REF: F:/XXXXX/TENANCY APP./SM/29/11/99
[TRANSLATED FROM THE HEBREW]
APPENDIX ADDENDUM
TO UNPROTECTED TENANCY AGREEMENT OF 16.9.97
Made and signed on the ___ day of __________ 1999
BETWEEN: MATAM - HAIFA INFORMATION INDUSTRIES CENTRE LTD
PC 00-000000-0
(hereinafter referred to as "the Company")
OF THE ONE PART
AND: XXXXX MICROELECTRONICS LTD
PC 00-000000-0
(hereinafter referred to as "the Tenant")
OF THE OTHER PART
WHEREAS in accordance with the unprotected tenancy agreement executed on
16th September 1997 (together with the appendices thereto), the
Tenant is renting from the Company an area on the fifth floor and
an area on the ground floor in a building known as building 30
(hereinafter referred to as "the building") in the Haifa
Information Industries Centre (hereinafter referred to as "the
agreement" and "the premises" respectively), all as provided in
the agreement and the appendices thereto;
AND WHEREAS the building contains an area which is located on the sixth floor
as outlined in green on the drawing annexed hereto as appendix
"A" and constituting an integral part hereof, including equipment
which was installed therein by the Company (hereinafter referred
to as "the additional area");
AND WHEREAS the Tenant wishes to rent the additional area from the Company in
order that it be added to the area of the premises and to extend
the tenancy term, for the consideration and on the terms and
conditions set forth below;
AND WHEREAS the Company agrees to the increase of the premises by the
addition of the additional area and to the extension of the
tenancy term, for the consideration and on the terms and
conditions set forth below;
ACCORDINGLY, IT IS PROVIDED, WARRANTED AND AGREED BETWEEN THE PARTIES AS
FOLLOWS:
1. RECITALS AND APPENDICES
The recitals and appendices hereto constitute an integral part hereof.
2. INCREASE OF THE PREMISES
2.1 The additional area shall be added from 1st February 2000,
subject to the Company's obligation as provided in clause
3.1 below, to the area of the premises and all the parties'
obligations pursuant to the agreement (as defined above),
save for clause 5(a) (with regard to the tenancy term) shall
apply mutatis mutandis to the area of the premises with the
addition of the additional area (the premises and the
additional area shall hereinafter jointly be referred to as
the "increased premises"), including, and without derogating
from the generality of the aforegoing, with regard to the
Tenant's liability, increase in the contribution towards the
dining room expenses and management and maintenance of the
common areas, increase in the payments of taxes and levies,
increase in the insurance cover and the like.
Without derogating from the aforegoing, and for the
avoidance of doubt, it is hereby expressed that in
consequence of the addition of the additional area to the
area of the premises, the number of designated parking bays
that shall be placed at its disposal shall be increased
relative to the increase in the area of the premises, that
is to say, the Tenant shall be entitled to receive from the
Company, during the tenancy term, a right to use a further
nine designated parking bays on the same terms and
conditions as laid down in the agreement.
It is agreed that the tenancy term in respect of the
increased premises shall come to an end on 31st May 2005 and
not as provided in clause 5(a) of the agreement.
2.3 For the avoidance of doubt, it is hereby expressed that the
area of the "additional area" (as defined above) for the
purpose of computing the amount of the rent and the other
payments for which the Tenant is liable pursuant to the
agreement and this addendum, is the gross area of the
"additional area", that is to say, 1,342 square metres,
including the Tenant's proportional part of the common
areas.
The monthly rent which the Tenant shall pay in respect of
the rental of the additional area shall be in a sum of
US$12.74 for every square metre of the additional area for
the purpose of payment of the rent together with due VAT and
linkage as provided in clause 7(c)(1) of the agreement. The
monthly rent in respect of the additional area shall be paid
by the Tenant at the times and in the manner mentioned in
clause 7 of the agreement.
3. ORGANISATION AND EXECUTION OF THE TENANT'S WORKS
3.1 The Company is granting the Tenant and Tenant is receiving
from the Company a right to use the additional area two
months prior to the date of delivering possession of the
additional area, that is to say, for a period from 1st
December 1999 until 1st February 2000 (hereinafter referred
to as "the organisation period"). In the organisation period
the Tenant's status in the additional area shall be that of
borrower pursuant to the Hire and Loan Law, 5731-1971;
however, subject to the Tenant's performance of all its
obligations pursuant to the agreement and this addendum, the
Company may not cancel its obligation to grant the
organisation period.
The Tenant acknowledges that the user right granted to it in
the organisation period is limited solely to the execution
of the Tenant's works in the additional area for the purpose
of adapting it to its requirements and that in the
organisation period it may not make any other use of the
additional area.
In the organisation period all the provisions of the
agreement, save for the obligation to pay rent, shall apply
to the Tenant in relation to the additional area, mutatis
mutandis.
3.2 It is hereby agreed that in the organisation period the
Tenant shall execute, at its expense and liability, the
Tenant's works specified in appendix "C" hereto in
accordance with detailed plans that shall be prepared by the
Tenant pursuant to the aforementioned appendix and which
shall be submitted for the Company's prior written approval.
The Company shall approve and/or respond to the
aforementioned detailed plans within seven days of receiving
them. The Company warrants that it shall not object to the
plans on unreasonable grounds.
Once the Company has approved the detailed plans, the Tenant
may commence executing the Tenant's works.
The Company shall participate in financing the cost of
executing the Tenant's works specified in appendix "C"
pursuant to the plans approved by it as provided above
(hereinafter referred to as "the finishing works"), which
shall be executed by the Tenant, in an amount not exceeding
a sum in NIS equal to US$200 (two hundred US dollars) for
every square metre of the additional area gross (as
specified above in sub-clause 2.3), in accordance with the
representative rate of the US dollar last known on the date
of the parties' execution hereof together with VAT and
linkage to the building inputs index from the index last
known on the date of the parties' execution hereof until the
index last known on the date of effecting any payment of the
contribution.
The contribution towards financing the cost of executing the
Tenant's works shall be paid to the Tenant on the terms and
conditions and at the times specified below in sub-clause
3.3.
3.3 The Company shall pay the aforementioned contribution in
instalments (to the Tenant and/or to a third party on its
behalf pursuant to its written instruction) in accordance
with the actual progress of the Tenant's works, within 30
days of receiving any invoice (interim and/or final)
approved by the Tenant attesting to the expenses incurred by
the Tenant in the execution of the Tenant's works.
No later than the end of 90 days from the end of the
execution of the Tenant's works, the Tenant undertakes to
send the Company a report certified by an auditor confirming
that the expenses in respect of which the Company will be
requested to pay a contribution to the Tenant were indeed
incurred by it in the actual execution of the Tenant's
works.
3.4 During the organisation period, the Tenant shall execute the
Tenant's works using experienced and qualified tradesmen and
professionals after receiving, in addition to the
aforegoing, all the approvals required therefor, to the
extent necessary, from the competent authorities and after
furnishing an engineer's certificate that the Tenant's works
are not such as to cause irreversible damage to the
additional area.
3.5 In order to clarify matters, it is agreed and warranted by
the parties that the Company's approval as mentioned above
and below in this clause is not such as to impose on the
Company, directly and/or indirectly, expressly or impliedly,
any liability in relation to the quality of the Tenant's
works and/or their compliance with the conditions of the
permit, the Israeli standard and/or the manner of their
execution and full liability in respect
thereof shall be borne by the Tenant and the Tenant hereby
waives any plea and/or claim vis-a-vis the Company in such
regard.
3.6 The Tenant shall act to the best of its ability to minimise
disturbances and/or nuisances to the occupants of the
building as a result of the Tenant's works.
3.7 The Tenant may not store or leave materials and/or equipment
and/or waste outside the additional area without the
Company's prior written approval.
3.8 The Tenant may not execute other works in the additional
area that are not the Tenant's works pursuant to the
specifications (appendix "C"), save with the Company's prior
written approval. The Company shall not refuse the Tenant's
request to execute other works as aforesaid on unreasonable
grounds.
3.9 The Tenant shall be liable for any damage or loss
occasioned, if at all, directly or indirectly, in the course
and/or in consequence of the execution of the Tenant's works
to any person and/or property and/or the additional area
and/or the Centre and/or their surroundings and/or contents.
Without prejudice to the generality of the aforegoing, in
such regard the approval of the specifications by the
Company shall not impose any obligation or liability on it,
[and] shall not constitute a waiver of any right of the
Company, and the Tenant hereby exempts the Company from any
liability in connection with approval of the specifications
(appendix "C") and/or deriving from such approval.
3.10 The Tenant undertakes to repair any damage and/or loss
occasioned in consequence of the execution of the Tenant's
works to the additional area and/or the building and/or the
Centre or their contents or to works executed on other
premises or the common areas within a reasonable time in
accordance with the type of the damage. If the Tenant does
not act as aforesaid - the Company may, after giving the
Tenant written notice, immediately effect the necessary
repairs instead of the Tenant and at its expense, and the
Tenant shall indemnify the Company immediately upon demand
in respect of any expense borne by the Company in effecting
the repair as aforesaid, together with handling fees at a
rate of 20% (twenty percent).
