Exhibit 10.31
UNPROTECTED LEASE AGREEMENT
Made and entered into at Haifa on the 19th day of March 1998
BETWEEN: SCAN GROUP YOKNEAM LTD.
of 00 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxx
(hereinafter: "THE LESSOR") of the one part
AND: E.S.C. MEDICAL SYSTEMS LTD.
X.X. Xxx 000 Xxxxxxx 00000
of Industrial Park Yokneam,
(hereinafter: "THE LESSEE") of the other part
WHEREAS The Lessor has a capitalized Development Contract with the Israel
Lands Administration, which permits it to construct a building on
a parcel of land located in Yokneam, which is known, pursuant to
Detailed Plan 163/BT/C, as Xxxx 0 xx Xxxxxx/xxxxxxx xx Xxxxxxx
00, 00 Xxxxx 00000 (hereinafter: "THE LAND"); and
WHEREAS Photocopies of the Development Contract and the regulations of
the Town Planning Scheme are attached to this Contract as an
integral part hereof, marked "A" and "B" respectively.
WHEREAS The Lessor intends to exercise and effectuate the Development
Contract and to construct a building on the Land in accordance
with a sketch and the alterations plan attached hereto
(hereinafter: "THE BUILDING") which the Lessor designates for the
high-tech industry; and
A copy of the sketch and the alterations plan is attached hereto
as an integral part of this Contract and is marked "C".
WHEREAS The Lessee wishes to take the leased premises, as hereinafter
defined, on hire from the Lessor and the Lessor wishes to let
same to the Lessee, without the Tenants Protection Law
(Consolidated Version) 5732-1972 applying to the lease of the
leased premises created pursuant to this Contract, and without
the Lessee being a protected tenant within the meaning of the
aforesaid law and/or any legislation likely to confer on it such
status, and subject to the conditions of this Agreement below;
and
WHEREAS The Lessor agrees to let the leased premises to the Lessee as
aforesaid and there is no bar or impediment to either party
contracting under this Agreement;
NOW THEREFORE IT IS AGREED, DECLARED AND STIPULATED BY
THE PARTIES AS FOLLOWS:
1. PREAMBLE
The preamble to this Contract and the appendices attached hereto
constitute an integral part hereof.
2. INTERPRETATION
2.1 The headings to clauses in this Contract have been inserted for
the convenience of reading only. They do not form part of the
Contract and shall not be used for purposes of the interpretation
hereof.
2.2 Everything stated in the singular also includes the plural, and
vice versa, and everything in the masculine gender includes the
feminine, unless a different meaning is to be inferred from the
context.
2.3 Unless the context otherwise dictates, the words set forth below
shall, in this Contract, have the meanings set opposite them:
"THE LEASED PREMISES" -- the entire area of the Building and
everything that may be built by the Lessor on the Land.
3. PERIOD OF LEASE, PURPOSE THEREOF AND NON-APPLICABILITY OF TENANTS
PROTECTION LAWS
3.1 PERIOD OF LEASE
3.1.1 The Lessor hereby lets the Leased Premises to the
Lessee and the Lessee hereby takes the Leased Premises
on hire from the Lessor for a period of 9 years and 11
months, commencing from April 1, 1999 and terminating
on February 28, 2009 (hereinafter: "THE PERIOD OF
LEASE").
It is agreed that at such time the Leased Premises
will be in a state of delivery to the Lessee only as
an envelope in accordance with the technical
specification (hereinafter: "THE SPECIFICATION") which
is attached as an appendix to this Contract.
The Specification is attached as an integral part of
this Contract, marked "D".
If for any reason, which is not the result of delays
connected with the Lessee and/or arising from acts
and/or omissions of the Lessee, the aforesaid date of
delivery should be postponed, so that the date of
termination of the Period of Lease will be at the end
of 9 years and 11 months from the date the Leased
Premises are ready for delivery in the condition of an
envelope, as aforesaid, or will be postponed for the
duration of the period of delay which was caused
(hereinafter: "THE EXTENDED DATE"). [Translator's
note: this is how the clause reads in the original.]
3.1.2 The Lessee hereby undertakes to use the Leased Premises
for current business activity and will, throughout the
entire Period of Lease conduct a business in the Leased
Premises the purpose of which is as described below.
3.1.3 Should the Lessee cease the use of the Leased Premises,
or vacate the Leased Premises prior to the end of the
Period of Lease, this will not have the effect of
releasing the Lessee from fulfilling its full
obligations, including payment of rentals and the
remaining payments it is obliged to pay pursuant to
this Contract, up to the end of the Period of Lease.
