3001 (hereinafter: “the TA/3001 Plan”) was
published for validation, and in addition an architectural design plan was
approved in respect of the Project Lands (hereinafter: “the Architectural Design
Plan”);
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1
The
TA/3001 and the Architectural Design Plan are attached to this Agreement as
Appendix
D; and
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WHEREAS
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As
at the date of signing of this Agreement the Company is registered as
leasehold lessee of the land known as Parcel 93 Block 7104 for a leasehold
period terminating in 2025 (hereinafter: “the Existing
Leasehold”), while pursuant to the 2002 Agreement and the
allocation table attached to TA/3001 Plan, the Company is entitled, in
lieu of the existing leasehold, to be registered as the long leasehold
lessee of the Company’s lands, as defined below, for a leasehold period
terminating on August 31, 2099, together with additional land that
constitutes portion of the remainder of the Project Lands, as defined
below. A caveat is registered in
favor of the Company in respect of the 2002 Agreement over Parcel 93 as
described in the extract of registration. The extract of
registration in respect of Parcel 93 is attached to this Agreement as
Appendix
E; and
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WHEREAS
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In
accordance with the foregoing, the Company is entitled to be registered as
the owner of the full long leasehold rights in certain areas marked in
pink on the leasehold drawings which are attached to this Agreement as
A1
– A7 (hereinafter: “the Leasehold
Drawings”), and as owner of the full long leasehold rights in
13,200/19,000 undivided parts of the areas marked in yellow and by a
broken yellow line on the Leasehold Drawings (hereinbefore and
hereinafter, collectively: “the Company’s Lands”);
and
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WHEREAS
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The
Municipality is the owner of the full rights in the certain areas that are
marked in light blue on the Leasehold Drawings (Appendix A) and is the
owner of the full rights in 5,800/19,000 undefined parts of the areas that
are marked in yellow and in a broken yellow line on the leasehold drawings
(hereinafter collectively: “the Municipality
Lands”); and
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WHEREAS
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The
Municipality is the owner of the full rights in “Plot No. 8” (as defined
below) and the Municipality wishes to let under leasehold certain portions
within the confines of Xxxx Xx. 0 to the Purchaser (over and above the
rights of leasehold in the Municipality Land), as marked in light blue on
the drawings attached to this Agreement as Appendices
B1-B6 (hereinafter: “the Additional Real Estate
Rights”); and
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WHEREAS
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In
addition to the Company’s Lands, the Municipality Lands, and the
Additional Real Estate Rights, the Company and the Municipality own the
rights in adjacent land which constitutes the remainder of the Project
Lands and which are not being sold to the Purchaser within the framework
of this Agreement (hereinafter: “the Remainder of the Project
Lands” or “the
Remainder of the Project”) and are marked in purple on the
Leasehold Drawing; and
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WHEREAS
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The
structure and the percentage holdings in the Housing Company and in the
Mall Company are as described in the chart attached to this Agreement as
Appendix G, with the shareholders (directly or residually) in the Housing
Company and in the Mall Company being: Blue Square Real Estate Ltd. (50%),
Dirot Yukra Ltd. (25%) and Xxxxx Investments 1 Ltd.
(25%);
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Blue
Square Real Estate Ltd., Dirot Yukra Ltd. and Xxxxx Investments 1 Ltd. will
henceforth be referred to collectively as – “the Interested Parties”;
and
2
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WHEREAS
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Simultaneous
with the Purchaser signing this Agreement the Interested Parties are
signing the Interested Parties’ undertakings as set forth at the foot of
this Agreement (hereinafter: “the Interested Parties’
Undertakings”); and
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WHEREAS
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The
Purchaser (as described in sub-clause 5.2.2 below) wishes to purchase
the Property Sold
(as defined below) in its condition “as is”, after having carried out all
the examinations required by it, independently and without relying on any
representation or any item of data given to it by the Company and/or the
Municipality and/or entities connected with either of them and/or acting
on behalf of either of them; and
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WHEREAS
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For
purposes of constructing “the public buildings”
(as defined below), the Purchaser was required in the scope of the sale
process to assess the total costs for erecting the public buildings, in
circumstances where the Municipality and the Company had two alternatives
available to them in this regard: one was to deduct the aforesaid amount
from the consideration in respect of the Property Sold (as defined in this
Agreement) and the other was that the public buildings be constructed
through or by the Purchaser for a consideration that will be paid to it by
the Municipality and the Company, and the Municipality and the Company
chose the second alternative, as described in this Agreement;
and
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WHEREAS
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In
accordance therewith and according to the provisions of this Agreement
below, the Housing Company is committed to erect the public buildings in
the area of Plan TA/3001 and to deliver same to the Municipality as
described in the construction contract and the appendices thereto, which
is attached to this Agreement as Appendix 4.13 and as Appendix 7.1.1 to
the “Municipality Lands
Agreement” (as defined below) for a consideration that will be paid
to it by the Municipality and by the Company, as described below in this
Agreement and in the Municipality Lands Agreement;
and
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WHEREAS
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The
Company, in reliance on the Purchaser’s representatives as set forth in
this Agreement, wishes to accept the Purchaser’s offer to purchase the
Property Sold; and
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WHEREAS
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Prior
to the date of signing of this Agreement, the individual parties who make
up the Purchaser delivered firm commitment letters to the Company from
Bank Hapoalim B.M. in connection with their commitment for payment of the
full “basic
consideration” (as defined below) in accordance with this Agreement
(excluding the first payment, the additional first payment and the later
first payment), with this being in the text attached to this Agreement as
Appendix
F.
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Now therefore it is
stipulated, declared and agreed by the parties as follows:
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1.
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Definitions:
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1.1
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“The Agreement” or “this Agreement”
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–
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This
Agreement together with all the appendices hereto.
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1.2
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“The
sale process”
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–
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A
sale process conducted in accordance with the sale procedure as defined
below.
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3
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1.3
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“The
sale procedure”
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–
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A
sale procedure that was published by the Company and the Municipality and
pursuant to which the sale process was conducted.
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1.4
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“The
sale process guarantee”
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–
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Bank
guarantees in an aggregate amount of NIS 28,826,784 which were deposited
with the Company in the scope of the sale process.
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1.5
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“Business
day”
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–
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A
day on which most of the branches of the banks in Israel are open for
transactions with the public and in relation to which the clearing of
instruments is carried out.
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1.6
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“The
Property Sold”
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–
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(a)
The rights and obligations of the long leasehold in the Company’s Lands
for a lease period ending on August 31, 2099, all in accordance with the
conditions set forth in this Agreement and in the special conditions of
leasehold document which is attached to this Agreement as Appendix
1.6. The Company’s Lands have building rights of 53,400
sq.m. (main areas) for residential purposes, 14,200 sq.m. (main areas) for
commercial purposes and 10,320 sq.m. (main areas) on Plot No. 6 (as
defined below), all for the designated uses specified in Plan TA/3001 and
together with service areas in accordance with Plan TA/3001, and the
Company and the Municipality agree that the total service areas for
housing in the textured building on Plot No. 1 above the determining
entrance level as stated in Plan TA/3001 which will be included in the
applications for building permits that will be lodged by the Purchaser in
the scope of the Purchaser’s Project, will aggregate a total of at least
22,924 sq.m. service areas but not more than the maximum permitted in
accordance with Plan TA/3001.
For
the removal of doubt it is clarified that the total main areas which are
being sold to the Purchaser in accordance with this Agreement are as
stated at the beginning of this sub-clause 1.6(a).
Without
derogating from the foregoing in this sub-clause 1.6, it is agreed that if
changes in the agreement of the parties on the boundaries of the Company’s
Lands should be necessary and be approved as a consequence of detailed
planning of the Company’s Lands or of the Remainder of the Project Lands,
the Leasehold Drawings will be amended accordingly, without any change
applying to the building rights being sold to the Purchaser in the scope
of the Property Sold. Under no circumstances, does the Property
Sold include and will not include the parking places towers in the Kufsa
lands, as defined below.
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4
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For
the removal of doubt it is clarified that the areas located on the upper
ground floor and on the lower ground floor only and which are zoned as
open public areas and for a road as marked in green and in xxxx
(respectively) on the Leasehold Drawings, Appendices A1-A2 are in
the sole ownership and possession of the Municipality, and are not being
leased under leasehold and will remain in the sole possession and for the
sole use of the Municipality, in accordance with the contents of
sub-clause 9.6 of Plan TA/3001, and the Purchaser has no rights therein
and in the areas zoned for “Suburban Public Institutions” as stated in
sub-clause 9.2.1(b) of Plan TA/3001 (hereinafter: “the Suburban Public
Institutions”).
To
the extent that the Company and the Municipality exercise their power
pursuant to Paragraph 3.5 of Appendix 4.16 to this Agreement, in a manner
whereby the parking places that will serve the residential units that will
be built on the Remainder of the Project Lands and will be linked thereto,
which will be located in the Kufsa (hereinafter: “the Towers Parking Places in
the Kufsa”), the land which is the subject of the Towers Parking
Places in the Kufsa and which will be
located in each of the parking places in the Kufsa, apart from places at
which parking places will be erected for the commercial areas in the Kufsa
(hereinafter: “the Towers
Parking Places in the Kufsa Lands”) do not form part of the
Property Sold and the Leasehold Drawings will be amended
accordingly. For the removal of doubt it is clarified that in
this Agreement the Company is not selling or granting any rights to the
Purchaser in the Towers Parking Places in the Kufsa Lands except the right
of use specified in Paragraph 3.5 of Appendix 4.16 to this
Agreement.
It
is agreed that exercise of the Company’s right as stated above shall not
derogate from the Purchaser’s possibilities of: (1) erecting the maximum
number of parking places permitted pursuant to Plan TA/3001 for the
building rights on the Company’s Lands and the Municipality Lands,
including visitors parking places in connection with the Project Lands and
(2) erecting the maximum service areas that are permitted pursuant to Plan
TA/3001 in the building rights of the Company’s Lands and the Municipality
Lands. It is further agreed that the Municipality and the
Company will instruct their professional advisers to make an effort and to
cause a situation that the full parking garages that will be designated to
serve the residential units in the Remainder of the Project Lands will be
planned on the Remainder of the Project Lands without there being a
necessity for utilizing the power and authority granted to the
Municipality and to the Company in Paragraph 3.1 of Appendix 4.16, without
this derogating from the Municipality’s and the Company’s possibility of:
(1) erecting the maximum number of parking places in the Remainder of the
Project Lands which are permitted pursuant to Plan TA/3001 for the
building rights on the Remainder of the Project Lands (without double
parking places) and (2) for erecting the maximum service areas that are
permitted pursuant to Plan TA/3001 in the building rights on the Remainder
of the Project Lands and (3) erecting parking basements on 5 levels
only.
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5
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(b)“The obligations and the
commitments transferred” as defined below.
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1.7
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“The
Obligations and Commitments Transferred”
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–
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The
obligations and commitments transferred which are described below, unless
otherwise expressly excluded in this Agreement below:
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(a)
Rights and obligations that apply to the Company according to any law in
its capacity as the owner of rights in the Company’s Lands including as a
long leasehold lessee of the Company’s Lands and/or in its capacity as
promoter of Plan TA/3001, as defined below in respect of the Company’s
Lands.
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(b)
All the obligations imposed on an applicant for any permit in accordance
with Plan TA/3001 and the Architectural Design Plan, including the
appendices thereto, in relation to the Company’s Lands, with it being
clarified that nothing in the foregoing shall derogate from the
Purchaser’s possibility of requesting an amendment to Plan TA/3001 and/or
the Architectural Design Plan, from time to time, in accordance with any
law and the terms and conditions of this Agreement, and subject to the
conditions of Appendix 4.15 to this Agreement.
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||||
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(c)
The rights and obligations of the Company of whatsoever nature pursuant to
the 2002 Agreement in relation to the Company’s Lands, including such
rights and obligations which arose, arise or will arise from the 2002
Agreement, with it being clarified
that:
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1.
The Company’s obligations for vacation of the Plot and for vacation of the
Municipality’s Parcel (as stated in the Clauses 4A, 6 and 20 of the 2002
Agreement), for effecting the payment in respect of an extension of the
leasehold (as stated in Clauses 4C, 7 and 11 of the 2002 Agreement) and
for payment of the expenses for preparation of Plan TA/3001 (as mentioned
in Clause 5B of the 2002 Agreement) have been performed in full, including
in the framework of and in accordance with the Addendum to the 2002
Agreement and the 2010 Agreement.
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6
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2.
The Company’s obligations to erect public buildings and for payment in
respect of a change in the purpose of the leasehold (as stated in Clauses
4B and 9 of the 2002 Agreement), for bearing one-half of the costs of the
bridge-sinking project (as stated in Clause 16G of the 2002 Agreement)
which are mentioned in Paragraph 14(7) of the provisions of Plan TA/3001
and construction of the public buildings on the Company’s Plots (as
mentioned in Clause 5C(1) of the 2002 Agreement) – will be deemed to have
been performed and fulfilled in accordance with the provisions of the
Addendum to the 2002 Agreement and the 2010 Agreement, with it being
clarified that nothing in the foregoing shall derogate from the provisions
of sub-clause 4.13 below and from the undertaking of the Housing Company
to erect the public buildings as described in the construction contract
which is an appendix to the Municipality Lands Agreement (as defined
below).
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||||
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3.
Payment of the Land Acquisition Tax which applies to the Company in
respect of the 2002 Agreement has been guaranteed by the Company to the
tax authorities, and it will be paid by the Company, at its expense and on
its responsibility.
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||||
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4.
The amount of the betterment levy specified in “the agreed betterment levy
assessment”, as defined below, solely in relation to the Company’s
Lands, will be paid and defrayed by the Company, at its expense and on its
responsibility.
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||||
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5.
It is further clarified for the removal of doubt that the Company is not
assigning its rights and obligations under the Addendum to the 2002
Agreement and the 2010 Agreement to the Purchaser, including and without
derogating from the foregoing, the Company’s rights and obligations for
payment of money to the Municipality and the receipt of money from the
Municipality in the scope of the accounting referred to in Clause 8.2 of
the Addendum to the 2002 Agreement, which, as already mentioned, are not
being assigned to the Purchaser.
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7
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(d)
Cancelled.
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||||
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(e)
For the removal of doubt it is clarified that the Obligations and
Commitments Transferred include only obligations and commitments in
relation to the Company’s Lands, as distinct from the Remainder of the
Project Lands. If the Obligations and Commitments Transferred
as described in sub-clause 1.7 above are in the nature of being
obligations or commitments in relation to all the Company’s rights and
obligations in the Project Lands, then the Purchaser will be entitled to
and liable for such obligations and commitments according to its pro rata share, which
is the ratio between the building rights (main areas) in the Company’s
Lands and total building rights (main areas) of the Company in the Project
Lands. It is further clarified that in relation to obligations
forming part of the Obligations and Commitments Transferred with respect
to which a time was specified in the relevant agreement for the
performance thereof, the assignment of such obligations and commitments
will apply only to obligations the time for performance of which is after
the date of delivery of the right of use (as defined below), unless
otherwise stated in this Agreement.
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(f)
Notwithstanding the foregoing it is agreed and clarified that the legal
proceedings mentioned in Appendix 3.1(1) to this Agreement are brought to
the knowledge of the Purchaser for information only and that the
liabilities that are the subject matter of the aforesaid legal
proceedings, to the extent that same should apply, are not being
transferred and assigned to the Purchaser in the scope of this Agreement
and are not included in the Obligations and Commitments Transferred, as
defined above.
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1.8
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“The
Municipality Lands Agreement”
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–
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An
agreement between the Purchaser and the Municipality for the acquisition
by the Purchaser of the leasehold rights in the Municipality Lands and the
Additional Real Estate Rights, which is being signed by the Purchaser and
the Municipality simultaneously with the signing of this
Agreement.
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1.9
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“Agreed
betterment levy assessment”
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–
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An
agreed assessment dated January 24, 2007, which was drawn up and signed in
accordance with the provisions of Clause 8 of the 2002
Agreement.
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1.10
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“The
local committee”
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–
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The
Tel Aviv-Jaffa Local Planning and Building Committee.
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1.11
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“The
Municipality”
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–
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The
Tel Aviv Municipality.
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8
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1.12
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“Plan
TA/3001”
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–
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Detailed
Plan No. TA/3001 which was published for validation on September 29, 2005
in Yalkut
Pirsumim (Gazette) No. 5442, together with the appendices
thereto.
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1.13
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“Plot
No. 8”
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–
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Plot
No. 8 as defined in Plan TA/3001
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1.14
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“Plot
No. 1”
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–
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Plot
No. 1 as defined in Plan TA/3001
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1.15
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“Plot
No. 6”
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–
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Plot
No. 6 as defined in Plan TA/3001
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1.16
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“Date
of delivery of right of use”
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–
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As
defined in Clause 10 of the Agreement.
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1.17
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“The
consideration”
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–
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The
basic consideration together with the additional consideration as these
terms are defined in Clause 6 below.
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1.18
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“Date
of delivery of possession”
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–
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As
defined in Clause 10 below.
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1.19
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“Related
entities”
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–
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The
controlling shareholder in any chain and/or shareholders and/or holders of
rights of any sort and/or employees and/or representatives and/or agents
and/or attorneys and/or officers and/or professional
advisers.
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1.20
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“Consumer Price Index”
or “the
Index”
|
–
|
Unless
otherwise expressly stated in a particular clause of the Agreement, the
Consumer Price Index, including fruit and vegetables, published by the
Central Bureau of Statistics and Economic Research, including that index
even if it is published by another Government body or institution and any
official index which may come in its stead, whether or not same is
structured on the same data on which the existing index is
structured. If the Consumer Price Index is replaced by another
index, the ratio between the replaced index and the other index will be
determined by the Central Bureau of Statistics.
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|
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1.21
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“The
Basic Index”
|
–
|
Unless
otherwise expressly stated in a particular clause of this Agreement, the
index which is known at the time of signing of this
Agreement.
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1.22
|
“Indexation
differences”
|
–
|
Unless
otherwise expressly stated in a particular clause of this Agreement, an
increment in payment obtained from multiplying any payment, which
accumulates indexation differences according to the provisions of this
Agreement, by the percentage rise in the last known index at the time of
making such calculation and/or payment, as against the Basic
Index. For the removal of doubt, in a case of a fall in the new
index as against the Basic Index, there will be no deduction from the
payment.
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|
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1.23
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“The
Kufsa”
|
–
|
The
land marked in red on the drawing attached to this Agreement as Appendix
1.23 (including all the levels
thereof).
|
9
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1.24
|
“The
Project”
|
–
|
The
project that will be erected on Project Lands and which will contain both
the Purchaser’s Project as defined below as well as the project/s that
will be constructed on the Remainder of the Project
Lands.
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1.25
|
“The
Purchaser’s Project”
|
–
|
The
project which the Purchaser will erect on the Company’s Lands, the
Municipality Lands and the Additional Real Estate
Rights.
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1.26
|
“The
residential section”
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–
|
Residential
buildings that will be erected on the Purchaser’s Project (excluding the
basement floors) and excluding the commercial areas that will be located
in the aforesaid residential buildings.
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|
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1.27
|
“The
basement floors”
|
–
|
All
the basement floors in the Purchaser’s Project up to and including the
upper ground floor on which the open public areas (as defined in
sub-clause 7.3 below) will be constructed, as well as all the commercial
areas in the Purchaser’s Project whether same are located on the basement
floors or are located above the basement floors.
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|
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1.28
|
“Buyers
of apartments”
|
–
|
Buyers
of apartments in the residential section.
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1.29
|
“The
attorneys”
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–
|
The
law office of Advocate X. Xxxxx & Co.
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|
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1.30
|
“The
Trustee”
|
–
|
Adv.
Xxxxx Amid and/or any other attorney from the law office of X. Xxxxx &
Co.
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|
|
1.31
|
“Building
Inputs Index”
|
–
|
The
general index of residential building input prices which is published each
month by the Central Bureau of Statistics or any other body that may come
in its stead, or any other index that may be specifically published in its
place (subject to the ratio between them that will be
fixed).
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|
|
1.32
|
“Agreement
of individual parties who make up the Purchaser”
|
–
|
Agreements,
wherever signed prior to the signing of this Agreement or subsequent
hereto, which are signed by the individual parties who make up the
Purchaser and/or between the Interested Parties in connection with the
transaction that is the subject of this Agreement and/or in connection
with the Purchaser’s Project.
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|
2.
|
Appendices:
|
This
Agreement contains the following appendices which form an integral part
hereof:
|
Appendices A1-A7
|
–
|
Drawings
of the Company’s Lands and the Municipality Lands.
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|
|
Appendices B1-B6
|
–
|
Drawings
of the Additional Real Estate
Rights.
|
10
|
Appendix C
|
–
|
The
2002 Agreement, the Addendum to the 2002 Agreement and the 2010
Agreement.
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|
|
Appendix D
|
–
|
Plan
TA/3001 and the Architectural Design Plans (including the appendices
thereto).
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Appendix E
|
–
|
Extract
of registration of Parcel 93.
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|
|
Appendix F
|
–
|
Firm
commitment letter.
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|
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Appendix G
|
–
|
Structure
and percentage holdings in the Housing Company and in the Mall
Company.
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|
|
Appendix 1.6
|
–
|
The
special conditions of leasehold document.
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|
|
Appendix 1.23
|
–
|
Drawing
of the Kufsa.
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|
|
Appendix 3.1(1)
|
–
|
Legal
proceedings in connection with the Property Sold to which the Company is a
party.
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|
|
Appendix 3.1(2)
|
–
|
List
of existing encumbrances in favor of Bank Leumi.
|
|
|
Appendix 3.1(3)
|
–
|
Updated
letter of intent dated March 7, 2010.
|
|
|
Appendix 4.13
|
–
|
The
construction contract.
|
|
|
Appendix 4.15
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–
|
Declaration
of verifying representations drawn to the date of delivery of the right of
use and the right of possession.
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|
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Appendix 4.16
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–
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Additional
provisions appendix.
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|
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Appendix 4.18
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–
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Timetables
appendix.
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|
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Appendix 6.2.8
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–
|
Text
of letter of instructions to Trustee.
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|
|
Appendix 6.10.1
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–
|
Main
points of the specification, simulations and
photographs.
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|
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Appendix 9.1.5
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–
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Tax
certificates in respect of the 2002 Agreement.
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|
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Appendix 9.2
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–
|
Text
of irrevocable power of attorney to Purchaser for transfer of rights in
the Property Sold.
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|
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Appendix 9.6
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–
|
Text
of power of attorney to the Company’s attorneys for expunging of caveat.
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|
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Appendix 9.6A
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–
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Power
of attorney for specifically attributing caveats and for the
effecting of registrations by the Company.
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|
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Appendix 9.10
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–
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Power
of attorney for effecting registrations.
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|
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Appendix 10.5.4
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–
|
Notarial
power of attorney for eviction of the Purchaser.
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|
|
Appendix 10.6.2
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–
|
Text
of deed of assignment of the Obligations and Commitments
Transferred.
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11
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3.