3.11 Without derogating from the Tenant's liability as provided
in clauses 3.9 and 3.10 above, the Tenant undertakes to
insure the Tenant's works, at its expense, from the date of
the organisation period's commencement until completion of
the execution of the Tenant's works in the additional area
or until the date of delivering possession of the additional
area, whichever is
the later. The Tenant undertakes to comply with all the
insurance company's requirements, if any, in respect of the
execution of the Tenant's works, including - but without
derogating from the generality of the aforegoing - with
regard to safety measures and facilities, the composition of
materials and the like.
The provisions of clause 12 of the agreement shall apply to
the manner of issuing the aforementioned policy and the
format thereof, mutatis mutandis.
3.12 It is expressly agreed that, subject to the performance of
the Company's obligation as provided in sub-clause 3.1, the
execution of the Tenant's work shall not be such as to
postpone the date of delivering the additional area and that
even if the Tenant does not complete the execution of the
Tenant's works, for any reason, the Tenant shall be bound,
from the date of delivering the additional area and
throughout the tenancy term, by all its obligations in
relation to the increased premises pursuant to the agreement
and this addendum, including the obligation to pay rent.
3.13 In the event that the Tenant does not perform, in the
organisation period, any of its obligations and/or does not
make any of the payments which it owes pursuant to the terms
and conditions of the agreement and this addendum in the
organisation period, all or any of them, such shall
constitute a fundamental breach of the agreement and this
addendum and the Company may, subject to giving the Tenant
written notice of the breach, and the breach is not
rectified by the Tenant within 14 days of the notice's
receipt, act in its exclusive discretion as follows:
3.13.1 Postpone the commencement of the tenancy Term in
respect of the additional area until the
performance of the Tenant's obligations and
the making of all the payments which it
owes; however, the Tenant shall be liable to
perform all its obligations pursuant to the
agreement and the addendum in full as though
the additional area had been delivered to it
on the date of commencement of the tenancy
term in respect of the additional area
specified in this addendum, all without
derogating from any other relief to which
the Company shall be entitled pursuant to
the agreement and the addendum and/or at
law.
3.13.2 Notify the Tenant of the addendum's termination,
of the completion of the organisation period and
evict it from the additional area immediately,
without the need for any warning.
It is agreed and warranted by the parties that
if, notwithstanding the Company's eviction
notice, the Tenant and/or anyone on its behalf
remains in the additional area, such shall be by
way of trespass, and it shall be estopped from
doing any act against the Company and/or from
making any plea against it, if the Company takes
any steps in order to remove the Tenant from the
additional area and regain full possession
thereof.
The Tenant shall not be entitled to any
compensation and/or restitution in respect of
expenses borne by it in the execution of the
Tenant's works and/or any amount paid by it in
the organisation period.
3.14 The provisions of this clause 3 with regard to the Tenant's
obligations are in addition to and do not derogate from the
Tenant's obligations pursuant to the agreement and the
addendum and they shall not derogate from any other and/or
further right and/or relief vested in the Company pursuant
to the agreement and/or the addendum and/or at law.
4. EARLY VACATION OF THE BUILDING'S GROUND FLOOR
4.1 It is hereby agreed that in consequence of the delivery of
the additional area to the Tenant, as provided above in
clause 2, the Tenant may, during the tenancy term, vacate
the ground floor area of a size of 304 square metres, which
constitutes part of the increased premises (hereinafter
referred to as "the ground floor area"), subject to the
fulfilment of all the following cumulative conditions:
4.1.1 The Tenant shall give the Company at least 30
days' written notice of its intention to vacate
the ground floor area.
4.1.2 In consideration for the Company's consent to
curtail the tenancy term in respect of the ground
floor, insofar as it relates to the ground floor
alone, and as a condition therefor, the Tenant
shall pay the Company a sum in NIS equivalent to
four months' rent for the ground floor area for
the purpose of paying rent (that is to say, the
gross ground floor area, including the Tenant's
proportional part, in connection with this area,
of the common areas) together with due VAT. The
aforementioned amount shall be paid to the Company
by the Tenant from the date of the Tenant's notice
as provided above in sub-clause 4.1.1 in four
instalments at the times prescribed in the
agreement (including this addendum) for payment of
the rent in respect of the increased premises and
the linkage conditions laid down in the agreement,
including this addendum, shall apply in respect of
the aforementioned payments.
If the area of the premises is reduced as aforesaid, the
provisions of clause 2 shall be amended accordingly.
5. COLLATERAL
5.1 To secure the performance of all the Tenant's obligations
pursuant to the agreement, including this addendum, the
Tenant is depositing with the Company (in addition to the
collateral which it gave the Company pursuant to the
agreement, which shall continue to remain in force until the
end of the tenancy term in respect of the increased
premises), at the time of the execution hereof and as a
condition therefor, the following collateral:
5.1.1 A blank promissory note in a sum of US$ 40,000
(forty thousand US dollars) to the order of the
Company, payable upon demand, signed by the
Tenant (hereinafter referred to as "the note"),
and all the provisions of clause 10(a) of the
agreement shall apply in respect of the
aforementioned note.
5.1.2 In addition, the Tenant shall give the Company
written confirmation, to the Company's
satisfaction, from the parent company Xxxxx
Corporation confirming that it is familiar with
the provisions of this agreement and that it
agrees thereto and that the guarantee given by
it in accordance with the provisions of clause
10(b) of the agreement shall apply to all the
Tenant's obligations pursuant to the agreement,
including this addendum, and that this addendum
is not such as to howsoever derogate from the
guarantee given by it.
6. THE THIRD FLOOR OF THE BUILDING
It is agreed that if by 1st June 2000 Aurec vacates the third floor of
the building, the Tenant shall have a right of first refusal to rent
this area from the Company (in addition to the increased premises) for
the balance of the tenancy term, as follows:
6.1 The Company shall approach the Tenant with an offer to rent
the third floor of the building, stating the price, terms
and conditions required which shall be identical to the
terms and conditions offered to a third party.
If the Tenant does not notify the Company in writing of its
wish to exercise the said right of refusal on the terms and
conditions specified in the offer, within 10 days of the
Company's approach, the Company shall be entitled
to offer the third floor of the building to any third party,
at a price and on terms and conditions not better than those
stated in the offer to the Tenant, and the Tenant does not
and shall not have any pleas and/or claims and/or demands
vis-a-vis the Company in such regard.
6.2 For the avoidance of doubt, it is hereby expressed that the
Tenant's aforementioned right of refusal is for a limited
term ending on 1st June 2000 and the Tenant hereby warrants
that it does not and shall not have any pleas and/or claims
and/or demands vis-a-vis the Company in such regard.
7. GENERAL
It is expressly agreed that all the provisions of the agreement insofar
as and to the extent not altered by this addendum shall remain in force
without change and shall bind the parties for all intents and purposes.
AS WITNESS THE HANDS OF THE PARTIES:
(Signed and Stamped) (Signed and Stamped)
-------------------- --------------------
The Company The Tenant
APPENDIX "C" - TECHNICAL SPECIFICATION
A. Division into offices with single membrane plaster board [?] (width 10
cms with 2" rockwool insulation) of a height of up to 3 metres in a
quantity of 440 metres in length.
B. Doors, wooden 50% with top coat colour at the architect's election, 30
units.
C. Carpet. Basic price per carpet: $ 15/sq.m. including panel and laying
down the carpet.
D. Demolition and removal works.
E. Electricity and telephone:
60 power points + with a group of three outlets at each point.
60 telephone points.
60 computer points (preparation only).
F. Sprinklers: adaptation of sprinkler location.
G. Air conditioning: adaptation of location of Nachshon blower units.
H. Fiber acoustic ceiling with 60/60 measurements including [?] recessed
units on the entire floor.
Ref. XXXXXXX/MATAM/SM/07/03/98
[TRANSLATED FROM THE HEBREW]
AGREEMENT
Made and signed in Haifa this _____ day of ____________________ 1997
BETWEEN: MATAM - SCIENCE INDUSTRIES CENTRE HAIFA LTD
PC 00-000000-0
(hereinafter referred to as "the Company")
OF THE ONE PART
AND: XXXXX MICRO-ELECTRONICS LTD
PC 00-000000-0
(hereinafter referred to as "the Tenant")
OF THE OTHER PART
WHEREAS the Company is the exclusive possessor of and owner
of the rights in land situated in the Haifa Science
Industries Centre (hereinafter referred to as "the
Centre") which constitutes part of parcels 7 and 8 in
block 10730 (hereinafter referred to as "the plot");
AND WHEREAS the Company has erected a building on the plot which
is known as building 30 (hereinafter referred to as
"the building");
AND WHEREAS the building's construction was completed
after 20th August 1968 and the tenants' protection
laws, including the Tenant's Protection Law
(Consolidated Version), 1932-1972 does not apply to
the premises;
AND WHEREAS the Tenant warrants that it is an "approved
enterprise" within the
1
meaning thereof in the law and that it wishes to
rent the premises as defined below in order to
establish its plant as defined below;
AND WHEREAS the Company wishes to let to the Tenant and
the Tenant wishes to rent from the Company on an
unprotected tenancy an area in the building as
specified in the technical specification and plans
annexed hereto as appendices "A" and "B" respectively
and constituting an integral part hereof;
ACCORDINGLY, IT IS WARRANTED AND AGREED BETWEEN THE PARTIES AS FOLLOWS:
1. RECITALS AND APPENDICES
(a) The recitals and appendices hereto constitute an integral part
hereof.