Should the Lessee request to bring a substitute tenant
in its place, it will be obliged to obtain the
Lessor's consent to the identity of the substitute
tenant. In the event that the substitute tenant is a
subsidiary under the control of the Lessee and/or an
affiliated company according to its definition at law,
the consent of the Lessor as aforesaid will not be
required.
The substitute tenant will be obliged to assume all
the Lessee's full obligations pursuant to this
Agreement and will be obliged to provide collateral
security for the due fulfillment of such obligations,
upon the Lessor's demand. In such event the Lessee
will be discharged from its obligations and its rights
pro rata to the portion of the property and the
collateral security the substitute tenant has
furnished to the Lessor.
The Lessor will not object to a sub-tenant moving into
the Leased Premises, provided that the Lessee remains
responsible for all its obligations pursuant to this
Contract.
3.1.4 It is hereby agreed that the right is reserved to the
Lessor to be late in delivery of occupation and in the
start of the Period of Lease by 45 days, without any
compensation of any sort, in the event that the
Building and/or the Leased Premises are not ready in
accordance with the provisions of this Contract for
purposes of delivery to the Lessee.
3.1.5 If the Lessor should be late in delivering occupation
by a period in excess of 45 days as mentioned above,
the Lessor will pay the Lessee agreed pre-estimated
absolute damages in an amount of 15,000 US dollars in
respect of each month of delay after such 45 days and a
proportionate payment in respect of a delay of part of
a month.
The parties regard the aforesaid amount of agreed
damages as the probable result of such delay, and they
undertake not to demand a change therein, upwards or
downwards, for any reasons and/or circumstances.
3.1.6 Should the Lessor be late in delivering occupation for
a period which exceeds 7.5 months from the date of
delivery of occupation or from the Extended Date, the
Lessee will be entitled to cancel this Contract.
3.2 PURPOSE OF THE LEASE
The Lessee hereby takes the Leased Premises on hire for purposes
of using it as a building for high-tech industry, and it shall be
forbidden for the Lessee to use the Leased Premises for any other
use.
3.3 NON-APPLICABILITY OF TENANTS PROTECTION LAWS
3.3.1 On the date of commencement of the Tenants Protection
Law (Miscellaneous Provisions), 5728-1968, there was no
tenant entitled to occupy the Building.
3.3.2 The Lessee hereby declares that it has not been called
upon to pay and has not paid key money or payments
likely to be construed as key money, and that all the
works, alterations, improvements and elaborations which
are made in the Leased Premises, if made, are not and
will not be fundamental changes and that the provisions
of Part C of the Tenants Protection Law (Consolidated
Version) 5732-1972, which relates to key money, shall
not apply to the Contract.
3.3.3 The lease, the Lessee and the Leased Premises are not
protected pursuant to provisions of the Tenants
Protection Law (Consolidated Version) 5732-1972, nor
pursuant to the provisions of any other law which
protects a tenant or lessee in any manner whatsoever,
and the aforesaid laws and amendments thereto and the
regulations made, or which may in the future be made,
in accordance therewith, do not apply and will not
apply to the Building and/or the lease and/or Lessee
and/or the Leased Premises and/or the Contract.
3.3.4 At the time of vacation of the Leased Premises, the
Lessee will not be entitled to any payment, either as
key money or in any other form.
3.3.5 For the avoidance of doubt and without derogating from
the foregoing, the Lessee hereby declares and
undertakes that if any allegation should be raised in
the future that the contractual arrangement pursuant to
this Contract is protected by the Tenants Protection
Law, or any other law whatsoever, then and in that
event the Lessee will indemnify and compensate the
Lessor in respect of any damage which may be sustained
by the Lessor, including the difference between the
value of the property at the end of the Period of Lease
as an occupied property, and its value on the free
market as a vacant property.
4. RENTALS
4.1 The monthly rentals in respect of the Leased Premises will be an
amount of 5.75 (five dollars and seventy-five cents) US dollars,
at their value in shekels according to the representative rate
which will be published by the Bank of Israel on the date of
signing of the Contract, plus V.A.T. as prescribed by law, in
respect of each square meter of the area of the Leased Premises,
which will be measured according to a plan of the final state of
the Leased Premises.
Should the Lessee dispute the correctness of the final state plan
and its liability for rentals as deriving therefrom, it will be
entitled to produce a plan signed by a chartered surveyor on its
behalf, and the parties will calculate the rentals in accordance
with that plan.
The rentals will be linked to the Cost of Living Index (including
fruit and vegetables) which is published each month by the
Central Bureau of Statistics (or any other body which may replace
it, if it should replace it), with the basic index being the
last-known index prior to the signing of this Contract, and the
determining index being the index known on the 1st day of each of
the months of payment.