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Declarations by the
Company
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The
Company hereby declares and undertakes as follows:
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3.1
|
That
it owns the rights in the Company’s Lands as same are described in this
Agreement and its aforesaid rights in the Company’s Lands are free and
clear of any debt, encumbrance, attachment, mortgage and third party
rights, save and except the existing encumbrances in favor of Bank Leumi
le-Israel B.M. (hereinafter: “Bank Leumi”) as
described in Appendix
3.1 (2) to this Agreement (hereinafter: “the Existing
Encumbrances”), which will be removed by the Company in accordance
with the provisions of Clause 6 below, and apart from a caveat regarding an
antiquities site in favor of the State of Israel pursuant to Deed No.
044510 dated December 1, 1995. A letter from Bank Leumi giving
details of the balance of the loans as at March 7, 2010 is attached to
this Agreement as Appendix
3.1 (3). It is
further clarified that the Company is a party to the legal proceedings
described in Appendix 3.1 (1) to this
Agreement.
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|
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3.2
|
That
it is entitled and empowered to enter into this Agreement and to perform
it, and up to the date of signing of this Agreement it has passed all the
resolutions and obtained the approvals required according to the
provisions of the law and its documents of incorporation for purposes of
its entering into this Agreement.
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4.
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Declarations by the
Purchaser
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The
Purchaser hereby declares and undertakes as follows:
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4.1
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That
each of the individual parties who make up the Purchaser is duly
incorporated and that each of the individual parties who make up the
Purchaser is entitled and empowered to enter
into this Agreement and to perform it, and that it has passed all the
resolutions and obtained the approvals required according to the
provisions of the law and its documents of incorporation for purposes of
its entering into this
Agreement.
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|
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4.2
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That
no steps have been taken for an arrangement, stay of proceedings,
winding-up, liquidation, expungement, bankruptcy or receivership of any of
the individual parties who make up the Purchaser, and that there is no
threat against any of the individual parties who make up the Purchaser
with regard to such legal proceedings (including the fact that no
attachment has been imposed on their assets), which is likely to have an
impact on their entering into this Agreement and on the performance and
implementation of this Agreement.
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|
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4.3
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That
it is bound by the declarations and undertakings that were given on its
behalf in the scope of the Sale Process and the Sale Procedure, and that
its declarations and undertakings mentioned in this sub-clause above are
correct, complete, full and updated, and are binding on it in all
respects.
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|
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4.4
|
That
acquisition of the Property Sold is being effected for the Purchaser
alone, and it or any of the individual parties who make up the Purchaser
is not acting, and will not act as an agent, representative, trustee
and/or partner in this regard, with and/or for another, whether directly
or indirectly, including the fact that they have not granted a right or
option to another as aforesaid in connection with the Property Sold and/or
the rights contained herein, prior to signing of this
Agreement.
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12
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|
4.5
|
That
it is aware that the Company has agreed to enter into this Agreement with
it inter alia in
reliance on the contents of the Firm Commitment Letter, Appendix F to this
Agreement, and that coupled with that the furnishing of the aforesaid
commitment letter does not derogate from the Purchaser’s obligation to pay
the full consideration at the times specified for the payment thereof in
Clause 6 below, with it being clarified that the Purchaser’s obligation
for full payment of the consideration in accordance with the provisions of
this Agreement is absolute and is not contingent upon receiving finance or
on any other condition.
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|
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4.6
|
That
the Purchaser is buying the Property Sold (including the rights in the
Company’s Lands) in the same condition in which the property Sold is at
the time of signing of this Agreement (“as is, where is”) and after the
Purchaser had examined, inspected and
seen:
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|
(i)
|
The
Project Lands (including the Company’s Lands, the Municipality Lands and
the Additional Real Estate Rights), the surrounding neighborhood thereof,
their physical and legal condition (including the registration in the Land
Registry of Parcel 242 Block 7104 as “designated lands” and the existence
of leaseholds which have expired and which have not yet been expunged in
Parcel 92 Block 7104 as described in the Municipality Lands Agreement) and
the planning and zoning situation of the Project Lands (including the
Company’s Lands, the Municipality Lands and the Additional Real Estate
rights), adjacent land, and the region in which the Project Lands
(including the Company’s Lands, the Municipality Lands and the Additional
Real Estate Rights) are
located;
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|
(ii)
|
The
Obligations and Commitments Transferred, as defined in sub-clause 1.7
above.
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|
(iii)
|
Plans
of any sort pursuant to the Planning and Building Law and on the strength
of any other statute or law, whether approved or in preparation, at any
level and at any planning or other authority or institution, which pertain
to the Project Lands (including the Company’s Lands, the Municipality
Lands and the Additional Real Estate Rights) and all land in the
surrounding area thereof, and included in this they have inspected,
examined and seen the provisions of Plan TA/3001 including all the
appendices thereto and the Architectural Design Plan and all the
appendices thereto, and are familiar
therewith;
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|
(iv)
|
The
ways of access, the possibilities for planning, exploitation, licensing
and building of the Project Lands (including the Company’s Lands, the
Municipality Lands and the Additional Real Estate Rights) and all land in
the surrounding area thereof;
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|
(v)
|
The
quality and composition of the Property Sold, including with regard to
matters connected with the environment, antiquities, marketability,
design, quality and so forth, and the suitability of any of the
abovementioned matters for the Purchaser’s
needs;
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|
(vi)
|
Any
relevant information of whatsoever nature at all the relevant authorities,
including the Land Registry, the Taxes Authority, the various planning and
building authorities and the relevant local
authorities;
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13
|
(vii)
|
The
provisions of all the statutes, laws, bylaws which relate to the Property
Sold and/or to the Purchaser’s entering into this
Agreement.
|
The
Purchaser hereby confirms, declares and undertakes that it has found all the
foregoing to be to its full satisfaction, and that it hereby finally and
irrevocably waives any cause of action and/or demand and/or allegation and/or
claim of whatsoever nature in connection with the matters aforesaid, including
an allegation of non-conformity (patent or latent) and including allegations
regarding defects in the contractual arrangement such as the State, as against
the Company and/or the Municipality and/or as against the entities connected
with any of the individual parties who make it up and/or anyone on its behalf,
whether the origin of a cause of action in connection with the foregoing was in
a period preceding the Date of Delivery of Possession or subsequent
thereto. Included in this the Purchaser waives any right to receive
any remedy of cancellation, damages or restitution in respect of allegations or
causes of action as aforesaid.
It is
clarified that nothing contained in this sub-clause 4.6 shall derogate from the
Purchaser’s possibility of requesting an amendment of the Architectural Design
Plan, in accordance with and subject to the provisions of this Agreement,
including the provisions of Appendix 4.15 to this Agreement.
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4.7
|
That
it has the experience, know-how and ability to assess its entering into
this Agreement and the significances thereof, and that having regard
thereto, as also having regard to everything stated above and below in
this Agreement, it has carried out its aforesaid examinations in
consultation with all the experts whom it saw fit, in the course of
defining the information it wishes to
examine.
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|
4.8
|
That
the Purchaser is purchasing the rights in the Property Sold on the
strength of its own independent examinations, assessments and forecasts as
aforesaid only, and it has not relied for purposes of entering into this
Agreement on promises, representations, any undertakings or guarantees
from the Company and/or the Municipality and/or from any of the bodies
connected with either of them, except those that are expressly mentioned
in this Agreement, and without this imposing on the Company and/or the
Municipality and/or any of the bodies connected with either of them, any
liability of whatsoever nature with regard to the Property Sold or to the
value thereof, and without this imposing any obligation for indemnity on
the Company and/or the Municipality and/or any of the bodies connected
with either of them.
|
The
Purchaser declares that if it has not examined any detail connected with the
Property Sold independently, itself and/or through any entity on its behalf,
including any of the details mentioned in sub-clause 4.6 above and/or in
connection with any other details contained in this Agreement or arising from
it, for any reason, including by virtue of the difficulty of accessibility to
the information and/or due to restrictions that have been imposed, if and to the
extent that same were imposed, for any reason, on any such information or data
whatsoever at any particular authority or at any source of information, this
factor has been taken into account in the scope of the consideration pursuant to
this Agreement, and it waives any allegation or argument in connection
therewith.
14
|
4.9
|
That
acquisition of the Property Sold is in furtherance of a request for
proposals and a sale process that was conducted by the Company and the
Municipality in accordance with the sale procedure and following the
Purchaser’s selection as a preferred bidder. The Purchaser
further declares and undertakes that it is aware that the documents and
the information that have been placed at its disposal or at the disposal
of someone on its behalf, in connection with its entering into this
Agreement, including documents and information that were exhibited in the
information room, and including answers by the Company, the Municipality
or anyone on their behalf to questions, and including information given
during tours and at meetings, were provided solely for its convenience and
without this imposing any liability on the Company and/or the Municipality
and/or any of the bodies connected with either of them, in respect of the
correctness or completeness of such information and documents or the
absence of any other information or document, and without such information
and documents or the absence thereof being deemed to be a representation
for purposes of entering into the
Agreement.
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|
4.10
|
That
without derogating from the provisions of Clause 13 below, the Purchaser
hereby irrevocably waives any claim and/or allegation and/or right of
set-off and/or right to a reduction in the consideration or a right to
cancel the Agreement, as against the Company and/or the Municipality
and/or as against the bodies connected with either of them, of any type
and based on any cause of action, subject to the condition that the
Company shall fulfill its obligations as expressly enunciated in this
Agreement.
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|
4.11
|
That
it is aware that in the sole and absolute discretion of the Company and/or
the holders of rights in the Company, it is possible that at any time
after the signing of this Agreement, the Company may be wound up and/or
expunged and/or liquidated and/or corporate or other changes of any sort
may be made in the Company and/or in any of its
shareholders. The Purchaser declares and undertakes that it
agrees in advance to the performing of any of the abovementioned actions,
including the winding-up of the Company as aforesaid and that it will in
no way, whether directly or indirectly, oppose the winding-up and/or
expungement and/or dissolution of the Company and/or of any of its
shareholders and/or corporate and/or structural changes in the Company
and/or in any of its shareholders as aforesaid. It is agreed
that the Purchaser’s Agreement as set forth above in this sub-clause shall
also be deemed to be express consent to the performing of any of the
abovementioned actions, to the extent that such consent is required
according to any law, including the Laws of Companies. For the
removal of doubt it is clarified that nothing in the foregoing shall
derogate from the Company’s obligations pursuant to this
Agreement.
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|
4.12
|
The
Purchaser declares and confirms that it is aware that the Company will not
attend to the transfer of the rights of leasehold in and to the Company’s
Lands into the Purchaser’s name at the Land Registry, but that it will
deliver the documents specified in Clause 9 below to the
Purchaser. For the removal of doubt it is clarified that
nothing contained in the provisions of this sub-clause shall derogate from
the Company’s obligations pursuant to Clause 9 of this
Agreement.
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15
|
4.13
|
Public
buildings
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|
|
4.13.1
|
The
Housing Company is obliged to construct the public buildings, as defined
in the construction contract, in the manner described in the construction
contract and the appendices thereto, which is attached to this Agreement
as Appendix 4.13 and will be signed contemporaneously with the signing of
this Agreement (hereinafter: “the Construction
Contract” and “the
Public Buildings”, respectively). The Housing Company
undertakes to erect such Public Buildings and to deliver same to the
Municipality, in accordance with its above undertakings and the provisions
set forth below:
|
Included
in the foregoing, it is agreed that in respect of the timetables for erecting of
the sports center and the school (as defined in the Construction Contract
(hereinbefore and hereinafter: “the Sports Center and the
School”), the Housing Company undertakes to act in the manner described
below, with it being hereby clarified that in every case of a conflict or
non-conformity as between the timetables that are the subject of the
Construction Contract (including those mentioned in this Clause 4.13 below), and
the timetables that are the subject of this Agreement, the timetables that are
the subject of this Agreement shall prevail:
|
|
4.13.1.1
|
The
applications for the issue of excavation and shoring permits for the areas
on which the Sports Center and the School will be built shall be submitted
simultaneously with the lodgment of application for the issue of
excavation and shoring permits for the areas on which the parking areas
and/or commercial space within the confines of the
Kufsa.
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|
|
4.13.1.2
|
The
applications for the issue of building permits for the Sports Center and
the School shall be lodged simultaneously with the filing of the
applications for the issue of the building permits (as distinct from
excavation and shoring permits) for the parking areas and/or the
commercial space within the confines of the
Kufsa.
|
|
4.13.1.3
|
The
initial occupation of the parking areas and/or the commercial space within
the Kufsa shall be made contemporaneously with and subject to the
furnishing of a certificate for initial occupation of the Sports Center
and the School. It is hereby agreed that if the Purchaser
wishes to make use of the parking areas and/or the commercial space within
the Kufsa prior to production of a certificate for initial occupation of
the Sports Center and the School, the Purchaser will be entitled to
address an appropriate application to the Director of the Property
Division at the Municipality. The Director of the Property
Division at the Municipality will determine whether it is possible to
accede to the Purchaser’s application and what the conditions are in the
scope of which the Municipality is prepared to allow use of the parking
areas and/or the commercial space within the Kufsa prior to production of
a certificate for initial occupation of the Sports Center and the
School.
|
16
|
4.13.2
|
The
Purchaser (including the Mall Company) hereby confirms that it knows and
is familiar with the provisions of the Construction Contract, including
the timetable specified in the Construction Contract. This
includes the fact that the Purchaser (including the Mall Company) confirms
and agrees to the contingencies laid down in the Construction Contract and
in this Agreement above between the planning, construction, completion and
initial occupation of the parking areas and the commercial space within
the Kufsa, and the planning, construction, completion and initial
occupation of the Sports Center and the School. In addition,
the Purchaser (including the Mall Company) agrees that the timetable for
constructing the Public Buildings as prescribed in the Construction
Contract and/or in this Agreement will be registered as conditions in the
building permits in the Kufsa, and that it waives any allegation and/or
demand against the Company and/or the Municipality and/or either of them,
in connection with the contingency and the conditions in the building
permit as aforesaid.
|
|
4.13.3
|
It
is further agreed, in relation to the Public Buildings, that the Company
and the Municipality will bear the expenses for the construction thereof
in a manner whereby the Company will pay the Housing Company and will be
directly liable to it with respect to 75.84% of “costs of construction of the
Public Buildings” (as same are defined below) and the Municipality
will pay the Housing Company and will be directly liable to it in respect
of 24.16% of the costs of erecting the Public Buildings. For
the removal of doubt, it is clarified that the obligations of the
Municipality and the Company to bear such costs applies only in relation
to the Public Buildings as defined above. With respect to this
sub-clause 4.12 [sic] “costs of constructing the
Public Buildings” means – the specific costs (including a
percentage of the increment to cost that will be added in respect thereof,
to the extent that this is specified in Appendix C1 to the Construction
Contract) which are specified in the aforesaid Appendix C1, provided that
the amounts of the cost components were approved in writing and in advance
by the Company and the Municipality, through the administration as defined
in Appendix 4.16 to this Agreement (hereinbefore and hereinafter: “the
Administration”).
|
With
respect to payment of fees and levies as mentioned in Appendix C to the
Construction Contract, the Company shall be entitled to elect to make payment
thereof directly to the Local Committee and to the Municipality and not through
the Housing Company.
The
Housing Company undertakes that all the contractual arrangements between it and
designers and executing contractors in connection with the design and
construction of the Public Buildings will be done on a basis of tenders which
the Housing Company will conduct, with full transparency vis-à-vis the
Administration. The Housing Company further undertakes that
construction of the Public Buildings will be managed by it as a separate project
independent from the Purchaser’s Project, in which a separate bookkeeping and
accounting system will be maintained, and it is agreed that the costs of
constructing the Public Buildings will include only direct and specific costs of
constructing the Public Buildings without a loading of costs connected with
other parts of the Purchaser’s Project.
17
It is
agreed that in any event the costs of constructing the Public Buildings will not
exceed an aggregate amount of NIS 97,706,667 including V.A.T. (hereinafter in
this sub-clause: “the Limit
Amount”). Notwithstanding the foregoing it is agreed that if
it transpires that for purposes of meeting the obligation to erect the Public
Buildings in accordance with the technical specifications that were attached to
the Construction Contract, the “costs of erecting the Public Buildings” (as
defined above) are expected to exceed the Limit Amount, then the Housing Company
will refer to the Company and to the Municipality, through the Administration,
in order for the latter to examine whether a deviation from the Limit Amount is
indeed required. If such deviation is approved by the Company and the
Municipality through the Administration, then the approved amount of the
deviation will be added to the Limit Amount, where in each case it is hereby
agreed that the total amount of the costs of construction of the Public
Buildings which the Company and the Municipality will bear (each according to
its pro rata share)
will under no circumstances exceed a sum of NIS 102,333,333 plus V.A.T. as
prescribed by law (hereinafter: “the Maximum Limit
Amount”). Where the actual costs of constructing the Public
Buildings exceed the Maximum Limit Amount, the Housing Company will at its
expense bear any amount which exceeds the Maximum Limit Amount. It is
agreed that the Limit Amount as well as the Maximum Limit Amount will be linked
to the Building Inputs Index commencing from the date of signing of this
Agreement and until the actual effecting of each payment.
It is
further agreed that the Administration’s examination as aforesaid will be
carried out in a manner and at a time which shall not cause a delay in the
planning and execution of the construction of the Public Buildings in relation
to the timetable specified in the Construction Contract and in this
Agreement.
The
Company's share in the costs of constructing the Public Buildings in accordance
with the provisions of this sub-clause above shall be paid on a basis of current
month + 45 days from the date on which each account for payment is presented to
the Company and to the Municipality through the Administration, and subject to
the condition that the account was approved for payment by the
Administration. V.A.T. as prescribed by law shall be added to each
payment against receipt of a valid tax invoice.
In every
case of an engineering dispute between the parties in relation to the costs of
constructing the Public Buildings, except in relation to (1) approval of a
deviation from the Limit Amount as defined above; (2) anything connected with
the obligation of the Company and the Municipality to bear the aforementioned
costs; and (3) the maximum amounts which will be imposed on the Municipality and
the Company and the conditions specified above in regard thereto, the dispute
will be referred for the decision of a civil engineer who will be appointed with
the consent of the Company, the Municipality and the Housing Company, and in the
absence of agreement between them, the engineer will be appointed by the
chairman of the Society of Architects and Engineers (hereinafter: “the Engineering
Arbiter”). The Engineering Arbiter shall act as an expert and
not as an arbitrator and his decision shall be final and binding on the
parties.
It is
clarified that all the provisions of this sub-clause 4.13 are intended to add to
the provisions of the Construction Contract, on a basis that under all
circumstances the liability of the Municipality and of the Company to pay the
costs of construction of the Public Buildings is limited to the Limit Amount or
to the Maximum Limit Amount (as defined above) respectively.
18
For the
avoidance of doubt it is hereby clarified that apart from the payment of the
Company’s share of the costs of the Public Buildings as described above in this
sub-clause 4.13.3, the Company will not owe any liability either vis-à-vis the Housing Company
nor vis-à-vis any third
party, on any matter connected, directly or indirectly, with the Public
Buildings, including the planning, licensing, construction and initial
occupation thereof.
|
4.14
|
Cancelled.
|
|
4.15
|
All
the Purchaser’s representations and declarations pursuant to this Clause 4
will be correct both at the time of signing of this Agreement, and also at
the date of delivery of the right of use and at the date of delivery of
possession. Declarations verifying the representations are
attached to this Agreement as Appendix
4.15.
|
|
4.16
|
That
by virtue of it having been told that the Company and the Municipality are
the owners of rights in the Remainder of the Project Lands which are not
being sold to the Purchaser in the scope of the transaction that is the
subject of this Agreement, it is agreed that in connection therewith the
provisions of Appendix
4.16 to this Agreement, which forms an integral part hereof, shall
apply to the parties in addition to the provisions of this
Agreement.
|
|
4.17
|
That
it is aware that the sale is being effected in reliance on the correctness
and completeness of all its representations and declarations as set forth
in this Agreement.
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|
4.18
|
Timetables
|
|
4.18.1
|
The
Purchaser undertakes to act diligently and uninterruptedly in all aspects
connected with the planning, licensing and construction of the Purchaser’s
Project in order to meet the timetables set forth in Appendix 4.18 to this
Agreement (hereinafter: “the
Timetables”). It is agreed that the Timetables are
indicative, but coupled with that is agreed, in the case of any divergence
of more than 6 months in any of the milestones included in the Timetables
which occurs up to the time of actual payment of the second payment or up
to the time of the implementation of the first building permit (as defined
in Clause 6.2.4 below), whichever is the later, then without derogating
from any remedy available to the Company according to any law and
agreement (excluding only the right to agreed damages as stated in Clause
14 below), the Company will be entitled to agreed damages from the
Purchaser in respect of such divergence in an amount equivalent to NIS
113,760 for each month of default (and for a pro rata portion of
such damages in respect of part of a month), plus indexation differences
(as defined in this
Agreement).
|
|
|
4.18.2
|
Without
derogating from the generality of the contents of sub-clause 4.18.1 above,
the Purchaser undertakes to take steps for the issue of an excavation and
shoring permit at the earliest date it is possible to do
so. The Purchaser further undertakes to commence performing the
excavation and shoring works within nine weeks from a decision being taken
by the local committee / the licensing authority in regard to the issue of
an excavation and shoring permit, subject to payment of fees and levies
only (hereinafter in this sub-clause: “the Decision”) provided
that the Decision is taken before September 2010. Where the
Decision is taken after September 2010, the Purchaser will commence
execution of the excavation and shoring works not later than March 15,
2011. It is agreed that in the case of a divergence of more
than six weeks from the Timetables specified in this sub-clause 4.18.2,
the Company will be entitled, without derogating from any remedy available
to the Company according to any law and agreement (excluding only the
right to agreed damages as stated in Clause 14 below), to compensation
according to the amounts of damages specified in sub-clause 4.18.1
above.
|
19
|
|
4.18.3
|
The
Purchaser further undertakes that up to the end of 48 months from the date
of implementation of the first building permit (as defined in Clause 6.2.4
below), the commercial areas in the Purchaser’s Project and the Sports
Center and the School will be completed in a manner whereby up to the
aforesaid date an application will be lodged by it for receipt of “Form 4”
(which constitutes approval for initial occupation) in respect of the
commercial areas in the Purchaser’s Project, the Sports Center and the
School. It is agreed that in the case of a divergence from the
Timetables specified in this sub-clause 4.18.3, the Company will be
entitled, without derogating from any remedy available to the Company
according to any law and agreement (excluding only the right to agreed
damages as stated in Clause 14 below), to agreed damages from the
Purchaser in respect of such divergence in a sum equivalent to NIS 75,840
for each month of default (or a pro rata share of such
damages in respect of part of a month) in respect of the first 6 months of
default or part thereof, plus a sum of NIS 151,680 for each month of
default (and a pro
rata share of such damages in respect of part of a month) in
respect of 6 months default after the first 6 months or any part thereof,
and plus a sum of NIS 227,520 for each month of default (or a pro rata share of such
damages in respect of part of a month) in respect of each month of default
thereafter, or any portion thereof.