(b) The clause headings have been introduced for reading
convenience only, they do not constitute a part of this
agreement and should not be used for the purposes of
interpretation.
2. INTERPRETATION
Without derogating from the other definitions appearing herein, the
following expressions shall be interpreted as follows:
"THE BUILDING" - the building known as building 30 in which the
premises are situated;
"THE PREMISES" - an area of approx. 1,646 square metres comprising an
area of approx. 1,342 square metres on the fifth floor of the building
and an area of approx. 304 square metres on the ground floor of the
building, all as marked in the colour red on the drawing annexed hereto
as appendix "B/1" and constituting an integral part hereof.
It is hereby expressed that the aforementioned area includes the
Tenant's proportional part of the building's common area as marked with
diagonal lines in the colour blue on the drawing appendix "B/1", and
that this area is not included in the area in which the Tenant is being
granted, during the tenancy term as defined below, a right of
possession, but only a use right [sic];
2
"THE TENANCY TERM" - the terms defined in clause 5 below, including a
tenancy term that has been curtailed (if curtailed) as a result of any
provision hereof and/or as a result of the provision of any law, and
any additional tenancy term (if the tenancy term is extended);
"THE PLANT" - the Tenant's business, which is the planning, development
and manufacture of electronic components and products;
"DELIVERY" - placing the premises at the Tenant's disposal for the
purpose of commencing the tenancy term;
"COMMON AREA" means as defined in the Land Law, 5729-1969, including
the roof, the entrance area and its surroundings, the staircases and
lobby elevators, the corridors, piping shafts, machine rooms and
various conveniences, as marked in the colour blue on the drawing
annexed hereto as appendix "B/2".
3. THE NATURE OF THE TRANSACTION
The Company is hereby letting the premises to the Tenant and the Tenant
is hereby renting the premises from the Company, for the consideration
and on the terms and conditions specified hereinbelow.
4. THE CONSTRUCTION AND ACCEPTANCE OF THE PREMISES
(a) The premises are being constructed in a size and form pursuant
to the annexed technical specification and plans and the
finish plan which shall be annexed hereto (appendices "A",
"B", "C" and "C/1" hereto), and all on the terms and
conditions and in the manner described herein.
(b) The Tenant hereby confirms that the technical specification
and plans of building no. 30 have been furnished to it and
that they are suitable and appropriate for its needs and the
object of the tenancy pursuant hereto.
(c) Without prejudice to the provisions of sub-clauses (a) and (b)
above, it is agreed and warranted between the parties that the
interior finish works on the area of the premises situated on
the fifth floor of the building were planned and executed by
the Company in accordance with a principal plan which was
submitted to the Company by Powerspectrum Technology Ltd and
IBM Israel Science & Technology Ltd. The interior finish plan
relating to the area of the premises situated on the fifth
floor of the building is annexed hereto as appendix "C".
3
It is hereby agreed that the Tenant may, from 15th May 1996
and thenceforth, execute at its expense alterations and/or
additions in the area of the premises situated on the fifth
floor of the building, provided that it has received the
Company's prior written approval for any addition and/or
alteration as aforesaid.
It is further agreed and warranted by the parties that the
interior finish works on the area of the premises situated on
the ground floor of the building shall be planned and executed
by the Company in accordance with an interior finish plan that
shall be submitted by the Tenant and approved by Powerspectrum
Technology Ltd (hereinafter referred to as "PST").
It is hereby expressed that PST's approval of the
aforementioned interior finish plan is one of the terms and
conditions for obtaining the Company's approval of the
interior finish plan. The interior finish plan approved by PST
shall be submitted by the Tenant for the Company's approval
within ten days of the execution hereof.
The Company warrants that pursuant to an agreement executed
between it and PST, it has been agreed that in the absence of
a written response to the interior finish plan from PST within
14 days of the date on which it is conveyed to it, the plan
shall be deemed to have been approved by PST.
After its approval by the Company, the finish plan in respect
of the area of the premises situated on the ground floor of
the building shall be annexed hereto as appendix "C/1" and
shall constitute an integral part hereof. The Company shall
convey the approved finish plan to the Tenant together with an
engineering appraisal of the cost of executing the final works
pursuant to the finish plan, which shall be annexed hereto as
appendix "C/2". If after the execution of the final works it
emerges that there was a quantitative or qualitative deviation
in comparison with the technical specification (appendix "A"),
the Tenant shall pay the Company the actual cost of the
deviation as provided in clause 7(e) below, provided that in
the event of a deviation from the engineering appraisal of
more than 5%, the Tenant's prior written approval of such
deviation is obtained (in respect of the part exceeding a 5%
deviation). For the avoidance of doubt, the Tenant's prior
consent is not required for a deviation of up to 5% inclusive,
and such shall be paid by the Tenant at the Company's request.
4
(d) (1) Prior to the delivery date, as defined in clause
5(a) below, of the area of the premises situated on
the fifth floor of the building and the area of the
premises situated on the ground floor of the
building, as the case may be, an inspection of the
premises shall be carried out by representatives of
the Company and the Tenant who shall inspect the
premises and confirm to the parties that they are
ready for delivery in accordance with appendices "A",
"B", "C" and "C/1".
If repairs are necessary in order to adapt the
premises to the aforegoing, and such repairs are not
such as to prevent the Tenant from making reasonable
use of the premises, the Company shall execute them
within 60 days, without such derogating from any
liability of the Tenant pursuant hereto. In the event
that the aforementioned repairs prevent the
possibility of reasonable use of the premises, the
delivery date shall be postponed until execution of
the repairs preventing reasonable use as aforesaid
has been completed.
(2) On the delivery date of the area of the premises
situated on the fifth floor of the building and on
the delivery date of the area of the premises
situated on the ground floor of the building, as the
case may be, representatives of the Company and the
Tenant shall draw up delivery minutes which shall be
annexed hereto as appendices "D/1" and "D/2" and
constitute an integral part hereof. Signature of the
minutes shall constitute the Tenant's confirmation
that the Company has completed all its obligations in
respect of the premises pursuant to appendices "A",
"B", "C" and "C/1", and that it does not and shall
not have any complaints in respect of the premises,
save for complaints specified by the Tenant in the
body of the minutes (hereinafter referred to as "the
delivery minutes"). The abstention of either of the
parties from participating in the drawing up of the
minutes shall not constitute a cause for
non-acceptance of the premises and/or any part
thereof and/or for non-performance of the obligations
of either of the parties pursuant hereto.
(e) It is agreed and warranted that all the above provisions of
this clause regarding delivery dates shall not apply in the
case of force majeure, such as war, calamity, general strikes
and lock-outs in Israel in the building industry, a closure of
the territories - if and for so long as such a closure is
recognised by the Government of Israel in its contracts with
the Israeli Association of Contractors and Builders as force
majeure, a natural disaster which cannot be anticipated, acts
and/or instructions and/or orders and/or a postponement in
respect of omissions on the part of competent
5
authorities and the like. It is hereby expressed that the
duration of the postponement of the delivery date as a
result of an incident of force majeure shall be equal to
the period of time during which such incident actually
prevents the Company from performing its obligations
pursuant hereto.
5. DELIVERY OF POSSESSION OF THE PREMISES AND THE TENANCY TERM
(a) The planned delivery date of the area of the premises situated
on the fifth floor of the building is 31st May 1996; however,
it is hereby expressed and the parties agree that the tenancy
term for the area of the premises situated on the fifth floor
of the building shall commence on the actual delivery date of
the area, written notice whereof shall be sent to the Tenant
seven days in advance (hereinafter referred to as "the
delivery date of the area of the premises situated on the
fifth floor") and shall end on 15th May 1999 or on the date of
delivering alternative premises in a new building that shall
be constructed in Matam, whichever is the later, but in any
event no later than 15th May 2003 (hereinafter referred to as
"the tenancy term for the area of the premises situated on the
fifth floor").
The tenancy term for the area of the premises situated on the
ground floor of the building shall commence within three
months of receipt of the interior finish plans approved by the
Company (as provided in clause 4(c) above) and shall terminate
at the end of the tenancy term for the area of the premises
situated on the fifth floor of the building.
Written notice of the actual delivery date of the area of the
premises situated on the ground floor of the building shall be
sent to the Tenant seven days in advance (hereinafter referred
to as "the delivery date of the area of the premises situated
on the ground floor").
(b) Notwithstanding the provisions of sub-clause (a) above, it is
hereby agreed between the parties that the Company may
postpone the delivery date of the area of the premises
situated on the fifth floor and/or the ground floor for a
further 30 days, and such being on 30 days' prior notice to
the Tenant.
(c) Commencing from the delivery date of the area of the premises
situated on the fifth floor of the building or the area of the
premises situated on the ground floor of the building, as the
case may be, the Tenant shall bear all the liabilities and
obligations deriving herefrom, including its liability for any
damage occasioned by an act of the Tenant or anyone acting on
its behalf, and the tenancy term shall commence on the
aforementioned date for all
6
intents and purposes, whether or not the Tenant appears on
such date to accept possession of the premises.
It is hereby expressed that the delivery date of the premises
or any part thereof pursuant to this clause and the
commencement of the tenancy term shall not be altered or
affected by any postponement in the premises' actual delivery
deriving from the execution of additions and alterations to
the area of the premises situated on the fifth floor at the
Tenant's request as provided in clause 4(c) above.