Linkage differentials to the index will be added to each and
every payment pursuant to this Agreement according to the
percentage difference between the determining index and the basic
index, where this difference is divided by the basic index and
multiplied by the payment.
The aforesaid rentals, including the linkage differentials, will
henceforth be referred to as "THE BASIC RENTALS".
4.2 The rentals will be payable in advance, once every three months
on the 1st day of the month in which the payment is made.
4.3 It is hereby agreed that in respect of the area of the parking
basement of the Building, no rentals will be payable, unless any
use is made of the parking basement which differs from its
designation as a parking basement, in which case an amount
equivalent to a multiple of 4 dollars x number of square meters
in which such different use is made, will be added to the
rentals.
5. RECEIPT OF THE LEASED PREMISES
5.1 The Leased Premises will be delivered to the Lessee on the date
of commencement of the Period of Lease, where same are complete
in accordance with the Specification and with the matters set
forth in this Contract, and are connected to the electricity,
water and telephone networks.
The Leased Premises will be delivered in the state of an
"envelope" only, which contains an air-conditioning system, on a
basis that the Building is constructed according to the plans and
Specification and pursuant to the general inter-ministry
specification (the Blue Book) and with the air-conditioning
system being checked and inspected seven days prior to delivery.
The Lessor declares that the air-conditioning equipment will
comply with the Israeli standards xxxx and that the system will
be designed and will operate in accordance with any standard, to
the extent that one exists. It is recorded that the amount of
the investment is $150,000 at the expense of the Lessor, and the
Lessee shall approve the equipment prior to installation.
Should there be any constructional defect which prevents
reasonable use of the Leased Premises, the date of delivery will
be postponed until after repair of such constructional defect.
The Lessor will repair the aforesaid constructional defects
immediately.
5.2 The Lessor will allow the execution of finishing and adaptation
works in the Leased Premises during the course of construction of
the Building, even if these are performed prior to the date of
delivery.
These works will be performed by the Lessor, or by a contractor
to be selected by the Lessee, provided that same shall be
performed through the Lessor in accordance with the rules
practiced by the prime contractor (supervision, management,
coordination, auxiliary materials, etc.) and under all
circumstances at the Lessee's expense.
5.3 The right is reserved to the Lessee to request from the Lessor
the execution of any of the finishing and completion works inside
the Leased Premises, in which case such work shall be performed
against payment by the Lessee to the Lessor of the full value
thereof, by way of a one-time payment in advance or against an
autonomous bank guarantee for immediate payment, and in the
alternative -- by way of evaluating their value to be spread over
the entire Period of Lease and against suitable collateral
security.
5.4 Prior to execution of the facades of the Building, the toilet
assemblies, an elevator and staircases, it shall be obligatory
for the Lessor to exhibit the plan for execution to the Lessee in
order to receive the Lessee's comments. It is clarified that
receipt of the aforesaid comments shall not oblige the Lessor to
make changes in accordance with the comments, and that in every
case the decision as to whether to implement any of the comments
shall be that of the Lessor alone.
5.5 The Lessor undertakes to do its best in order to achieve the
obtaining of an approval and permits for the erection of an
enclosed bridge between the Building and the adjacent building
which is used by the company E.S.C., and a gallery on the first
floor of the Building.
Execution of the works mentioned in this sub-clause shall be
carried out by the Lessor and/or by someone on its behalf and at
the Lessee's expense.
6. ADDITIONAL PAYMENTS FOR WHICH THE LESSEE WILL BE LIABLE
6.1 In addition to the Basic Rentals and Value Added Tax, the Lessee
undertakes to pay all the taxes, fees, levies and the compulsory
payments which are imposed and/or may in the future be imposed on
the Leased Premises and/or on the use thereof, during the Period
of Lease, including general municipal rates and business tax, as
well as expenses for the consumption of electricity, gas,
telephone, house committee dues and any other expenses for the
maintenance of the Leased Premises.
6.2 Deleted.
6.3 Also after the Period of Lease has ended, the Lessee will be
liable for the payments mentioned above in this clause if the
debt was created as a result of the use and/or consumption made
during the course of the Period of Lease, even if the charge or
the demand for payment should arrive after the end of the Period
of Lease.
6.4 The Lessee will pay the payments mentioned above in this clause
immediately the due date for payment thereof arrives.
6.5 Should the Lessor make any payment which, pursuant to the
provisions of this Contract, is imposed on the Lessee, the Lessee
will be obliged to pay such payment to the Lessor immediately
upon the Lessor's first demand, together with linkage
differentials to the index and plus penalty interest in
accordance with Clause 9.2 below, reckoned from the date each
such payment was made by the Lessor and up to the time of full
actual refund thereof to the Lessor.