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The
amounts of damages specified in this clause above will bear indexation
differences (as defined in this Agreement).
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|
4.18.4
|
It
is agreed that if there should be an impediment to meeting the Timetables
prescribed in sub-clauses 4.18.1-4.18.3 the origin of which is force majeure as
recognized at law, then subject to the condition that the Purchaser shall
invoke all the necessary means in order to remove or eliminate the
impediment, the period of the impediment due to force majeure as
aforesaid will not be counted as part of the times for purposes of this
sub-clause 4.18 above.
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4.18.5
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It
is agreed that a precondition to the excavating of the basement which will
be below that portion of Parcel 93 which is marked in xxxx on the drawings
attached to this Agreement as Appendices A1-A2 will be
in coordination with and with the prior consent of the Administration,
including the setting of a timetable for completion of the construction of
that basement and road and finding solutions for entry and exit to the
Remainder of the Project Lands during the period of construction of these
specific basements.
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20
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4.19
|
The
Purchaser undertakes that within 6 months from the date of signing of this
Agreement it will submit an amended Architectural Design Plan to the Local
Committee and within 10 months from the date of signing of this Agreement
will lodge an application for a building permit in relation to the entire
Purchaser’s Project, which will be based on the aforesaid amended
Architectural Design Plan. It is clarified that in a case in
which lodgment of the application for a building permit as referred to in
this sub-clause which contains a concession for an addition of 2 extra
floors, that is to say: 14 floors as distinct from 12 floors, encounters
opposition, prior to lodgment of the application, from the authorized
entities at the planning authorities, then the application for a building
permit that will be lodged by the Purchaser will be for only 12
floors. It is agreed that the Purchaser will be entitled to
include in the application for such building permit, units having an
average area as stated in sub-clause 6.3.5 below. Nothing
contained in the provisions of this sub-clause shall derogate from the
remaining provisions of this Agreement in regard to the planning and
design of the Purchaser’s
Project.
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4.20
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Without
derogating from the provisions of Appendix 4.16 of this Agreement, the
Purchaser undertakes that the drawing up and signing of the Architectural
Design Plan, applications for a building permit and any other planning
and/or statutory document that may be submitted by it or by someone on its
behalf to the planning authorities, in connection with the Purchaser’s
Project (as distinct from the Public Buildings), will be performed in
relation to the Purchaser’s Project as a whole (as distinguished from the
Public Buildings) and to all the documents mentioned above, by an
architect, constructor and one traffic consultant whose identity shall be
approved by the Company and the
Municipality.
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4.21
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The
Purchaser declares that it is aware that all the actions and/or
undertakings and/or representations of the Municipality pursuant to this
Agreement and/or in connection herewith are in the Municipality’s capacity
as owner of the Project Lands, and that none of the aforesaid actions
and/or undertakings and/or representations will have the effect of binding
the Local Committee or any other statutory or planning
body.
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4.22
|
That
it is aware that the undertakings of the Interested Parties as defined at
the foot of this Agreement do not release it from any of its obligations
under this Agreement and that the deed of undertaking of the Interested
Parties and/or the fulfillment of the obligations of the Interested
Parties or any of them pursuant thereto shall not derogate from any of the
remedies available to the Company against the Purchaser in accordance with
the provisions of this Agreement and the
law.
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5.
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The
transaction:
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|
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5.1
|
The
Company hereby sells the Property Sold to the Purchaser, and the Purchaser
hereby buys the Property Sold from the Company, for the consideration and
on the conditions as set forth in this
Agreement.
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It is
clarified that the rights being sold by the Company in the Company’s Lands as
defined in this Agreement, are long leasehold rights for a leasehold period
ending on August 31, 2099.
21
It is
clarified that in the framework of the Property Sold the Purchaser assumes the
Obligations and Commitments Transferred at the dates specified in this Agreement
below, coupled with a full, irrevocable and absolute release and exemption for
the Company from the Obligations and Commitments Transferred, and in accordance
with the deed of assignment attached to this Agreement as Appendix
10.6.2.
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5.2
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Liability
of individual parties who make up the
Purchaser
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5.2.1
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It
is agreed that the liability of the individual parties who make up the
Purchaser for the fulfillment of the Purchaser’s obligations under this
Agreement are joint and several, except with respect to the following
obligations:
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5.2.1.1
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Payment
of the consideration as set forth in sub-clause 5.2.4
below;
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5.2.1.2
|
Construction
of the Public Buildings as stated in sub-clause 4.12 above, which will be
solely under the responsibility of the Housing
Company;
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5.2.1.3
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Declarations
and undertakings of the individual parties who make up the Purchaser which
are the subject of sub-clauses 4.1 and
4.2;
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5.2.2
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Without
derogating from the foregoing in this sub-clause, it is hereby made known
to the Company by the Purchaser that the individual parties who make up
the Purchaser are buying the Property Sold according to a division that
has been decided upon between them prior to the signing of this Agreement,
without this derogating from any obligations of any of them in accordance
with the provisions of this Agreement. Solely for the sake of
convenience and only for registration purposes, it is agreed that the
individual parties who make up the Purchaser will be deemed to be
purchasers of the Company’s Lands in relative shares between them (in
musha) as
follows: the Housing Company – 60%, the Mall Company –
40%. For the removal of doubt it is clarified that the
proportionate shares mentioned above are made known to the Company solely
for purposes of information, that the Company is not bound in any way in
relation to such division, and that the aforesaid division does not and
will not derogate from any of the Company’s rights vis-à-vis the
individual parties who make up the Purchaser and/or derogate from any of
the Purchaser’s obligations to the Company (both with respect to the joint
and several obligations of the individual parties who make up the
Purchaser to the Company and also in relation to the obligations of any of
the individual parties who make up the Purchaser severally as against the
Company, all according to the provisions of this
Agreement).
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5.2.3
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Cancelled.
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5.2.4
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With
respect to liabilities for payment of “the consideration” (as
defined below), the following provisions will
apply:
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5.2.4.1
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Liability
for payment of the Basic
Consideration (as defined below) will be divided in such a way that
the Housing Company will pay the Company NIS 432,288,000 plus indexation
differences, out of the Basic Consideration, and the Mall Company will pay
the Company NIS 288,192,000 plus indexation differences, out of the Basic
Consideration, all together with V.A.T. as prescribed by law, according to
the following division:
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22
|
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5.2.4.1.1
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“The First Payment” (as
defined below) will be divided in such a way that the Housing Company will
pay the Company NIS 82,362,240 plus indexation differences of the First
Payment, and the Mall Company will pay the Company NIS 54,908,160 plus
indexation differences, of the First
Payment.
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5.2.4.1.2
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“The Additional First
Payment” (as defined below) will be divided in such a way that the
Housing Company will pay the Company NIS 18,201,600 of the Additional
First Payment, and the Mall Company will pay the Company NIS 12,134,400 of
the Additional First Payment, plus indexation
differences.
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5.2.4.1.3
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“The Later First
Payment” (as defined below) will be divided in such a way that the
Housing Company will pay the Company NIS 17,296,070 of the Later First
Payment and the Mall Company will pay the Company NIS 11,530,714 of the
Later First Payment, plus indexation
differences.
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5.2.4.1.4
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“The Second Payment” (as
defined below) will be divided in such a way that the Housing Company will
pay the Company NIS 291,676,090 of the Second Payment, and the Mall
Company will pay the Company NIS 209,618,726 of the Second Payment, plus
indexation differences.
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5.2.4.1.5
|
“The Third Payment” (as
defined below) will be paid by the Housing Company in full, together with
indexation differences.
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5.2.4.1.6
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Each
of the individual parties who make up the Purchaser undertakes to pay
the Company its share specified above in the Basic Consideration in
relation to each of the payments mentioned in Clause 6 below and at the
times specified in Clause 6
below.
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5.2.4.2
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The
liability for payment of the additional consideration shall be imposed
solely on the Housing
Company.
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5.2.4.3
|
Without
derogating from the remaining provisions of this Agreement, it is agreed
that until actual settlement of the Second Payment, in a case of: (1) a
breach of any of the obligations set forth in sub-clauses 5.2.1.1 to
5.2.1.3 above, including the obligations to make any payment on account of
the consideration by any of the individual parties who make up the
Purchaser, which was not rectified by it within the time specified in this
Agreement for rectification of the breach and (2) the occurrence of one of
the events mentioned in sub-clause 18.7 below with respect to any of the
individual parties who make up the Purchaser (hereinafter: “the Defaulting Individual
Purchaser”) the following provisions will
apply:
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23
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5.2.4.3.1
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The
right will be conferred on the Company and the Municipality to cancel this
Agreement and the Municipality Lands Agreement vis-à-vis the
Defaulting Individual Purchaser, and to hold forfeit from the Defaulting
Individual Purchaser the
full amount of the agreed damages calculated on a basis of the full
basic consideration as defined in this Agreement and in the Municipality
Lands Agreement (including by way of foreclosing on the sale process
guarantee and/or holding forfeit the amounts that were paid to the Company
and to the Municipality on account of the consideration by the Defaulting
Individual Purchaser up to such time), with this being in addition to the
remaining remedies available to the Company and to the Municipality as
against the Defaulting Individual Purchaser in accordance with any law
and/or agreement.
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5.2.4.3.2
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An
individual purchaser who is not the Defaulting Individual Purchaser
(hereinafter: “the
Complying Individual Purchaser”) will be given a period of 45 days
from the date of cancellation of the Agreement as against the Defaulting
Individual Purchaser (hereinafter in this sub-clause: “the Date of
Cancellation”), in the course of which the Complying Individual
Purchaser will be entitled to present for the approval of the Company and
the Municipality the identity of a third party (hereinafter: “the Substitute on behalf of
the Purchaser”) who: (1) has irrevocably undertaken in writing
vis-à-vis the
Complying Individual Purchaser and vis-à-vis the Company
and the Municipality to step into the shoes of the Defaulting Individual
Purchaser under the terms and conditions of this Agreement and to sign the
transfer documents as defined below with the Company and the Municipality;
(2) has been approved by the financing bank (if one exists at that stage)
as being a party who will step into the shoes of the Defaulting Individual
Purchaser in the contractual arrangement with the financing bank and has
signed all the documents in connection therewith; and (3) has undertaken
to the Company and the Municipality to make the additional First Payment
and/or the later First Payment and/or the second payment, as the case may
be, within 30 days from the date of its approval as a substitute by the
Company and the Municipality (and to the extent that the time for making
the additional First Payment and/or the later First Payment and/or the
second payment has not yet arrived – to make payment of each of them on
the due date thereof). If the Company and the Municipality, in
their sole discretion, approve the identity of the substitute on behalf of
the Purchaser (after having been satisfied, inter alia, that the
substitute has equity capital and financial means to pay its share of the
consideration without delay and to fulfill the remaining obligations under
this Agreement and the Municipality Lands Agreement), then the parties
shall, within 14 days from the date of the approval, sign all the
documents that will be required by the Company and the Municipality for
purposes of arranging the substitute on behalf of the Purchaser’s stepping
into the shoes of the Defaulting Individual Purchaser (hereinafter: “the Transfer
Documents”), and settlement of the additional First Payment and/or
settlement of the later First Payment and/or settlement of the second
payment, as the case may be, will be made not later than 30 days from the
date of approval of the substitute on behalf of the Purchaser, and to the
extent that the time for making the additional First Payment and/or the
later First Payment and/or the second payment has arrived – to make
payment of each of these on the due date
thereof.
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24
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5.2.4.3.3
|
If
a Substitute on behalf of the Purchaser is not presented to the Company
and/or if the Substitute on behalf of the Purchaser is not approved by the
Company and the Municipality within 45 days from the Date of Cancellation
and/or in a case in which the substitute has not signed the Transfer
Documents with the Company and the Municipality, then the Company and the
Municipality will have a period of 45 days in which to present to the
Complying Individual Purchaser a third party who will step into the shoes
of the Defaulting Individual Purchaser according to the terms and
conditions of this Agreement and the conditions of any additional
agreement that may be signed between the individual parties who make up
the Purchaser as between themselves at the latest up to the date on which
the default by the Defaulting Individual Purchaser occurred (hereinafter:
“the Substitute on behalf
of the Company and the
Municipality”).
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5.2.4.3.4
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If
the Company and the Municipality do not present a Substitute on behalf of
the Company and the Municipality or the Complying Individual Purchaser has
not approved the identity of the Substitute on behalf of the Company and
the Municipality, or if the conditions for the substitute stepping into
the shoes of the Defaulting Individual Purchaser have not been agreed
between the Complying Individual Purchaser and the Substitute on behalf of
the Company and the Municipality, then the Company and the Municipality
will be entitled to cancel this Agreement also vis-à-vis the Complying
Individual Purchaser, and in a situation in which the identity of the
Substitute on behalf of the Company and the Municipality has not been
approved by the Complying Individual Purchaser or in a case in which the
Complying Individual Purchaser fails to sign the Transfer Documents, then
and in that event the Company and the Municipality will be entitled to
agreed damages from the Complying Individual Purchaser in a sum equivalent
to 10% of the total share of the Complying Individual Purchaser in the
Basic Consideration in accordance with this Agreement and pursuant to the
Municipality Lands Agreement (including by way of foreclosure on the Sale
Process Guarantee and/or the holding forfeit of the amounts which were
paid up to such time by the Complying Individual Purchaser to the Company
and the Municipality on account of the
Consideration).
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|
5.2.4.3.5
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For
the removal of doubt it is clarified that cancellation of the Agreement as
against the Defaulting Individual Purchaser in the circumstances as
described in sub-clause 5.2.4.3.1 and cancellation of the Agreement as
against the Complying Individual Purchaser in the circumstances as
described in sub-clause 5.2.4.3.4 will be deemed to be lawful cancellation
for all intents and
purposes.
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25
|
5.2.4.4
|
It
is further clarified for the avoidance of doubt that in the event of a
breach of any of the Purchaser’s obligations under this Agreement by two
individual parties who make up the Purchaser or upon the occurrence of one
of the events mentioned in sub-clause 18.7 below with respect to two
individual parties who make up the Purchaser, the Company will have all
the remedies according to any law and agreement available to it as against
two individual parties who make up the Purchaser (including, and without
derogating from the generality of the foregoing, a right of cancellation,
a right to receive agreed damages, and so forth), subject to the
provisions of sub-clause 18.8
below.
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5.2.5
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The
Purchaser undertakes that in the agreement between it and the financing
bank (both in relation to financing of the purchase of the Land and also
in relation to the construction loan/s) (hereinafter: “the Construction Loan
Agreement”) the following arrangements and/or provisions will be
included:
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5.2.5.1
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The
financing bank’s undertaking to give the Purchaser and/or any of the
individual parties who make up the Purchaser written warning notice prior
to a loan being made immediately due and payable in the scope of which
notice the Purchaser and/or any of the individual parties who make up the
Purchaser will be given an extension of time to cure the breach in respect
of which the warning notice was given (hereinafter: “the Warning Notice”),
except in certain cases as is customary in financing agreements for
projects of this sort in which the bank reserves the right not to give
notice.
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5.2.5.2
|
The
financing bank’s obligation to send the Company Warning Notices in each of
the cases in which the Purchaser will be entitled to receive same,
simultaneously with sending a Warning Notice to the
Purchaser.
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|
5.2.5.3
|
An
arrangement pursuant to which in a situation in which there are grounds
for making a loan immediately due and payable as against two individual
purchasers in consequence of which a Warning Notice will be given by the
financing bank and the time for rectifying the breach that was specified
in the Warning Notice has passed and the breach has not been cured, then
and in that event a period of exclusivity will be granted by the bank to
the Company for a period of 120 days in the course of which the Company
and the bank will conduct exclusive negotiations with the objective of
reaching an agreement that will allow the continued implementation of the
Purchaser’s Project by the Company or by someone on its behalf, whether by
way of the Company or someone on its behalf stepping into the Purchaser’s
shoes as a borrower, or by way of the debt being purchased by the Company
or someone on its behalf, or by way of the purchase by the Company of the
Company’s Lands and/or the Municipality Lands and/or the Additional Real
Estate Rights from the bank or through the bank by realization of the
encumbrance to the financing bank in the court and with its approval, or
in any other manner to the satisfaction of the bank and the
Company. The Purchaser hereby gives its irrevocable consent to
an arrangement that may be formulated with the agreement of the bank and
the Company and waives any allegation and/or demand in connection
therewith, subject to the condition that the bank acts in accordance with
its obligations according to law, including the fact that the arrangement
between the bank and the Company shall be made in the course of complying
with the bank’s obligations to the Purchaser according to law and in
accordance with the Construction Loan
Agreement.
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26
|
5.2.5.4
|
An
arrangement pursuant to which in a case where there are grounds for making
a loan immediately due and payable as against any of the individual
parties who make up the Purchaser (hereinafter in this sub-clause: “the Defaulting Individual
Purchaser”) as a consequence of which a warning notice will be
given by the financing bank in respect of such grounds and the time for
rectifying the breach as was specified in the warning notice has passed
and the breach has not been cured, then and in that event an individual
party who makes up the Purchaser who is not the Defaulting Individual
Purchaser (hereinafter in this sub-clause: “the Complying Individual
Purchaser”), or someone on its behalf, whose identity shall be
approved in advance by the Company and the Municipality in their sole
discretion (hereinafter: “the Substitute vis-à-vis the Bank”) will have
the right vis-à-vis the financing
bank to step into the shoes of the Defaulting Individual Purchaser and
with respect to its rights in the Purchaser’s Project, on terms and
conditions as shall be decided with the financing bank, and in such case,
and subject to compliance by the Substitute vis-à-vis the Bank with the
conditions set forth in Clause 5.2.4.3.2 above and the Substitute
vis-à-vis the Bank signing the Transfer Documents, the Substitute
vis-à-vis the Bank will also be deemed to be a substitute for the
Purchaser who has been approved by the Company and the
Municipality. If grounds for making a loan immediately due and
payable have occurred, and the Complying Individual Purchaser or someone
on its behalf has not stepped into the shoes of the Defaulting Individual
Purchaser, or in a case in which the identity of the entity on behalf of
the Complying Individual Purchaser has not been approved by the Company
and the Municipality, then subject to the condition that the Company meets
the criteria prevailing at that time at the financing bank for approval of
the identity of a borrower in a project such as the Purchaser’s Project,
the Company will have the right that “someone on behalf” of the Complying
Individual Purchaser shall, vis-à-vis the financing
bank, step into the shoes of the Defaulting Individual Purchaser and its
rights in the Purchaser’s Project, under such conditions as shall be
decided with the financing bank as
aforesaid.
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|
5.2.5.5
|
The
individual parties who make up the Purchaser undertake that in the
agreement of the individual parties who make up the Purchaser and/or
another agreement that may be made between them, provisions will be
included that conform with the contents of sub-clause 5.2.5
above.
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27
|
6.
|
The
consideration:
|
|
6.1
|
In
consideration for the Property Sold the Purchaser will pay the Company (in
accordance with the provisions of sub-clause 5.2 above) a Basic
Consideration in an aggregate amount of NIS 720,480,000 (seven hundred and
twenty million four hundred and eighty thousand new shekels), plus
indexation differences and together with V.A.T. as prescribed by law
(hereinafter: “the Basic
Consideration”). In addition to the Basic Consideration,
the Housing Company will pay the Company the additional consideration as
defined in Clause 6.3 below, plus V.A.T. as prescribed by law (the Basic
Consideration together with the additional consideration will be referred
to below as: “the
Consideration”).
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|
6.2
|
The
Basic Consideration will be paid by the individual parties who make up the
Purchaser, according to the division described in Clause 5 above, in the
manner and at the times set forth
below:
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|
|
6.2.1
|
A
sum of NIS 137,270,400, together with indexation differences based on
linkage to the Consumer Price Index and plus interest at an annual rate of
2.5% in respect of the period commencing from April 15, 2010 and up to the
date of signing of this Agreement (hereinafter: “the First Payment”)
shall, on the date of signing of this Agreement, be deposited in a trust
account to be opened by the attorneys (hereinafter: “the Trust Account” and
“the First Payment
Moneys” respectively). The First Payment shall be paid
out of the Purchaser's independent resources and without any encumbrance
over any of the Purchaser’s rights pursuant to this Agreement and/or the
Company’s Lands.
|
Contemporaneous
with the deposit of the First Payment Moneys in the Trust Account, the Purchaser
shall lodge with the Trustee a check made payable to the Company in the amount
of the V.A.T. in respect of the First Payment, the due date for payment of which
is blank (hereinafter: “the
Check for V.A.T.”). The parties hereby instruct the Trustee to
fill in the date of the Check for V.A.T. and to send it to the Company not later
than the 12th of the
month following the month in which the First Payment was deposited with the
Trustee (even if the conditions set forth below for release of the First Payment
Moneys to the Company have not been fulfilled), unless the Trustee has by the
5th
of the aforesaid month received a notice signed by both the parties to the
effect that payment of the aforesaid V.A.T. will be deferred until the 15th of the
month following the month in which the condition precedent for the Municipality
Agreement, as defined below, has been fulfilled (hereinafter: “Notice by the Parties” and
“Date of the Deferred
Payment”, respectively). In such case, the parties hereby give
the Trustee an instruction to fill in the date of the Check for V.A.T. and to
send the Check for V.A.T. to the Company not later than three days before the
Date of the Deferred Payment. Against payment of the check to the
Company, the Company shall furnish the Purchaser with a valid tax
invoice. In a case in which the Company’s tax consultants notify the
Company in writing that it is possible to postpone payment of the V.A.T. that is
the subject of the First Payment to the Date of the Deferred Payment, the
Company undertakes to sign the Notice by the Parties and to deliver same to the
Trustee not later than the 5th of the
month following the month in which the First Payment was deposited with the
Trustee.
28
Within 7
business days from the date on which the condition precedent for the
Municipality Agreement, as defined in sub-clause 10.2 below, is fulfilled, the
Company will register a caveat in favor of the
Purchaser over the Existing Leasehold as defined above (where the rights
according to the Existing Leasehold are in the same condition as they were at
the time of signing of this Agreement). Simultaneous with the
registration of a caveat over the Existing
Leasehold and registration of a caveat by the Municipality in
favor of the Purchaser over the Municipality’s rights in Parcels 92, 93, 95 and
114 Block 7104 (as stipulated in the Municipality Lands Agreement and in
accordance with the provisions thereof), the Trustee will transfer the First
Payment Moneys together with the fruits, thereof to the Company. If
the caveats have not
been registered due to an impediment which is not connected with the Purchaser,
the aforesaid caveats
will be registered within 2 business days from the date of removal of the
impediment and upon the registration thereof the Trustee shall transfer the
First Payment Moneys together with the fruits thereof to the
Company.
|
6.2.2
|
A
sum of NIS 30,336,000 together with indexation differences (as defined
above) in respect thereof (hereinafter: “the Additional First
Payment”), plus V.A.T. as prescribed by law (which shall be paid in
the manner stated in Clause 6.8 below), shall be paid by the Purchaser
directly to the Company by way of bank check, within 90 days from the date
of transfer of the First Payment Moneys from the Trustee to the Company,
as stated in sub-clause 6.2.1 above. The Additional First
Payment shall be paid out of the Purchaser’s own resources and without any
encumbrance on any of the Purchaser’s rights pursuant to this Agreement
and/or in the Company’s
Lands.