6. PARKING AREAS
(a) The Tenant and/or its employees and/or invitees may randomly
use, without payment, the parking places at the Centre, so
long as and to the degree that such have not been and are not
in future designated by the Company in its exclusive
consideration for the sole use of any third party.
(b) The provisions of sub-clause (a) above shall not be considered
as imposing any obligation on the Company to make any parking
places available to the Tenant and/or its employees and/or
invitees in addition to the Tenant's parking places, and the
Tenant shall not have any claims vis-a-vis the Company in the
event that it is not possible for it to use any parking places
over and beyond the Tenant's quota of parking places.
(c) The Company undertakes to prepare one parking place in
addition to the parking places presently existing at Matam for
every 80 square metres of the premises. Of the parking places
prepared as aforesaid, the Company shall allot the Tenant 10
designated parking places at a range of 150 metres from the
building. The Company shall be entitled to alter the location
of the aforementioned parking places and to allot the Tenant
other parking places, on the same terms and conditions, in its
discretion.
7. THE RENT
(a) Without derogating from the provisions of clause 5 above
regarding the premises' delivery date, it is hereby agreed
that in consideration for the premises' rental the Tenant
shall, commencing from 1st July 1996 and thenceforth, pay the
Company monthly rent in respect of the premises in an amount
in shekels equal to US$ 12.74 (twelve US dollars and seventy
four cents) per each square metre of the premises (hereinafter
referred to as "the rent"), together with due VAT.
7
Without derogating from the provisions hereof and for the
clarification of matters, the parties hereby warrant that in
accordance with the agreement executed between them regarding
the rental of an area in the building known as building 8/1 in
the Centre, the Tenant shall pay the Company rent and the
other payments (as prescribed in the agreement executed
between the parties regarding the premises in building 8/1) in
respect of the premises in building 8/1, and such being until
30th June 1996 inclusive.
(b) The rent vests with the Tenant with the right to make
reasonable use of the Centre's existing infrastructure,
including: roads, pavements, gardening, lighting, signposting,
parking (subject to the provisions of clause 6 above), fences,
sewerage lines and water lines. The Tenant's employees and all
its successors and assigns shall be entitled to enter the area
of the Centre and/or the premises without payment.
(c) The rent shall be paid on the 1st of every month for the
current month, against a due tax invoice which the Company
shall furnish to the Tenant. The said rent shall be linked as
follows:
(1) until the end of the tenancy term, the monthly rent
for the rental of the first 1,330 square metres of
the area of the premises shall be linked to the
representative rate of the dollar known on the date
of payment, together with linkage to the CPI index;
(2) the monthly rent for the balance of the area of the
premises, i.e. 316 square metres, shall, for the
duration of the tenancy term, be linked to the
Consumer Price Index in Israel, with the base rate of
exchange of the dollar being NIS 3.11 per US$ 1.
(d) The index linkage shall be computed as follows:
(1) If on any date on which the rent (or any part
thereof) is actually paid it transpires that the new
index (as defined below) on the date of effecting the
said payment is different from the base index (as
defined below), the Tenant shall effect the said
payment to the Company with it being altered pro rata
to the rate of the change in the new index vis-a-vis
the base index, i.e. multiplied by the new index and
divided by the base index.
(2) "The base index" means the American CPI index for
February 1996 as published on 15th March 1996 or the
Consumer Price Index for February 1996 (131.7 points,
as the case may be, in accordance with the provisions
of sub-clauses (c)(1) and (c)(2).
8
(3) "The new index" means the American CPI index or the
Consumer Price Index, as the case may be, last known
at the time of actually effecting any payment of the
rent or part thereof.
(e) It is hereby agreed between the parties that:
(1) in the period between 1st July 1996 and 31st December
1996 (i.e. a period of six calendar months), and in
this period alone, the Tenant shall be given a
discount on the rent prescribed in clause 7(a) in an
amount of US$ 1.41 (one dollar and forty one cents)
for each square metre of the premises.
In addition to the discount mentioned in this
sub-clause (e), the Tenant shall be given an
additional monthly discount on the rent in an amount
in shekels equal to US$ 7,500 (seven thousand five
hundred US dollars) for each month, and such being in
the period between 1st July 1996 and until the end of
December 1996, and in this period alone.
The value of the discount in shekels shall be
computed pursuant to the representative rate of the
dollar on the date of setting off the discount from
the rent.
The said discounts shall be given by setting off the
amount of the discount from the rent which the Tenant
is liable to pay the Company in respect of the period
mentioned in this clause (e).
(2) On 1st April 1997 the Tenant shall pay the Company a
supplement to the monthly rent which it is liable to
pay the Company in respect of April in an amount in
shekels equal to US$ 19,000 (nineteen thousand US
dollars) in accordance with the representative rate
of the US dollar on the actual payment date.
It is further hereby agreed that in the period
between 1st January 1997 and 15th May 1999, the
monthly rent which the Tenant is liable to pay the
Company as prescribed in clause 7(a) above shall be
raised by 63.95 cents for each square metre of the
premises.
(f) Any amount which the Tenant is liable to pay the Company
pursuant hereto which the Tenant does not pay on time shall,
commencing from the date prescribed for the payment thereof
pursuant hereto and until its actual payment, bear interest at
a rate equal to that customary at Bank Leumi Le-Israel Ltd in
respect of unauthorised overdrafts.
9
(g) Payment of the rent and of any payment and/or obligation of
the Tenant to the Company pursuant hereto shall be effected by
cheque or by way of bank transfer to the Company's account,
the details whereof are as follows:
account no. 9666 at Bank Hapoalim, Hatishbi Branch (709).
8. PROVISION OF SERVICES
(a) The Tenant's signature hereof shall constitute and be deemed
its signature on the agreement between the Company and the
Centre's tenants regarding the Centre's services company -
Shatam Haifa Ltd (hereinafter referred to as "Shatam") also in
respect of the premises the subject hereof. This clause shall
also be deemed an agreement in favour of a third party.
(b) In addition to the rent, the Tenant shall, commencing from the
delivery date, pay Shatam, subject to the performance of
Shatam's material obligations towards it by virtue of the
agreement mentioned in sub-clause (a) above, its part of the
payments as in force from time to time and applying to the
Centre's tenants, including the participation fees towards the
Centre's services charged by Shatam and/or any of its
successors and assigns, as determined from time to time by the
Company and at the times prescribed by it from time to time.
(c) The Tenant warrants that the liability to provide the services
at the Centre rests with the services company, i.e. Shatam,
and/or any of its successors and assigns, and that the Company
and/or the Haifa Economic Co. Ltd and/or Matam shall not bear
any liability and the Tenant shall not have any complaint
and/or claim against the Company in respect of any
malfunction, disturbance, inconvenience, damage or expense
occasioned to the Tenant as a result of the non-provision
and/or in respect of the defective provision of the said
services and/or any of them.
(d) The Company warrants that a clause similar to this clause 8
exists in all the tenancy agreements executed between the
Company and the companies renting areas in the Centre.
10
9. TAXES, LEVIES AND COMPULSORY PAYMENTS
(a) In respect of the tenancy term, the Tenant shall bear and pay
the business tax if existing in respect of the plant that
shall be managed in the premises, and it shall pay and/or
reimburse the Company, if the Company pays in its stead, save
for property tax and/or taxes and/or levies and/or official
fees obligation for the payment whereof is imposed on the
owners of the land pursuant to law, all the other taxes,
levies and compulsory payments whatsoever applicable and/or
which shall be applicable to the plant and/or the premises in
respect of the proportional part of the Centre and/or the
Tenant (including the Tenant's parking places) and/or in
connection therewith, including, but not only, the payment of
rates, official fees and routine charges for sewerage, water,
electricity, telephone and the like, and it shall furnish the
Company with appropriate certificates in respect of the said
payments immediately upon first being requested to do so or
reimburse the Company as aforesaid the payments which the
Company has paid in its stead within seven days of the
request, against the Company furnishing payment references to
the Tenant and provided that prior notice is sent to the
Tenant of the Company's intention to effect payment/s as
aforesaid in the Tenant's stead.
(b) Value added tax and/or any other tax applicable to possessors
in accordance with the law, as shall be from time to time, is
not included in the rent, and it shall be borne and paid by
the Tenant together with any payment in respect whereof it is
applicable, against the production of an appropriate tax
invoice.
(c) For the avoidance of doubt, the Tenant hereby confirms that
any depreciation deductions in respect of the building and/or
the premises, as shall be from time to time, shall be to the
credit of the Company alone, save for improvements in the
premises effected by the Tenant and at its expense, the
Tenant's equipment and the chattels belonging to it.
(d) In addition to the rent and the other payments which the
Tenant is liable to pay the Company as provided herein, the
Tenant hereby undertakes to pay the Company the payments
specified below:
(1) An amount in shekels equal to US$ 30,000 (thirty
thousand US dollars) was paid by the Tenant to the
Company in two equal payments (i.e. an amount of US$
15,000 in each payment), the first on 4th April 1996
and the other within 30 days of the delivery date of
the premises situated on the fifth floor of the
building (15th July 1996).
11
The aforementioned payment is in respect of the
Tenant's share of the expenses of executing the
finish works on the area of the premises, and it was
paid against the production of an invoice. The amount
which the Tenant paid the Company was computed
pursuant to the representative rate of the dollar on
the date of actually effecting each payment.