The Lessor will give the Lessee one week's prior notice with
regard to payment in accordance with this clause.
6.6 A contribution towards the Company's legal expenses in respect of
the drawing of this Agreement in a sum equivalent in shekels to
5,000 (five thousand) US dollars, plus V.A.T., shall be borne and
paid by the Lessee at the time of signing of this Agreement, and
shall be paid directly to Adv. Hershkovitz, who it is clarified
represents only the Lessor in all matters connected with this
Contract.
7. MAINTENANCE OF THE LEASED PREMISES DURING THE PERIOD OF LEASE
7.1 The Lessee shall keep the Leased Premises in good order and
condition, shall maintain order and cleanliness of the Leased
Premises and its surrounds, the installations and accessories
thereof, and shall make use thereof in careful and meticulous
manner and shall comply with the directives of any competent
authority, as may apply from time to time, in connection with
cleaning arrangements, the manner of removal of waste remnants,
and preserving the proper working order of the drainage system
and all the remaining systems in the Leased Premises.
The Lessor undertakes to bring to the notice of the Lessee all
directives of a competent authority, as aforesaid, if and to the
extent that such directives are brought to its notice.
7.2 During the first two years of the lease only, the Lessor will, at
its expense, repair any defect, fault or flaw which may be caused
or created or discovered in the Leased Premises in any part
thereof, including plumbing repairs and various other repairs,
and shall do so upon same manifesting themselves and/or being
caused and/or at the time of discovery thereof, save and except
for repairs or damage caused as a result of unreasonable use of
the Leased Premises.
7.3 Should a necessity arise for any repair which the Lessee is
responsible to repair in accordance with Clause 7.2 above, the
Lessee will be obliged to repair it at its expense within a
reasonable time from the date such necessity was discovered.
Should the Lessee fail to perform the repair as aforesaid, the
Lessor will be entitled, but not obliged, to perform such repair
after having given the Lessee 60 days prior notice, and all the
costs of the repair shall be borne by the Lessee, who will be
obliged to refund same to the Lessor immediately upon first
demand, plus linkage differentials and penalty interest in
accordance with Clause 9.2 below, reckoned from the date of
payment by the Lessor for the repair and up to the time of full
actual payment to the Lessor. The Lessor will be obliged to
found its demand for a monetary refund, as referred to in this
sub-clause, on documents such as receipts, invoices, etc.
Repairs which are under the responsibility of the Lessor as set
forth in Clause 7.2 above, shall be repaired by it, and if it
fails to do so, the Lessee may, after having delivered notices as
mentioned in this clause and mutatis mutandis as the case may be,
perform such repairs itself.
7.4 The Lessee undertakes to comply with the provisions of any law,
including a statute, regulation, order, bylaw or directive of any
competent authority which relates to the conduct of the Lessee's
business in the Leased Premises and in connection with the
maintenance of the Leased Premises and the use thereof. The
Lessee will also be responsible for the payment of any fine which
may be imposed as a result of the non-compliance with such
provisions.
7.5 The Lessee undertakes not to perform any external alteration to
the Leased Premises and/or any alteration which according to law
requires a permit from the authorities and/or any alteration
which would be likely to change and/or to adversely affect the
basic structure of the Building, unless it has attained the
Lessor's prior written consent.
Further and in addition it is hereby agreed that any alteration
in the Building which may create additional floor space (such as:
a gallery) will make it obligatory for the Lessee to arrange with
the Lessor additional rentals which will be payable to the Lessor
in respect of such added area, and this must be done prior to the
alteration being made and as a pre-condition for making it.
7.6 The warranties which the Lessor will receive in respect of
systems in the Building and the installations therein will, as
far as possible, also be endorsed into the name of the Lessee.
7.7 Should the Lessor agree to the Lessee's request to introduce
alterations into the Leased Premises, the Lessee will be obliged,
at the end of the Period of Lease, to restore the Leased Premises
to their former condition, to the state in which they were prior
to execution of the alterations, or to leave it in its altered
condition, all in accordance with a decision of the parties.
It is clarified that nothing in the foregoing shall oblige the
Lessee to return the Leased Premises to envelope condition.
Notwithstanding the contents of this clause, the Lessee will be
entitled at any time, up to the end of the Period of Lease, to
dismantle any addition it has installed in the Leased Premises
with the Lessor's consent, and to act in respect thereof, after
it has been dismantled, as an owner would act, provided that the
Lessee shall not cause damage to the Leased Premises after
dismantling of the addition.
