EXHIBIT 10.1
UNPROTECTED RENTAL CONTRACT
SIGNED IN TEL AVIV ON 7 APRIL 1997
BETWEEN: ▇▇▇▇ ▇▇▇▇▇▇▇▇ - Development & Investments (1995) Ltd.
Private company no. ▇▇-▇▇▇▇▇▇-▇
Of ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
By its manager, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇
Authorized to sign in its name and on its behalf
(Hereinafter: the "LESSOR")
of the first part;
AND: Redview Software Ltd., Private company no. ▇▇-▇▇▇▇▇▇-▇
Of ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
By Messrs.: ▇▇▇▇▇▇ Zissapel, ID 007146053
▇▇▇▇ ▇▇▇▇▇▇▇▇, ID 054182035
Authorized to sign in its name and on its behalf
(Hereinafter: the "LESSEE")
of the second part;
WHEREAS ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, bearer of ID no. 0128101 (hereinafter: the
"LEASEHOLDER"), is the registered leaseholder and sold holder
of the real estate Property, as defined below, located at ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tel Aviv, known as part of ▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇;
AND Whereas the Leaseholder, via the Lessor, which is a
corporation controlled by the Lessor (SIC), is constructing
the Building, as defined below, on the Property, and is to
complete its construction on a high building standard, for
offices;
AND Whereas the Lessor declares that it is constructing the
Building, as defined below, according to the provisions of the
law and that a company that develops software can be managed
therein;
AND Whereas the Lessor declares that its engagement in this
contract with the Lessee is made with the knowledge of Bank
Leumi Le'Israel BM, in favor whereof a first class mortgage is
registered on the Leaseholder's rights in the Property, and in
accordance with the debenture in favor thereof, and that it is
not aware of any prevention against leasing the Rented
Premises to the Lessee;
AND Whereas the Lessor, with the permission and consent of the
Leaseholder, desires to rent to the Lessee, and the Lessee
desires to rent from the Lessor particular areas in the
Building, as defined below, in an unprotected rental under the
Tenants' Protection Laws and under the terms and conditions
set forth in the Contract below:
NOW THEREFORE, THE PARTIES HAVE AGREED, STIPULATED AND DECLARED AS FOLLOWS:
1. PREAMBLE, APPENDICES AND INTERPRETATION
1.1 The Preamble to this Contract and the Appendices attached
hereto are an integral part of the Contract.
1.2 The captions in the Contract are for the reader's convenience
only, and shall not serve in construing the Contract.
1.3 In this Contract, the following terms and phrases shall bear
the meanings set forth alongside them:
The "CONTRACT" This Contract and the Appendices
attached or that shall be attached hereto in
the future, with the consent and signatures
of the parties.
The "PROPERTY" Part of lot 369 in parcel 6638,
marked and demarcated on the map attached to
the Contract as APPENDIX 1.
The "BUILDING" The Building being erected on the
Property, according to the plans located
presently and/or in the future at the
architect's offices, including all
additional buildings and other supplements
to the Building, including the parking
tower, aboveground and underground parking,
the commercial spaces, stores, Public
Spaces, the protected rooms on each story,
service areas, loading and unloading bays,
public thoroughfares, sidewalks, storage
areas, basements, roofs, gardens,
stairwells, elevators and elevator shafts,
electricity and transformer rooms, garbage
rooms and pump rooms.
The "PUBLIC All areas and facilities in
SPACES" the Building (including basements), which
are not designated for rental or exclusive
use by lessees in the Building, including
the electricity room.
The "ARCHITECT" Sde-Dagan or any other architect
to be appointed for this purpose by the
Lessor and who has the degree of architect
or construction engineer.
The "SUPERVISOR" ▇▇▇▇▇▇▇▇ Bros. Ltd., or any
other supervisor to be appointed for this
purpose by the Lessor.
The "RENTED The entire area of the
PREMISES" second (2nd) floor of the Building, as
marked and demarcated in the plans attached
to the Contract as APPENDIX 2.
As well as - if a demarcated area is rented
to the Lessee for parking - the entire such
area.
The "AREA OF THE The entire area of the Rented
RENTED PREMISES" Premises, and unless
expressly stated otherwise, including the
entire thickness of the outside walls of the
floor whereon the Rented Premises are
located, but not including the exterior part
of the aforesaid outside walls.
The "MANAGEMENT The Company that shall
COMPANY" be established by the Lessor for the
management, operation and maintenance of the
Building, or any other Company wherefrom the
Lessor shall hire management, operation and
maintenance services for the Building.
The "INDEX" The Consumer Price Index published
by the Central Bureau of Statistics, or any
other Index published by the Bureau in its
stead.
The "US INDEX" The Consumer Price Index as
published in the United States of America.
"$" The United States Dollar.
The The representative exchange
"REPRESENTATIVE rate of the $, published on
EXCHANGE RATE" each business day by the Bank of Israel (and
in the absence of such publication, the
selling and buying rates to be published by
Bank Leumi Le'Israel BM).
The "BASE INDEX" Whether the (Israeli) Index or
the US Index - the Index that shall be known
at the Delivery Date as defined below.
The "BASE RATE" If the Contract is signed by
11:00 a.m. - the Representative Exchange
Rate known at that time; if the Contract is
signed after 11:00 a.m. - the Representative
Exchange Rate that is published on the first
business day after the date of signing of
the Contract.
The "NEW RATE" The Representative Exchange Rate
that is known at the time of actual payment;
however, if the payment owing by the Lessee
is made after 11:00 a.m. - the
Representative Exchange Rate that is
published on the first business day after
the day of payment, provided that it is not
lower than the Base Rate known at the time
payment was effected.
2. NON-APPLICABILITY OF THE TENANTS' PROTECTION LAWS
The Lessee hereby declares and confirms that:
2.1 On 20 August 1968 and/or on the date of commencement of the
Tenants' Protection Law (Various Provisions) - 1968, it was
not a tenant entitled to hold the Rented Premises, and that
also after the aforesaid date, it was not the holder or
entitled to hold the Rented Premises until the commencement of
the rental period under the Contract.
2.2 It did not pay or undertake to pay to the Lessor, in any form
or manner, key money or any other consideration similar to key
money, other than the rental fees as described in the
Contract.
2.3 The Tenants' Protection Law [Combined Version] - 1972, any
other law in its stead and any law granting a tenant who has
not paid key money any protection, shall not apply to the
rental under this Contract, to the relations between the
parties pursuant to this Contract, and to the Rented Premises,
and the Lessee shall be prevented, in both theory and
practice, from arguing otherwise.
2.4 The parties do not intend to create by means of this Contract
protected tenancy relations under the law, and this condition
is a prerequisite for the Lessor's consent to engaging in the
Contract.
2.5 Investments, additions and improvements made by the Lessee to
the Rented Premises, whether with or without the Lessor's
permission, shall be made for the Lessee's convenience only,
and shall not constitute any form of payment of key money or
serve to grant the Lessee any other rights in the Rented
Premises or the Building.
3. PURPOSE OF THE RENTAL
3.1 The Lessor is leasing the Rented Premises to the Lessee for
the purposes enumerated in APPENDIX 3 to the Contract.
3.2 The Lessee hereby undertakes that the Rented Premises shall
not serve for any purpose which is not enumerated in Appendix
3 to the Contract, or for any other purpose not expressly
permitted by law.
3.3 Breach of the provisions of this clause in whole or in part
shall be deemed a fundamental breach of the Contract. Without
derogating from the foregoing, in any case where demands,
claims or indictments are filed against the Lessor relating to
use of the Rented Premises other than for the purposes of the
rental, the Lessee shall indemnify and compensate the Lessor
in respect of any expenses, fines, levies, compulsory
payments, losses and other damages incurred by the Lessor, and
shall be exclusively responsible towards any competent
authority in any matter relating to such breach.
4. FAMILIARITY WITH THE RENTED PREMISES AND THEIR SUITABILITY TO THE
LESSEE'S REQUIREMENTS AND THE PURPOSE OF THE RENTAL
The Lessee hereby declares and undertakes that:
4.1 It has inspected the Property where the Building is being
erected, the surroundings of such Property, and the access
thereto.
4.2 It has inspected and examined the plans of the Rented
Premises, including all specifications, and alternatively, has
been given the opportunity to inspect such plans and
specifications (and has waived exercise of such right).
The specification of the finish conditions of the Rented
Premises is attached as APPENDIX 4.
All finish works that are not expressly enumerated in the
specifications shall be made in consideration for payment of
an additional price and under the terms and conditions to be
determined in agreement, in advance and in writing.