(2) An amount in shekels equal to US$ 31,666 (thirty one
thousand six hundred and sixty six US dollars) was
paid by the Tenant to the Company by 23rd May 1996,
and such being as the Tenant's participation towards
the expenses of planning the area of the premises.
The payment was effected against the production of
receipts and/or invoices attesting to the
aforementioned expenses.
(e) On 4th June 1997 the Tenant gave the Company a deposit in an
amount in shekels equal to US$ 49,000 (forty nine thousand US
dollars) pursuant to the representative rate of the US dollar
known on the date of giving the deposit (hereinafter referred
to as "the deposit").
It is hereby expressly agreed that the Tenant may instruct the
Company in writing to set off from the deposit monies payment
of the rent supplement in an amount of US$ 19,000 (nineteen
thousand US dollars) which the Tenant is liable to pay the
Company on 1st April 1997 (as prescribed in clause 7(e)(2)
above) as well as the monthly rent which the Tenant is liable
to pay the Company commencing from 1st April 1998 and
thenceforth.
10. COLLATERALS
To secure the performance of all its obligations the subject hereof,
the Tenant shall, upon the execution hereof, give the Company the
following collaterals:
(a) A promissory note in an amount of $ 40,000 (forty thousand US
dollars) made out in blank to the order of the Company,
payable upon demand, signed by the Company (hereinafter
referred to as "the note"), guaranteed by the Tenant's parent
company Xxxxx Corporation. The amount fixed in the note shall
be linked to the index in the manner provided in clause 7(d)
above and the following provisions shall apply in respect
thereof:
(1) the Company may present the note for payment, in
whole or in part, for the purpose of performing any
of the Tenant's obligations pursuant hereto, and such
being after seven days' prior written warning;
12
(2) for the purpose of presenting the note, the Company
may fill in and complete the missing details and/or
add any detail necessary for the purpose of
presenting them [sic] for payment;
(3) the Tenant hereby warrants and confirms that it
agrees to the note's presentation for payment as
provided and that it shall not have any claim and/or
complaint regarding the validity of the note and/or
the manner of filling in the note's missing and/or
additional details and/or in respect and/or in
consequence of their [sic] presentation for payment;
(4) if the note is presented for payment, in whole or in
part, the Tenant undertakes to deposit with the
Company, within seven days of its payment date, a new
note in the amount paid up as aforesaid;
(5) the Tenant undertakes to advise the note's guarantors
of the provisions of this clause prior to their
signing the note.
If one of the note's guarantors becomes bankrupt
and/or goes into receivership and/or is wound up, the
Tenant shall furnish an alternative guarantor to the
Company's satisfaction within seven days of the
aforementioned incident;
(6) if the tenancy comes to an end and the note has
not been presented for payment, it shall be
returned to the Tenant within 90 days, provided
that it has complied with all its obligations
pursuant hereto.
(b) The guarantee of the parent company Xxxxx Corporation for the
performance of all the Tenant's obligations pursuant hereto
and for the indemnification of the Company in respect of any
expenses and damages occasioned to it in consequence of a
breach hereof by the Tenant in the form of wording acceptable
to the Company and annexed as appendix "F/1" hereto, and such
being immediately upon receipt of the Company's written
request.
(c) It is expressly agreed that the delivery of the aforementioned
guarantees and/or note to the Company and/or their
presentation for payment by the Company shall not prejudice
the Company's right to collect from the Tenant in any other
manner possible any debt and/or full compensation in respect
of the damages occasioned to it in consequence of a breach of
any of the Tenant's obligations pursuant hereto and/or grant
the Tenant any right and/or deprive the Company of any
additional or other remedy to
13
which it is entitled pursuant to any law and/or agreement.
11. LIABILITY
(a) The Tenant alone shall be liable vis-a-vis Matam and/or any
third party, as the case may be, for any injury, loss or
damage to person or property (and without derogating from the
generality of the aforegoing, including the property of the
Tenant, its employees and guests) occurring or occasioned in
the area of the premises and/or the Centre in consequence of
an act and/or omission of the Tenant and/or anyone acting on
its behalf and/or Matam and/or anyone acting on its behalf,
and such liability shall not be borne by Matam, subject to the
following provisions.
For the avoidance of doubt, it is hereby expressed that the
Tenant's liability as provided above in this clause, insofar
as it relates to any act or omission of Matam and/or those
acting on its behalf, is limited to an act or omission of
Matam and/or those acting on its behalf in the premises (save
for damage occasioned by Matam and/or those acting on its
behalf maliciously) and shall be in accordance with that
defined under the third party liability insurance policy as
provided in clause 12(c)(3) below, with it being limited to an
amount of up to one million US dollars per event and in total
for the entire insurance term.
(b) Notwithstanding the provisions of sub-clause (a) above, the
Tenant alone shall be liable for any damage whatsoever that
shall be occasioned:
(1) to contents of the premises brought onto the premises
by the Tenant and/or anyone acting on its behalf;
(2) to the premises' structure, with the exception of
those risks in connection with the premises'
structure which may not be insured on the Israeli
insurance market, save for reasonable wear and tear
and save for damage in consequence of acts of terror
and/or war.
(c) If a third party claim is filed against Matam in respect of
damage for which the Tenant is liable pursuant to this clause
11, the Tenant shall be liable to indemnify Matam, within
seven days of the date on which the Company is requested to
pay the said amount, in respect of any amount which Matam is
held liable to pay a third party in consequence of a final
court judgment, together with all Matam's expenses in respect
of conducting the trial with the third party, and without
prejudice to the generality of the aforegoing the principal,
interest, linkage, advocates' professional fees, official
fees, trial costs, VAT and any other expenses deriving from
the claim.
14
Indemnity of the Company by the Tenant shall be conditional
upon the Tenant being sent notice regarding the existence of
the proceedings against the Company and upon the Tenant being
given the opportunity to defend itself against the claims
raised within the framework of the aforementioned proceedings.
(d) The provisions of this clause 11 do not refer to damage
occasioned as a result of a latent defect in the premises
which could not be detected in inspections carried out by the
Tenant and/or anyone acting on its behalf and/or on reasonable
inspection.
(e) The sub-clauses of this clause supplement and do not derogate
from each other.
(f) It is not the intention of this clause, with all its
sub-clauses, to create rights in favour of any third party,
save for Matam as defined in clause 12(n) below.
12. INSURANCE
(a) Without derogating from the Tenant's obligations pursuant
hereto and pursuant to law, prior to the date of commencement
of the Tenant's business in the premises or prior to the date
of placing any assets in the premises - whichever is the
earlier - the Tenant undertakes to take out and maintain, at
its expense and liability, so long as this agreement is in
force, the insurances detailed below in this clause (which
shall hereinafter be called "the premises' insurance") with a
duly authorised insurance company.
(1) Insurance of the premises' contents, the equipment
serving the premises which the Tenant owns and/or for
which it is responsible and which is situated outside
the premises in the area of the plot, and any repair,
alteration, improvement, renovation and addition to
the premises effected and/or that shall be effected
by the Tenant and/or for it, and any furniture,
equipment, installations and inventories, against
loss or damage in consequence of fire, smoke,
lightning, explosion, earthquake, riots, strikes,
malicious damage, flood, storm and tempest, damage by
a vehicle, damage by an aircraft, water damages,
electrical damages and break-in.
(2) Insurance against loss of profits and consequential
damage to the Tenant, in appropriate amounts and for
an appropriate indemnity
15
period, as a result of loss or damage to the
Tenant's property and/or the premises' contents
and/or the premises' structure.
It is hereby agreed that the Tenant may refrain from
taking out loss of profits insurance as aforesaid,
but in such case Matam shall not bear any liability,
and the Tenant does and shall not have any complaint
and/or demand and/or claim against it, as if the
insurance had been taken out as aforesaid.
The Tenant undertakes to procure that the policy
mentioned in sub-clauses 12(a)(1) and (2) includes an
express condition pursuant whereto the insurer waives
any right of subrogation vis-a-vis Matam and all
those acting on its behalf, vis-a-vis the other
tenants and residents of the building (if there is a
parallel condition in their policies of the insurer's
waiver of any right of subrogation vis-a-vis the
Tenant) and vis-a-vis all the successors and assigns
of the parties mentioned above, save for damage
occasioned with malicious intent.
(3) Third party liability insurance with a limit of
liability not less than an amount in shekels equal to
US$ 1,000,000 (one million US dollars) per event.
This insurance is not subject to any restriction
regarding liability deriving from fire, explosion,
panic, lifting, loading and unloading instruments,
defective sanitary installations, poisoning, any
harmful substance in food or beverage and any claims
by the National Insurance Institute. The insurance
shall be extended to indemnify Matam in respect of
its liability for the Tenant's acts and/or omissions,
and in respect of its liability in the area of the
premises alone by virtue of its being the owner of
the premises and the provider of services in respect
thereof.
(4) Employers' liability insurance in respect of the
Tenant's liability vis-a-vis all those employed by it
and on its behalf with the highest limits of
liability customary on the Israeli insurance market
at the time of taking out the insurance and/or on the
date of its renewal.
This insurance shall not include any restriction
regarding contractors, sub-contractors and their
employees, baits and poisons and regarding the
employment of youth.