7.8 The Lessor and any of its managers will be entitled to enter the
Leased Premises, by prior arrangement with the Lessee, and at any
reasonable time in order to inspect the state of the Leased
Premises and also for purposes of performing repairs, work,
technical or other arrangements for the Leased Premises. Nothing
contained in this sub-clause shall impose any obligation on the
Lessor to perform any of the matters mentioned in this Contract.
7.9 The Lessee shall comply with all directives of the Lessor and
directives of any other competent authority connected with fire
extinguishing arrangements and procedures, prevention of fires,
civil guard and safety measures.
8. ASSIGNMENT OF RIGHTS
8.1 The Lessee undertakes to use the Leased Premises solely itself or
through its employees and it shall be prohibited for the Lessee
to allow another or others to make use of the Leased Premises, or
part thereof, whether for consideration or otherwise, directly or
indirectly.
8.2 The Lessee undertakes not to transfer and/or to assign and/or to
endorse and/or to pledge and/or otherwise to encumber this
Contract and/or any right pursuant hereto, in favor of another or
others, and not to lease out the Leased Premises, or part
thereof, under a sub-lease, and not to deliver occupation or the
use thereof, or any part thereof, to another or others, for
consideration or otherwise, in any manner whatsoever. Any
transfer and/or assignment and/or endorsement and/or pledge
and/or encumbrance the Lessee may make contrary to the foregoing
will be null and void ab initio and devoid of any validity.
The contents of this sub-clause are subject to the provisions of
Clause 3.1.3 above. A subsidiary of the Lessee will be deemed to
be the Lessee itself.
9. BREACHES AND REMEDIES
9.1 The provisions of the Contracts Law (Remedies for Breach of
Contract), 5731-1970 and the provisions of the Contracts Law
(General Provisions), 5733-1973, shall apply to this Contract.
9.2 It is agreed between the parties that in the event that the
Lessee should default in any of the payments it is obliged to pay
pursuant to this Contract by more than 7 days, the Lessor will be
entitled to interest at a rate equivalent to the maximum rate of
interest prevailing at that time at Bank Leumi B.M. in respect of
credit excesses which go beyond a normal credit framework, on the
amounts which the Lessee defaults in effecting the payment
thereof, with this being in addition to and without derogating
from any other right which may be available to the Lessor
pursuant to this Contract and/or according to any law.
10. LICENSING AND LICENSES
10.1 The Lessee hereby undertakes to obtain any license required by it
and to see to it that the business is conducted in accordance
with any license that is required, according to any law,
including by any municipal, governmental, local or other
authority, for purposes of operating and conducting the Lessee's
business in the Leased Premises.
10.2 Throughout the entire Period of Lease the Lessee shall attend to
the renewal of the licenses and approvals required for the
conduct and operation of its business as aforesaid.
10.3 For the avoidance of doubt, the Lessor is not responsible to the
Lessee for obtaining licenses or approvals from any authority,
provided that the reason for the failure to obtain such approval
is not due to an act and/or omission on the part of the Lessor.
11. INSURANCE
11.1 The Lessee hereby undertakes that at its expense it will,
throughout the Period of Lease, insure the building of the Leased
Premises and the contents thereof against:
11.1.1 Risks of fire, explosion, earthquake.
11.1.2 Flood, water damage of any sort.
11.2 The Lessee hereby undertakes that at its expense it will,
throughout the Period of Lease, insure its operations in the
Leased Premises by way of the following forms of insurance:
11.2.1 Third party liability insurance with limits of
liability of not less than an amount equivalent to
1,000,000 US dollars per event and in total for each 12
months.
11.2.2 Employers liability insurance.
11.2.3 In addition, the Lessee undertakes that during the
entire Period of Lease it will, at its expense,
maintain loss of rentals insurance resulting from the
Leased Premises becoming unusable due to damage caused
to the Leased Premises, or the contents thereof, by the
risks mentioned in Clause 11.1 above, for a period of
indemnity of 12 months. This insurance may be effected
by extending the fire insurance policy so that it will
cover loss of rentals.
11.3 The Lessee hereby undertakes to add the Lessor's name as an
additional beneficiary under the policies mentioned above, save
and except the employers liability policy.
11.4 The Lessee shall, at the Lessor's request, exhibit all the
insurance policies which have been taken out as required pursuant
to this Contract, and shall also regularly present the Lessor
with every new policy issued to it, or any amendment to a policy.
Upon reasonable request by the Lessor, the Lessee will be obliged
to add and/or update and/or amend the insurance policies to the
satisfaction of the Lessee (sic!) in order that the policies
comply with the criteria laid down in this Clause 11, and under
all circumstances the amounts will be linked to the index each
year.