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|
6.2.3
|
Within
90 days from the date specified for making of the Additional First
Payment, a sum of NIS 28,826,784 (together with indexation differences)
(as defined above) and plus V.A.T. as prescribed by law (which shall be
paid as stated in sub-clause 6.8 below) shall be paid by the Purchaser to
the Company by way of bank check (hereinafter: “the Later First
Payment”), against return to the Purchaser of
the sale process guarantee. The Later First Payment shall be
paid out of the Purchaser’s own resources without any encumbrance on any
of the Purchaser’s rights pursuant to this Agreement and/or in the
Company’s Lands. The Purchaser undertakes to cause an extension
of the sale process guarantee from time to time in a manner whereby the
guarantee will remain in force until actual settlement of the Later First
Payment. If the sale process guarantee is not extended as
aforesaid at least 21 days before the date of its expiration, the Company
will be entitled to foreclose on the sale process
guarantee.
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|
6.2.4
|
A
sum of NIS 501,294,816 together with indexation differences (as defined
above) in respect thereof (hereinafter: “the Second Payment”)
plus V.A.T. as prescribed by law (which shall be paid as stated in Clause
6.8 below) shall be paid by the Purchaser directly to the Company: (1) 7
business days from the date on which notice is given by the Municipality
to the effect that subject to payment of fees and levies only, it will be
possible to issue the first building permit (even if such notice relates
to a building permit that will be issued in relation to only part of the
Company’s Lands and/or the Municipality Lands and/or the Additional Real
Estate Rights, but excluding an excavation and shoring permit, a permit
for a sales office, signboards, fencing and similar other permits that are
only ancillary and subordinate to the Project) (hereinafter: “the First Building
Permit” and “Notice Regarding the First
Building Permit”, respectively), or (2) after the elapse of 24
months from the date of signing of this Agreement, whichever of (1) or (2)
is the later. For the avoidance of doubt it is hereby clarified
that such notice in relation to a permit for construction of the basement
floors or part thereof (even if it is issued separately from the building
permit for the above-ground areas) will be deemed to be Notice Regarding
the First Building Permit for purposes of this Clause
6.2.4. The Second Payment shall be made by way of a bank check
and subject to fulfillment of the matters set forth in sub-clause 6.2.5
above.
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29
For the
removal of doubt it is clarified that under all circumstances, whether or not a
building permit is issued, irrespective of the reason for the delay in or
failure to issue the building permit, the Second Payment shall be made not later
than the end of 24 months from the date of signing of this Agreement and in
accordance with the provisions of this sub-clause above and sub-clause 6.2.5
below, without being dependent on the fulfillment or non-fulfillment of any
circumstances, including in connection with the issue or non-issue of the First
Building Permit, and shall be in the nature of being an absolute obligation for
payment at the specified times.
The
Purchaser undertakes to notify the Company in writing, in good time, as to the
anticipated date for issue of the First Building Permit. If up to
such time the loan which is the subject of the existing encumbrances has not yet
been liquidated and discharged, the Company shall issue to the Purchaser an
updated letter of intent from Bank Leumi, within 14 days from the date of
receipt of the Purchaser’s aforesaid notice, stating that against payment of the
amount specified therein (where such amount does not exceed the amount of the
Second Payment less “the trust
moneys” (as same are defined in Clause 6.2.5.6 below) and less the amount
of the betterment levy referred to in sub-clause 11.3.2 below, if it has not yet
been paid) (hereinafter: “Balance of the Loans”), the
existing encumbrances on the Company’s Lands as same are defined above shall be
liquidated and discharged (hereinafter: “the Updated Letter of
Intent”). The validity of the Updated Letter of Intent will be
extended if necessary, from time to time, in a manner whereby the Updated Letter
of Intent will be in force as at the date of effecting of the Second
Payment.
The
Purchaser undertakes to give the Company written notice about the issue of the
First Building Permit immediately upon receipt thereof, and to furnish the
Company with a copy thereof.
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6.2.5
|
The
Second Payment shall be made in a manner whereby at the date specified in
sub-clause 6.2.4 above for the making of the Second Payment, the parties
will meet at the Land Registry, and will simultaneously perform the
following actions:
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|
6.2.5.1
|
The
Company will deliver to the Purchaser the certificates mentioned in
sub-clauses 9.1.2-9.1.3 below, if same have not been delivered up to that
time.
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6.2.5.2
|
The
Purchaser shall, by way of a bank check, pay the Company and/or Bank Leumi
and/or the Trustee, as the case may be (and as described below), the
Second Payment as
follows:
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30
|
6.2.5.2.1
|
The
sum of the balance of the loans as specified in the Updated Letter of
Intent (as defined above), if a balance remains at such time in favor of
Bank Leumi, will be paid to Bank Leumi by way of a bank
check.
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6.2.5.2.2
|
If
the Company has not furnished the Land Appreciation Tax certificate
mentioned in Clause 9.1.1(a) below, the trust moneys, as defined in Clause
6.2.5.6 below, will be paid to the Trustee by way of a bank
check.
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6.2.5.2.3
|
The
balance of the First Payment will be paid to the Company, by way of a bank
check.
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6.2.5.3
|
The
encumbrance in favor of the financing bank as defined in Clause 16.7.3
below, will be registered in accordance with one of the alternatives
described in Clause 16.7.3 below. It is agreed that for
purposes of registration of the encumbrance with the Registrar of
Companies, delivery of a debenture and an encumbrance registration form to
the Registrar of Companies, signed by the authorized signatories of the
Company and duly authenticated, shall be deemed to be registration of an
encumbrance for purposes of this
sub-clause.
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6.2.5.4
|
The
encumbrance over the Company’s Lands (as defined in Clause 16.7.3 of the
Municipality Lands Agreement) will be registered in favor of the financing
bank.
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6.2.5.5
|
The
Company will deliver possession of the Company’s Lands to the Purchaser as
described in Clause 10 below. In addition, by virtue of
delivery of possession of the Company’s Lands, the amount of the V.A.T.
which is the subject of the Second Payment and the amount of the V.A.T.
which is the subject of the Third Payment will be paid to the Company by
the Purchaser at the Date of Delivery of Possession by way of a bank
check, against a valid tax
invoice.
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6.2.5.6
|
Notwithstanding
the contents of sub-clause 6.2.5.1 above, if at the date of effecting the
Second Payment, the Land Appreciation Tax certificates mentioned in Clause
9.1.1(a) below has not been delivered to the Purchaser, then the Company
will furnish the Purchaser with a letter from Adv. Udi Barzilai, the
Company’s tax consultant, setting forth an assessment by the tax
consultant with regard to the amount of the Land Appreciation Tax that
will be imposed on the Company in respect of the transaction which is the
subject of this Agreement, after the full objection and appeal proceedings
according to law have been exhausted, taking into account the full gamut
of the relevant circumstances that are known at that time (hereinafter:
“the Tax Consultant’s
Letter” and “the
Anticipated Amount of Tax”, respectively). In such case,
a deposit will be made out of the Second Payment moneys to the Trust
Account of an amount equal to the Anticipated Amount of Tax as stated in
the Tax Consultant’s Letter (hereinafter: “the Trust
Moneys”). The Trustee shall hold the trust moneys in its
possession until the Land Appreciation Tax Certificate mentioned in Clause
9.1.1(a) below is delivered to the Purchaser, and in accordance with the
provisions of the written instructions to the Trustee, Appendix 6.2.8 to
this Agreement.
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31
If Adv.
Barzilai is prevented from furnishing the Tax Consultant’s Letter at that time,
then the Company will refer to another tax consultant, in its discretion, for
purposes of obtaining the Tax Consultant’s Letter, provided that the identity of
such tax consultant will be acceptable to the Purchaser (on a basis that the
Purchaser will not be entitled to object to the identity of the tax consultant
except on reasonable grounds).
If the
Tax Consultant’s Letter is not furnished up to the time of making of the Second
Payment, for any reason, then the full Second Payment (except for the amount of
the balance of the loans) will be deposited in trust with the Trustee, until the
Tax Consultant’s Letter is furnished, on a basis that upon the furnishing of the
letter, the Trustee shall transfer the amounts that have been deposited with it,
less the amount of the anticipated tax (as defined above) to the Company, all in
accordance with the provisions of the written instructions to the Trustee,
Appendix 6.2.8 to this Agreement.
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6.2.5.7
|
It
is clarified that the making of the Second Payment in accordance with this
Clause 6.2 shall be effected simultaneous with the making of the Second
Payment pursuant to Clause 6.2 of the Municipality Lands Agreement and
according to the conditions
thereof.
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6.2.5.8
|
It
is hereby agreed that if a registration or procedural problem should arise
in creating any of the encumbrances included in the encumbrance to the
financing bank, then the parties will in good time discuss between
themselves and together with the financing bank the necessity for reaching
an appropriate arrangement that will be agreed upon by the parties and by
the financing bank in a manner that allows for the effecting of the Second
Payment.
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|
6.2.6
|
A
sum of NIS 22,752,000 together with indexation differences (as defined
above) in respect thereof (hereinafter: “the Third Payment”)
will be paid by the Housing Company directly to the Company on the date of
receipt of “Form 4” with respect to the first commercial areas that will
be constructed on the Company’s Lands and/or the Municipality Lands and/or
the Additional Real Estate Rights (except if “Form 4” is received solely
with respect to the commercial areas that will be located on the first
floors of the residential buildings in the residential zone, if there are
such) and against delivery of an irrevocable power of attorney as
mentioned in Clause 9.2 below and the minutes referred to in Clause 9.2
below, delivery of the deeds of transfer of right of lease mentioned in
Clause 9.1.4 below and return of a power of attorney for expungement of a
caveat mentioned
in Clause 9.6 below. The Third Payment shall be made by way of
a bank check.
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32
|
6.2.7
|
It
is agreed between the parties that if the Company presents to the Trustee
demands for payment from the tax authorities, and the Company presents the
Trustee with a certificate from the Company stating that against the
making of the payment specified in the demands for payment the certificate
referred to in Clause 9.1.1(a) below will be issued by the relevant tax
authority, then the Trustee will be empowered, if the Company has so
requested from it in writing with a copy to the Purchaser, to make payment
out of the trust moneys of the payments that are the subject of the
aforesaid demands for payment to the relevant authority, for purposes of
obtaining the aforesaid certificate. The parties hereby
instruct the Trustee that after the elapse of the time specified in
sub-clause 9.1.5 for the furnishing of the certificate mentioned in Clause
9.1.1(a) below, and on a written demand from the Purchaser, the Trustee
will make use of the Trust Moneys for purposes of making the payments
demanded for the furnishing of the certificate mentioned in Clause
9.1.1(a) below, including the furnishing of suitable bank
guarantees.
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|
6.2.8
|
In
relation to any amount that may be deposited in trust with the Trustee in
accordance with the provisions of this Clause 6, the Trustee shall act in
accordance with the letter of instructions to the Trustee which is
attached to this Agreement as Appendix
6.2.8, and deposit of such amount in trust with the Trustee, as
aforesaid, shall be deemed to be performance of the Purchaser’s obligation
to pay the aforesaid amount to the
Company.
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|
6.3
|
In
addition to the Basic Consideration, the Company will be entitled to
additional consideration from the Housing Company in relation to the
residential areas that will be erected on Xxxx Xx. 0 and in relation to
the areas of Plot No. 6, in the scope of the Purchaser’s Project, as
described below (hereinafter: “the Additional
Consideration”):
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|
6.3.1
|
The
terms mentioned in this Clause 6.3 and all the sub-clauses hereof will
have the meaning ascribed to them in Clause 6.7.1
below.
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|
6.3.2
|
If
the average selling price per sq.m. should exceed NIS 15,517 (excluding
V.A.T.) linked to the upside index as stated in Clause 6.3.4 below
(hereinafter: “the Basic
Price”), but be less than NIS 16,379 (excluding V.A.T.) linked to
the upside index as stated in sub-clause 6.3.4 below (hereinafter: “the Intermediate
Price”), the Housing Company will pay the Company an amount
equivalent to the full difference between the Intermediate Price and the
Basic Price where this is multiplied by the sale areas and the Company’s
share in the Additional Consideration, plus V.A.T. as prescribed by law
against receipt of a valid tax
invoice.
|
For
example–
In a case
in which there has been no rise in the upside index, the average selling price
per sq.m. will be NIS 16,000 (excluding V.A.T.) and the sale areas will stand at
50,000 sq.m., then the Additional Consideration to the Company will
be:
50,000* 75.84%*(16000-15517) = NIS 18,315,360 plus V.A.T. according
to law.
33
|
6.3.3
|
If
the average selling price per sq.m. should exceed the Intermediate Price
(hereinafter: “the High
Price”), the Housing Company will pay the Company the following
cumulative amounts, together with V.A.T. according to law and against
receipt of a valid tax invoice:
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|
6.3.3.1
|
The
full difference between the Intermediate Price and the Basic Price where
it is multiplied by the sale areas and by the Company’s share in the
Additional Consideration.
|
|
6.3.3.2
|
50%
of the difference between the High Price and the Intermediate Price where
this is multiplied by the sale areas and by the Company’s share of the
Additional Consideration.
|
For example
–
In a case
in which the upside index has not risen, the average selling price per sq.m.
will be NIS 18,000 (excluding V.A.T.), the sale areas will stand at 50,000
sq.m., then the Additional Consideration will be the following cumulative
amounts:
50,000* 75.84%*(16379-15517) = NIS 32,687,040 plus V.A.T. according
to law.
50,000* 50%*75.84%*(18000-16379) = NIS 30,734,160 plus V.A.T. according
to law.
And altogether the Additional
Consideration to the Company will amount to a sum of NIS 63,421,200 plus V.A.T.
according to law.
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6.3.4
|
The
Basic Price and the Intermediate Price (as will be updated in accordance
with the provisions of sub-clause 6.3.5 below to the extent that same are
updated) will be linked to the index or to the Building Inputs Index,
according to the index to which the proceeds that will be received from
buyers of apartments will be linked and as will be mentioned in the sale
contract with the buyers of apartments (hereinafter: “the Upside Index”) and
will bear indexation differences at the percentage rise of the Upside
Index which is known at the time of doing the relevant accounting as
against the Upside Index that was known at the date of signing of an
agreement for the sale of the first apartment in the Purchaser’s Project
between the Purchaser and a third party, while a decline in the Upside
Index will not lead to a reduction of the Basic Price and the Intermediate
Price, as the case may be.
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|
6.3.5
|
If
building construction has been approved to the Housing Company pursuant to
which the average main area of an apartment will be less than 110 sq.m.
but will not be less than 91.7 sq.m. and the Company was held liable in
respect thereof for a betterment levy or payment of betterment and/or if a
concession was approved to the Housing Company in regard to the adding of
two additional floors in the buildings on Plot No. 1 from 12 to 14 floors
and in respect thereof the Housing Company was held liable for a
betterment levy or payment of betterment (hereinafter jointly: “the Specific Planning
Changes”), then: (1) the amount of the betterment or the betterment
levy that was paid by the Housing Company as was fixed according to law as
a consequence of the approval of the specific planning changes only
(whichever is the higher) or (2) an amount in a maximum sum of NIS
10,000,000 linked to the Upside Index (excluding V.A.T.) (hereinafter:
“the Betterment Tax
Ceiling”), whichever of (1) or (2) above is the lower (hereinafter:
“the Determining
Amount”), where same is divided by the sale areas, will be added
both to the Basic Price and to the Intermediate
Price.
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34
For the
removal of doubt it is clarified that the aforesaid amount of NIS 10 million is
an upper limit, and that the Determining Amount as defined above (which will be
divided by the sale areas where the result of the division thereof by the sale
areas will be added to the Basic Price and to the Intermediate Price) will under
no circumstances exceed the Betterment Levy Ceiling.
For example
–
In a case
in which the Determining Amount stands at NIS 7,000,000 and the sale areas (of
all the apartments) stand at 50,000 sq.m., the following amount will be added
both to the Basic Price and to the Intermediate Price:
7,000,000
/ 50,000 = NIS 140.0
so that
the Basic Price will stand at NIS 15,657 and the Intermediate Price will stand
at NIS 16,519.
The
Housing Company undertakes to notify the Company, immediately after receiving a
demand from the local committee for payment of betterment or a betterment levy
in connection with any of the specific planning changes. After
receipt of such notice and if the Company so wishes, the Housing Company will
allow the Company to defend such demand for payment, including the exhausting of
objection and appeal rights according to law, all at the times prescribed by
law. The Housing Company declares that it is aware that the Company’s
position regarding a reduction of the average main area of the apartments as
aforesaid does not constitute grounds for a betterment levy being charged,
without this constituting a representation and/or promise on the part of the
Company. It is further clarified that nothing contained in the
provisions of this sub-clause shall constitute a representation and/or any
undertaking by the Company and/or the Municipality and/or anyone on their behalf
in relation to the approval of the specific planning changes.
For the
removal of doubt it is clarified that in every case in which the Determining
Amount as defined in this sub-clause above is lower than (a) the amount of
betterment or the betterment levy which was actually paid by the
Housing Company or (b) the amount of the Betterment Levy Ceiling, including in a
case in which the amount of the betterment or the betterment levy is reduced
after the actual payment thereof (such as – as a consequence of objection and
appeal proceedings), then the necessary adjustments and accounting will be made
as between the parties as a consequence of such reduction.
35
|
6.3.6
|
In
addition to the amounts mentioned in Clauses 6.3.2-6.3.3 (inclusive), the
Housing Company shall pay the Company, as part of the Additional
Consideration, an amount equivalent to one-half of the difference, if any,
between the selling price (including V.A.T.) in respect of a sale or
letting under leasehold or conferring of a right of use of any sort of a
parking place in the Purchaser’s Project that will be paid by any buyer of
an apartment or any third party (even if he is not a buyer of an
apartment) in respect of a parking place in the Purchaser’s Project
(excluding only a price that will be paid by any buyer of an apartment in
respect of a first parking place for an apartment) and a sum of NIS
100,000 (including V.A.T.) for each parking place (for the avoidance of
doubt it is clarified that this price is a consideration for all the
direct and indirect costs connected with the construction of parking
places as aforesaid, including and without derogating from the generality
of the foregoing, the envelope of the parking places, sprinklers, fire
extinguishing systems, planning and so forth, all until receipt of Form 4
in respect of the aforesaid parking places) (where same is linked to the
Upside Index commencing from the date of a sale agreement in respect of
the first apartment in the Purchaser’s Project between the Housing Company
and a third party and up to the time of any actual payment), where this is
multiplied by the Company’s share in the Additional
Consideration.
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|
6.4
|
The
Additional Consideration will be calculated and paid at the following
times:
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|
6.4.1
|
Interim
accounting
|
|
6.4.1.1
|
On
the 5th
of the first month of each calendar quarter, commencing from the date of
signing of the first agreement for the sale of an apartment between the
Housing Company and a buyer of an apartment, an interim accounting will be
done in relation to the Additional Consideration in respect of the
proceeds of the sales that have been received by the Purchaser in the
preceding quarter (hereinafter: “the Interim
Accounting”). The Interim Accounting will be carried out
with respect to each and every apartment the proceeds in respect of which
were paid in the preceding quarter in a manner whereby the average selling
price per sq.m. for each apartment will be determined on a basis of the
total proceeds of the sales which were received in respect thereof in the
preceding quarter (hereinafter: “Proceeds of the
Quarter”) where same is divided by “the partial sale
area”.
|
For
purposes of this sub-clause “the partial sale area” means:
the sale areas (as defined below) which are the subject of each apartment where
same are multiplied by the ratio between the Proceeds of the Quarter for the
apartment (without indexation differences in respect thereof) and the total
proceeds specified for the apartment in the relevant sale contract.
The
Company’s share in the Additional Consideration in accordance with the Interim
Accounting for each quarter will be paid to the Company within 14 days from the
date on which such accounting is conducted.
36
|
6.4.1.2
|
The
Interim Accounting in each quarter will be carried out on a cumulative
basis having regard to the proceeds, the sale areas which are the subject
of those proceeds and having regard to the Additional Consideration in
respect of the quarters which preceded it. It is hereby agreed
that only commencing from the date of payment of the full Basic
Consideration, to the extent that it becomes apparent at the time of
conducting any Interim Accounting that overpayments of the Additional
Consideration, on a cumulative basis, have been paid to the Company, the
Company will refund to the Housing Company the amounts that were overpaid
to it as aforesaid, where such amounts are linked to the Upside Index
commencing from the date of the last accounting and up to the date of the
actual refund thereof, plus V.A.T. according to law, against receipt of a
valid tax invoice.
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|
6.4.2
|
Final
accounting
|
Not later
than 7 days from the date of first occupation of the last residential building,
a final calculation will be made of the Additional Consideration in relation to
all the apartments in the Purchaser’s Project (hereinafter: “the Final
Accounting”).
In the
scope of the Final Accounting, the Additional Consideration that is due to the
Company will be calculated in relation to all the apartments in the Purchaser’s
Project on a basis of all the sale areas and all the proceeds of sales
(hereinafter: “the Final
Additional Consideration”).
If the
Final Additional Consideration should exceed the total amounts that are the
subject of the Additional Consideration that has been paid to the Company up to
such time, the balance will be paid to the Company, together with V.A.T.
according to law, within 14 days from the date of calculation of the Final
Accounting, where same is linked to the Upside Index from the date of the
accounting and up to the date of actual payment thereof to the
Company. As against that, if the payments that have been paid by the
Housing Company to the Company up to such time exceed the total Final Additional
Consideration, the Company will refund to the Housing Company the amounts that
were overpaid to it as aforesaid, where same are linked to the Upside Index from
the date of the last Interim Accounting and up to the date of the refund thereof
to the Housing Company, within 14 days from the date of calculation of the Final
Accounting.
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6.5
|
As
security for payment to the Company of the Additional Consideration, the
Housing Company shall deliver to the financing bank an irrevocable
instruction in relation to the account in which the total proceeds that
will be received from the buyers of apartments will be deposited
(hereinafter: “the
Proceeds Account”) pursuant to which the Housing Company will
instruct the financing bank to act in accordance with the instructions of
the arbiter as defined in sub-clause 6.7 below, in connection with the
release of money from the Proceeds Account to the Company, in accordance
with the results of the Interim Accountings that will be conducted between
the parties as stated in sub-clause 6.4.1 above and that it should not
allow the Housing Company to withdraw/transfer any money from the Proceeds
Account (including a transfer of money from the Proceeds Account to the
Housing Company’s expenses account), unless at the time of any such
withdrawal/transfer an early interim accounting is done, and in accordance
with the results thereof money will simultaneously be transferred to the
Company out of the Proceeds Account in accordance with the instructions of
the aforesaid arbiter. In the event that the financing bank
refuses to act in accordance with such irrevocable instructions, other
collateral will be decided upon by the parties to secure payments of the
Additional Consideration, to the satisfaction of the
Company. The Housing Company undertakes that the Mall Company
will not be a partner and/or a holder of rights and/or a beneficiary in
the Proceeds Account, that the Proceeds Account will be specifically
earmarked solely for proceeds that will be received from the buyers of the
apartments, that all the proceeds that will be received from buyers of
apartments will be deposited solely in the Proceeds Account, and it
undertakes to include an appropriate provision in the sale agreements with
the buyers of the apartments. The Housing Company further
undertakes that the Proceeds Account will be encumbered only to the
financing bank (subject to the Company’s rights to receive proceeds in
accordance with this sub-clause 6.5 and the rights of the Municipality to
receive proceeds in accordance with Clause 6.5 of the Municipality Lands
Agreement), and that no rights of whatsoever nature therein will be
granted to any third party.