The said insurance shall be extended to indemnify
Matam in the event that it is deemed as the employer
of the Tenant's employees or any of them.
16
(b) The Tenant undertakes to update the insurance amount in
respect of the insurance taken out pursuant to clause 12(a)(1)
above from time to time, so that it always reflects the full
value of the property insured pursuant thereto.
The Tenant undertakes to use the monies received from the
insurance company pursuant to the insurance mentioned in
clause 12(a)(1) above solely for the immediate restoration of
the damages the subject of the said insurance.
(c) The Tenant warrants that it shall not have any complaint
and/or demand and/or claim against Matam for damage in respect
whereof it is entitled to indemnity under the insurance taken
out pursuant to clauses 12(a)(1) and 12(a)(2) above, and it
hereby exempts Matam from any liability for such damage.
(d) Without the need for any request by the Company, the Tenant
undertakes, no later than the date of commencing the Tenant's
business in the premises or prior to the date of placing any
assets in the premises, whichever is the earlier, to furnish
the Company with a certificate regarding the taking out of the
premises' insurance in accordance with the form of wording in
the "Certificate of the Premises' Insurances" (annexed hereto
and marked as appendix "F"), duly signed by the insurer.
The Tenant warrants that it is aware that the furnishing of
the "Certificate of the Premises' Insurance" as aforesaid is a
suspensory condition and condition precedent for the delivery
of possession of the premises and/or the placing of any assets
in the premises, and the Company shall be entitled to prevent
the Tenant from commencing its business in the premises and/or
from placing assets as aforesaid if the said certificate is
not furnished prior thereto and at the time indicated above.
(e) For the avoidance of doubt, it is expressed that the failure
to furnish the insurance certificates on time as provided in
clause 12(d) above shall not affect the Tenant's obligations
pursuant hereto, including, and without prejudice to the
generality of the aforegoing, any payment obligation
applicable to the Tenant, and the Tenant undertakes to perform
all its obligations pursuant hereto even if it is prevented
from executing works and/or receiving possession of the
premises and/or placing assets in the premises and/or
commencing its business in the premises as a result of the
failure to furnish the certificates on time.
17
(f) The Tenant undertakes to comply with the terms and conditions
of the policies, to pay the insurance fees in full and on
time, and to procure and ascertain that the premises'
insurance policies are renewed from time to time as necessary
and are valid for the duration of the tenancy term.
(g) No later than 14 days prior to the end of the term of the
premises' insurances, the Tenant undertakes to deposit a
certificate with the Company of the taking out of insurance as
provided in clause 12(f) above in respect of an extension of
their validity [sic] for an additional year and within 30 days
of the renewal of the insurance as aforesaid the Tenant shall
deposit the original copies of the premises' insurances. The
Tenant undertakes to redeposit a certificate of the taking out
of the insurance, at the times fixed, each insurance year so
long as this agreement is in force.
(h) The Tenant warrants and undertakes that the Company's right to
review and inspect the insurance certificates and to instruct
alterations does not impose any liability and/or
responsibility upon the Company and/or anyone acting on its
behalf in respect of the nature and scope of the said
insurance certificates and policies or in respect of their
absence, and does not derogate from any obligation imposed
upon the Tenant pursuant hereto.
(i) The Tenant undertakes not to do and/or permit others to do any
act or omission in the premises and/or the building which is
likely to cause an explosion and/or conflagration and/or which
might increase the insurance expenses for which Matam and/or
the other tenants are liable in respect of the insurance of
the building or the premises situated therein.
(j) Without derogating from the Tenant's obligations pursuant
hereto and pursuant to any law, Matam shall purchase and
maintain, for the duration of the tenancy term, all or any of
the insurance policies specified below, in its exclusive
discretion:
(1) employers' liability insurance - for the insurance of
Matam's liability vis-a-vis its employees pursuant to
the Civil Wrongs Ordinance (New Version), in respect
of any bodily injury to an employee during and in
consequence of his employment in the building and/or
its surroundings;
(2) third party liability insurance - for the insurance
of Matam's and the Tenant's liability vis-a-vis any
third party within the common areas, with limits of
liability that shall not be less than US$ 1,000,000
(one million US dollars) per event and in total for
the insurance term.
18
The policy shall include a "cross liability" clause.
For the avoidance of doubt, the policy shall not
insure the Tenant's liability in respect of bodily
injury and/or damage to property in the premises
and/or the rented areas and/or the areas designated
for rental in the building;
(3) property insurance - insurance of the building and
any other property belonging to Matam in the area of
the building and its surroundings, against loss or
damage in consequence of the following risks: fire,
explosion, earthquake, xxxxx, xxxxxxx, flood, water
damages, aircraft, collision, strikes, riots,
malicious damage, break-in, glass breakage and any
further risk necessary in the opinion of the Company
and/or the management company.
The said insurance shall include a clause regarding
waiver of the right of subrogation vis-a-vis the
Centre's tenants in respect of damage unintentionally
occasioned by them to the building. For the purpose
of this clause, the expression "building" shall
include all the systems comprising an integral part
of the building, and shall expressly not include the
contents of the building's rented areas and any
addition, improvement or extension effected to the
building's rented areas by or for the tenants;
(4) insurance against loss of rent occasioned to Matam by
reason of damage caused to the premises' structure or
by reason of the destruction of the premises'
structure as a result of the risks specified in
clause 12(j)(3) for an indemnity period of 12
(twelve) months.
(k) The Company shall furnish the Tenant with a certificate of the
existence of the insurances specified in clause 12(j) within
seven days of the parties' execution hereof.
(l) The following provisions shall apply to the policies mentioned
in clause 12(j) above:
(1) Matam is entitled from time to time to alter and/or
cancel and/or replace the policies and/or to take out
additional insurances, all in its exclusive
discretion;
(2) the policies shall be made available for the Tenant's
inspection at
19
the Company's offices by prior coordination. The
Tenant may, at its expense, purchase any other,
additional or supplementary insurance besides the
aforementioned policies in its discretion, if the
aforementioned policies are not to its full
satisfaction or do not, in its opinion, meet the
needs of the structure and/or the premises;
(3) the Tenant undertakes to meticulously and fully
comply with all the provisions of the policies in
order to preserve the rights of Matam, the management
company and the other tenants within the framework of
the policies;
(4) the Tenant shall cooperate with Matam in the event
that a claim is submitted to the insurance company
and shall immediately furnish any document, testimony
and the like required for the purpose of submitting
the claim.
(m) The Tenant warrants that it shall not have any complaint
and/or demand and/or claim against Matam in respect of any
damage for which it is entitled to indemnity (or for which it
would be entitled to indemnity were it not for the excess
fixed in the policy) under the insurances taken out pursuant
to clause 12(a) above, and it hereby exempts Matam from any
liability for such damage. As aforesaid, the provisions of
this clause shall add to (and not derogate from) any other
provision hereof regarding exemption from liability vis-a-vis
Matam.
Furthermore, the Tenant exempts the other tenants and
residents in the building from any liability for damage as
aforesaid, provided that the tenancy agreements or any other
agreement vesting them with rights in the building include a
parallel clause regarding exemption from liability in favour
of the Tenant.
(n) In clause 11 above and in this clause 12, the following
expressions shall bear the following meanings:
(1) "damage" - as defined in the Civil Wrongs Ordinance,
including indirect damage, derivative damage,
consequential damage, loss of income and damage to
goodwill;
(2) "Matam" - Matam Science Industries Centre Haifa Ltd,
the Haifa Economic Co. Ltd, Haifa Municipality and
Shatam Haifa Ltd.
The Company shall be the agent for all the entities
mentioned in this sub-clause (n) insofar as the
provisions of this clause are concerned.
20
13. TRANSFER OR CHARGE OF RIGHTS AND RIGHT OF PRE-EMPTION
(a) The Tenant's rights by virtue hereof may not be howsoever
charged, in whole or in part.
(b) The Tenant may not howsoever transfer and/or assign its rights
and/or obligations pursuant hereto or any of them to another
or others (for consideration or otherwise), unless it has
received the Company's prior written consent thereto. The
Company shall not withhold its consent on unreasonable
grounds. In any event of a transfer of rights and/or
obligations, the Tenant shall remain liable for the
performance of its obligations pursuant hereto.
Notwithstanding the above provisions of this sub-clause (b),
it is agreed that the Tenant may assign its rights pursuant
hereto to its parent company, Xxxxx Corporation, whose
registered office is located at 0000 Xxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000, XXX (hereinafter
referred to as "the parent company"), subject to all the terms
and conditions specified below:
(1) the Tenant shall send the Company at least two
months' prior written notice of its intention to
assign its rights to the parent company;
(2) from the assignment date the parent company shall be
liable for the performance of all the Tenant's
obligations pursuant hereto, and for the performance
of all the Tenant's past obligations if and insofar
as such have not been performed by it;
(3) without derogating from the above provisions of
sub-clause (b)(2), it is hereby expressed that the
assignment of the Tenant's rights to the parent
company shall not howsoever derogate from the
Tenant's obligations pursuant hereto until the
assignment date and/or shall not derogate from and/or
constitute a waiver by the Company of any complaint
and/or right available to the Company pursuant hereto
and/or pursuant to any law;
(4) the parent company shall, prior to the date of
assignment of the Tenant's rights and as a condition
therefor, give the Company, for the purpose of
securing the performance of all its obligations
pursuant hereto, an autonomous bank guarantee to the
Company's satisfaction in an amount of US$ 90,000
from a bank that shall be
21
approved by the Company in advance and in writing.