IT SHOULD BE NOTED THAT A DETAIL HAS BEEN APPROVED IN SUCH
FINISH CONDITIONS, REFERRING TO THE TRANSFER OF THE "KITCHEN"
TO THE SOUTH PART OF THE RENTED PREMISES, NEAR OR CONNECTED TO
THE "PATIO".
4.3 It has also inspected all other details, data and aspects
which may impact its engagement in the Contract.
4.4 It is aware that the plans and specifications are not final
and are subject to various changes, including in accordance
with the requirements of the competent authorities, the
Architect and construction engineers and consultants connected
with the construction of the Building.
Notwithstanding the foregoing, the Lessor hereby undertakes
that no changes will be made in the Rented Premises, including
with respect to their size, location and related systems,
without giving the Lessee prior written notice in which the
changes the Lessor intends to make are set forth (hereinafter:
the "NOTICE OF CHANGE").
The Lessee shall have the right to oppose any material change
to the Rented Premises that is not the result of the competent
authorities' requirements, as well as any material change in
the area of the Rented Premises that is the result of the
competent authorities' requirements, as a result of an act
and/or omission by the Lessor and/or the Leaseholder and/or
anyone acting on their behalf, all by giving written notice to
the Lessee (SIC) within 7 days from the day of having received
the Notice of Change (hereinafter: "NOTICE OF OPPOSITION TO
THE CHANGE").
Upon receipt of the Notice of Opposition to the Change,
resolution of the question as to whether the change is
material or not shall be referred to the Supervisor for
decision.
In any case where the Supervisor shall determine that the
change is not material and that the Lessor must refrain from
making it, the Lessor shall refrain from making it.
In any case where the Supervisor shall determine that the
change is material and that the Lessor must undo the
situation, the Lessor shall so comply in the manner and at the
time determined by the Supervisor.
In any case where the Lessor shall refrain from acting in
accordance with the Supervisor's decision, the Lessee shall
have the right to terminate this Contract by giving the Lessor
written notice within 30 days from the end of the time
allocated by the Supervisor.
For the avoidance of doubt, the foregoing shall not derogate
from the Lessee's rights to relief or any other remedies in
the case that the Lessor shall refrain from acting in
accordance with the Supervisor's decision. However, where the
Lessee shall refrain from terminating the Contract within 30
days as aforesaid, the Lessee shall be deemed to have waived
the right of termination.
In any case of dispute between the Supervisor and a supervisor
or architect appointed to this end by the Lessee (hereinafter:
the "LESSEE'S SUPERVISOR" or the "LESSEE'S ARCHITECT", as the
case may be) relating to the Supervisor's decision, the
dispute shall be decided by ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ on behalf of the
Lessor and by ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, on behalf of the Lessee.
4.5 It is aware that on the Delivery Date, as defined below, the
construction of parts, facilities, systems and certain Public
Spaces in the Building shall not be complete, including
environmental development, which shall be completed within the
six (6) months following the Delivery Date. In addition, it is
aware that on the Delivery Date, use of one of the elevators
in the Building shall not be permitted until the Building is
completely populated, and that during such period until
construction has been completed there may be certain
disturbances to the use of the Rented Premises and the
Building, although the Lessor on its part will use its best
efforts to complete the works as soon as possible and to
reduce the rate of such disturbance to the use of the Rented
Premises and the Building to the minimum.
5. THE RENTAL AND RENTAL PERIOD
5.1 The Lessor hereby leases to the Lessee, and the Lessee hereby
leases from the Lessor, the Rented Premises for the duration
of the Rental Period, as defined below.
5.2 The Rental Period is four (4) years (hereinafter: the "RENTAL
PERIOD"), commencing on 1 September 1997 (hereinafter: the
"DELIVERY DATE") and ending on 31 August 2001 (hereinafter:
the "TERMINATION DATE"). (Return of the Rented Premises to the
Lessor at the end of the Rental Period shall be effected by
the last day of the Rental Period, by no later than 13:00 on
that day).
5.3 Delivery of possession of the Rented Premises to the Lessee is
conditional upon fulfillment of all preconditions required to
be fulfilled by the Lessee until the Delivery Date (the Lessee
shall not be entitled to enter the Rented Premises and/or to
receive possession thereof for so long as it has not received
the Lessor's prior written approval that all such conditions
have been fulfilled), including:
5.3.1 Payment of rental fees, as set forth in para. 7.6.1
below.
5.3.2 The Lessee has signed the management agreement and
paid the management fees thereunder, as set forth in
clause 8.2 below.
5.3.3 Delivery of authorization to ▇▇▇▇ the Lessee's
account in payment of the payments which the Lessee
is liable to make by standing order, as provided in
clause 9.3 below.
5.3.4 Signing of the delivery protocol as provided in
clause 12.1 below.
5.3.5 Submission of the insurance certification as provided
in APPENDIX 7 according to clause 17.7 below.
5.3.6 Extending the securities and guarantees as provided
in clause 21 below.
5.4 The Lessee shall not be entitled to shorten the Rental Period
or to terminate the Contract prior to the Termination Date,
other than with the Lessor's consent, in advance and in
writing.
Nothing in the foregoing shall derogate from the Lessee's
right under clause 22 of the Rental and Borrowing Law - 1971,
provided, however, that where the Lessee shall seek to
exercise the aforesaid right, it shall inform the Lessor
thereof in writing, 30 days before the date he wishes so to
do, and the Lessor shall have the right, by giving written
notice to the Lessee during such 30 days, to terminate the
Contract and to receive possession of the Rented Premises at
the end of such 30 days, and this date (the end of such 30
days) shall be deemed to have been originally prescribed as
the end of the Rental Period.
Nothing in the foregoing shall derogate from the Lessee's
right to lease the Rented Premises or part thereof to a
company controlled by the Lessee or by its shareholders,
provided, however, that all the following are fulfilled
(hereinafter: the "ASSIGNEE COMPANY"):
5.4.1 The Lessee shall inform the Lessor in writing, at
least 30 days in advance, of its intention so to do,
and in such notice shall give the Lessor information
on the Assignee Company, its identification number
and its relation to the Lessee.
5.4.2 The Assignee Company shall undertake, in advance and
in writing, all the Lessee's obligations under this
Contract, MUTATIS MUTANDIS.
5.4.3 Nothing in the foregoing shall exempt the Lessee from
any obligation and/or liability pursuant to this
Contract.
5.5 Abandonment of the Rented Premises, ceasing to make use
thereof or termination of the Contract by the Lessee before
the Termination Date, other than in accordance with the
provisions of the Contract, shall constitute a fundamental
breach of the Contract and shall not release the Lessee from
its obligations hereunder (nor under the Management Contract),
which shall remain fully valid until the Termination Date.
6. EXTENSION OF THE RENTAL PERIOD ("OPTION")
6.1 The Lessee has the right (option) to extend the Rental Period
for an additional period of four (4) years (hereinafter: the
"ADDITIONAL RENTAL PERIOD"), commencing on 1 September 2001
and ending on 31 August 2005 (hereinafter: the "NEW
TERMINATION DATE"), provided, however, that all of the
following are fulfilled:
6.1.1 The Lessee has delivered written notice to the Lessor
BY HAND, at least 120 days before the Termination
Date, that it wishes to exercise the right under this
clause.
6.1.2 Until the Termination Date, the Lessee has not
fundamentally breached the provisions of the
Contract.
6.1.3 Until 60 days prior to the Termination Date, the
Lessee has extended for the duration of the
Additional Rental Period (plus at least 30 more days)
the validity of all of the following: all guarantees
and securities which the Lessee had undertaken to
make in the Lessee's (SIC) favor for the duration of
the Rental Period or pursuant to the Contract, and
all insurance policies which the Lessee had
undertaken to buy under the Contract for the duration
of the Rental Period or pursuant to the Contract, and
has presented to the Lessor, by such date, all
documents or certificates proving, to the Lessor's
satisfaction, such extension.
6.1.4 Until 10 days prior to the Termination Date, the
Lessee has presented to the Lessor all other receipts
or certificates attesting to full payment of all
payments applying to the Lessee pursuant to the
Contract until such date.
6.1.5 Until the Termination Date, no instance or event has
occurred among those enumerated in the Contract or
the law, upon which occurrence the Lessor is granted,
under the provisions of the Contract or by law, the
right to terminate the Contract, and the Lessee has
given notice to the Lessee (SIC) thereof within a
reasonable time from the day whereon it discovered
the existence of such event.
6.2 Where the Rental Period is extended as described above, during
the Additional Rental Period all provisions of the Contract,
MUTATIS MUTANDIS, shall apply, with the exception of this
clause (i.e. at the New Termination Date / at the end of the
Additional Rental Period, the Lessee shall no longer have the
right to extend the Rental Period for any additional rental
period, unless expressly so determined otherwise in this
Contract and subject to the content hereof in this respect).