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37
|
6.6
|
Once
each month, not later than the 15th
of the succeeding calendar month, the Housing Company shall deliver to the
Company a detailed report of the sales that were made by the Housing
Company in the preceding month and of the proceeds of sales that are the
subject of the aforesaid sales. The Company will be entitled to
examine the report itself and/or through an accountant on its behalf, and
the Housing Company undertakes to furnish the Company and/or the aforesaid
accountant with all information and/or any document that may be demanded
for purposes of the aforesaid
examination.
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|
6.7
|
Differences
of opinion between the parties in connection with the calculation of the
Additional Consideration will be brought for the decision of Xxx Xxxxxx,
C.P.A., or if he is prevented from serving as arbiter, another partner in
his office, following a request from one of the parties to him
(hereinafter in this sub-clause: “the
Arbiter”). The Arbiter will be entitled for purposes of
making a calculation of the areas to be assisted by a real estate
appraiser and/or surveyor. The Arbiter will act as an expert
and not as an arbitrator, and his decision shall be final and binding on
the parties.
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|
6.7.1
|
For
purposes of this Clause 6, the following terms and expressions will have
the meanings set opposite them:
|
|
|
6.7.1.1
|
“Sale areas” – the
effective total of the areas of the apartments (which will be measured in
relation to each and every apartment according to the definition of the
term effective area of an apartment, as elucidated below), plus the
following areas (which will also be measured in relation to each apartment
separately in accordance with the provisions set forth in Clause 6.7.1.3
below): 33% of the areas of enclosed or open porches that are linked to
the apartments, 20% of the areas of the storerooms that are linked to the
apartments, 20% of the areas of one parking place which is linked to the
apartment (as distinct from additional parking places in excess of one
parking place per apartment), 5% of the areas of the gardens that are
linked to the apartments, and together with the pro rata share of the
apartment in the landing of its floor. Under all circumstances
it is hereby clarified that for purposes of calculating “the sale areas”,
areas will be counted once
only.
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38
|
|
6.7.1.2
|
“Effective area of
apartment” –
|
The area
contained in the polygon created by the lines that pass over the outer side of
the external walls of the apartment.
For these
purposes –
|
|
(1)
|
“External
wall” – a wall which separates between the apartment and what is outside
of it, including between the apartment and a sun porch, between it and a
common area on the floor or between it and another apartment or
plan;
|
Where the
external wall separates between the apartment and another apartment, the line of
the aforesaid polygon will pass through the center of the external
wall;
|
|
(2)
|
“The
outer sides of an external wall” – the sides of the wall without
finishing; in a case of a wall with stone cladding, the sides of the wall
will include the cladding.
|
|
|
(3)
|
In
a multi-level apartment the area will be calculated and particularized
with respect to each level in the apartment; the area of the apartment
will be the total areas of all the levels in the
apartment.
|
The area
of each set of stairs in an apartment will be calculated once only according to
the horizontal projection of all the sloping and horizontal surfaces; the area
will be added to the level which ascends from the flight of
stairs.
|
|
(4)
|
In
calculating the area only the areas the height of which conforms with what
is required under the Planning and Building Regulations (Application for
Permit, Conditions thereof and Fees), 5730-1970 (hereinafter: “the Planning and Building
Regulations (Application for Permit)) will be
included.
|
|
|
6.7.1.3
|
The
areas of the porches, storerooms, parking places and the gardens will be
measured and calculated in accordance with the following
provisions:
|
|
|
6.7.1.3.1
|
Areas
of enclosed or open porches that are linked to apartments – the floor area
that falls within the polygon created by the lines that pass through the
outer sides of the external walls or the constructed railings of the
porches and through the outer sides of the walls of the apartments that
border on the porch.
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6.7.1.3.2
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Areas
of storerooms linked to apartments – the floor area that falls between the
walls of the storeroom plus the area of the wall; where the storeroom wall
separates between it and part of another storeroom/area, only the area
below one-half of the width of the wall will be included; where the
storeroom wall borders on a common area, the area of the wall will be
included in its entirety.
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39
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6.7.1.3.3
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Areas
of parking places – (area of one parking place which is linked to an
apartment) – the floor area of the parking place without walls and/or
thoroughfares.
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6.7.1.3.4
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Areas
of gardens that are linked to apartments – the garden area includes the
area of the walls which support the perimeter
thereof.
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6.7.1.3.5
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“Floor landing” – the
area that falls within the lines that pass between the outer walls of the
floor landing (excluding shafts and voids), including one-half only of the
area of the stairwells that are located between the relevant floor and the
floor below it, which will be calculated according to the horizontal
projection of the sloping and horizontal
surfaces.
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|
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6.7.1.4
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“Sale proceeds” – all
the amounts (excluding V.A.T.) that will actually be received from the
buyers of the apartments and/or in connection with the sale of the
apartments to the buyers of the apartments, including by virtue of sale
agreements and addenda to such agreements (including consideration in
respect of one parking place per apartment, porches, roofs, storerooms,
gardens, basements and so forth), and any additional consideration that
may be received from buyers of the apartments including, and without
derogating from the generality of the foregoing, penalty interest and
indexation differences that will be received from buyers of the apartments
in respect of arrears and agreed damages in respect of a cancellation of
agreements / contractual arrangements, together with indexation
differences to the Upside Index at the percentage rise in the known Upside
Index at the time the relevant accounting is done, as against the Upside
Index which was known at the time each payment was actually made by the
buyers of the apartments, where a fall in the Upside Index will not lead
to a reduction in the amount of the sale
proceeds.
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It is
clarified that in calculating the sale proceeds, the following payments will not
be taken into account:
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6.7.1.4.1
|
Any
payment for alterations and additions in excess of the specification for
the apartments, as defined in Clause 6.10.1 below, in the event that same
are paid directly to the executing contractor, and which are not due to
the Housing Company, directly or
indirectly.
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6.7.1.4.2
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That
portion of the payment in respect of legal expenses and attorneys’ fees
which will be collected from the buyers of apartments (hereinafter: “the Legal Expenses”)
and which will be paid by the Housing Company to the attorneys who
represent it in the sale agreements with the buyers of
apartments. The balance of the Legal Expenses (which is not
transferred by the Housing Company to the aforesaid attorneys) will be
included as part of the sale
proceeds.
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40
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6.7.1.4.3
|
Payment
of buyers of apartments for water, electricity and gas meters and other
accessories such as that which will be purchased for them by the Housing
Company, on a basis that the full payment by the buyers of apartments will
be transferred onwards to the aforesaid suppliers of the
accessories.
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6.7.1.4.4
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Payments
by buyers in respect of refund of fees, costs of preparation of drawings
and payment to the Municipality in respect of the signing of the
condominium registration documents referred to in sub-clause 9.9.1 below,
provided that the total amount per apartment in respect of the components
mentioned in this sub-clause shall not exceed NIS 5,000 (excluding
V.A.T.), where same is linked to the Upside Index commencing from the date
of signing of this Agreement and up to the date of the relevant
accounting.
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6.7.1.4.5
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Payments
of management fees will be paid directly by the buyers of apartments to
the management company (and which are not payable, in whole or in part, to
the Housing Company, directly or
indirectly).
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6.7.1.5
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“Average selling price per
sq.m.” – the total sale proceeds where same are divided by the
total sale areas.
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6.7.1.6
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“The Company’s share in the
Additional Consideration” –
75.84%.
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6.8
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Value
Added Tax payments
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Each
payment imposed on any of the parties according to this Agreement shall be paid
together with V.A.T. according to law, against receipt of a valid tax invoice
and against furnishing of a certificate in regard to deduction of tax at
source. In the case of amounts which have been specifically stated in
this Agreement as including V.A.T., no V.A.T. shall be added in respect
thereof.
It is
agreed that the V.A.T. payments in respect of each and every payment of the
Consideration (both with respect to the Basic Consideration and also in relation
to the Additional Consideration) shall be paid by a post-dated check the due
date for payment of which is 3 business days before the date on which the
recipient party is obliged to transfer the V.A.T. to the tax authorities in
respect of the payment. Notwithstanding the foregoing it is agreed as
follows: (1) payment of V.A.T. in respect of the First Payment will be paid in
accordance with the provisions of sub-clause 6.2.1 above (2) payment of V.A.T.
in respect of the Second Payment and the Third Payment shall be made by a bank
check at the same time at which the Second Payment is paid.
41
For the
removal of doubt it is clarified that the time of payment of the V.A.T. in
respect of payments of the Consideration as specified in this Agreement is the
time specified in this sub-clause 6.8.
If an
approval is received from the V.A.T. authorities in accordance with Section 20
of the Value Added Tax Law, 5736-1975, the parties undertake (without derogating
from any of their rights according to law) to act in accordance with the
aforesaid approval with respect to each payment that will be paid as from the
date of receipt of the approval. If the signature of the Company on
forms / documents is required for purposes of obtaining such approval, the
Company will sign such forms / documents subject to the condition that the forms
/ documents shall not impose any financial obligations on the
Company.
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6.9
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Xxxx
Xx. 0
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6.9.1
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It
is agreed between the parties that if any of the built areas on Plot No. 6
should be zoned or designated for use which is not residential, then the
Additional Consideration to which the Company will be entitled in respect
of the proceeds of any transactions (including sale and/or lease and/or
operation and so forth) that may be made in relation to Plot No. 6 will be
according to a mechanism that will be agreed between the
parties.
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6.9.2
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The
Housing Company shall notify the Company and the Municipality shortly
after the date on which a decision is taken in connection therewith as to
the intended zoning for Xxxx Xx. 0 and in accordance therewith the
Company, the Municipality and the Housing Company will discuss the laying
down of the agreed mechanism for determining the Additional Consideration
in Plot No. 6.
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6.9.3
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It
is hereby expressly agreed, that notwithstanding anything else contained
in this Agreement, as long as no mechanism has been agreed in writing
between the Company, the Municipality and the Housing Company for the
Additional Consideration in respect of Xxxx Xx. 0, the Housing Company
will not be entitled to enter into sale and/or lease transactions and/or
contractual arrangements and/or other transactions of whatsoever nature in
connection with Plot No. 6, whether with respect to the land or with
respect to the built areas.
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6.9.4
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For
the avoidance of doubt it is hereby clarified that if the actual use that
will be planned or will be made of Plot No. 6 is for residential purposes,
then the Additional Consideration to which the Company will be entitled in
relation to the proceeds from Plot No. 6 will be as stipulated in Clauses
6.3-6.6 above.
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6.10
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Provisions
regarding the standard of building and technical specifications which will
be attached to the sale agreements with buyers of
apartments
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6.10.1
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The
building construction in the residential purposes section and the
apartments therein shall be built at a standard which shall not be
inferior to the standard described in the main features of the
specification, the simulations and in the photographs that are attached to
this Agreement as Appendix
6.10.1, whichever is the higher (hereinafter: “the Basic
Specification”).
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42
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6.10.2
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The
apartments shall be sold to the buyers of apartments according to a
technical specification that shall not be inferior to the Basic
Specification (hereinafter: “the Apartments
Specification”).
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6.10.3
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Alterations
and additions in relation to the Apartments Specification shall be
requisitioned directly by the buyers of apartments from the executing
contractor. Any payment for alterations and additions as
aforesaid shall belong to the executing contractor and will not be
included in the sale proceeds. If and to the extent that the
Housing Company should receive any payments that are connected with the
aforesaid alterations and/or additions, directly or indirectly, then those
payments will be added to the sale
proceeds.
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|
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The
Housing Company undertakes that if a credit should be due in respect of
cancellation of works that are included in the Apartments Specification,
it will be obtained from the executing
contractor.
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6.11
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Anticipation
of payments
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It is
hereby agreed that the Purchaser will have the right to anticipate any of the
payments of the Consideration, including the Additional Consideration, with it
hereby being agreed as follows: (1) in relation to the bringing forward of any
of the payments of the Basic Consideration, such anticipated payment shall be
made at a discount rate of 4% per annum; (2) with regard to the bringing forward
of any of the payments of the Additional Consideration, such anticipated payment
shall be made by way of conducting an interim accounting at the dates earlier
than the dates specified in Clause 6 above for the conduct thereof, without such
anticipated payment causing any reduction in the extent of the payments of such
Additional Consideration that have been brought forward; (3) every anticipated
payment shall be made both vis-à-vis the Company and
also vis-à-vis the
Municipality, all subject to the giving of written notice to the Company and to
the Municipality at least 7 business days in advance.
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7.
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Development of open
public areas and maintenance
thereof
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7.1
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Without
derogating from the contents of sub-clause 1.7 above, and in addition
thereto, the Housing Company undertakes to develop and erect open public
areas (which are marked in green on the Leasehold Drawings and which – as
stated in Clause 1.6(a) above – are not part of the Property Sold and will
remain in the sole ownership and possession of the Municipality)
(hereinbefore and hereinafter: “the Open Public
Areas”), and shall do so on its account and at its sole expense, in
accordance with the provisions of Paragraph 9.6 of Plan
TA/3001. The Housing Company further undertakes that the
current maintenance of the Open Public Areas will be performed through a
management company on its behalf or on behalf of the residents of the
buildings that will be erected by the Purchaser or on behalf of the
representative committee of the condominiums (hereinafter: “the Management
Company”), with such maintenance being at its expense or at the
expense of the Management Company, at an appropriate standard and
according to the customary standard for open public areas of this
sort. It is agreed that any transaction or transactions that
may be made from time to time, if made, in the Remainder of the Project
Lands shall include provisions that shall bind the buyer/s of the
Remainder of the Project Lands or any part thereof, to bear their pro rata share of the
cost and maintenance of the Open Public Areas, which shall be the same
ratio as the ratio between the building rights (main areas) of each owner
of rights who has acquired rights from the Municipality and the Company as
against all the building rights (main areas) in the Project
Lands.
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43
It is
further agreed that the Company will not be liable (as distinct from the buyers
of rights from the Company in the Remainder of the Project Lands who will be
liable) for payment of any sort to the Purchaser and/or to the Management
Company and/or to the buyers of apartments and/or to the representative
committee of the condominiums and/or to any other body in respect of the
management and maintenance of the Open Public Areas, including payment of
management fees, maintenance fees, operational charges and any other
payment. The Purchaser undertakes that it will include such a
provision in the sale contract between it and third parties (including the sale
agreements with buyers of apartments).
In a case
in which maintenance of the Open Public Areas is not performed in the manner
described above, the Municipality will be entitled (but not obliged), after the
giving of 45 days prior written warning and an opportunity to rectify the
breach, to perform the maintenance of the Open Public Areas itself and to charge
the Housing Company or the Management Company or the house committee or the
representative committee of the condominiums (and if such representative
committee has not been established, then the residents) at the tariffs
prevailing for the time being in accordance with the actual results of the
Municipality’s tenders for the maintenance of open public areas of a similar
type to the aforesaid Open Public Areas. It is clarified that nothing
in the provisions of this sub-clause 7.1 shall derogate from the provisions of
sub-clause 9.9.1 below.
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7.2
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It
is clarified that where the Housing Company has established the Management
Company, as defined above, and has held the buyers of apartments (alone or
together with the occupants of the commercial areas) liable to bear their
pro rata share of
the cost of maintenance of the Open Public Areas as aforesaid, the Housing
Company will no longer be liable to the Municipality in connection with
the maintenance of the Open Public Areas. Without derogating
from the contents of Clause 16 below, it is agreed that the Housing
Company will be entitled to transfer its obligations for erecting the Open
Public Areas and for establishing a management committee for purposes of
maintenance of the Open Public Areas to a transferee who acquires rights
from the Housing Company in the residential section, to the extent that
such transfer of rights has been approved in accordance with the
provisions of Clause 16 below. Where the Housing Company has
transferred its obligations in the manner stated above in this sub-clause
7.2, the provisions of sub-clause 7.1 above shall apply to the
transferee.
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7.3
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If
the Housing Company has requested to effect a transfer of its obligations
in connection with the Open Public Areas which is not in accordance with
the provisions of sub-clause 7.2 above, then such transfer shall require
the prior written consent of the Municipality, which shall not
unreasonably withhold such consent. It is clarified that the
only factor the Municipality shall be entitled to consider for purposes of
giving consent as aforesaid and the conditions thereof is the guaranteeing
of construction and maintenance of the Open Public Areas and the setting
up of a management company as described
above.
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44
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7.4
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It
is agreed that the provisions of sub-clauses 7.2-7.3 above shall also
apply in relation to any transferee who may acquire any rights in the
Project Lands from the Purchaser and/or from the Purchaser’s
transferees.
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7.5
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Nothing
contained in sub-clauses 7.2-7.4 above shall derogate from the provisions
of Plan TA/3001.
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7.6
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Open
private area
|
Without
derogating from the Purchaser’s obligations as set forth in sub-clause 1.7
above, and in addition thereto the Purchaser undertakes, in relation to the
Company’s Lands and to the Municipality Lands, to comply with the provisions of
Plan TA/3001 in relation to the open private areas as described in sub-paragraph
9.6 of Plan TA/3001 and as shall actually be built in accordance with the
Amended Architectural Design Plan referred to in sub-clause 4.19 above, with it
being agreed that in the scope of the examination by the Administration of the
Amended Architectural Design Plan the division of the open private areas as
between the Company’s Lands and the Municipality Lands and the Remainder of the
Project Lands shall, inter
alia, be examined. The Purchaser further undertakes to bear
the expenses for maintaining the open private areas that will be erected by it
in the Purchaser’s Project.
It is
clarified that in a case in which the Purchaser has established the Management
Company, as defined above, and has charged the buyers of apartments (alone or
together with the occupiers of the commercial areas) to bear the costs of
maintenance of the open private areas that will be constructed by it in the
Purchaser’s Project, the Purchaser will no longer be liable to the Company in
connection with the maintenance of the open private areas.
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8.
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Traffic solution –
Paragraph 14.7 of Plan
TA/3001
|
It is
agreed that in the scope of performing the accounting between the Municipality
and the Company, implementing of the traffic solution for purposes of Paragraph
14.7 of Plan TA/3001 has been guaranteed by the Company, in its own name and on
behalf of the Purchaser and/or any future applicant for a permit. The
Municipality has undertaken (and this has also found expression in the
Municipality Lands Agreement, as defined above) that in a case in which the
Local Committee does not order the performing of an accounting as aforesaid
which ensures performance that complies with the conditions of Paragraph 14.7 of
Plan TA/3001, the Municipality will take steps, which will not be on the
Purchaser’s account and not on the account of a future applicant for a permit,
to comply with the conditions that are demanded by the Local Committee for
purposes of fulfilling the contents of sub-paragraph 14.7 of Plan TA/3001, all
in a manner that does not delay the issue of the building permit.
The
Purchaser and/or any future applicant for a permit shall support a reasonable
traffic solution that will be proposed by the Municipality and/or the Local
Committee, will not object to such solution and will not have any allegation
and/or demand and/or claim, including for compensation, against the Municipality
and/or against the Local Committee, in connection with such
solution.
45
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9.
|
Registration
of leasehold, easement and tax certificates:
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|
9.1
|
The
Company undertakes to furnish the Purchaser with the approvals and
certificates described below, at the times specified in sub-clause 9.1.5
below:
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9.1.1
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(a)
Land Appreciation Tax and Sales Tax certificates (if any), from the Land
Taxation authorities for purposes of the registration in the name of the
Purchaser in the Land Registry of the leasehold rights in the Company’s
Lands, and (b) copies of Land Acquisition Tax certificates, Land
Appreciation Tax and Sales Tax certificates from the Land Taxation
authorities for purposes of the registration of the leasehold rights in
the Company’s Lands in the name of the Company, in the text of the
certificates attached to this Agreement as Appendix
9.1.5.
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9.1.2
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A
certificate from the Property Tax authorities, to the extent that same
applies, in regard to the Company owing no debt for Property Tax, for
purposes of the registration, in the Land Registry, in the name of the
Purchaser, of the leasehold rights in the Company’s
Lands.
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9.1.3
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A
certificate from the Municipality and the Local Committee (in respect of
the period up to the date of delivery of the right of use) for purposes of
the registration in the name of the Purchaser, in the Land Registry, of
the leasehold rights in the Company’s Lands. It is clarified
and agreed that the amount of the betterment levy as stated in the agreed
betterment levy assessment as defined in sub-clause 1.9 above, solely in
respect of the Company’s Lands, will be paid and defrayed by the Company
to the Municipality within 30 days from the date of delivery of the right
of use in accordance with the provisions of Clause 10
below. The certificate shall be delivered to the Purchaser at
the latest within 12 months from the date of signing of this Agreement or
within 30 days from the date on which approval of the Local Committee for
the issue of the first Building Permit (as defined in sub-clause 6.2.4
above) on conditions is exhibited to the Company, whichever is the
later.
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It is
clarified and agreed that upon the first delivery of the certificate mentioned
in this sub-clause 9.1.3, the Company will have fulfilled all its obligations in
connection with the furnishing of the aforesaid certificate. In a
case in which an extension or update of such certificate is required after it
has already been produced, and/or in a case in which for purposes of obtaining
such certificate at a deferred date, the making of payments to the authorities
mentioned in this sub-clause is required, the responsibility shall be imposed on
the Purchaser and at its expense.
It is
further agreed that if for purposes of furnishing the certificates mentioned in
this sub-clause, the making of a payment is required where the obligation for
payment thereof is imposed on the Purchaser, in accordance with the provisions
of Clause 11 below, the Purchaser undertakes to pay such amount immediately so
as to facilitate the issue of the certificate. In a case in which the
Purchaser does not pay the payment which is under its responsibility as
aforesaid, then, subject to the effecting of the payments that are imposed on
the Company pursuant to Clause 11 below (to the Purchaser or to the relevant
authorities, at the election of the Company), the Company will be exempt from
furnishing the aforesaid certificate.
46
|
9.1.4
|
Deeds
of transfer of a right of lease, duly signed and authenticated by the
Company for purposes of registration in the name of the Purchaser, in the
Land Registry, of the leasehold rights in the Company’s
Lands.