The guarantee shall be valid until 90 days have
elapsed from the end of the tenancy term. The
aforementioned bank guarantee shall replace the
promissory notes given by the Tenant to the Company
in accordance with the provisions hereof.
(c) The Company may transfer and/or assign and/or charge its
rights and/or any of them pursuant hereto (including the
ownership of the premises) to another or others without
requiring the Tenant's consent, provided that the Tenant's
rights pursuant hereto are not prejudiced.
(d) In order to clarify matters, its is agreed and warranted by
the parties that the rights to build on the roof of the
building shall belong to the Company alone, and the Tenant
hereby grants its consent to building on the roof of the
building as the Company decides from time to time, provided
that such does not disturb, to the extent possible, the
Tenant's ordinary operations in the premises.
Notwithstanding the aforegoing, the Company warrants that it
shall not build on the building's roof until May 1999.
14. PROVISIONS REGARDING THE USE OF THE PREMISES
(a) The Tenant may use the premises solely for the purpose of
conducting its business and not for any other object.
Furthermore, the Tenant confirms that it is aware that another
tenant (other tenants) shall use the common area of the
premises and the building, and the Tenant undertakes not to
prevent such tenant (or tenants) from making reasonable use of
the common area, including the grant of access to the common
area, as necessary.
The Company hereby confirms that its tenancy agreements with
the tenants of the Centre and the building contain clauses
similar to sub-clauses (a) to (l) below.
(b) The Tenant shall procure that the plant shall function in
accordance with the custom in the Centre and the Tenant shall
obey and comply with all the instructions given to it from
time to time by the Company and/or Shatam in connection with
the rules of conduct therein. The Tenant shall ascertain and
ensure that its employees and/or successors and assigns also
act pursuant to the provisions of this clause.
22
(c) (1) The Tenant may not execute alterations and/or install
anything in the premises, save for minor alterations
that do not amount to rigid construction, unless it
obtains the Company's prior written consent thereto
and pursuant to terms and conditions that the Company
shall determine. The Company shall not refuse the
execution of such alterations and repairs, save on
reasonable grounds.
Any structural alteration executed in contravention
of the provisions of this sub-clause shall be removed
by the Tenant at its expense immediately upon receipt
of the Company's request to do so, whether during the
tenancy term or thereafter. If the Company approves
an alteration as aforesaid, such alterations and/or
installations shall be removed from the premises, at
the Company's request, at the end of the tenancy
term, at the Tenant's expense, in order that the
premises be restored to the Company in their original
condition. If the Company does not request removal as
aforesaid and the Tenant decides to leave the
alterations and/or installations, the aforementioned
alterations and/or installations shall remain owned
by the Company, and the Tenant shall not be entitled
to request any compensation in respect thereof.
(2) Any alterations and/or installations executed in the
premises in accordance with the provisions of
sub-clause (c)(1) above shall be effected by the
Tenant at its full expense and liability, and the
Company shall not be howsoever liable as landlord
and/or owner.
(d) The Tenant shall maintain order and cleanliness in the
premises and shall comply with all the instructions of the
Company, Shatam and the municipal by-laws in connection with
the cleaning arrangements, the manner of disposing of garbage
and waste and maintaining the proper working order of the
building's drainage and sewerage system. The failure to give
instructions as aforesaid shall not release the Tenant from
its obligations pursuant to this clause.
(e) The Tenant warrants that it is presently in possession of, or
will obtain by the commencement of the tenancy term, all the
approvals and licenses necessary for the management of the
plant and/or the use of the premises in accordance with the
provisions hereof and the provisions of any law, and that it
shall, pursuant to the provisions of the law and the
regulations in connection therewith, keep and always be
equipped with appropriate valid licenses and approvals in
respect of any activity connected with the management of the
plant and/or the use of the premises which require approval or
a license pursuant to law.
23
The failure to obtain the said licenses and/or any of them
shall not constitute a cause for the termination hereof and/or
for the non-performance of the Tenant's obligations pursuant
hereto and in particular for non-payment of the rent and the
other payments pursuant hereto.
(f) The placing of any sign or advertising means or other display
on behalf of the Tenant on the premises' external walls or in
the building's common areas or in the vicinity thereof shall
require the Company's prior written approval.
(g) In addition to the provisions of clause 8 above and in
addition to all the payments for which the Tenant is liable
pursuant hereto, the Tenant shall pay the Company for the
costs of maintaining the common areas of the building,
including the dining room costs, all as provided in appendix
"I" hereto which constitutes an integral part hereof.
(h) The Tenant shall comply with the instructions of the Company
and any other competent authority in connection with fire
extinguishing and fire prevention arrangements and procedures,
the Civil Defence, safety and security, and shall purchase
and/or install, at its expense and by prior written
coordination with the Company, pursuant to the instructions of
the above entities, all the preventative and safety equipment
required for the application and maintenance of the above
instructions. The equipment shall remain owned by the Tenant
which may remove it from the premises at the end of the
tenancy term and it shall do so if requested by the Company.
(i) DISTURBANCES, AVOIDANCE OF NUISANCES AND PRESERVATION OF THE
ENVIRONMENT
(1) The Tenant shall manage the plant and use the
premises by refraining from bothering neighbours and
by refraining from creating a nuisance in the
premises or its surroundings and all in accordance
with the practice in the building and/or the Centre
and/or with the Company.
(2) The Tenant hereby confirms that its plant does not
constitute an ecological hazard and that it shall not
constitute such during the tenancy term pursuant
hereto.
(3) Without derogating from all the above provisions, the
Tenant shall act and instruct its employees and
anyone acting on its behalf to act in accordance with
the provisions of the Abatement of Nuisances Law,
5721-1961 and the Maintenance of Cleanliness Law,
5744-
24
1984 and all the regulations and orders
thereunder and of all the by-laws of the Haifa
Municipality and the local authority.
(j) The Tenant undertakes to refrain from any act or omission in
the premises, and to refrain from permitting an act or
omission by another or others in the premises, which is likely
to impose liability upon the Company pursuant to law,
including damages to person and/or property.
(k) The Tenant shall totally refrain from taking any possession of
the common area.
15. WARRANTY FOR THE QUALITY OF THE BUILDINGS AND THE PREMISES
(a) The Company shall, within the framework of the warranty of the
contractor which built the premises for it (hereinafter
referred to as "the contractor"), be liable to repair the
defects and/or faults detected and/or arising in the premises
within one year of the delivery date (hereinafter referred to
as "the warranty period") and deriving from defective work
and/or the use of defective materials. The Tenant must notify
the Company in writing of any such defect immediately upon its
detection.
If the Tenant does not notify the Company of defects at the
aforesaid time, such shall be deemed confirmation on its part
that there were no such defects in the premises.
(b) If the Tenant notifies the Company after the end of the
warranty period of a defect in respect whereof the Company has
a warranty from the contractor which executed the work in the
premises for a period longer than the warranty period as
defined in sub-clause (a) above, the Company shall exercise
its right pursuant to the aforementioned warranty, such that
the performing contractor shall repair the defect, and such
being without recognising any obligation and/or liability on
the Company's part.
The Company shall act to the best of its ability in order to
realise the contractors' full liability towards it as provided
in sub-clause (a) above and in this sub-clause.
If the parties decide to enable the Tenant to exercise the
Company's rights pursuant to the contractor's warranty as
provided above, the Company shall assign all its rights
pursuant to the agreement between it and the contractor, and
the Tenant for its part may not have recourse to the Company
for any reason. The Company may not refuse to assign its
rights as aforesaid, save on reasonable grounds.
25
(c) The Tenant shall be liable, at its expense, for the routine
maintenance of the premises and their systems, including the
air conditioning systems, and shall, at its expense, repair
all the routine faults discovered in the premises, as speedily
as possible in the circumstances of the case.
(d) Without derogating from the aforegoing, the Tenant shall use
the premises with appropriate care, maintain them in good and
proper condition (including whitewashing and painting)
throughout the tenancy term and effect, without delay and at
its expense, all the repairs necessary in order to perform its
obligation pursuant to this clause.
(e) If the Tenant and/or the Company do not perform their
obligations as provided above in this clause, the second party
may (but is not obliged), after giving the other party ten
days' prior written notice during which the obligation is not
performed or the performance thereof is not commenced, itself
perform the maintenance and repairs for which the other party
is liable, and the Tenant or the Company, as the case may be,
shall reimburse the second party with all the expenses
incurred by it for such purpose, immediately upon its first
demand and in accordance with the provisions of such request.
16. NON-APPLICABILITY OF THE TENANTS' PROTECTION LAWS
The parties hereby warrant that:
(a) the construction of the building and the premises was
completed after 5728-1968 and that the Tenants' Protection Law
(Consolidated Version), 5732-1972 shall not apply to the
tenancy by virtue hereof, or at all;
(b) no key money or other similar payment has been or shall be
paid to the Company or any other person and such has not been
nor shall be received from the Tenant in consideration for the
delivery of use of the premises and everything connected
therewith;
(c) the Tenants' Protection Law (Consolidated Version), 5732-1972
and/or any other law for the protection of tenants presently
existing or which shall be promulgated in the future shall not
apply in respect of this agreement and to the parties'
relations by virtue hereof.