7. THE RENTAL FEES AND MANNER OF PAYMENT THEREOF
7.1 The Lessee hereby undertakes to pay to the Lessor monthly
rental fees, basic rental fees and parking fees, as specified
below.
7.2 THE BASIC RENTAL FEES:
7.2.1 The basic rental fees for the Rented Premises will be
an amount of $15 (Fifteen United States Dollars) for
each calendar month in the Rental Period (and PRO
RATA for parts of a month) per each sq.m. of the area
of the Rented Premises on that floor, and in total,
an amount of $10,545 (Ten Thousand Five Hundred and
Forty Five United States Dollars) per month as
aforesaid.
7.2.2 For the purpose of calculating the rental fees, the
area of the Rented Premises will be the entire area
of each floor forming part of the Rented Premises,
including the entire thickness of the outside walls.
7.2.3 The amount of the basic rental fees in para. 7.2.1
above was determined on the basis of the parties'
estimate of the area of the floor as provided in
para. 7.2.2 above at 703 sq.m. However, the precise
area will be determined by the Architect according to
the Architect's measurement to be taken at the
Delivery Date.
7.3 THE PARKING FEES:
7.3.1 The parking fees for the Parking Area, as defined
below, will be an amount of $840 (Eight Hundred and
Forty United States Dollars) for each calendar month
in the Rental Period (and PRO RATA for parts of a
month).
7.3.2 For the purposes of the foregoing, "parking" means
the area designated for parking cars in the lower
underground basement, marked in red on the lower
basement level plan that is attached to this Contract
as part of Appendix 2.
7.3.3 The Parking Area will be designated for the cars of
the Lessee and its employees. The Lessee will be
entitled to park in the Parking Area also cars
belonging to its visitors, provided, however, that
the Lessee will report, according to the procedures
to be determined with respect to all lessees in the
Building, to the Management Company or to whomever is
empowered to this end by the Lessor, on the entry of
such vehicles to the Parking Area, and will procure
that they fulfill the provisions of this clause 7.3.
7.3.4 The Lessee undertakes to take all measures to ensure
compliance with the safety regulations by its
employees, visitors, and all those acting on its
behalf, when entering the aforesaid basements and
when leaving them after the above (SIC) regular
opening hours, and that the authorized vehicles, as
provided above, will park only in the Parking Area
and in such manner that will not block the passage of
vehicles and/or pedestrians.
7.3.5 The opening hours of the parking lots at the Building
will be from 7:00 a.m. to 20:00 p.m. on weekdays, and
until 15:00 p.m. on Fridays and holiday eves.
However, for so long as the Lessee, its employees,
visitors and anyone acting on its behalf comply with
the regulations and procedures for safety, entry and
exit with respect to entering the underground
basements where the Parking area is located, exit
thereof and parking vehicles therein, the Lessor will
procure that entry and exit to the parking lot will
be possible on all days of the week, including
Saturdays, 24 hours a day (except for Yom Kippur).
7.4 The basic rental fees and the parking fees (all, jointly and
severally, hereinafter: the "RENTAL FEES") will be raised each
year during the Rental period, i.e. every twelve (12) months,
on the first day of each additional rental year (commencing
from the second rental year and thereafter) for the duration
of the entire Rental Period, according to the rate of increase
in the US Index.
7.5 On the first day of the Additional Rental Period, if extended,
the Rental Fees will be raised by 10%, in addition to the
increase according to the rate of increase in the US Index.
7.6 The Rental Fees will be paid to the Lessor under the terms and
conditions, at the dates and in the manner set forth below:
7.6.1 For each 3 rental months in advance (hereinafter: the
"PAYMENT PERIOD"), on the first business day of each
Payment Period (but the Rental Fees for the first
Payment Period will be paid up to 10 days before the
Delivery Date and as a condition for delivery).
To ensure payment of the Rental Fees as provided
above, the Lessee shall give to the Lessor at the
time of signing of the Contract a bank guarantee as
specified in clause 21 below.
7.6.2 The Rental Fees will be paid on the day designated
for payment thereof, translated into NIS according to
the New Rate.
7.7 To each payment of Rental Fees (and to the Securities and
Guarantees, as defined below), V.A.T. will be added by law and
will be paid by the Lessee together with payment of the Rental
Fees.
7.8 For the avoidance of doubt, only actual payment of the Rental
Fees, exchange rate and/or Index differentials, and V.A.T. in
respect thereof, shall be considered actual payment of the
Rental Fees.
7.9 Each such payment shall be made against a tax invoice and
receipt by law; however, the Lessor has the right to postpone
delivery of the tax invoice to the Lessee until actual payment
as aforesaid.
8. MANAGEMENT FEES, TAXES, RATES, LEVIES, COMPULSORY AND OTHER PAYMENTS
8.1 The Lessee hereby undertakes to pay, in addition to the Rental
Fees, (and V.A.T. in respect thereof), the management fees,
taxes, rates, and other payments enumerated in this clause
below.
8.2 The management fees will be paid to the Management Company,
according to the provisions of the Management Contract
attached to this Contract as APPENDIX 5.
8.3 Municipal rates and taxes and other taxes, rates, levies and
compulsory payments to the local authority, including business
tax, signage fees and payments for business licenses etc. in
respect of the area of the Rented Premises, and all other
taxes, rates and other compulsory payments of any and all
kinds that apply to the Rented Premises and/or in respect of
the use thereof and/or to the management of the Lessee's
business in the Rented Premises and/or in respect of its
management therein, for the duration of the entire Rental
Period, which apply by law to the holder or user of rented
premises, shall apply to the Lessee only and shall by paid by
the Lessee as prescribed by the authority, to the authority or
to the Management Company, as determined by the Lessor from
time to time.
8.4 For the purpose of the foregoing, the Lessee shall register
with the local authority by the beginning of the Rental Period
(where so prevented other than due to an act or omission by
the Lessee - within 7 days from the day of commencement of the
Rental Period or from the day of removal of such prevention,
whichever is the earlier) as Lessee and holder of the Rented
Premises, and shall submit to the Lessor confirmation from
such authority, attesting to its registration as aforesaid.
8.5 All payments applying in respect of water, electricity, air
conditioning, telephone, etc., supplied to the Rented Premises
and/or to its facilities and/or in respect of the use thereof,
shall apply to the Lessee only and shall be paid by the Lessee
to the suppliers or to the Lessor, as the case may be.
Electricity will be billed for as provided in clause 9 below.
Air conditioning will be billed for according to the Lessee's
consumption of water relative to other lessees in the building
or in any other manner determined by the air conditioning
consultants, that reflects actual consumption or the Lessee's
relative share of the air conditioning consumption in the
Building or in the area of the Building.
8.6 All payments for and according to the Lessee's relative share
in insuring the Building, based on criteria that shall be
prescribed by the Lessor for all lessees in the Building
(including the Rented Premises), in structural and third party
insurance, if and so far as they shall not constitute part of
the management fees for any reason, shall apply to the Lessee
and be paid by the Lessee to the Lessor, in addition to the
Rental Fees, provided, however, that the cost of structural
insurance that shall apply to the Lessor shall not exceed an
amount in NIS that is equal to $0.20 per square meter of the
area of the Rented Premises.
8.7 For the avoidance of doubt, property tax, if applicable,
leasing fees of any kind, to the Israel Lands Administration,
and all taxes, rates, levies and other compulsory payments
applying at the date of signing of the Contract and/or that
shall apply in the future (and are not enumerated above) to
owners of property only, shall apply to the Lessor and be paid
by the Lessor, unless expressly determined otherwise in this
Contract or in the Management Contract or in such law /
regulation / bylaw published in the future.
8.8 Any delay in the payments applying to the Lessee according to
this clause, in whole or in part, which have not been made
despite written notice given 15 days in advance shall in all
respects be considered payment in arrears of the Rental Fees.
The foregoing shall not apply to payments to the local
authorities in respect of water and rates and taxes, and to
payments to Bezeq in respect of telephone lines and the use
thereof, provided, however, that the Lessee has been
registered for this purpose as obligated to payment thereof at
the local authority and Bezeq, such payment applying
exclusively to the Lessee and being its sole responsibility.
Without derogating from the foregoing and from the other
provisions of the Contract regarding the Lessee's liabilities
in the case of such delay, the Lessee alone shall be liable
for payment of all interest, linkage differentials and fines
applying in respect of such delay.
8.9 In any case of such delay, the Lessor shall be entitled (but
not obligated) to make such payment on the Lessee's account,
provided, however, that it has given the Lessee notice in
writing, 7 days in advance, of its intent so to do, and the
Lessee undertakes to refund to the Lessor the entire sum paid
by the Lessor as aforesaid, plus all expenses, losses and
damages incurred by the Lessor in connection with or as a
result of making such payment, plus the maximum interest
charged at such time by Bank Leumi Le'Israel BM in respect of
irregular overdrafts in an overdraft account, from the date of
payment until the date such refund is actually effected.