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|
9.1.5
|
Land
Appreciation Tax and Sales Tax certificates, if any, in connection with
the transaction that is the subject of this Agreement, shall be delivered
to the Purchaser within 12 months from the date of actual payment of the
full Basic Consideration. Copies of Land Acquisition Tax, Land
Appreciation Tax and Sales Tax certificates from the Land Taxation
authorities for purposes of registration of the leasehold rights in the
Company’s Lands in the name of the Company, in the text attached to this
Agreement as Appendix
9.1.5, are being delivered to the Purchaser at the time of signing
of this Agreement. A Property Tax certificate referred to in
sub-clause 9.1.2 will be furnished to the Purchaser up to the date of
making of the Second Payment. The deeds mentioned in Clause
9.1.4 and the Company’s minutes referred to in sub-clause 9.2 will be
delivered to the Purchaser against payment of the full Basic Consideration
to the Company as stated in Clause 6
above.
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9.2
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On
the date of payment of the full Basic Consideration, the Company will
deliver to the Purchaser an irrevocable power of attorney in the text
attached to this Agreement as Appendix
9.2, empowering the appointed attorney to register a transfer of
the leasehold rights in the Company’s Lands in the name of the Purchaser
in the Land Registry. On the aforesaid date the Company will
also furnish the Purchaser with the Company’s minutes confirming and
approving the Company’s entering into this Agreement and the giving of the
power of attorney as mentioned above in this sub-clause
9.2. The aforesaid appointed attorney shall not make use of the
power of attorney except only in accordance with the provisions of this
Agreement. The power of attorney will be signed at the time of
signing of this Agreement and shall be lodged with the Trustee in
accordance with the letter of instructions to the Trustee which is
attached hereto as Appendix 6.2.8.
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9.3
|
Registration
of the leasehold rights in the Company’s Lands in the name of the
Purchaser shall be effected only in accordance with the deeds of transfer
of the right of lease that will be delivered to the Purchaser by the
Company in accordance with the provisions of Clause 9.1.4 above, and the
Purchaser and/or anyone on its behalf through their appointed attorneys,
will be entitled to make use of the power of attorney for purposes of
executing registration of such leasehold only in accordance with what is
stated in such deeds of transfer of the right of lease. The
Company undertakes to sign all the additional documents that are normally
required (in addition to the aforesaid deeds of transfer of the right of
lease) for purposes of registration of the leasehold in the name of the
Purchaser, provided that this does not have the effect of imposing any
obligations and/or expenses on the Company which go beyond its express
obligations under this Agreement.
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9.4
|
Upon
registration of the parcellation as referred to in sub-clause 9.8 below,
registration of the rights of leasehold in the Company’s Lands in the name
of the Company and the furnishing of the certificates mentioned in
sub-clauses 9.1.1-9.1.3 above, the deeds of transfer of the right of lease
referred to in Clause 9.1.4 above and the power of attorney and the
minutes mentioned in sub-clause 9.2 above, the Company will be deemed to
have fulfilled its full obligations in connection with registration of
transfer of the leasehold rights in the Company’s Lands in the name of the
Purchaser. It is clarified that all the expenses in respect of
registration of the rights in the name of the Purchaser shall be borne and
paid by the Purchaser.
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47
|
9.5
|
The
Purchaser hereby undertakes to perform registration of the leasehold
rights in the Company’s Lands in its name, in the Land Registry, at the
earliest possible time that it can do so subject to the provisions of this
Agreement, and included in this the Purchaser undertakes to prepare the
registration file and the documents required for purposes of executing the
registration and to procure all the certificates and approvals that it is
responsible for obtaining for purposes of executing the registration, and
to prepare the Transfer Documents (deeds, applications and similar other
documents) and subject to the contents of sub-clause 9.3 above, until
registration of the aforesaid rights has been effected in the name of the
Purchaser in the Land Registry. The Purchaser undertakes that
it will send the aforesaid registration documents for the Company’s
perusal prior to actual execution of registration, at least 7 days before
lodging of the registration documents with the Land
Registry.
|
It is
agreed that at the time of signing of this Agreement the text of a
document of special conditions for the leasehold (Appendix 1.6 to this
Agreement) is being signed by the parties for purposes of it being attached as
an appendix to this Agreement, on a basis that after full payment of the Basic
Consideration to the Company and the Municipality, the Municipality and the
Purchaser will sign the Special Conditions Document in relation to the Company’s
Lands, as stated in sub-clause 9.2 of the Municipality Lands
Agreement.
The
Purchaser undertakes to act in a such a manner that registration of the
leasehold rights in the Company’s Lands in its name as stated in this sub-clause
9.5 will be completed within a period of three (3) years from the date on which
the approvals and certificates mentioned in sub-clauses 9.1.1-9.1.4 above have
been received by the Purchaser, provided that up to such time the parcellation
has been registered and the leasehold rights in the Company’s Lands have been
registered in the Company’s name, or after the elapse of 6 months from the date
of registration of the leasehold rights in the Company’s Lands in the name of
the Company, whichever is the later. It is agreed that if
registration of the rights is not completed within three years as aforesaid for
reasons which are not dependent on the Purchaser, then the period for completing
registration of such rights will be extended by an additional six
months.
48
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9.6
|
It
is hereby clarified that until the time of transfer of the First Payment
Moneys from the Trustee to the Company, the Purchaser undertakes not to
register and/or to cause registration of a caveat in its favor
over the Company’s Lands or part thereof and/or over the Existing
Leasehold. Without derogating from the Purchaser’s undertaking
as set forth above in this sub-clause, at the time the Purchaser signs
this Agreement the Purchaser will sign an irrevocable power of attorney in
the text attached to this Agreement as Appendix
9.6, empowering the attorneys mentioned therein to expunge any
caveat that may
be registered, if registered, in favor of the Purchaser or anyone on its
behalf over the Company’s Lands and/or over the Existing Leasehold or part
thereof. The appointed attorneys will be entitled to use the
power of attorney and to expunge any such caveat in each of the
cases mentioned below after having given the Purchaser prior written
notice of 14 business days: (1) in every case in which such caveat is registered in
the name of the Purchaser or anyone on its behalf contrary to the
provisions of this sub-clause 9.6; and (2) in any event in which this
Agreement is lawfully cancelled for any reason, including, and without
derogating from the generality of the foregoing, in the case of
non-payments of the Consideration, or any part thereof (subject to the
provisions of sub-clause 18.8 below) by the Purchaser to the Company at
the times specified in Clause 6 above. For the removal of doubt
and without derogating from any of the Company’s rights according to any
law and agreement, the Purchaser declares and confirms that cancellation
of the Agreement in the circumstances described in sub-clauses 5.2.4.3.1
and 5.2.4.3.4 above will be deemed to be lawful cancellation of this
Agreement. The aforesaid power of attorney will be returned to
the Purchaser in accordance with the provisions of Clause 6
above. For the avoidance of doubt it is clarified that
registration of a caveat in favor of the
Purchaser as described in this sub-clause 9.6 shall not have the effect of
preventing and/or limiting the Company and the Municipality from
registering caveats in connection
with the Remainder of the Project Lands. In addition, the
Purchaser shall, at the time of signing of this Agreement, deliver a power
of attorney to the Company to perform all the registrations required in
connection with the Project Lands, including, and without derogating from
the generality of the foregoing, registration of the parcellation,
registration of easements, registration of the Company’s rights in the
Company’s Lands, registration of caveats and/or
encumbrances and/or rights in the Remainder of the Project Lands, specific
attribution of the caveat/s that will be
registered in favor of the Purchaser over the Company’s Lands and similar
other registrations, in the text attached to this Agreement as Appendix
9.6A. The Company will be entitled to endorse this power
of attorney to the buyers of rights in the Remainder of the Project Lands
and/or to their appointed attorneys. The Company undertakes to
obtain a power of attorney for special attribution of caveats from the buyers
of rights in the Remainder of the Project Lands in relation to caveats that will be
registered in their favor over the Remainder of the Project
Lands.
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It is
agreed that before any action being performed on the strength of the power of
attorney Appendix 9.6A in relation to the Company’s Lands and/or the
Municipality Lands and/or to the Additional Real Estate Rights, except
actions for registration of parcellation, registration of leasehold rights in
the name of the Company and special attribution of the caveats, prior written notice
of 14 days will be given to the Purchaser by the appointed attorney before the
such action is performed.
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9.7
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The
Purchaser undertakes that on its account and at its expense it will effect
registration of the easements in relation to the Company’s Lands, and by
way of registering an easement to guarantee right of way for vehicles and
right of way for pedestrians from Xxxx Xx. 0 xx Xxxx Xx. 0, all as
described in the provisions of Plan
TA/3001.
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9.8
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The
Purchaser is aware that a map for purposes of registration and a diagram
for sub-division of the Land into a plot and/or plots within the confines
of the Project Lands in accordance with Plan TA/3001 have been approved
(hereinafter: “the
Parcellation”). The Company undertakes to complete
registration of the Parcellation of the Company’s Lands together with the
Municipality Lands in accordance with the plan that has been approved as
aforesaid, together with the amendments thereto, or according to a new
parcellation, and to register the Parcellation of Parcel 92, within a
period of 36 months from the date of signing of this
Agreement. It is agreed that in a case in which registration of
the Parcellation is not completed within the aforesaid period of time for
reasons which are not dependent on the Company, the period for completing
registration of the Parcellation as aforesaid will be extended by an
additional six (6) months. Before or after registration of the
Parcellation, the Company will register the leasehold rights in the
Company’s Lands in its name.
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9.9
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Registration
of condominium
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9.9.1
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The
Purchaser undertakes that on its account and at its expense it will
register the buildings that will be erected by it on the Company’s Lands
and the Municipality Lands as a condominium including registration of
house regulations, easements, rights of way, linkages and registration of
leasehold rights. If it is not possible to register the
condominium as a separate unit and the Purchaser is obliged to register it
as a complex condominium within the meaning thereof under the Land Law,
5729-1969, the Purchaser will act in accordance with the directives of the
Land Registry. All the documents pertaining to registration of
the building and/or the buildings as a condominium as aforesaid, including
a drawing, cooperative house registration order and house regulations will
be presented for the prior written approval of the Municipality before
same are lodged with the Land Registry or any other entity. The
Purchaser undertakes that as a precondition to the Municipality signing
the condominium documents the Purchaser will pay the Municipality a sum of
NIS 2,000 multiplied by the number of apartments that will be constructed
on the Company’s Lands, where this amount is linked to the Consumer Price
Index commencing from the date of signing of this Agreement and up to the
date of actual payment, and in addition the Purchaser undertakes to comply
with other customary conditions as prevailing for the time being, provided
that they do not involve any additional monetary
obligation.
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It is
clarified that in relation to payment of handling fees in respect of
registration of a condominium, the provisions of this sub-clause take precedence
over the provisions of Paragraph 11(c) of Appendix 1.6.
The
Purchaser undertakes to include in the house regulations of the condominium a
provision regarding the obligation of the residents to establish a management
company and for maintenance of the Open Public Areas as described in Clause 7.1
above.
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9.9.2
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Without
derogating from the contents of sub-clause 9.9.1 above, the Purchaser in
the name of the Municipality, undertakes to register, the lands, of the
Suburban Public Institutions as defined in sub-clause 1.6(a) above,
including the outside areas that are linked thereto, on its account and at
its expense and without consideration from the Municipality, as a separate
unit or as separate units in the framework of registering a
condominium. The Purchaser undertakes to include in the house
regulations of the condominium a provision in connection with the
management of the condominium, in accordance with sub-clause 7.1.1.2 of
the Municipality Lands Agreement.
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9.9.3
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The
Purchaser undertakes that registration of a condominium will be completed
at the earliest possible time it is able to do so and not later than
twenty-four (24) months from the date of receipt of a Certificate of
Completion for the last building that will be constructed on the Project
Lands, or within 24 months from the date of registration of the
appropriate Parcellation, whichever is the
later.
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9.9.4
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The
Purchaser undertakes that within the scope of transfer of rights in the
Project Lands, from the Purchaser to third parties (including buyers of
residential units), the Purchaser will arrange with the relevant
transferee or transferees the manner of performing registration of the
Project Lands in the Land Registry, including registration of house
regulations for the condominium in accordance with the foregoing,
including by way of an undertaking by each transferee to perform the
necessary actions and to cooperate with all the relevant entities for
purposes of registering the areas that have been transferred to him in the
Land Registry, and including by way of receiving suitable powers of
attorney from such transferees, in order to facilitate registration of the
condominium on the Project Lands, at the times specified in this
Agreement.
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9.9.5
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It
is agreed that the provisions of sub-clause 9.9.4 above will also apply in
relation to any transferee who may acquire any rights in the Project Lands
from the Purchaser and/or from the Purchaser’s
transferees.
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9.10
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In
the event that the Purchaser does not perform the registrations described
in Clauses 9.5, 9.7 and 9.9 above, at the time specified in those clauses,
notwithstanding a demand from the Municipality to perform same, the
Municipality shall be entitled, but not obliged, to perform the aforesaid
acts of registration on the Purchaser’s account, after thirty (30) days
from the date of the demand.
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The
Purchaser undertakes to pay the Municipality, within ten (10) days from the date
of the Municipality’s demand, all the Municipality’s expenses in respect of the
registration, in accordance with an account that will be presented to
it. Expenses which are not paid on due date in accordance with the
demand shall bear indexation differences and interest from the date of the
demand and up to the date of actual payment. In addition, in such
case the Purchaser undertakes to furnish the Municipality with all the
certificates and approvals that are required for purposes of performing the
aforesaid registrations. For purposes of securing implementation of
the matters mentioned in Clauses 9.5, 9.7 and 9.9 above, the Purchaser will
grant the Municipality a power of attorney in the text attached to this
Agreement as Appendix
9.10. The Municipality will be entitled to make use of this
power of attorney, for performing the registrations itself, after having given
the Purchaser written notice of thirty (30) days.
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9.11
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Notwithstanding
the contents of this Clause 9 above, it is clarified that in a case in
which it is not possible to register a condominium on the Company’s Lands
together with the Municipality Lands, separately from the Remainder of the
Project Lands, the Purchaser will act in cooperation with the owners of
rights in the Remainder of the Project Lands as apply at such time, for
purposes of registering a complex condominium over all the Project Lands,
within the timetable specified in sub-clause 9.9.3 above. The
cost of performing such registration shall be borne by the Purchaser and
by the owners of rights in the Remainder of the Project Lands according to
their pro rata
share of the Project – that is to say according to the ratio between the
building rights (main areas) owned by all owners of rights who acquired
rights from the Municipality and the Company and the total building rights
(main areas) in that portion of the Project Lands which will be included
in the registration of the
condominium.
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10.
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Approval of the
Minister of the Interior, right of use and delivery of
possession
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10.1
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Cancelled.
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10.2
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The
validity of this Agreement is contingent upon and subject to receiving the
approval of the Minister of the Interior as stated in Clause 12 of the
Municipality Lands Agreement. In a case in which the condition
precedent set forth in Clause 12 of the Municipality Lands Agreement is
not fulfilled (hereinbefore and hereinafter: “the Condition Precedent to the
Municipality Agreement”) within 60 days from the date of signing of
this Agreement (hereinafter: “the Effective Date”),
this Agreement will be null and void ab initio, the Trustee
shall return the First Payment to the Purchaser together with the fruits
thereof and less the costs of opening the Trust Account, the costs of the
closing thereof and of performing operations therein and none of the
parties will have any claim and/or demand and/or allegation against
another in this regard, and the Purchaser will have no rights of
whatsoever nature in the Company’s
Lands.
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It is
agreed that each party will be entitled, in its sole and absolute discretion, to
extend the Effective Date, for a period of up to 60 additional days by way of
written notice to the other party.
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10.3
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Within
2 business days from the date of actual transfer of the First Payment from
the Trustee to the Company, the parties will meet and will act in the
manner stated in sub-clause 10.4 below (hereinbefore and hereinafter:
“Date of Delivery of the
Right of Use”).
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10.4
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On
the Date of Delivery of the Right of Use, the parties will simultaneously
perform the following actions:
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10.4.1
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The
Company will deliver to the Purchaser a temporary right of use (which is
not a proprietary right) in the Company’s Lands in accordance with the
provisions of Clause 10.5 below. If the provisions of this
Agreement have not been cancelled, such temporary right of use will remain
in force up to the date of delivery of
possession.
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10.4.2
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The
Purchaser shall assume all the obligations which form part of the
Obligations and Commitments Transferred. For the removal of
doubt it is clarified that the rights which form part of the Obligations
and Commitments Transferred will be assigned to the Purchaser only from
the date of delivery of possession. In relation to the
agreement between the Company and Hatzlacha Parking Garages Ltd., it is
agreed that the Company will attend to terminating the agreement and to
the evacuation of the Company’s Lands up to the Date of Delivery of the
Right of Use.
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10.4.3
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The
Purchaser shall deliver to the Municipality confirmation regarding the
existence of insurance policies as described in sub-clause 13.3
below.
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10.4.4
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The
Purchaser shall deliver to the Company a declaration verifying
representations in the text of Appendix 4.15 to this
Agreement.
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10.5
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The
right of use
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10.5.1
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The
right of use granted to the Purchaser on the Date of Delivery of the Right
of Use is a revocable right, for purposes of performing excavation and
shoring works and for that purpose alone. For the avoidance of
doubt it is clarified and emphasized that the permission granted to the
Purchaser as aforesaid does not constitute the grant of a proprietary
right to the Purchaser, possession to the Purchaser or a transfer of any
right to the Purchaser, apart from the permission to perform the
excavation and shoring works. The Purchaser will be a licensee
in respect of that portion of the Company’s Lands which the Purchaser uses
for purposes of performing the excavation and shoring works as a licensee
only. The Company will be entitled at any time, by way of prior
written notice of 14 business days to cancel the right of use, in any
event in which the Company believes in its sole and absolute discretion
that the Purchaser has breached any of its obligations under this
Agreement and has not rectified the breach within 14 business days from
the date on which written notice regarding the breach was received by
it.
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52
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10.5.2
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The
Purchaser will have no right of lien over the Company’s Lands or any
portion thereof.
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10.5.3
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During
the period in which a right of use is granted to the Purchaser, the
Purchaser will be entitled to fence-in the Company’s Lands or any portion
thereof and/or to station a portable and temporary structure on the
Company’s Lands that will serve as a sales office, subject to obtaining
all the permits and approvals required according to law, all without
adding rights of way for the Purchaser in its capacity as a licensee and
without derogating from the powers and rights of the Company and the
Municipality with regard to the right of use
period.
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10.5.4
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Where
the Company has notified the Purchaser of cancellation of the right of use
as aforesaid and the Purchaser has not cured the breach within the time
specified in sub-clause 10.5.1 above, the Purchaser undertakes to vacate
the Company’s Lands of any person and/or article and/or temporary
structure, and commencing from the date on which the notice is given, the
Company will be entitled to evict the Purchaser and/or anyone on its
behalf from the Company’s Lands and to evacuate any person and article
and/or temporary structure from the Company’s Lands, and to use all the
materials, equipment and installations the Purchaser and/or anyone on its
behalf has left on the Company’s Lands. It is further agreed
that in a case in which, in addition to cancellation of the right of use,
the Company has cancelled this Agreement as a consequence of such breach,
all the works that were performed on the Company’s Lands up to that time
will be the sole property of the Company, without the Purchaser having any
allegation and/or claim and/or demand against the Company in respect
thereof, and the Purchaser undertakes to include an appropriate clause in
the contractual agreement with the executing contractors, as defined
below. In addition to all the foregoing and without derogating
therefrom, the Purchaser hereby empowers the Company to take all the steps
and measures required for purposes of realizing the rights and powers of
the Company under this Clause 10.5. For that purpose the
Purchaser is lodging an irrevocable notarial power of attorney in the text
attached to this Agreement as Appendix
10.5.4 with the Trustee at the time of signing of this Agreement,
which empowers the Company to take all the actions required for purposes
of evicting the Purchaser and/or anyone on its behalf from the Company’s
Lands and for purposes of realizing the Company’s rights under this Clause
10.5, including vacating the Company’s Lands of any person, article and
temporary structure, use of all the materials, equipment and installations
which the Purchaser and/or anyone on its behalf has left on the Company’s
Lands, the giving of instructions and directives to the executing
contractors, the transfer into the Company’s ownership of all the works
that have been performed on the Company’s Lands up to that time, the
giving of notices and instructions and the signing of any document of
whatsoever nature vis-à-vis third parties
and authorities in connection with the vacating of the Company’s Lands
and/or the taking of any actions with respect thereto, and so
forth. In every case in which the Company notifies the Trustee
that the right of use has been cancelled by it, the Trustee shall, after
the giving of a warning notice to the Purchaser of 14 business days in
advance, transfer the power of attorney to the Company, and the Company
will be entitled to make use thereof in its discretion for purposes of
realizing its rights as described
above.
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53
The
Purchaser undertakes that the Company and/or anyone on its behalf will not be
responsible in any way for any damage of any sort that may be sustained by the
Purchaser, if such damage is sustained, by virtue actions connected with
evicting the Purchaser from the Company’s Lands and/or the evacuation of the
equipment and the property from the Company’s Lands and the storing
thereof.
For the
removal of doubt it is emphasized that the Company will bear no responsibility
in respect of the property and the equipment which is removed and it will not be
deemed to be a bailee and/or a trustee in respect thereof.
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10.5.5
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The
Purchaser undertakes that the Company and the Municipality will be a party
to any contractual arrangement between the Purchaser and executing
contractors who perform work for it on the Company’s Lands during the
right of use period (hereinafter: “the Executing
Contractors”), without this imposing on the Company and/or the
Municipality any liability and/or responsibility. In the scope
of any such contractual arrangement, an undertaking of the Executing
Contractors shall be included, directly as against the Company and the
Municipality, to the effect that in any event in which they receive a
notice from the Company and the Municipality that the Company and the
Municipality have lawfully, in their discretion, cancelled the right of
use they have granted to the Purchaser, then as from the date of receipt
of the notice onwards, the Executing Contractors will act solely in
accordance with the instructions of the Company and the Municipality as
will be given at that time. The Company and the Municipality
will be entitled to elect whether to complete the works of the Executing
Contractors through the Executing Contractors or to evict them from the
Company’s Lands without the Company and/or the Municipality owing them any
indebtedness of whatsoever nature. The Purchaser undertakes to
present for the prior written approval of the Company and the Municipality
the identity of the Executing Contractors and the terms and conditions of
the contractual arrangement with them (including the text of the
contractual agreement).
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10.6
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Date
of delivery of possession
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10.6.1
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Simultaneous
with and against the making of the second payment, possession of the
Company’s Lands will be delivered to the Purchaser (hereinbefore and
hereinafter: “Date of
Delivery of Possession”). With regard to the Open Public
Areas (namely: on the upper ground floor only and which are intended for
an Open Public Area, as marked in green on the Leasehold Drawings), the
provisions of sub-clause 1.6(d) of the
Municipality Lands Agreement will apply
accordingly.
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54
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10.6.2
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Without
derogating from the contents of Clause 10.4.3 above, on the Date of
Delivery of Possession, the parties will sign a deed of assignment of
Obligations and Commitments Transferred to the Purchaser, in the text
attached to this Agreement as Appendix
10.6.2. In addition, on the Date of Delivery of
Possession, the Purchaser will deliver to the Company a declaration
verifying representations in the text of Appendix 4.15 to this
Agreement.