11.5 The Lessee will cause a situation that an express condition will
be added to the insurance policy to the effect that the insurer
expressly waives any right of subrogation or other right under
any law to have recourse against the Lessor in a subrogation
claim or a claim for refund or indemnity in respect of direct or
indirect damage which may be caused by virtue of fault on the
part of the Lessor, if such damage is caused.
11.6 The Lessor's right of inspection and its exercise or failure to
exercise its right to see the policies and to demand an update,
addition or alteration, as referred to in Clause 11.4 above,
shall not impose on the Lessor any liability with regard to the
policies, the nature and scope thereof, or with regard to the
absence thereof.
11.7 The Lessee undertakes to comply with all the conditions of the
policies mentioned above in this clause, to pay the insurance
fees on due date, to see to it that the policies will be renewed
and will be in full force throughout the entire Period of Lease.
Failure to renew the policies at their full value, including
linkage to the index, for any reason will constitute a material
breach of this Contract.
11.8 The policy shall contain a clause stating that the policy will
not be amended, canceled or not renewed unless prior notice to
that effect of at least 30 days is given to the Lessor.
12. THE LESSEE'S RESPONSIBILITY
12.1 The Lessor, its agents and anyone acting in its name or on its
behalf, will not be responsible in any manner with respect to any
damage or harm which may be caused to the Lessee or to its
property.
It is hereby expressly agreed and declared that no liability of
whatsoever nature will be imposed on the Lessor vis-a-vis the
Lessee in respect of any damage which may be caused to the Leased
Premises, or to the contents thereof, or to a third party, for
any reason, whether the reason for the damage or the fault is
known or unknown.
12.2 The Lessor will not bear any responsibility or any liability in
regard to any bodily damage and/or loss and/or damage to property
of whatsoever nature (direct or indirect) which may be caused to
the Lessee and/or its employees and/or persons engaged by it
and/or its agents and/or its customers and/or its visitors and/or
its invitees and/or any other person who may be in the Leased
Premises, or in another area occupied by the Lessee with the
Lessor's permission and/or to any property of the Lessee, and the
Lessee assumes full responsibility in respect of any such damage
and undertakes to indemnify the Lessor and to hold the Lessor
harmless against any damages it may be likely to be ordered to
pay and/or compelled to pay as a result of damage of this sort,
and in respect of any expense the Lessor may incur in connection
with any such damage.
It is clarified that should any demand and/or claim be lodged or
instituted against the Lessor which the Lessee is obliged to
bear, as aforesaid, and the expenses attaching thereto, the
Lessor shall not compromise and/or make payment of any amount
without obtaining the Lessee's prior written consent.
13. GROUNDS FOR EVICTION
13.1 Without prejudice to and/or without derogating from any other
provision in this Contract, in each of the following cases the
Lessor will be entitled, after having given a warning notice of 7
days, to terminate the contractual arrangement and the lease
which is the subject matter of this Contract, and to demand the
immediate vacation by the Lessor of the Leased Premises.
13.1.1 If the Lessee is late by more than 14 days in the
payment of any amount which is due to the Lessor
pursuant to the provisions of this Agreement and
according to any law.
13.1.2 If a receiver (provisional or permanent) or a receiver
and manager (provisional or permanent) or a liquidator
(provisional or permanent) should be appointed in
respect of the business and/or the property of the
Lessee, or portion thereof.
13.1.3 If the Lessee passes a resolution for winding-up or if
a liquidation order is issued against it, or if the
Lessee makes a compromise and/or arrangement (within
the meaning thereof under the Companies Ordinance) with
its creditors or some of its creditors, and/or if it
becomes insolvent.
13.1.4 If a provisional attachment or final attachment is
imposed on all the Lessee's assets, or if Execution
Office action is taken in respect of any of the
Lessee's assets.
13.1.5 If the Lessee commits a breach of the provisions of
Clause 8 above and grants another person a right of use
or any other right in and to the Leased Premises, or
any part thereof.
(The foregoing is subject to Clause 3.1.3 above).
13.2 VACATION OF THE LEASED PREMISES
13.2.1 At the end of the Period of Lease and/or the
termination of the lease and/or cancellation of this
Contract for any reason, the Lessee undertakes to
vacate the Leased Premises and to deliver occupation
thereof to the Lessor in circumstances where the Leased
Premises are free and vacant of any person and object
belonging to the Lessee, clean and tidy, and in the
same condition as the Lessee received the Leased
Premises from the Lessor, subject to reasonable wear
and tear.