8.10 The Lessee shall forward to the Lessor on receipt of the
Lessor's first demand in writing photocopies of all receipts
and other certification attesting to the actual payment of all
payments described in this clause above, provided, however,
that the Lessee shall not be required so to do more frequently
than once in three (3) months.
9. ENGAGEMENT WITH THE ELECTRICITY COMPANY
9.1 The Lessee declares that it is aware that the Lessor is the
exclusive owner of the rights vis-a-vis the Israel Electricity
Company Ltd. (hereinafter: the "ELECTRICITY COMPANY") in all
matters relating to the supply of electricity to the Building,
and that to this end, it has undertaken to make available to
the Electricity Company the electricity room in the Building,
according to the contract between the Lessor or its
representative and the Electricity Company, which the Lessee
has had occasion to read and see.
In view of the foregoing, the Lessor hereby undertakes to
supply electricity to the Rented Property under the terms and
conditions practiced from time to time by the Electricity
Company, and to this end to install electricity meters as is
the practice and custom of the Electricity Company, by the
Delivery Date.
9.2 The Lessee hereby absolutely, finally and irrevocably waives
its right to engage with the Electricity Company in any matter
relating to the supply of electricity to the Rented Premises,
and hereby declares and undertakes that its sole
representative in all matters relating to the supply of
electricity to the Rented Premises is the Lessor alone (or, at
the Lessor's request, the Management Company), and it does not
and shall not have and hereby finally, absolutely and
irrevocably waives any and all claims against the Electricity
Company in all matters relating to the supply of electricity
to the Rented Premises.
9.3 The Lessee hereby undertakes to pay to the Lessor (or, at its
request, to the Management Company) for the consumption of
electricity at the Rented Premises, for the duration of the
Rental Period, according to the Electricity Company's tariffs
as effective at the billing date and from time to time with
respect to the low voltage connection, by giving an
irrevocable standing order to debit the Lessee's account in
the Lessor's favor (or the Management Company's favor), to the
bank where the Lessee keeps its accounts. The Lessee shall
submit to the Lessor such irrevocable standing order on the
day the Rental Period commences, in the form attached to this
Contract as APPENDIX 8, as a condition for receiving
possession of the Rented Premises.
The Lessee hereby gives its consent that the Lessor (or the
Management Company) shall be entitled, after giving at least
48 hours' prior written notice, to disconnect the supply of
electricity to the Rented Premises in respect of non-payment
for consumption of electricity as aforesaid and in any case of
fundamental breach of this agreement by the Lessee, provided,
however, that for the purposes of this clause, only a breach
where written notice has been given to the Lessee to remedy
such breach and the Lessee has not done so on time shall be
considered a fundamental breach of the Contract.
9.4 Notwithstanding the foregoing, if for any reason electricity
shall not be supplied to the Building in bulk, at the Lessor's
request, the Lessee shall engage with the Electricity Company
directly in any matter relating to the supply of electricity
to the Rented Premises and consumption thereof by the Lessee,
and the contents of this clause above shall be annulled or
modified, as the case may be.
9.5 Without derogating from the remaining provisions of the
Contract regarding changes in the Rented Premises and as a
special and fundamental provision of the Contract, the Lessee
hereby undertakes not to make any changes in the electrical
system in the Rented Premises and/or in the Building, without
receiving the Lessor's prior written consent and subject to
the terms and conditions of such consent.
10. SIGNAGE
10.1 In accordance with the nature and planning of the Building, no
signage and/or hanging of any notices in or outside the
Building shall be permitted, including on the outside walls
and/or roof of the Building, other than subject to receipt of
the Lessor's prior written consent and subject to the terms
and conditions of such consent. The Lessor shall be entitled
to refuse to grant its consent for any reasons whatsoever and
without giving grounds for such refusal.
10.2 The Lessor shall install uniform signage for all lessees in
the Building (at the entrance level and on each floor, insofar
as possible facing the exit from the elevators), in accordance
with the Architect's instructions and as is the customary
practice in similar buildings, taking into consideration the
Lessee's area relative to the areas of other lessees, against
payment to the Lessor or to the Management Company which shall
be uniform for all lessees in the Building and at cost price
only (the Lessor and/or the Management Company shall be
entitled to charge the Lessee also for its relative share in
the cost of obtaining licenses and permits for such signage,
and for its relative share in rates and taxes for the use
thereof).
10.3 Changes in the signage shall also be made under the
above-mentioned terms and conditions.
10.4 Any breach of the provisions of this clause in whole or in
part by the Lessee, which has not been remedied within 7 days
from the day the Lessee receives a written demand so to do,
shall be considered a fundamental breach of the Contract.
11. NON-PAYMENT OF RENTAL FEES AND OTHER PAYMENTS AT DUE DATE
11.1 In any case where the Lessee is late in paying the Rental Fees
(or any other payment for which the Lessee is liable under the
Contract), the amount in arrears shall bear arrears interest
at the maximum rate applicable at Bank Leumi Le'Israel BM to
irregular overdrafts in an overdraft account (plus commission
for credit granted) (above and hereinafter: the "ARREARS
INTEREST").
The Arrears Interest will be calculated for the period from
the day whereon the Lessee was to have made payment of the
amount in arrears, until the day whereon it actually paid such
amount, including to the Lessor.
Where the Lessor has paid to a third party any interest and/or
linkage differentials and/or fines due to a delay by the
Lessee, these shall be deemed part of the principal of the
debt payable by the Lessee to the Lessor, which shall also
bear such Arrears Interest.
Such payments by the Lessee shall be credited in the following
order: on account of Arrears Interest, on account of linkage
differentials and finally, on account of the principal, unless
collection from the Lessee involved expenses and/or legal
fees, where any amount paid shall first be credited on account
of such expenses and/or legal fees, and thereafter in the
order prescribed above.
11.2 Any delay in payments applying to the Lessee under this
Contract or by law exceeding 7 days, and cumulative delays
that together exceed 20 days in a period of 12 consecutive
months, shall constitute a fundamental breach of the Contract
by the Lessee.
11.3 The payments under this clause applying to the Lessee in
respect of being in arrears shall in all respects be
considered compensation that is fixed, agreed and estimated in
advance, without derogating from any other right, relief and
remedy granted to the Lessor under the Contract and/or by law,
and without receipt thereof, in whole or in part, being deemed
any waiver by the Lessor and/or preventing the Lessor from
exercising its remaining rights under the Contract and by law.
12. DELIVERY AND THE DELIVERY PROTOCOL
12.1 On the Delivery Date, the parties shall compile a protocol
(hereinafter: the "DELIVERY PROTOCOL") wherein the Lessee
shall enumerate any claim, should it have such claim,
relating to an inconsistency between the state of the Rented
Premises at such date and the state of the Rented Premises as
described in the specifications and plans (hereinafter: the
"INCONSISTENCY"). Additionally, as aforesaid, on the Delivery
Date the precise area of the Rented Premises shall be
measured.
12.2 Subject to the provisions of clause 22 below, in any case
where the Lessor is late in delivering possession of the
Rented Premises to the Lessee beyond the Delivery Date, the
Lessor shall pay to the Lessee in respect of each day in
arrears compensation that is fixed, agreed and estimated in
advance in an amount in NIS which is half of the Rental Fees
divided by thirty (30). Where such delay exceeds 30 days, the
Lessor shall pay to the Lessee in respect of each additional
day in arrears compensation that is fixed, agreed and
estimated in advance in the amount of the monthly Rental Fees
divided by thirty (30).
12.3 Where such delay exceeds 80 days, the Lessee shall have the
right to the aforesaid compensation and to terminate this
Contract by giving the Lessor notice by hand, within 7 days
from the day on which the aforesaid 80 days have elapsed,
provided, however, that the Lessor has not delivered
possession of the Rented Premises to the Lessee by the end of
90 days from the Delivery Date.
Where such delay exceeds 90 days and the Lessee has not
exercised its aforesaid right to terminate this Contract after
80 days in arrears, the provisions of clause 12.3 above shall
also apply, MUTATIS MUTANDIS, each 30 days during the next 90
days, and the Lessee's right to terminate the Contract shall
be at the end of each additional 20 days in arrears (where the
Lessor has failed to deliver possession to the Lessee by the
end of 30 days as aforesaid, and so forth, and in respect of
each day in arrears after 30 November 1997, the Lessor shall
pay to the Lessee compensation that is fixed, agreed and
estimated in advance, in an amount that is double the amount
of the Rental Fees divided by thirty (30).