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10.6.3
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It
is clarified that at the Date of Delivery of Possession the Company’s
rights in the Company’s Lands are free and clear of any attachment and/or
encumbrance and/or mortgage and/or any third party right, save and except
caveats and/or mortgages and/or attachments and/or encumbrances and/or any
third party rights which have their origin in the Purchaser’s and
excluding caveats over an antiquities site. If attachments and/or caveats
and/or mortgages and/or third party rights are imposed on the Company’s
rights in the Company’s Lands where the origin for same does not lie with
the Purchaser (hereinafter: - “the Impediment”), then
the Company undertakes to remove such Impediment within 90 days from the
date the Company becomes aware of the
Impediment.
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11.
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Taxes
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11.1
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Land
Appreciation Tax and/or income tax and/or capital gains tax and Sales Tax,
to the extent that same apply, in respect of the sale of the Property Sold
to the Purchaser by the Company shall be borne and paid by the Company,
while Land Acquisition Tax in respect of the sale of such rights shall be
borne by the Purchaser.
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11.2
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The
Company will bear the payments in respect of water and electricity
consumption on the Company’s Lands, solely in respect of the period up to
the Date of Delivery of the Right of Use. The Purchaser will
bear such payments for water and electricity consumption commencing from
the Date of Delivery of Right of Use
onwards.
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11.3
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All
taxes, rates, fees, levies, pursuant to any law, and all compulsory
payments of any sort pursuant to any law, as well as any payment which is
imposed on the Purchaser as a leasehold lessee in accordance with the
special conditions of leasehold (Appendix 1.6 to this Agreement) which
applied and/or which apply and existed or which may apply and come into
being in connection with the Company’s Lands, the cause of action for
which pertains to any period, whether before the date of signing of this
Agreement or subsequent thereto, shall be borne and paid by the Purchaser,
solely with the exception of the specific payments mentioned in
sub-clauses 11.3.1 and 11.3.2 below, and apart from amounts in relation to
which it has been specifically stipulated in this Agreement that the
obligation for the payment thereof is imposed on the
Company.
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55
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11.3.1
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Payment
of property tax in respect of the Company’s Lands as well as municipal
rates which apply to the Company, the cause of action for which preceded
the Date of Delivery of the Right of Use, shall be borne and paid by the
Company.
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11.3.2
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In
regard to a betterment levy – the amount of the betterment levy specified
in the agreed betterment levy assessment in relation only to the Company’s
Lands, shall be paid by the Company to the Municipality within 30 days
from the Date of Delivery of the Right of Use in accordance with the
provisions of Clause 10 above.
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In regard
to other payments to the Tel Aviv Municipality, including fees, taxes, rates,
development levies and other compulsory payments – such payments in respect of
the period up to April 15, 2010, shall be borne and paid by the
Company.
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11.3.3
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If
the Company and/or the Municipality have paid development levies and/or
payments for connection up to electricity in respect of the Company’s
Lands, and to the extent that a right exists at law for setting off such
development levies against fees and levies that will be imposed on the
Purchaser in connection with the Purchaser’s Project and/or payments for
connection up to the Israel Electric Corporation, it is agreed that the
Company does not object to the Purchaser setting off a pro rata portion of
such development levies and electricity connections against the
development levies and/or the connecting up payments to the Electric
Corporation which the Purchaser will be charged by the Municipality.
“Pro rata share”
in this sub-clause 11.3.3 means, the ratio between the building rights
(main areas) on the Company’s Lands and the Company’s share in the total
building rights (main areas) in the Project Lands. For the
removal of doubt it is clarified that nothing in the foregoing in this
sub-clause constitutes any form of representation and/or undertaking on
the part of the Company in connection with development levies and/or
payments for connecting up to electricity and/or in connection with the
payment thereof, the amount thereof and/or the right to set-offs in
connection therewith.
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11.4
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Without
derogating from the contents of sub-clause 11.3 above, the Purchaser
undertakes to pay the Municipality the full betterment in relation only to
the Company’s Lands, in respect of any change to Plan TA/3001 (including
an application for a concession, exceptional use, alteration to the
approved Plan TA/3001, and so forth) that may be approved after the date
of signing of this Agreement, and will do so in accordance with the
provisions of the special conditions of leasehold
document. Nothing in the foregoing shall derogate from the
provisions of sub-clause 6.3.5
above.
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11.5
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It
is hereby clarified that each of the parties is entitled to embark on
objection or appeal proceedings vis-à-vis any relevant authority, in such
party’s discretion, against the charging of any of the payments imposed on
such party in accordance with this Clause 11, provided that this shall not
have the effect of delaying the times specified in this
Agreement.
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11.6
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It
is agreed that each party will report to taxes authorities by way of all
the reports it is obliged to make according to law, and at the time
prescribed for this according to
law.
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12.
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Ongoing legal guidance and
advice and registration of
Condominium
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It
is hereby brought to the Purchaser’s notice that the legal services
pertaining to the Company’s rights vis-à-vis the Municipality, for the
Company’s Lands and the rights therein and to the initiation and approval
of Plan TA/3001, including with respect to the Obligations and Commitments
Transferred, the entering into of the 2002 Agreement and the
implementation thereof, and guidance and advice regarding the agreed
betterment tax assessment and the implementation thereof, have been
provided up to this date by the law office of Xxxxxx X. Xxxxx & Co.
(hereinafter: “the
Advocates”). Shortly after the Purchaser’s selection as a preferred
bidder, the Purchaser and the Advocates will enter into discussions for
examining the providing of legal services to the Purchaser by the
Advocates and the consideration in respect thereof, with this being in
relation to periods subsequent to the Date of Delivery of Possession,
i.e., the legal services required for the realization and implementation
of Plan TA/3001, including in connection with the performance of the
Obligations and Commitments Transferred, the issue of building permits,
contractual arrangements with contractors, contractual arrangements with
residents, registration of the long and leasehold rights in and to the
Company’s Lands in the name of the Purchaser, registration of the Project
as a complex condominium, and registration of the rights in the units of
the condominium in the name of the owners of rights
therein.
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If
the Purchaser and the Advocates have entered into discussions as
aforesaid, and have not reached an arrangement to their mutual
satisfaction and according to their independent discretion, the holding of
such negotiations will not constitute any undertaking on the part of
either of them in connection with the giving or receiving of legal
services as aforesaid.
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13.
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Liability,
waiver, indemnity and
interest
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13.1
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The
Purchaser hereby confirms and undertakes that it waives any claim, demand,
cause of action or allegation (hereinafter: “Claim”) of whatsoever
nature under any law and agreement as against the Company and/or the
Municipality and/or any of the bodies connected with either of them, in
connection with the subject matter of this Agreement and the actions of
any of the aforesaid entities in connection with the signing and
consummation of this Agreement. The Purchaser’s confirmation as
set forth above is also given in connection with what is stated in Clause
4.10 above.
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The
Purchaser hereby undertakes that if, notwithstanding the foregoing, a claim as
aforesaid is raised for which the Purchaser receives indemnification, the
Purchaser will be obliged to indemnify the Company and/or the Municipality
and/or the entities connected with them to the extent of the amount of the
aforesaid compensation which either the Company or the Municipality or the
entities connected with them have been ordered to pay. For the
removal of doubt it is clarified that nothing contained in this sub-clause 13.1
above shall release the Company from fulfilling its obligations pursuant to this
Agreement.
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13.2
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Without
derogating from the Purchaser’s obligations under this Agreement and/or
from its liability as described in this Agreement, any responsibility
and/or liability vis-à-vis any person and/or body, including as against
the various administrative authorities, in connection with the Company’s
Lands and/or the Property Sold and/or the quality thereof and/or the use
thereof and/or acts and/or omissions therein and/or in connection
therewith, the origin and/or the cause of action for which and/or the
facts that serve as the basis for same pertain to the period subsequent to
the Date of Delivery of the Right of Use, shall be borne by the Purchaser
alone, to the exclusion of the Company’s liability. Included in
this, the Purchaser undertakes to indemnify the Company and/or the
Municipality and/or the local committee and/or any of the bodies connected
with any of them, in respect of any damage and/or expense of whatsoever
nature that may be incurred by any of them, and the responsibility for
which is imposed on the Purchaser in accordance with the provisions of
this sub-clause 13.2 above. For the removal of doubt it is
clarified that the provisions of this sub-clause 13.2 do not derogate from
the Purchaser’s liability and/or from its obligations in relation to
periods which preceded the Date of Delivery of Right of Use as set forth
in any of the provisions of this
Agreement.
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13.3
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Without
derogating from the Purchaser’s liability according to law and/or this
Agreement, commencing from the Date of Delivery of the Right of Use and
throughout the entire period in which any works are performed by the
Purchaser and/or on its behalf on the Company’s Lands, the Purchaser
undertakes to effect and maintain all the insurances at its expense which
are necessary and customary in projects of this sort, in appropriate
amounts, including and without derogating from the generality of the
foregoing, building contracting works insurance, third party liability
insurance, employer’s liability insurance and similar other insurances
(hereinafter: “the
Insurances”). The Purchaser undertakes to pay the
insurance premiums on due date and to comply with all the remaining
provisions of the insurance policies in order that the insurances remain
in force. The Insurances, including all the chapters thereof,
will be extended to include the Company and the buyers of rights in the
Remaining Project Lands (as distinguished from the buyers of residential
units) as an additional insured, subject to a cross-liability clause
pursuant to which the insurance will be deemed to have been effected
separately for each of the individual parties who make up the
insured. All the insurance policies shall contain a provision
stating that the insurer will notify the Company and the Municipality in
writing 30 days in advance before it has the intention of cancelling or
reducing the policies. In the scope of the contractual
arrangements between the Company and buyers of rights in the Remaining
Project Lands, the Company will oblige the aforesaid buyers of rights to
extend the insurances which will be effected by them and to include the
Purchaser as an additional insured subject to a cross-liability
clause. Nothing contained in the foregoing shall derogate from
the Purchaser’s right to include the financing bank as a beneficiary in
the insurances and to charge and encumber the insurance compensation that
may be due to the Purchaser in favor of the financing
bank.
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14.
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Agreed
damages
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14.1
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It
is hereby agreed between the parties that in every case of a material
breach of this Agreement by the Purchaser, which is not the cured in
accordance with the provisions of sub-clause 18.6 below, including, and
without derogating from the generality of the foregoing, in the case of
actual non-payment of the consideration to the Company by the Purchaser at
the time specified in Clause 6 above, for any reason, or in the case of a
registration by the Purchaser of a caveat prior to the times specified in
sub-clause 9.6 above which was not expunged within 48 hours from the time
the Purchaser was called upon to expunge same, the Company will be
entitled, without derogating from any right or remedy available to the
Company according to any law and agreement in respect of a breach of this
Agreement by the Purchaser, to agreed damages in the sum equivalent to 10%
of the amount of the Basic Consideration (hereinafter: “the Agreed Damages”), as
agreed pre-estimated liquidated damages in respect of such material
breach. It is hereby expressly agreed that in such case the
Company will have the absolute right to confiscate the Agreed Damages,
either by foreclosing on the sale process guarantee or by holding forfeit
the amounts which have been paid to it on account of the consideration up
to such time, without the necessity for giving a warning notice or notice
of any sort to the Purchaser and/or to the Interested
Parties.
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14.2
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The
Purchaser hereby declares that the aforesaid Agreed Damages have been
fixed by the parties after careful and reflective assessment of the damage
that will be incurred by the Company as a result of such non-payment of
the consideration, and accordingly no argument by the Purchaser to the
effect that the compensation is unreasonable will be entertained, and the
Purchaser hereby irrevocably, fully and expressly waives any allegation or
argument of any sort by it. It is further agreed that the
Company will have the absolute right, for purposes of recovering the
Agreed Damages, to foreclose on the sale process guarantee without being
obliged to give notice to the Purchaser about the effecting of such
foreclosure.
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14.3
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It
is agreed that the provisions of this Clause 14 above are subject to the
provisions of sub-clause 5.2 above.
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15.
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Name
of the Project
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It
is hereby agreed and clarified that the Municipality will decide on the
name of the public areas precinct, the public buildings and the open
public areas, and will be entitled to place suitable signboards at such
places, as is the customary practice in the city of Tel Aviv-Jaffa, or as
may be customary in the city of Tel Aviv-Jaffa at such time. It
is agreed that the Purchaser, the Company and the Municipality will, by
agreement, decide on the name/names of the Project as defined in this
Agreement, in accordance with professional advice which the Purchaser, the
Municipality and the Company will receive in relation thereto (hereinafter
– “the Name of the
Project”). The Housing Company will be entitled to
decide on the name of the residential precinct (including the inclusion in
this name of the name of “Xxxxx”) and the Mall Company will be entitled to
decide on the name of the commercial areas in the Purchaser’s Project,
while the Housing Company and the Mall Company undertake that the names
will be given by them as aforesaid will, under all the circumstances,
include the name of the Project as will be decided as
aforesaid. For example, if it is decided that the name of the
Project is: “New Tel Aviv”, then the Housing Company will be entitled to
call the residential precinct by the name of: “X” in New Tel Aviv” and the
Mall Company will be entitled to call the commercial areas by the name:
“Y” in New Tel Aviv”.
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Nothing
in the foregoing shall derogate from the Municipality’s power and
authority and/or its duty as a local authority to decide on the name of
the suburb in which the Project will be included, in accordance with
Section 235A of the Municipalities
Ordinance.
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16.
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Transfer
of rights and encumbrances
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16.1
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It
is hereby agreed that until completion of the construction of all the
built areas that can be erected on the Company’s Lands, the Municipality
Lands and the Additional Real Estate Rights (including the public
buildings) in accordance with the provisions of Plan TA/3001 and pursuant
to the provisions of this Agreement, the Purchaser will not be entitled to
transfer any of its rights and obligations in the Property Sold, or any
part thereof, to third parties (excluding a sale of residential units to
the buyers of apartments as defined above and/or the letting of
residential units and/or built commercial areas) (hereinafter for purposes
of this sub-clause: “the
Transferee”) without the prior written consent of the Company and
the Municipality.
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It is
clarified that such consent will not be unreasonably withheld by the Company and
the Municipality, including the physical and zoning condition of the land that
is the subject matter of the requested transfer at the requested time, the
extent of the areas the transfer of which is requested, the identity of the
Transferee, his financial strength and stability, the status of completion of
construction of the public buildings, the open public areas and the residential
and commercial areas, securing of payment of the full consideration to the
Company and to the Municipality, the conditions of employment with the
Transferee, and so forth. It is further agreed that the Company and
the Municipality will be entitled to make their consent subject to conditions,
including the making of a payment to the Company and to the Municipality and/or
the bringing forward of payment of that part of the consideration that remains
unpaid at such time, collateral security and so forth.
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16.2
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Notwithstanding
the contents of Clause 16.1 above and subject to Clause 16.3 below, it is
agreed that:
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16.2.1
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Until
the date of payment of the full Basic Consideration, the Mall Company will
be entitled to sell portion of its rights and obligations in relation to
the commercial areas that are the subject of this Agreement to a third
party which is a financial entity and/or an entity whose field of business
is the management and operation of yield producing assets (hereinafter for
purposes of this sub-clause – “the Transferee”),
provided that the obligations of the Mall Company and the Transferee
vis-à-vis the Company and the Municipality in relation to the commercial
areas shall be joint and several, and that the provisions of sub-clause
16.5 below shall be complied
with.
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16.2.2
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Commencing
from the date of payment of the full Basic Consideration to the Company
and to the Municipality, the Mall Company will be entitled to sell the
commercial areas or part thereof to any third party, provided that the
Transferee assumes the full obligations of the Mall Company in accordance
with this Agreement as regards the transferred portion of the commercial
areas, and the Mall Company shall remain liable to the Company for the
full obligations pursuant to this Agreement in connection with that
portion of the commercial areas which remains in its possession after the
transfer, if any, and that the provisions of sub-clause 16.5 below are
complied with.
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16.3
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If
the Mall Company should wish to sell its rights in the commercial areas
(in whole or in part) prior to the issue of a certificate for initial
occupation (Form 4) in respect of the school, the sports center and the
area of the Municipality’s parking places, as defined in the Municipality
Lands Agreement (hereinafter in this Clause 16: “the School, the Sports Center
and the Municipality’s Parking Places Area”), then such transfer
shall be subject to the prior written consent of the Municipality on such
conditions as the Municipality may stipulate in accordance with the
provisions of this sub-clause below, and subject to fulfillment of the
provisions of sub-clause 16.5 below. This consent shall be
given if the Municipality has been persuaded that such transfer does not
affect the obligations of the Housing Company for erecting the School and
the Sports Center, the construction and actual completion thereof, and the
obligations of the Mall Company for constructing the Municipality’s
Parking Places Area, the construction and actual completion
thereof. It is clarified that the only factor the Municipality
will be entitled to take into account for purposes of giving such consent
and the conditions thereof, is the guaranteeing of construction of the
School, the Sports Center and the Municipality’s Parking Places
Area.
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16.4
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It
is agreed that in the case of the transfer of rights by the Purchaser in
accordance with the provisions of this Clause 16 above, the Company will
sign the necessary documents for purposes of transferring the Purchaser’s
rights to the Transferee (including consent to registration of a caveat,
amendment of the deeds of mortgage and so forth), provided that within the
framework of such documents the Company’s rights pursuant to this
Agreement will be secured and the Transferee’s stepping into the
Purchaser’s shoes vis-à-vis the Company in all respects shall be
guaranteed, all subject to the condition that the Company’s signing as
aforesaid shall not derogate from any of the Company’s rights under this
Agreement and/or have the effect of the imposing any obligations and/or
expenses on the Company which are not expressly imposed on it in
accordance with this Agreement.
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16.5
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The
Company’s consent to a transfer of rights as aforesaid, to the extent that
it is given, will in any event be subject, inter alia, to the expunging of
a caveat that has been registered in favor of the individual party who
makes up the Purchaser who is the transferor or to an amendment thereof,
as the case may be, cancellation of the mortgage that was registered in
favor of the financing bank in connection with the individual party who
makes up the Purchaser who is the transferor or an amendment thereof, as
the case may be, the furnishing of all the powers of attorney required
under this Agreement, the Transferee signing the Transfer Documents that
are demanded by the Company and the Municipality, and similar other
documents.
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16.6
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It
is agreed that the provisions of Clause 16 regarding restrictions on the
transfer of rights will also apply to a transfer of shares and/or an
allotment of shares and/or the grant of options for shares and/or any
disposition or act, directly or indirectly (hereinafter – “Operations in Shares”)
in the shares of any of the individual parties who make up the Purchaser
and/or in the shares of their parent companies (up to and not including
Interested Parties) (apart from a public offering of shares of such
companies, provided that there shall be no change in control in any of the
individual parties who make up the Purchaser or in any of their parent
companies), and Operations in Shares as a result of which there will be a
change in control (within the meaning of that term in the Securities Law,
5728-1968) in any of the Interested Parties, in a manner whereby any
Operation in Shares as referred to above in this sub-clause will require
the Company’s consent in accordance with the conditions of Clause 16
above.
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It is
hereby further agreed that a transfer of rights which is as a result of any of
the following events will not require the consent of the Company and the
Municipality: (1) Realization by the financing company of the encumbrance to the
financing company, as defined below; (2) a dilution in the holdings
of one of the shareholders in the Mall Company or in the Housing Company at the
expense of an increase in the holdings of the other shareholder in the Mall
Company or in the Housing Company by virtue of the dilution clause in the
agreement of the individual parties who make up the Purchaser (which does not
involve the bringing in of an additional partner into the Housing Company or the
Mall Company), all subject to the condition that transfers as referred to above
in this paragraph will not have the effect of derogating from any of the
obligations under this Agreement of any of the individual parties who make up
the Purchaser.
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16.7
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The
encumbrances
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16.7.1
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Up
to the date of actual settlement of the Second Payment, the Purchaser will
not be entitled to encumber any of its rights pursuant to this Agreement
and/or in the Company’s Lands in favor of any third
party.
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16.7.2
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Simultaneous
with settlement of the Second Payment, as defined above, the Purchaser
will be entitled to encumber its rights in the Company’s Land and/or its
rights pursuant to this Agreement, solely in favor of a commercial bank
that will provide it with a loan for purposes of financing the transaction
that is the subject matter of this Agreement and/or realization of the
transaction, but subject to the following cumulative conditions
(hereinafter – “the
Financing Bank”, and “the Construction
Loans”), respectively):
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16.7.2.1
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The
monies of the Second Payment and the monies of the Third Payment shall be
paid by the Financing Bank directly to the Company and/or to Bank Leumi
and/or to the Trustee, as the case may be, in the manner and at the times
set forth in the provisions of sub-clause 6.2.5 above and sub-clause 6.2.6
above.
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16.7.2.2
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In
the scope of the banking documents the Financing Bank shall confirm to the
Company in writing that it is aware, and it agrees thereto, that the
Company will, in its discretion, be entitled to create encumbrances and
third party rights of any sort in the Remaining Project Lands, including
encumbrances ranking pari passu with the encumbrance in favor of the
Financing Bank.
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16.7.2.3
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The
credit which is the subject of the Construction Loans shall be given
solely in connection with the Purchaser’s Project and the encumbrance to
the Financing Bank shall secure the obligations to the Financing Bank of
the Purchaser and the Interested Parties in connection with the
Purchaser’s Project only.
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16.7.2.4
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All
the expenses, the liability and the obligations in connection with the
construction loans, if same are provided to the Purchaser, including
commissions and costs in respect of the issue of any guarantees, including
Sale Law guarantees to buyers of apartments, shall be borne in their
entirety by the Purchaser, in a manner that there shall be no liability on
the Company in connection
therewith.
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16.7.2.5
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The
signature by the Company to the encumbrance documents to the Financing
Bank will be subject to the condition that the Company’s liability and/or
obligation in connection with receiving the Construction Loans will be
confined to the creating of an encumbrance in favor of the Financing Bank
as stated in Clause 16.7.3 below and to the Financing Bank’s ability to
realize same, to the extent necessary, without additional obligations
being imposed on the Company vis-à-vis the Financing Bank and/or without
the Financing Bank being able to have recourse to the Company’s other
assets (including its rights in the Remaining Project
Lands).
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16.7.2.6
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The
Financing Bank shall confirm in writing to the Company that realization of
the encumbrance in favor of the Financing Bank and its sale of the rights
to a third party pursuant to the aforesaid realization of the encumbrance
shall be made subject to the condition that such third party shall step
into the Purchaser’s shoes with respect to all the rights and obligations
according to the provisions of this Agreement and subject to the Company’s
rights pursuant to this Agreement, without this derogating from the
provisions of sub-clause 5.2.5
above.
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16.7.2.7
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The
Financing Bank shall give consent in writing to registration of the
parcellation, registration of the leasehold rights in favor of the Company
in the Company’s Lands in the name of the Company, as well as registration
of any act required in the Remaining Project Lands, provided that its
rights pursuant to the encumbrance in its favor shall not be adversely
affected.