It is clarified that nothing contained in this clause
shall oblige the Lessor (sic!) to restore the Leased
Premises to envelope condition.
13.2.2 Should the Lessee fail to vacate the Leased Premises on
due date and has failed to do so also after a warning
notice of 7 days it has received from the Lessor, then
in addition to the Lessor's right to claim vacation of
the Leased Premises, and in addition to any other right
the Lessor may have in accordance with this Contract,
or according to any law, and without prejudice to any
remedy or right accorded to the Lessor as aforesaid,
the Lessee shall pay the Lessor in respect of the
period from the date on which the Lessee was supposed
to vacate the Leased Premises and up to the date on
which it does vacate the Leased Premises, an amount
equivalent to twice the rentals, plus penalty interest
in accordance with Clause 9.2 above, and together with
Value Added Tax, calculated on a daily basis, from the
date the obligation for payment came about and up to
the time of payment to the Lessor, based on the rentals
which would have been payable pursuant to this Contract
had the lease been extended on the full actual
conditions of this Contract. The aforesaid payment has
been fixed and agreed as fair user fees and/or agreed
pre-estimated liquidated damages, which the parties
have assessed by way of a carefully calculated advance
assessment.
13.2.3 It is hereby expressly stipulated and agreed between
the parties that nothing contained above in this clause
shall confer on the Lessee a right to continue to
occupy the Leased Premises (against payment of the
agreed damages) and/or constitute a waiver by the
Lessor of any of its rights and/or prejudice the right
of the Lessor to obtain any other remedy and relief,
including, but without prejudice to the generality of
the foregoing, eviction and/or ejectment of the Lessee
from the Leased Premises.
14. ENCUMBRANCE OR PLEDGE BY THE LESSOR
14.1 The Lessor shall have the right to pledge and/or to encumber this
Contract, in whole or in part, to endorse its rights herein to
others, to transfer the Contract in whole or in part in any way
and manner as the Lessor may from time to time see fit, whether
with a view to obtaining finance or for any other purpose, all in
the Lessor's sole discretion, but without prejudice to the rights
of the Lessee pursuant to this Contract of lease.
14.2 Without prejudicing the Lessee's rights pursuant to this
Contract, the Lessor may assign its rights in and to the Leased
Premises, in whole or in part, and may transfer ownership
partially or fully, in its sole and absolute discretion, without
requiring the Lessee's consent, and the Lessee accepts, expressly
and in advance, any such action which may be taken by the Lessor
unequivocally, and the Lessee will have no allegation or claim or
demand of any sort as against the Lessor or anyone acting on the
Lessor's behalf.
15. THE LESSOR'S REMEDIES IN RESPECT OF BREACHES
15.1 Without derogating from the contents of Clause 9 above, or from
what is stated further on in this clause and without derogating
from the specific remedies which appear in this Contract, the
provisions of the Contracts Law (Remedies for Breach of
Contract), 5731-1970, and the provisions of the Contracts Law
(General Provisions), 5733-1973, will apply to a breach of this
Contract.
15.2 If the Lessee fails to keep the Leased Premises in good order and
condition and/or does not repair whatever requires repair in the
Leased Premises and/or fails to return the Leased Premises to the
Lessor at the end of the Period of Lease in good order and
condition and/or if any damage should be caused to the Leased
Premises during the Period of Lease which has not been repaired
by the Lessee, then in addition to any other right the Lessor may
have in such event, in accordance with the provisions of this
Contract and/or pursuant to any law, the Lessor will be entitled
to carry out any repair and/or perform any action it may deem fit
with regard to remedying the damage and/or to restore the state
of the Leased Premises to their former condition, all at the
Lessee's expense.
The foregoing is without derogating from the Lessor's obligations
under Clause 7.2 above.
15.3 In every case in which the Lessee abandons the Leased Premises
and/or vacates the Leased Premises without justification for a
period in excess of 180 normal consecutive business days in the
State of Israel, or if for any reason the Lessee fails to
conduct business in the Leased Premises for a period exceeding
180 normal consecutive business days in the State of Israel, the
Lessor shall have the right, without prejudice to its remaining
rights pursuant to this Contract with regard to payments due to
it from the Lessee [translator's note :something missing in
original Hebrew text] with its consent, and to receive occupation
of the Leased Premises unconditionally; in such event the Lessor
shall be entitled to store the Lessee's articles which are in the
Leased Premises at such place as the Lessor shall deem fit, at
the Lessee's expense, and the Lessee shall be obliged to refund
to the Lessor the costs of storage and custody which the Lessor
incurs in connection with the foregoing. The Lessor will not be
responsible for damage of any sort which may be sustained by the
Lessee, if such damage is sustained, due to the Lessor's
aforesaid actions. The foregoing in this clause will not apply
in the event that the Lessee bears and pays all the payments
imposed on it in accordance with the provisions of this
Agreement.