In any case where the Lessee shall exercise its above right to
terminate the Contract where such delay in delivery exceeds 90
days, i.e. after 30 November 1997, the Lessee shall also be
entitled to compensation that is fixed, agreed and estimated
in advance, in an amount in NIS that is equal to $100,000.
12.4 Save and except for the right to receive the fixed and
pre-agreed compensation and to give notice of termination of
the Contract as provided in clauses 12.2 and 12.3 above, the
Lessee does not and shall not have any demands, arguments and
claims of any kind against the Lessor, and the Lessee hereby
expressly and irrevocably waives any other right, remedy and
relief in such case.
12.5 Noting the Inconsistency shall not constitute any confirmation
or admission by the Lessor relating to the existence of any
Inconsistency in the Building and/or the Rented Premises;
however, the Lessee's argument of its existence shall be
inspected by the Supervisor. Where the Supervisor finds that
the Lessee's claim is justified, the Lessor shall repair the
Inconsistency according to the Architect's instructions and in
the time prescribed by the Architect.
12.6 For the avoidance of doubt, the existence of such
Inconsistency shall not grant the Lessee the right to postpone
the Delivery Date and/or fulfillment of its undertakings
pursuant to the Contract, unless the Supervisor has determined
that the Inconsistency is such, that in respect thereof it is
not possible to make use of the Rented Premises (or of most of
them) for such time that it is not repaired, in which case the
Delivery Date and fulfillment of the Lessee's other
undertakings shall be postponed until the Inconsistency has
been repaired.
12.7 Any and all disputes relating to the provisions of this clause
shall be decided as provided in clause 4.4 above.
12,8 Without derogating from the foregoing, the Lessee declares
that it is aware that the Lessor intends to submit requests
for permits and licenses to obtain additional construction
percentages, in such manner that the Building (and the parking
tower, respectively) will be nine (9) stories high (including
the ground floor and not including basements), instead of
seven (7) stories as at present, and if and to the extent it
shall receive such permits and licenses, to use such
construction percentages and to add another two (2) floors to
the Building and/or to expand the top floor or floors, whether
in the period up until the beginning of the Rental Period or
at any time during the Rental Period.
12.9 The Lessor hereby undertakes to inform the Lessee in writing
of its intention to perform any construction works as provided
in clause 12.6 above, at least 180 days in advance
(hereinafter: the "NOTICE OF CONSTRUCTION").
The Lessee is hereby granted the right to (TERMINATE) this
Contract by giving written notice, within 60 days from the day
of receiving the Notice of Construction, in which it shall
state the date of termination of the Contract, provided,
however, that such date will fall between 90 and 180 days from
the day of receiving the Notice of Construction (hereinafter
in this clause: the "NOTICE OF TERMINATION"), and such date
shall be deemed to be the date of termination of the Rental
Period, as if such date had been originally determined at the
time of signing of this Contract, unless notified by the
Lessor, within 30 days from the day of receiving the Notice of
Termination, that it retracts its intention of performing the
above construction works.
The Lessee shall be entitled in such case (where it has given
Notice of Termination as aforesaid and the Lessor has not
retracted its intention of performing the construction works
within 30 more days as aforesaid) to reimbursement of all
expenses involved in moving to other rented premises,
provided, however, that these shall not exceed an amount in
NIS equal to $100,000, and payment of such sum shall be
considered the final and absolute settlement of all the
Lessee's demands, arguments and claims against the Lessor
and/or its representative in any and all matters relating to
the performance of construction works and/or termination of
the Contract in the circumstances described above.
In any case, the Lessor hereby undertakes that even where the
Lessee shall not exercise its right to terminate the Rental
Contract in the above circumstances, it shall use its best
endeavors that such construction works shall not disrupt the
reasonable use of the Building and the Rented Premises for the
purposes of the rental, and shall use its best endeavors so
that the works which are likely to disrupt such use shall be
coordinated with the lessees in the Building in advance.
12.10 Without derogating from the foregoing, the Lessor and/or the
Management Company are granted the right to enter the Rented
Premises after giving reasonable prior notice (and in the case
of an immediate need, as determined by the Architect, the
engineer or the relevant party for this purpose on the
Lessor's behalf, also without such prior notice), for the
purpose of performing any such construction works (including
to lay pipes, cables, etc.) insofar as they are required for
the regular and/or proper maintenance of the Building and/or
the Rented Premises.
12.11 The Lessee hereby waives, expressly and in advance, any
argument and/or claim in any matter relating to the
construction and entry to the Rented Premises as provided in
clause 12.8 above, provided, however, that the Lessor shall
use its best efforts that any such construction and entry
shall be made in a manner causing the minimum disturbance to
the use of the Building and/or the Rented Premises.
13. CHANGES IN THE RENTED PREMISES
In any case where the Lessee shall request to make and/or shall make
any changes in the Rented Premises, whether before or after the
Delivery Date, the provisions of APPENDIX 6 to the Contract shall
apply.
14. MAINTENANCE AND USE OF THE RENTED PREMISES BY THE LESSEE
14.1 The Lessee undertakes to keep the Rented Premises and to use
them, the Building and everything inside them in good order
and carefully and reasonably, and to protect them from any
loss and damage, to keep the Rented Premises and their
surroundings clean, and to immediately repair at its expense
any damage and/or malfunction in the Rented Premises and its
facilities which it is bound to repair pursuant to the
provisions of this Contract and/or by law.
14.2 The foregoing does not apply to damage and/or malfunctions due
to reasonable wear and tear resulting from careful and
reasonable use as provided above, or caused other than as a
result of the fault of the Lessee, its employees, visitors or
anyone on its behalf, which shall be repaired by the Lessor or
the Management Company, as the case may be, within a
reasonable time from the day of receiving notice of the damage
and/or malfunction, provided, however, that the Lessee shall
enable the Lessor and the Management Company to investigate
the source of the damage and/or malfunction and the reason for
their occurrence.
For the avoidance of doubt, the foregoing shall not derogate
from the Lessor's liability to repair faults and/or
inconsistencies resulting from the quality of the
construction.
14.3 In any case where the Lessee shall refrain from making a
repair for which it is responsible, the Lessor shall have the
right (but is not bound so to do) to make the repair itself at
the Lessee's expense, provided, however, that it has informed
the Lessee at least two (2) business days in advance of its
intention so to do and of the estimated cost of the repair,
and the Lessee has not made the repair within such two (2)
business days, and to this end, the Lessor, the Management
Company and anyone acting on their behalf shall be entitled to
enter the Rented Premises, in urgent cases even with the use
of force, insofar as possible during accepted hours of work.
Accounts submitted by the Lessor to the Lessee for making such
repairs, confirmed by the Management Company or by anyone
acting on its behalf, shall in all respects serve as
conclusive and absolute evidence of their correctness, and the
Lessee shall be obligated to pay them within 7 days from the
date of receiving the call for payment.
14.4 In any case where the Lessor shall refrain from making a
repair for which it is liable, the Lessee shall be entitled to
make such repair itself, provided, however, that it has
informed the Lessor in writing, two (2) business days in
advance, of its intention so to do and of the estimated cost
of the repair, and the Lessor has not made the repair within
two (2) business days as aforesaid.
After making such repair, the Lessee shall submit to the
Lessor receipts and tax invoices attesting to the repair
having been made, and the Lessor shall refund to the Lessee
the cost of the repair within 15 days from receipt thereof,
subject to an inspection of the source of the damage and/or
malfunction as set forth above.
14.5 Neither party to the Contract shall repair any such damage
and/or malfunction while charging the other party for any
amount, other than subject to the presentation of photographs,
attesting to the damage and/or malfunction, insofar as they
can be photographed, as well as the opinion of an assessor,
appraiser, or known and competent professional, attesting to
the estimated cost of the repair.
14.6 The parties undertake to take care and ensure the cleanliness
of the Rented Premises and the Building, each as the case may
be, and to procure that their employees, visitors, customers
and suppliers shall do so, and that all these shall act in a
civilized, proper and quiet manner for the duration of their
stay in and near the Building, and in a manner preventing any
disturbance, bother, inconvenience and damage to the Lessee
and other lessees, as the case may be, in the building, and
their visitors.
14.7 Without derogating from the foregoing, the parties undertake
that they and all those acting on their behalf shall fulfill
and execute all provisions of the law, regulations, rules and
bylaws applying to the Building and the Rented Premises, to
the possession and use thereof.
14.8 Any breach of the provisions of this clause by the Lessee, in
whole or in part, which is not remedied within 7 days from the
day of receipt of first demand so to do, and any repeated
breach, shall constitute a fundamental breach of the Contract.