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16.7.3
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It
is agreed that the encumbrances that will be given by the Company in favor
of the Financing Bank will include only the encumbrances particularized in
one of the alternatives described in the sub-clauses of this Clause
16.7.3, with it being agreed that under all circumstances the encumbrance
documents shall conform with the provisions of Clause 16.7.2 above
(hereinafter – “the
Encumbrance in favor of the Financing
Bank”):
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16.7.3.1
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Until
registration of the leasehold rights in the Company’s Lands in the name of
the Company in the Land Registry, the Encumbrance in favor of the
Financing Bank shall include: (a) registration of a mortgage over a
specific part of the Company’s Existing Leasehold, as same stands at the
date of signing of this Agreement, with this being by way of registration
of the mortgage on the basis of a drawing (in which the Existing Leasehold
will be marked without the portion of the Remaining Project Lands in
Existing Leasehold) and in the alternative, if that is not possible, by
the registration of a mortgage over all the Company’s rights in the
Existing Leasehold, coupled with an exclusion of the Remaining Project
Lands from the operation of the mortgage, all in the manner which makes
the creation of first ranking encumbrances in favor of third parties over
the Remaining Project Lands possible. It is clarified that
after registration of the parcellation, the aforesaid mortgage will be
specifically attributed to the Company’s leasehold rights as same will be
upon completion of registration of the parcellation as aforesaid, in a
manner whereby the mortgage will not apply to the Remaining Project Lands;
(b) an undertaking by the Municipality to register a mortgage in favor of
the Financing Bank, in respect of the Company’s Lands only, in the usual
text used by it in transactions of the sort and registration in the Land
Registry of a caveat in respect of such undertaking to register a
mortgage, and (c) a charge at the Registrar of Companies over the
Company’s rights in the Company’s Lands in accordance with the 2002
Agreement.
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16.7.3.2
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If
the registration of the leasehold rights in the Company’s Lands in the
Company’s name in the Land Registry is executed after registration of the
Encumbrance in favor of the Financing Bank in accordance with sub-clause
16.7.3.1 above, then in the scope of registering the leasehold rights as
aforesaid, the encumbrance referred to as Clause 16.7.3.1 above, including
all the components thereof, will be replaced by a mortgage that will be
registered only over the Company’s leasehold rights in the Company’s Lands
in accordance with the Leasehold
Drawings.
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The
Purchaser undertakes to sign and to cause the Financing Bank to sign all the
documents required for purposes of performing the matters
aforesaid.
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16.7.3.3
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If
the leasehold rights in the Company’s Lands are registered in the
Company’s Lands in the Land Registry are registered prior to the date of
registration of the Encumbrance in favor of the Financing Bank, then a
mortgage will be registered in favor of the Financing Bank only over the
Company’s leasehold rights in the Company’s Lands in accordance with the
Leasehold Drawings.
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16.7.4
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The
Purchaser undertakes to deliver to the Company the documents that are
required by the Bank for purposes of registering the Encumbrance in favor
of the Financing Bank (as defined above) not later than 60 days from the
date of the local committee’s decision on approving the first building
permit on conditions, or at least 60 days before the date specified for
making the Second Payment, whichever is the earlier. The
Company will be entitled to discuss the wording of the aforesaid documents
with the Financing Bank and the conformance of those documents with the
provisions of this Agreement. As long as the aforesaid
documents do not conform with the provisions of this Agreement, the
Company will not sign the said
documents.
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16.7.5
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The
documents as shall be agreed between the Company and the Financing Bank
and which under all circumstances shall conform with the provisions of
this Clause 16.7 will henceforth be referred to as – “the Encumbrance in favor of
the Financing Bank Documents”. The Encumbrance in favor
of the Financing Bank Documents shall be signed by the Company, and shall
be delivered by the Company to the Purchaser in accordance with the
provisions of Clause 6 above.
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16.8
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It
is hereby agreed that in a case in which each of the individual parties
who make up the Purchaser takes a Construction Loan separately from the
other, the sole responsibility for arranging the series of encumbrances
with the separate Financing Bank of each of the individual parties who
make up the Purchaser in a manner whereby the series of encumbrances as
aforesaid shall conform with the provisions of this Agreement, is that of
the Purchaser or the individual parties who make up the Purchaser, as the
case may be, and the Company will sign the encumbrance documents in favor
of each of the Financing Banks only in accordance with and subject to the
provisions of sub-clause 16.7
above.
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16.9
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It
is agreed that the provisions of Clauses 16.1, to 16.8 above will also
apply in relation to any transferee who may acquire any rights in the
Project Lands from the Purchaser and/or from the Purchaser’s
transferees.
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17.
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Sale
of apartments by the Housing
Company
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17.1
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The
Housing Company undertakes that all the sale agreements that will be
signed between it and buyers of apartments up to the Date of Delivery of
Possession will be contingent upon a condition precedent of settlement of
the Additional First Payment, the Later First Payment and the Second
Payment on due date. It is further agreed that (1) up to the
date of settlement of the Additional First Payment, the Later First
Payment and the Second Payment – all the proceeds that will be received by
the Housing Company from buyers of apartments will be deposited in a trust
account and/or in the account of the Financing Bank, and under no
circumstances will same be transferred to the Housing Company; (2) if up
to the Date of Delivery of Possession, the Housing Company guarantees the
payments that have been paid to it by buyers of apartments by way of a
Sale Law guarantee, then the Sale Law guarantee will contain an additional
ground for foreclosure pursuant to which a case of cancellation of this
Agreement and/or the Municipality Lands Agreement by the Company and the
Municipality will constitute grounds for foreclosure on the Sale Law
guarantee. If the Housing Company has secured the monies of
buyers of apartments in another way, a refund of the money shall be
guaranteed accordingly in the case mentioned
above.
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17.2
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The
Housing Company undertakes that it will include in all the sale agreements
with buyers of apartments a provision pursuant to which the buyers of
those units declare that the Company and the Municipality do not bear any
responsibility or liability to the buyers of
apartments.
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17.3
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The
Housing Company will not be entitled to register a caveat in favor of the
buyers of apartments, until after payment of the full Basic Consideration
and after registration of the leasehold rights in the Company’s Lands in
the name of the Purchaser.
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18.
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Miscellaneous
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18.1
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The
Housing Company undertakes that at the time residential apartments on the
Land that is the subject of this Agreement are offered by it for sale or
rental, every buyer who meets the financial conditions that will be
offered by it at that time in the scope of marketing the apartments, will
be entitled to acquire rights in the apartments that are offered as
aforesaid.
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18.2
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This
Agreement embodies everything that has been agreed between the parties up
to the date of the signing hereof. There shall be no validity
to any representation, statement, exchanges, written or verbal, directly,
indirectly or impliedly, and similar other things on the part of the
Municipality and/or the Company and/or the local committee and/or the
entities connected with any of them, which preceded the signing of this
Agreement. However, with the removal of doubt it is clarified
that nothing contained at the start of this sub-clause 18.2 shall derogate
from the obligations and commitments of the Purchaser and the Interested
Parties in accordance with the sale procedure, to the extent that same are
not contradicted by the provisions of this
Agreement.
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18.3
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No
alteration or waiver of the provisions of this Agreement will be of any
validity unless a written document to that effect has been drawn up and
signed by both the parties.
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18.4
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Any
waiver by a party to this Agreement of any of its rights shall be of no
force and validity unless drawn up in writing. Where in this
Agreement the consent of the party to the contract is required for
purposes of any act, such consent will be of no validity unless given in
writing.
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Without
derogating from the contents of this sub-clause 18.4 above, wherever in this
Agreement one of the parties is required to fulfill an obligation up to a date
specified in this Agreement, the other party to the Agreement shall have the
right to extend the date in its discretion, or to pardon the fulfillment of the
condition, provided that this is done in writing.
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18.5
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Where
a date has been specified for the obligations of all the parties, they
shall have the right to extend that date by way of written
consent.
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18.6
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Clauses
3, 4 (excluding sub-clause 4.11), 5, 6, 7, 9 (excluding clause 9.9), 10
(excluding 10.2), 11, 13, 16, 17 constitute basic and fundamental clauses
of this Agreement and a breach of a provision contained in any of them
which has not been cured within 30 days from the date of receipt by the
Purchaser of written notice to that effect will be deemed to be a material
breach. It is further agreed that a repeated breach (that is to
say, commencing from the third breach onwards) of any of the provisions of
the above clauses will immediately be deemed to be a material
breach without the necessity for any warning or notice being given by the
Company. This provision shall be deemed to have been included
at the end of each of the abovementioned
clauses.
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18.7
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Without
derogating from the contents of Clause 18.6 above, it is hereby agreed
that each of the following cases will be deemed to be a material breach on
the part of the Purchaser, which will entitle the Company, in its
discretion, inter alia to the remedy of the cancellation of this contract
by written notice to be delivered to the
Purchaser.
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18.7.1
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If
an application for a stay of proceedings is filed by any of the individual
parties who make up the Purchaser or by any of the Interest in
Parties. In a case in which such application is filed by any
third party – only if a stay of proceedings order is
granted.
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|
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18.7.2
|
In
the event that a liquidation order or receivership order is granted
against any of the individual parties who make up the Purchaser or against
any of the Interested Parties, or if a provisional or permanent receiver
is appointed for the property of any of them, or if a liquidator or
provisional liquidator is appointed for any of the individual parties who
make up the Purchaser or for any of the Interested Parties, or if any of
the individual parties who make up the Purchaser or any of the Interested
Parties files a proposal for making an arrangement with his or its
creditors – all in a case in which such appointment or order has not been
set aside within 90 days from the date the court order was
granted.
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67
|
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18.7.3
|
If
an attachment has been imposed on the Purchaser’s rights in the Company’s
Lands and/or the rights of any of the individual parties who make up the
Purchaser and/or any of the Interested Parties in other assets of any sort
which serve as collateral for the banking finance, and the attachment has
not been removed within 90 (ninety) days from the date the attachment was
imposed.
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|
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18.7.4
|
In
relation to the cases mentioned in sub-clauses 18.7.1-18.7.3 above, which
will be deemed to be material breaches as aforesaid, it is agreed that the
occurrence of the aforesaid events will be examined in relation to each of
the individual parties who make up the Purchaser separately, where an
individual party in respect of whom one of the events mentioned in
sub-clauses 18.7.1-18.7.3 above has occurred will be deemed to be a
Defaulting Individual Purchaser and an individual party who makes up the
Purchaser with respect to whom one of the aforesaid events has not
occurred will be deemed to be a Complying Individual Purchaser, as more
fully described in the provisions of sub-clause 5.2.4.3
above.
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|
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18.8
|
If
the Purchaser has fulfilled all its obligations under this Agreement up to
and including payment of the full Basic Consideration on due date, and the
Third Payment has been paid in the hands of the Company, then, without
derogating from the remaining remedies available to the Company according
to law and agreement, the Company will no longer have a right to cancel
this Agreement.
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|
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18.9
|
It
is agreed that any payment which applies to any of the parties to this
Agreement, which is made after the dates specified for the payment thereof
in accordance with this Agreement, will bear penalty interest at an annual
rate of 10%, commencing from the first day of default. All this
will be without derogating from any other or additional right or remedy to
which the other party is entitled according to any law and/or
agreement.
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|
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18.10
|
This
Agreement is being signed simultaneously with the signing of the agreement
between the Purchaser and the Municipality for the purchase by the
Purchaser of the rights in the Municipality Lands (hereinbefore and
hereinafter: “the
Municipality Lands Agreement”). For the removal of doubt
it is clarified and agreed that this Agreement is the separate and
independent agreement from the Municipality Lands Agreement, and that the
transaction which is the subject of this Agreement is a separate and
independent transaction from the transaction that is the subject of the
Municipality Lands Agreement. The obligations and rights of the
Company, on the one hand, and the Municipality on the other, pursuant to
the above-mentioned agreements, do not constitute joint and several
obligations and rights vis-à-vis the Purchaser, and the Municipality or
the Company are not a guarantor for the fulfillment of the obligations of
one another vis-à-vis the Purchaser in accordance with the aforesaid
agreements, and the existence of the agreements and of the transactions
that are the subject of the Agreements are separate and
independent. Nothing contained in this clause above shall
derogate from the provisions of sub-clause 10.2 above, sub-clause 6.2.1
above and sub-clause 6.2.5.3
above.
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68
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18.11
|
In
the case of a conflict between the provisions of the sale procedure and
the provisions of this Agreement, the provisions of this Agreement shall
prevail.
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|
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18.12
|
It
is agreed that the provisions of the Contracts Law (Remedies for Breach of
Contract), 5731-1970 shall apply to this
Agreement.
|
|
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18.13
|
The
Purchaser will not have any right of set-off or lien, for any reason, in
respect of any amount it is obliged to pay in accordance with the
provisions of this Agreement.
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18.14
|
The
Company reserves the right, in its sole discretion, to assign, transfer or
endorse its rights and/or obligations under this
Agreement.
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|
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18.15
|
Should
this Agreement be cancelled, such cancellation will not derogate from the
validity of the provisions contained in Clauses 4.1 to 4.4, 4.7 to 4.10,
4.11, 4.17, 4.21, 4.22, 13.1 and 14 above and from the validity of the
undertakings pursuant to the deeds of confidentiality of the Purchaser,
the Interested Parties and their representatives which were delivered in
the scope of the sale process.
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|
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18.16
|
This
Agreement shall be governed by the laws of the State of Israel and the
court in Tel Aviv will have sole and exclusive jurisdiction to try any
matter connected with this Agreement and/or arising herefrom, according to
its substantive jurisdiction.
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|
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18.17
|
Each
party to this Agreement shall bear its own costs and
expenses.
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|
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18.18
|
It
is clarified that if this Agreement is translated into foreign languages,
the translation will be solely for purposes of convenience and under all
circumstances the binding version will be the version in the Hebrew
language.
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|
|
18.19
|
Any
notice that is sent by one party to another shall be deemed to have been
received:
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|
|
18.19.1
|
After
3 business days from the time of its posting by registered mail at a post
office in Israel;
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18.19.2
|
If
delivered by hand - at the time of its
delivery;
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|
|
18.19.3
|
If
sent by facsimile – at 12:00 noon on the first business day following the
transmission thereof, as confirmed by notice of the facsimile machine from
which it was sent.
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|
|
18.20
|
The
parties fix their addresses for purposes of the contract as
follows:
|
The Company
–
c/o:
_______________________
69
Facsimile:
__________________
The
Individual parties who make up the Purchaser -
c/o:
the address mentioned at the head of this Agreement
_______________.
Facsimile:
__________________
The
Interested Parties –
Dirot
Yukra Ltd., Xxxxx Investments 1 Ltd.
c/o:
____________________________
Facsimile:
______________________
Blue
Square Real Estate Ltd.
c/o:
_____________________________
Facsimile:
________________________
|
|
The
parties are entitled to give notice of a change in their address by way of
notice that shall be delivered in accordance with the provisions of Clause
18.19 above, provided that the addresses of the individual parties who
make up the Purchaser and of the Interested Parties shall be in
Israel.
|
In
witness whereof the parties have hereunto signed:
|
/s/
|
/s/
|
|
|
The
Housing Company
|
The
Mall Company
|
|
/s/
|
|
The
Company
|
Certification by Purchaser’s
Attorney
I the
undersigned, _____________________ Adv., hereby certify that _________________
and ___________________ who identified themselves by way of I.D. No. _________
_________ / who are personally known to me, signed this Agreement and that they
are authorized to sign in the name of ____________________ and that their
signature binds __________________.
I the
undersigned, _______________________ Adv., hereby certify that _________________
and ___________________ who identified themselves by way of I.D. No. _________
_________ / who are personally known to me, signed this Agreement and that they
are authorized to sign in the name of ____________________ and that their
signature binds __________________.
70
Certification of Company’s
Attorney
I the
undersigned, _______________________ Adv., hereby certify that _________________
and ___________________ who identified themselves by way of I.D. No. __________
__________ / who are personally known to me, signed this Agreement and that they
are authorized to sign in the name of ____________________ and that their
signature binds __________________.
71
Deed of Undertakings by the
Interested Parties
We, the
undersigned, hereby confirm and undertake as follows:
|
1.
|
That
the declarations and undertakings given by us in the scope of the sale
process and the sale procedure are correct, complete, full and updated,
and are binding on us along with the Purchaser, for all intents and
purposes.
|
|
2.
|
That
we are aware that on the strength of our undertakings as set forth below,
the Company has agreed to accept the Purchaser's offer to buy the Property
Sold and to enter into this Agreement with
it.
|
|
2A.
|
We
confirm the correctness of all the declarations and representations of the
Purchaser as set forth in the Agreement, in a manner whereby those
declarations and representations shall be deemed as if given by us
directly to the Company.
|
|
3.
|
Each
of the Interested Parties hereby declares and undertakes to the Company
that it is duly incorporated and that it is entitled and authorized to
make the undertakings set forth in this Deed of Undertaking and to perform
same, and has passed all the resolutions and obtained all the approvals
required according to the provisions of the law and its documents of
incorporation for purposes of entering into this Deed of
Undertaking. Each of the Interested Parties further declares
and undertakes that no steps have been taken with respect to it for an
arrangement, stay of proceedings, winding-up, liquidation, expungement,
bankruptcy or receivership, and that there is no threat against it of such
legal proceedings (including the fact of there being no attachment of its
assets), that are likely to have an effect on its contracting under this
Deed of Undertaking and on the performance of its obligations pursuant
hereto.
|
|
4.
|
We
are fully conversant with the provisions of the Agreement and we declare
and undertake that we have the ability to abide by all the Purchaser's
obligations pursuant to the Agreement, in accordance with the contents of
Paragraph 5 below.
|
|
5.
|
We
owe a direct obligation to the Company for the fulfillment of all the
Purchaser's obligations pursuant to the Agreement, including payment of
the Consideration, in accordance with the following
provisions:
|
|
|
5.1
|
The
Interested Parties are responsible and liable directly to the Company for
the fulfillment of all the Purchaser's obligations for payment of the
Consideration as follows:
|
|
|
5.1.1
|
Dirot
Yukra Ltd. is responsible as a direct debtor to the Company for payment of
50% of the payments of the Consideration imposed on the Housing Company
under the Agreement and also for payment of 50% of the payments of the
Consideration imposed on the Mall Company under the
Agreement.
|
72
In
addition:
|
|
5.1.2
|
Xxxxx
Investments 1 Ltd. is responsible as a direct debtor to the Company for
payment of 25% of the payments of the Consideration imposed on the Housing
Company under the Agreement and also for payment of 25% of the payments of
the Consideration imposed on the Mall Company under the
Agreement.
|
In
addition:
|
|
5.1.3
|
Blue
Square Real Estate Ltd. is responsible as a direct debtor to the Company
for payment of 50% of the payments of the Consideration imposed on the
Housing Company under the Agreement and also for payment of 50% of the
payments of the Consideration imposed on the Mall Company under the
Agreement.
|
|
|
5.1.4
|
Without
derogating from the Company's remaining rights pursuant to the Agreement
and according to this Deed of Undertaking, it is clarified for the removal
of doubt that nothing in sub-paragraph 5.1 above has the effect of
derogating from any of the remedies available to the Company according to
any law and agreement in the event that the Housing Company and/or the
Mall Company should default in any of their obligations for payment of the
full Consideration (or any part thereof) under the Agreement (even if the
Interested Parties or any of them has complied with the fulfillment of its
obligations to the Company pursuant to this Paragraph
5.1).
|
|
|
5.2
|
The
Interested Parties are directly responsible and liable to the Company for
the fulfillment of all the Purchaser's obligations pursuant to this
Agreement (except only the Purchaser's obligations for payment of the full
Consideration, in respect of which the provisions of sub-clause 5.1 above
will apply) as follows:
|
|
|
5.2.1
|
Blue
Square Real Estate Ltd. and Dirot Yukra Ltd. are liable, jointly and
severally, as direct debtors to the Company for 50% of all the Purchaser's
obligations under the Agreement.
|
In
addition:
|
|
5.2.2
|
Xxxxx
Investments 1 Ltd. is responsible as a direct debtor to the Company for
payment of 50% of all the Purchaser's obligations pursuant to this
Agreement.
|
|
|
5.2.3
|
For
the removal of doubt it is clarified that included in this sub-clause 5.2,
the Interested Parties in the Housing Company are directly liable and
responsible for all the obligations of the Housing Company for the
construction of the public buildings, as defined in the Agreement above,
with this being in accordance with the provisions of sub-clause 4.13 of
the Agreement above and in accordance with the provisions of the
Municipality Lands Agreement and the provisions of the Construction
Contract between the Housing Company and the
Municipality.
|
73
|
|
5.3
|
Our
undertakings above and below are absolute, irrevocable and unconditional
and included therein our obligations to the Company are not contingent on
prior reference by the Company to any of the individual parties who make
up the Purchaser and/or upon the exhausting of any proceedings and/or
remedies that are available to the Company according to the Agreement
and/or any law.
|
|
6.
|
The
Interested Parties hereby confirm and undertake that they waive any claim,
demand, cause of action or allegation (hereinafter: "Claim") of whatsoever
nature according to any law and agreement as against the Company and/or
the Municipality and/or any of the bodies connected with either of them,
in connection with the subject matter of this Agreement and the actions of
any of the aforesaid entities in connection with the signing and
consummation thereof. The confirmation of the Interested
Parties as set forth above is also given in connection with what is stated
in Clause 4.10 of this Agreement
above.
|
|
7.
|
The
Interested Parties confirm that their obligations under this Deed of
Undertaking are as a principal debtor, directly to the Company, and not as
a guarantor. Without derogating from the foregoing and for the
sake of caution, the Interested Parties hereby absolutely, unconditionally
and irrevocably waive all or any defense or argument that is available
and/or may be available to them, if any, pursuant to the Guarantee
Law.
|
|
8.
|
All
the remedies and forms of relief that are available and/or may in the
future be available to the Company as against the Purchaser in accordance
with any law and agreement shall also be available against us in all
respects, including in a manner that none of us will have any argument or
defense which is not expressly available to the
Purchaser.
|
In
witness whereof the parties have hereunto signed:
|
/s/
Xxxx Xxxxx, Xxxx Xxxxx
|
/s/
|
|
|
Blue
Square Real Estate Ltd.
|
Dirot
Yukra Ltd
|
|
/s/
|
|
Xxxxx
Investments 1 Ltd.
|
Certifications by
Attorney
I the
undersigned, _____________________ Adv., hereby certify that _________________
and ___________________ who identified themselves by way of I.D. No. _________
_________ / who are personally known to me, signed this Agreement and that they
are authorized to sign in the name of ____________________ and that their
signature binds __________________.
74
I the
undersigned, _______________________ Adv., hereby certify that _________________
and ___________________ who identified themselves by way of I.D. No. _________
_________ / who are personally known to me, signed this Agreement and that they
are authorized to sign in the name of ____________________ and that their
signature binds __________________.
I the
undersigned, _______________________ Adv., hereby certify that _________________
and ___________________ who identified themselves by way of I.D. No. __________
__________ / who are personally known to me, signed this Agreement and that they
are authorized to sign in the name of ____________________ and that their
signature binds __________________.
(
75