15.4 In every case of a cancellation of the Lessee's rights under this
Contract, due to the breach of this Contract by the Lessee, the
Lessor will be entitled to any additional remedy available to it
at law by virtue of the breach, including the remedy of
compensation, prohibitory injunction and mandatory injunction.
Notwithstanding everything set forth in this Contract and in
addition thereto, in the case of a breach by the Lessee in
consequence of which the Lessee is evicted from the Leased
Premises prior to the end of the Period of Lease, the Lessee will
be obliged to make payment to the Lessor for the period from the
date of eviction and up to the end of the Period of Lease, of
reasonable compensation which will be equivalent to the loss of
rentals the Lessor has suffered due to the cancellation, either
for the full remainder of the Period of Lease or for the period
until the Leased Premises are let to another tenant, and
thereafter until the end of the Period of Lease in respect of a
loss of rentals, if there should be any, due to lower rentals
being payable by the other tenant.
16. GUARANTEES -- COLLATERAL SECURITY
16.1 As security for the fulfillment of the Lessee's obligations
pursuant to this Contract, the Lessee shall lodge with the
Lessor's attorney, at the time of signing of the Contract, an
autonomous bank guarantee payable immediately upon demand, in an
amount of 100,000 (one hundred thousand) US dollars, in their
value in shekels on the date of issue of the guarantee.
The guarantee will not be delivered by the aforesaid attorney to
the Lessor until after prior notice of 7 days regarding his
intention to do so has been given.
16.2 It is hereby expressly agreed and declared between the parties
that the giving of the guarantee for performance of the
conditions of this Contract does not constitute any form of
waiver by the Lessor of its rights to other remedies against the
Lessee, whether same are remedies as described in the body of the
Contract or are remedies available to the Lessor by operation of
any law, as in force at the time of signing of the Contract or
which may apply in Israel at the time of the breach.
16.3 The foreclosure upon the guarantee will not affect the Lessor's
right to claim and obtain any other remedy from the Lessee and/or
from the guarantees.
16.4 At the end of the Period of Lease and at the time of delivery of
the Leased Premises to the Lessor, the Lessee will be obliged to
furnish the Lessor with confirmations to the effect that all the
payments and fees for which it was liable have been paid by it up
to the date of return of the Leased Premises.
Subject to the furnishing of all the aforesaid certificates, and
the Lessee's compliance with all the conditions of the Contract
and the absence of claims by the Lessor against the Lessee, the
guarantee will be returned to the Lessee.
16.5 Should the Lessor be obliged to apply to court as a result of a
breach of the Contract by the Lessee, and the court rules that
the Lessee has indeed breached the Agreement, all the Lessor's
expenses which it will be obliged to incur, including attorney's
fees according to the minimum tariff of the Israel Bar, shall be
borne by the Lessee.
16.6 It is expressly agreed that in every case in which the Lessee is
obliged to vacate the Leased Premises, the Lessor will be obliged
to give notice and to demand that the Electric Corporation and
the Municipality disconnect the supply of electricity and water
to the Leased Premises.
17. DELETED.
18. GENERAL
18.1 No procrastination and/or waiting and/or lack of response,
failure to act or failure to take steps by either of the parties
to this Contract, shall be construed under any circumstances as
being a waiver by such party of its rights pursuant to the
Contract in respect of a continuing or additional breach by the
other party, unless it has made an express written waiver of any
of its rights.
18.2 All the payments the Lessee is obliged to pay pursuant to this
Contract shall be paid by the Lessee to the Lessor by way of bank
transfer in accordance with details which will be given by the
Lessor in writing.
18.3 The addresses of the parties for purposes of the Contract are
those appearing at the head of the Contract.
Should the parties and/or either one of them change their
address, they shall give written notice to the other party of the
new address in Israel, and from that time onwards such address
will serve as the address of that party for purposes of the
Contract.
18.4 Any notice sent by one party to the other in accordance with the
Contract shall be sent by registered mail or shall be delivered
by hand and shall be deemed to have been delivered within the
reasonable time in which such notice ought to reach the
addressee.
18.5 The expenses for stamping this Contract shall be borne by the
parties in equal shares.
IN WITNESS WHEREOF THE PARTIES HAVE SIGNED AT THE PLACE AND ON THE DATE
FIRST AFOREWRITTEN:
___________________________ _____________________________
The Lessor The Lessee