15. ACCESS TO THE RENTED PREMISES BY THE LESSOR
The Lessor and those acting on its behalf shall be entitled to visit
the Rented Premises at all times, following prior coordination by
telephone. Where the Lessee has refrained from coordinating a time for
the visit or to enable it to be made, the Lessor or those acting on its
behalf shall be entitled to enter the Rented Premises and to visit them
also without such coordination, at any time it deems fit, including
with the use of reasonable force.
Furthermore, the Lessee undertakes to enable the Lessor or those acting
on its behalf to bring to the Rented Premises, prior to the end of the
Rental Period and at a reasonable time and following prior coordination
by telephone, potential lessees or buyers to enable them to see the
Rented Premises.
16. LICENSES
16.1 The Lessee declares and undertakes that it is cognizant of the
uses permitted by law to be made of the Rented Premises, and
that it will conduct its business in the Rented Premises in
accordance with business licenses that the Lessee alone,
itself and at its expense, shall be responsible for obtaining,
renewing, and bearing all payments required to this end, for
the continued use of the Rented Premises thereunder for the
duration of the Rental Period. At the Lessor's request, the
Lessee shall present to the Lessor any such license
immediately upon first demand.
16.2 Without derogating from the foregoing, failure to obtain
licenses by the Lessee shall not serve as grounds for
non-fulfillment of its obligations under the Contract.
16.3 The Lessee undertakes to act in the Building and in the Rented
Premises and to use them only and solely in accordance with
and subject to the terms and conditions of the aforesaid
licenses.
17. SECURITY AND INSURANCE
17.1 The Lessee shall be exclusively responsible for guarding the
Rented Premises and protection thereof. Without derogating
from the foregoing, the Lessee undertakes to insure itself,
the content of the Rented Premises and its liability as
aforesaid towards all its visitors, managers, employees,
customers, suppliers, and any other third party.
17.2 Without derogating from the foregoing, the Lessee undertakes
to insure itself to cover all its obligations under this
Contract against all applicable risks arising from this
Contract and/or its activity in the Rented Premises and/or
relating thereto.
17.3 Without derogating from the foregoing, the Lessee undertakes
to insure its work and investments in the Rented Premises for
the duration of the changes in the Rented Premises, subject to
receipt of the Lessor's consent, in advance and in writing, to
such changes being made.
17.4 The Lessee shall be exclusively liable for any damage caused
in the area of the Rented Premises and/or as a result of the
use thereof, and also outside the area of the Rented Premises,
as a result of any negligent act and/or omission by the
Lessee, its visitors, managers, employees, customers and
suppliers, insofar as such liability is applicable to the
Lessee and/or the others as aforesaid by law.
17.5 The Lessee undertakes to indemnify and compensate the Lessor
and those acting on its behalf in respect of any claim filed
against the Lessor and/or anyone acting on its behalf due to
damage for which the Lessee is liable as provided in clause
17.4 above, including all losses and expenses (including legal
expenses), which shall be caused to the Lessor as a result
and/or in connection with such claim. The Lessor, on its part,
undertakes to submit to the Lessee written notice immediately
upon receiving such claim, not to settle and not to confess
thereto, other than after giving the Lessee prior written
notice of its intention so to do, and to enable the Lessee to
defend itself, at its expense, alone or jointly with the
Lessor, at the Lessor's discretion, against any such claim.
17.6 As a condition for handing over possession of the Rented
Premises to the Lessee, the Lessee hereby undertakes that by
the day making the changes commences or by the day of
commencement of the Rental Period, as the case may be, it
shall buy insurance as set forth in the list of insurance
policies attached to this Contract as APPENDIX 7 under the
terms and conditions and in the manner prescribed in such
list, and to act in accordance with the provisions of such
list for the duration of the term of the Contract.
17.7 Any breach of the provisions of this clause by the Lessee, in
whole or in part, that has not been remedied within 7 days
from the day written notice thereof was given by the Lessor,
shall be deemed a fundamental breach of this Contract.
18. ASSIGNMENT OF RIGHTS
18.1 Subject to the provisions of clause 5.4 above, the Lessee
hereby undertakes not to assign, endorse, transfer, sell,
charge, pledge or let (including by way of sublease) it rights
(in whole or in part) pursuant to the Contract and/or in the
Rented Premises, to any other, in any manner, not to permit
any other to make any use of the Rented Premises, and not to
include any other in the use of the Rented Premises and/or in
the possession thereof.
18.2 Any breach of the provisions of this clause by the Lessee, in
whole or in part, that has not been remedied within 15 days
from the day of first demand, shall be deemed a fundamental
breach of the Contract.
18.3 The Lessor and each of its individuals shall be entitled to
assign, endorse, transfer, sell, charge, pledge or let their
rights pursuant and by virtue of the Contract, in whole or in
part, without being required to obtain any consent from the
Lessee. However, subject to the Lessee's rights pursuant and
by virtue of the Contract, the Lessee shall be bound to
fulfill all provisions of the Contract also towards whomever
replaces the Lessee or any of its individuals as aforesaid,
and to sign any document required for the purpose of approving
such assignment.
19. VACATING THE RENTED PREMISES
19.1 The Lessee hereby undertakes to vacate the Rented Premises at
the Termination Date and at the end of any extended Rental
Period, if any, or immediately upon annulment of the Contract,
for any reason whatsoever (hereinafter: the "VACATION DATE").
Notwithstanding the foregoing and subject to the following
terms and conditions, the Lessee is hereby granted the right
to postpone the Vacation Date (and to extend the Rental
Period) for six (6) or twelve (12) months (at the Lessee's
choice), should it give notice, delivered to the Lessor by
hand, at least ninety (90) days before the Vacation Date.
The aforesaid right shall be exercisable once only (and if
exercised before exercise of the right to extend the Rental
Period for an Additional Rental Period as provided in clause
6.1 above or in its stead, it shall replace the right
described in clause 6.1 above).
The Lessee's aforesaid right to postpone the Vacation Date is
conditional upon fulfillment of the terms and conditions set
forth in clause 6.1 above, MUTATIS MUTANDIS.
Furthermore, the above right is conditional upon the Rental
Fees being raised in such six (6) or twelve (12) month period
at the rates set forth in this matter in the Contract (i.e. as
provided in clauses 7.4 and 7.5 above, as the case may be and
MUTATIS MUTANDIS).
For the avoidance of doubt, if the Vacation Date shall be at
the end of the extended Rental Period, there shall be a
further increase of 10% in relation to the aforesaid six (6)
or twelve (12) months.
19.2 At the Vacation Date the Lessee shall vacate the Rented
Premises and any other location in the building held by it
and/or in its use, and shall deliver them to the Lessor, being
vacant of any person and object and including all changes it
is required to leave in the Rented Premises at the end of the
Rental Period, as well as any improvement, addition, repair,
equipment and other installations permanently connected to the
Rented Premises, even if they were installed or added by the
Lessee itself and at its expense, except for those in which
respect it was agreed in advance and in writing that the
Lessee would remove from the Rented Premises at the end of the
Rental Period and return the Rented Premises to their former
condition in their regard, as they had been before the changes
in the original finish plans had been made.
19.3 Any improvement, addition, repair, equipment and other
installations that are permanently connected to the Rented
Premises, even if installed or added by the Lessee itself and
at its expense, as well as all objects, equipment, accessories
and inventory left by the Lessee in the Rented Premises and/or
in the Building at the end of the Rental Period, other than in
accordance with the provisions of the Contract, and which the
Lessee shall refrain from immediately removing from the Rented
Premises (and insofar as necessary - while returning the
situation to its former condition), despite written notice so
to do, shall be deemed the property of the Lessor, and the
Lessee hereby waives, in advance and expressly, any argument
and/or demand and/or claim in respect thereof. However,
nothing in the foregoing shall derogate from the Lessee's
obligation to pay to the Lessor all expenses, losses and
damages incurred by the Lessor in vacating the above or any of
their number from the Rented Premises and/or from the Building
and/or in order to return the situation to its former
condition.
19.4 The Lessee declares that it is aware that based on its
undertaking to vacate the Rented Premises at due date, the
Lessor intends to let the Rented Premises to another lessee
and to undertake to deliver the Rented Premises to such other
lessee immediately after they are vacated by the Lessee, and
the Lessee hereby undertakes to pay to the Lessor, in any case
where the Lessee shall not vacate the Rented Premises at the
Vacation Date or at any other later date, pecuniary
compensation that is fixed, agreed and estimated in advance,
as follows:
19.4.1 Compensation in respect of every day in arrears in
vacating the Rented Premises, such delay not exceeding
30 days - in an amount equal to the multiplication of
the Rental Fees and the monthly management fees by two
(2), divided by thirty;
19.4.2 Compensation in respect of every day in arrears in
vacating the Rented Premises exceeding 30 days - in an
amount equal to the multiplication of the Rental Fees
and the monthly management fees by three (3), divided
by thirty;
(Hereinafter: the "AGREED COMPENSATION FOR THE DELAY IN
VACATING").
19.5 Nothing contained in this clause above and/or payment of the
Agreed Compensation for the Delay in Vacating or any part
thereof shall release the Lessee from fulfilling its
undertakings pursuant to the Contract, including vacating the
Rented Premises, and/or shall derogate from the Lessor's
rights to any other right, relief or remedy, granted to the
Lessor under the Contract or by law, including realization of
the securities and guarantees below, and including removal by
the Lessor of the Lessee from the Rented Premises and the
Building and its eviction as set forth below.
19.6 Receipt of payments as provided above by the Lessor and/or the
Management Company shall in no way create rental relations or
any other relations between the Lessee and the Lessor and/or
the Management Company, with respect to the period after the
Vacation Date.
19.7 Nothing in the foregoing shall derogate from the rights of the
Lessor and/or the Management Company and/or anyone acting on
their behalf, on the Vacation Date or any other date, to enter
the Rented Premises and the Building and to remove the Lessee
and any person and object located in the Rented Premises and
the Building, that belong to the Lessee and/or serve the
Lessee for the purpose of its business in the Rented Premises,
at the sole discretion of the Lessor and/or the Management
Company, including with the use of reasonable force (or by the
Police), and the Lessee hereby undertakes not to resist such
removal, provided, however, that no use of force be made to
remove the Lessee before 45 days have elapsed from the day on
which it was to have vacated the Rented Premises, and it had
refrained from doing so despite written demand given at least
15 days before such 45 days had elapsed.
19.8 In any case of arrears in the Vacation Date exceeding 45 days,
during which the Lessee had been given notice, as provided in
clause 19.7 above, the Lessor and the Management Company shall
be entitled (but not obligated) to effect such removal at any
time they deem fit, and to act in any property or effects
belonging to the Lessee at their sole discretion, including
storage thereof at the Lessee's expense at an alternative
location, their sale, discard, etc., and the Lessee shall bear
all expenses involved in such removal and hereby waives,
expressly and in advance, any argument with respect to the
amount to be collected from it for such removal, storage and
discard.
19.9 Without derogating from the foregoing, the Lessor (SIC) hereby
waives, expressly and in advance, any argument that the Lessor
and/or the Management Company and/or anyone acting on their
behalf have caused any damage to the Lessee and/or to such
property and/or effects during and/or due to the activities
involved in such removal and/or storage and/or discard, with
the exception of damage caused as a result of an intentional
act or gross negligence or unconcern by the Lessor or by
anyone acting on its behalf.
19.10 The Lessee hereby declares that it is aware that its consent
to the rate of the aforesaid Agreed Compensation for the Delay
in Vacating and to vacate the Rented Premises, including with
the use of force as provided above, are a fundamental
condition for the Lessor's consent to let the Rented Premises,
in view of the great importance that the Lessor attributes to
vacating the Rented Premises on time.
19.11 Nothing contained in clauses 19.7 and 19.8 above shall
derogate from the Lessor's rights in any case where a judgment
is given to vacate, and the Lessee refrains from vacating the
Rented Premises despite such judgment.
19.12 Payment to the Lessor under this clause of the management fees
or pecuniary compensation, which includes a management fee
component, shall in all respects be deemed payment to the
Management Company, and the Lessor only shall be responsible
for transfer thereof to the Management Company.
20. REMEDIES
20.1 The Lessee shall not be entitled, and hereby waives, in
advance and expressly, any right to set off amounts owing
and/or which shall be owing to it from the Lessor and/or from
the Management Company and/or from any other on their behalf,
against sums owing and/or which shall be owing from the Lessee
and/or from another on its behalf to the Lessor and/or to the
Management Company and/or to another on their behalf.
The foregoing shall not apply to regular amounts, of which
there is evidence in writing, and to amounts in respect of
repairs made by the Lessee in the Rented Premises as provided
in clauses 14.4 and 14.5 above and subject to the provisions
thereof, provided, however, that the Lessee has given written
notice to the Lessor of its intention to make such set-off, at
least two (2) business days in advance.
20.2 For the avoidance of doubt, breach by the Lessee of the
provisions of the Management Contract, in whole or in part,
shall in all respects be deemed also breach of the provisions
of this Contract, and shall grant the Lessor the right to
every relief and remedy granted it under this Contract in the
event of its breach by the Lessee.
20.3 Jurisdiction in all matters relating to this Contract and/or
arising therefrom rests with the Courts and the Execution
Office in the city of Tel Aviv only, and no such jurisdiction
shall rest with courts or execution offices in other cities.
21. GUARANTEES AND SECURITIES
21.1 To ensure fulfillment of the Lessee's undertakings under this
Contract, the Lessee shall deposit with the Lessor's attorney,
at the time of signing of the Contract (and in no case any
later than the dates prescribed in this matter in the
Contract), as a fundamental condition under the Contract, the
following guarantees and securities:
21.1.1 To ensure payment of the Rental Fees and the
management fees for the first three (3) months' rental
- an index-linked, unconditional bank guarantee for
the entire period up to the Delivery Date, plus a
further 30 days from the Delivery Date, in an amount
equal to the Rental Fees and the management fees for
the first three (3) months of the Rental Period (to
this end, the management fees will be calculated
according to an amount in NIS that is equal to $4 at
the Representative Exchange Rate per each 1.00 sq.m.
of the area of the Rented Premises);
Such guarantee shall be given to the Lessor at the
time of signing of the Contract and shall be returned
to the Lessee within seven (7) days from the date of
actual payment of the Rental Fees for the first three
(3) months as aforesaid, at the time and against
delivery of the securities and guarantees set forth in
paras. 21.1.2-21.1.3 below.
21.1.2 To ensure fulfillment of the Lessee's undertakings
after the Delivery Date - an index-linked,
unconditional bank guarantee for the duration of the
entire Rental Period and for a further 60 days from
the Termination Date of the Rental Period, in an
amount equal to the Rental Fees and the management
fees for the first six (6) months of the Rental Period
(to this end, the management fees will be calculated
as provided in para. 21.1.1 above).
Such guarantee shall be given to the Lessor up to 10
days before the Delivery Date and as a condition for
the return of the bank guarantee under para. 21.1.1.
21.1.3 A promissory note, non-negotiable and to the order of
the Lessor only, in an amount equal to the Rental Fees
and the management fees for a period of the first
twelve (12) months of the Rental Period (to this end,
the management fees will be calculated as provided in
para. 21.1.1 above), signed by the Lessee.
(Above and hereinafter: the "SECURITIES AND GUARANTEES").
21.2 All costs relating to the bank guarantees will apply
exclusively to the Lessee.
21.3 The Lessee empowers the Lessor's attorney to act for the
payment and exercise of the Securities and/or Guarantees or
any part thereof, in any case where it is proved to him, to
his satisfaction, that the Lessee has breached any of its
undertakings pursuant to the Contract or that the Lessor has
the right to execute them or to execute any part thereof,
provided, however, that no such action will be taken before
giving at least 7 days' prior written notice to the Lessee.
21.4 The above promissory note will be signed in the presence of
the Lessor's attorney or another attorney to its satisfaction,
who shall approve that it was signed in their presence by the
Lessee's authorized signatories or according to confirmation
of the signing rights by the Lessee's attorney, as the case
may be, after having been identified by them and after having
declared in their presence that they had read this Contract
and the promissory note and had understood the content and
significance thereof.
21.5 The promissory note and the bank guarantee under para. 21.1.2
above shall be returned to the Lessee within 60 days from the
Termination Date, after it has been proved to the Lessor's
attorney, to his satisfaction, that the Lessee has paid all
payments for which it is liable under the rental Contract, and
that the Lessee does not owe the Lessor and/or any other any
payments of any kind under the Contract, including in
compensation, expenses and damages.
21.6 Notwithstanding the provisions of the Guarantee Law, the
Lessor has the right to redeem the Securities and Guarantees
or any of their number in the order it deems fit, at its
choice and sole discretion, in whole or in part, and to make
any payment applicable to the Lessee under this Contract
(including to third parties and/or to collect compensation,
etc., owing to the Lessor).
22. "FORCE MAJEURE" AND ANNULMENT OF THE CONTRACT
22.1 A delay in delivering the Rented Premises to the Lessee, for
reasons beyond the Lessor's control, which the Lessor could
not have reasonably anticipated (hereinafter: the "PERIOD OF
PREVENTION"), and any such delay as a result of "force
majeure", shall not be considered breach of the Contract by
the Lessor, and the commencement date of the Rental Period
will be postponed for the duration of the Period of Prevention
or for the duration of the period in which the force majeure
occurred, as the case may be, plus 15 days for reorganization.
22.2 Where the duration of the Period of Prevention or of the
period in which the force majeure occurred exceeds 60 days the
Lessee shall be entitled to annul the Contract and to recover
any amount it had paid to the Lessor on account of Rental Fees
and/or management fees (plus the fruits thereof).
22.3 For the purpose of this Contract, "force majeure" means any of the
following:
22.3.1 An event, occurrence or circumstances determined by
the competent court as constituting force majeure for
the purpose of this Contract.
22.3.2 War.
22.3.3 Hostilities and acts of terrorism, riots, massacres or
natural disasters, as a result whereof a delay in
delivering the Rented Premises to the Lessee has
occurred.
22.3.4 Strikes or lock-outs, countrywide or in industries
connected to the construction of the Building and/or
the Rented Premises and/or the completion thereof,
including in the various authorities empowered by law
to approve use of the Building or any part thereof, as
a result whereof a delay is caused in delivering the
Rented Premises to the Lessee.
22.3.5 A national shortage of materials, as a result whereof
a delay is caused in delivering the Rented Premises to
the Lessee.
22.4 The Lessee will not be entitled to any compensation in respect
of postponement of the commencement of the Rental Period
pursuant to this clause, and it hereby waives, in advance and
expressly, any such compensation.
22.5 In any case where the Lessee shall unlawfully annul this
Contract before the Rental Period begins, or shall unlawfully
refrain from accepting the keys to the Rented Premises on the
day the Rental Period begins and during 15 days thereafter,
the Contract will be annulled and the following provisions
will apply:
22.5.1 Where the Contract is annulled up to 60 days before
the day the Rental Period begins - the Lessee shall
pay to the Lessor pecuniary compensation that is
fixed, agreed and estimated in advance in the amount
of the Rental Fees and management fees for the first
two (2) months of the Rental Period (including by way
of forfeiting any amount paid by the Lessee in
advance).
Where any changes have been made in the Building or
the Rented Premises at the Lessee's request or under
this Contract, in addition to the foregoing, the
Lessee will be obliged to pay to the Lessor any
expenses, losses and damages incurred in returning the
situation to its former condition or in order to adapt
the Rented Premises or the Building to an alternative
lessee.
The Lessor's calculations of the amounts owing to it
under this paragraph, approved by the Architect or by
a qualified engineer, shall serve as PRIMA FACIE
evidence of their correctness (but not for the purpose
of a claim in a summary procedure), and shall be paid
by the Lessee to the Lessor within 15 days from the
date of first demand (including by way of forfeiting
any amount that the Lessee had paid in advance; for
the purpose of such forfeiture, the Lessor shall be
entitled to retain any amounts and payments paid in
advance to the Lessor or to the Management Company,
until the date such calculations are issued).
For the avoidance of doubt, the Lessor or any other
acting on its behalf shall not be liable to refund to
the Lessee any amounts paid in advance in respect of
changes in the Rented Premises or in respect of the
expenses of letting the Rented Premises to the Lessee
(including stamp duty, agent's fees and legal
expenses), and the Lessee hereby waives, in advance
and expressly, this right of recovery.
22.5.2 Where the Contract is annulled at any other time
between 60 days before the Rental Period begins and
the date the Rental Period begins - the Lessee shall
pay to the Lessor pecuniary compensation that is
fixed, agreed and estimated in advance, in the amount
of the Rental Fees and management fees for the first
four (4) months of the Rental Period (including by way
of forfeiting any amount paid by the Lessee in
advance), and all other provisions of this clause
above shall apply, MUTATIS MUTANDIS.
22.5.3 The rate of the aforesaid agreed compensation has been
determined by both parties to the Contract, after an
honest and fair estimate of all expenses, losses and
damages which the Lessor is liable to incur as a
result of annulment of the Contract by the Lessee, and
taking into account all the possibilities available to
the Lessor to reduce such expenses, losses and
damages, including by way of an alternative lessee.
22.5.4 Payment of the aforesaid agreed compensation shall not
derogate from any other right, relief or remedy
granted to the Lessor under this Contract or by law in
the case of such annulment, where such expenses,
losses and damages exceed the amount of such agreed
compensation; however, the Lessor shall not be
entitled to claim compensation other than according to
one of the following alternatives: if it has claimed
agreed compensation - it will not be entitled to claim
compensation by proof of damage, and if it has claimed
compensation by proof of damage - it will not be
entitled to claim the agreed compensation.
22.5.5 In any case where the Lessor shall claim compensation
from the Lessee as aforesaid, all amounts paid by an
alternative lessee in the framework of the Lessor's
duty to reduce its damages will be deducted from the
amounts paid in compensation.
23. GENERAL
23.1 All payments payable by the Lessee to the Lessor and/or to the
Management Company and/or to any third parties via the Lessor
and/or the Management Company, which are not paid by standing
order, shall be paid in cheques made to the order of the
Lessor at the Lessor's offices in the Preamble to this
Contract, and from the date of commencement of the Rental
Period, at the Lessor's offices or the Management Company's
offices in the Building or in any other location in the ▇▇▇
Region, as per the Lessor's instructions.
23.2 Any payment due to be made on a day that is not a business day
will be postponed to the first business day thereafter.
23.3 If the Lessee is or shall be more than one legal entity, or if
the Lessee is a partnership, all the provisions of the
Contract will apply also to each of the Lessee's individuals
or each of the individuals in the partnership, as the case may
be, and their obligations hereunder shall apply jointly and
severally.
In any such case, receipt of the consent of one of the
individuals of the Lessee, as provided above, shall in all
respects be considered the consent of the remaining
individuals of the Lessee.
23.4 To each payment under the Contract, where V.A.T. is required
by law, the Lessee shall add, at the time of payment, V.A.T.
as required, against a tax invoice and receipt that shall be
issued as provided above.
23.5 All promises, representations, drafts of contracts or of other
documents, which have not been expressed in this Contract,
shall be null and void and shall have no contractual, legal,
evidentiary or other validity, not even for the purpose of
construing this Contract.
23.6 No consent, waiver, failure to act, silence, delay or granting
of an extension by the Lessor shall be valid unless made in
writing, in advance and expressly, and in any case where this
is not done as aforesaid, this shall not prevent the Lessor
from exercising its rights under the Contract and by law, at
any time the Lessor deems fit so to do.
23.7 The Lessee is aware and hereby gives its consent (and
undertakes to sign any document required to this end) that the
Lessor is to charge its rights under the Contract, including
the right to receive the Rental Fees and other payments owing
and/or which shall be owed to it hereunder, in favor of Bank
Leumi Le'Israel BM or any other bank accompanying and/or which
shall accompany the construction of the Building.
23.8 Each of the parties shall bear the fees of its attorney with
respect to the drawing of this Contract.
23.9 Stamp duty expenses of this Contract, original and copy, shall
be borne by the parties in equal parts.
23.10 As of the Termination Date (and the termination date of any
Additional Rental Period) or as of the actual Vacation Date of
the Rented Premises by the Lessee, the Rented Premises being
clear of any person and object, whichever is the later, and by
45 days from such date, a final reckoning shall be made
between the Lessor and the Management Company, of the one
part, and the Lessor, of the other part.
23.11 For the purpose of making such reckoning, the Lessee shall
submit to the Lessor within 15 days from the final date for
beginning the reckoning as aforesaid, confirmation from all
competent authorities by law and from all third parties
whereto payments were owing from the Lessee under this
Contract and/or with respect to the rental and/or the Rented
Premises, that, as at that date, all payments relating to the
Rental Period (and the Additional Rental Period) have been
made by the Lessee, including principal, fines, interest,
linkage differentials, exchange rate differentials, and any
other debt in respect of and/or relating to such period.
23.12 Any and all notices under this Contract and/or in connection
herewith will be given in writing and sent to the addressee by
registered mail only, at the address set forth in the Preamble
to the Contract, and any notice so sent shall be deemed to
have been delivered to the addressee within 3 days from the
day whereon it was handed in at the post office, and if
delivered by hand - immediately.
Notwithstanding the foregoing, as of the day of commencement
of the Rental Period, the Lessee's sole address for the
purpose of serving notices under this Contract shall be the
Rented Premises only.
The foregoing shall also apply with respect to delivery of
judicial documents.
23.13 The parties declare and confirm that this Contract was made of
their good and free will, after they had read it and
understood its content and significance.
23.14 This draft Contract shall not be considered an "offer" in the
meaning of the term in the Contracts Laws, and it shall not be
binding on the Lessor in any manner, for such time as the
Lessor has not actually signed a final and binding contract.
IN WITNESS WHEREOF THE PARTIES HAVE SIGNED:
(---------------) (-----------------)
LESSOR LESSEE