26
17. RIGHT OF ENTRY TO THE PREMISES
The Company's representatives shall have a right of entry to the
premises (subject to security restrictions) during reasonable hours and
by prior coordination with the Tenant in order to ascertain the degree
to which the provisions hereof are being performed and/or in order to
show the premises to others and/or in order to do the acts and take the
steps prescribed herein or in any law and obliging entry to the
premises, provided that any damage occasioned to the Tenant as a result
of its refusal to permit entry in the said cases and for the said
objects or its refraining from coordinating entry as aforesaid to the
premises shall be borne by the Tenant alone, and the Tenant shall not
have any complaint and/or claim against the Company by reason thereof.
The Company shall act to the best of its ability to ensure that the
disturbance to the Tenant shall be as minor as possible and that the
premises are restored to their previous condition as soon as possible
and insofar as possible.
18. VACATION OF THE PREMISES
(a) No later than the date on which the tenancy term comes to an
end, the Tenant shall vacate the premises and return
possession thereof to the Company, with them being vacant of
any person and object (save for equipment and accessories
belonging to the Company) and in good and proper condition as
delivered to the Tenant, save for reasonable wear and tear.
(b) In respect of and for each day of delay in returning
possession of the premises contrary to the provisions of
sub-clause (a) above, the Tenant shall pay the Company the
full month's rent for the last month of the tenancy term
divided by 10 together with due VAT. This payment, which shall
be deemed pre-agreed liquidated damages, shall not derogate
from any other remedy to which the Company is entitled
pursuant to any law and/or agreement.
(c) On the vacation date, the representatives of the Company and
the Tenant shall draw up vacation minutes which shall state
the defects and repairs which the Tenant must effect in order
to restore the premises to a good and proper condition and
pursuant to the timetable agreed upon.
27
Notwithstanding the aforegoing, Matam may effect the repairs
itself and the Tenant shall reimburse Matam with the costs of
effecting the repairs pursuant to invoices submitted to it by
Matam. Matam may withhold the collaterals mentioned in clause
10 until completion of the repairs by the Company and if
necessary it may realise the collaterals as cover for its
aforementioned expenses.
19. NEGATION OF REPRESENTATION, THE TENANT'S EMPLOYEES
(a) The provisions hereof and/or the parties' conduct by virtue
hereof shall not be interpreted as empowering one party to
appear in the other party's name or stead, or as conferring,
pursuant to the aforesaid, the status of representative of the
other party.
(b) The employees of one party shall not be deemed the
employees of the other party in any circumstances and for
any object.
20. FUNDAMENTAL BREACH OF THE AGREEMENT
Without derogating from the provisions of any law, each of the
following acts or omissions shall be deemed a fundamental breach of the
agreement by the Tenant and shall serve as a cause for vacation of the
premises forthwith and for their return to the exclusive possession of
the Company, and all on prior written notice of 21 days, unless the
fundamental breach hereof is rectified by the Tenant to the Company's
satisfaction by the date fixed in the aforementioned notice:
(a) the cessation of the Tenant's activity for a period exceeding
180 days, save in circumstances of force majeure alone, and/or
the submission of an application for the Tenant's winding up
and for the appointment of a receiver over a material part of
the Tenant's property, and the application or appointment,
respectively, is not cancelled within 60 days;
(b) a delay in payment of the rent, including the supplemental
rent, or in effecting any of the other payments for which the
Tenant is liable by virtue hereof and/or the breach thereof
for a period exceeding 30 (thirty) days from the time fixed
for the payment thereof, provided that the Tenant is sent
notice thereof requesting that the payments be made and it
does not comply therewith within seven days;
(c) the grant of a use right or the transfer or charge of rights
or any of them in contravention of the provisions of clause 14
above;
28
(d) the Tenant's failure to take out and/or maintain the insurance
in contravention of the provisions of clause 13 above;
(e) the failure to return possession of the premises at the time,
in the manner and in the condition specified herein;
(f) the grant of an order in connection with the Tenant containing
an arrangement with creditors and/or an arrangement in favour
of creditors and/or a receivership and/or bankruptcy and/or
winding up of any type whatsoever and/or the dissolution of
business in any manner, and the order is not cancelled within
sixty days;
(g) the non-performance of the obligations pursuant to the
agreement between the Tenant and Matam and the failure to
comply with the instructions of Shatam, the Centre's services
company;
(h) the Tenant causes any nuisance pursuant to clause 15(h)
hereof;
(i) effecting alterations in the premises without obtaining the
Company's prior written permission;
(j) the non-performance of the obligation to use the premises as
provided in clause 15 hereof;
The provisions of this clause do not prejudice the Company's right to
any other relief to which it is entitled against the Tenant pursuant to
law and/or agreement in respect of its breach.
21. EARLY VACATION OR ABANDONMENT
If the Tenant vacates or abandons the premises or is evicted from the
premises prior to the end of the tenancy term or in the case of a
breach of this agreement without the Company's prior written consent,
the Tenant shall continue paying the Company rent and all the other
payments for which it is liable by virtue hereof until the end of the
tenancy term, as if it had continued to possess and use the premises.
The provisions hereof shall not derogate from the Company's right to
terminate the agreement on the basis of the provisions of clause 20
above.
It is agreed and warranted by the parties that this clause shall not
apply in the case of force majeure as defined below:
for the purpose of this clause 21, force majeure means:_______________
29
__________________
It is agreed and warranted by the parties that the Tenant shall be
entitled to bring an alternative tenant in its stead, provided that all
the following cumulative conditions are fulfilled:
(a) the Tenant fulfills all the terms and conditions of the
agreement until the date on which the premises are actually
transferred to the alternative tenant who shall be approved by
the Company as provided below; and
(b) the Company is given at least two months' prior written notice
thereof; and
(c) the alternative tenant is approved by the Company, whose
decision shall be exclusive and final; however, the Company
shall not withhold its consent, save on reasonable grounds;
and
(d) the terms and conditions of the new tenancy agreement with the
alternative tenant shall be agreed between it and the Company
to the Company's satisfaction, provided that they shall not be
inferior to the terms and conditions hereof; and
(e) subject to the provisions of sub-clause (d) above, the
alternative tenant shall perform all the Tenant's obligations
and give the Company collaterals / guarantees to its
satisfaction.
The above provisions of this paragraph do not derogate from
the Tenant's obligations pursuant hereto.
22. SELF-HELP
Wherever an obligation is imposed on a party hereto and such party does
not absolutely perform it or does not perform it properly, for any
reason whatsoever, the second party may (but is not bound to) perform
or complete the performance of any such obligation itself and/or by
others, within a reasonable time, and all the reasonable expenses
involved therein shall be borne by the other party. Such expenses shall
be reimbursed to the second party on the production of an invoice
(based on appropriate references) submitted by it to the other party
within 30 days of the invoice's submission. If the Tenant incurs any
such expense, it may deduct it from the rent if it has given the
Company 30 days' prior written notice thereof and the Company has
failed to indemnify it in respect of the said expense.
30
23. CONSTRUCTION, REPAIRS, IMPROVEMENTS AND DEVELOPMENT WORKS
The provisions hereof shall not prevent the Company and Shatam from
erecting installations and executing construction, repairs,
improvements and development works in the building, the premises, its
surroundings and/or the Centre, so long as such do not unreasonably
disturb the Tenant in the management of its plant. The Tenant shall not
object to the execution of the above acts and shall cooperate with the
Company and/or Shatam as aforesaid and at their expense insofar as the
execution thereof is concerned.
It is agreed that the aforementioned works shall be at the Company's
liability and expense, unless the parties otherwise agree in writing.
24. EVIDENCE AND MODIFICATION OF THE AGREEMENT
(a) Any alteration hereto and/or modification hereof shall only be
effected in an express written document that shall be signed
by the parties hereto.
(b) The consent of a party hereto to a deviation from the terms
and conditions hereof in a particular case or in a series of
cases shall not constitute a precedent and no inference shall
be drawn therefrom in the same case and/or in any other case
in the future.
(c) If a party to this agreement has not used or has delayed in
using any of the rights vested in it pursuant hereto in a
particular case or in a series of cases, such shall not be
deemed a waiver of any of its rights.
(d) It is agreed between the parties that the acceptance of a
cheque or notes does not constitute payment, until they have
actually been paid.
25. JURISDICTION
It is agreed between the parties that any dispute and/or difference
and/or judicial proceeding in connection herewith and the obligations
deriving herefrom shall be decided solely and exclusively pursuant to
the Israeli law, and that the sole and exclusive place of jurisdiction
is the competent court in Xxxxx.
00
00. STAMP DUTY
(a) All the costs of stamping this agreement and the copies hereof
shall be borne and paid by the parties in equal shares.
(b) Stamps tax applicable to the collaterals mentioned in clause 9
above (including the costs of obtaining them) shall be paid by
the Tenant.
27. CONFIDENTIALITY
For so long as the agreement is in force, the parties undertake to
maintain confidentiality in respect of all the plans connected with the
building, the floor and its systems, with the aim of preventing any
malicious sabotage of the building.
Wherever such a disclosure is obliged, the parties undertake to obtain
from the person receiving the plans, save for government entities, a
written undertaking to maintain confidentiality in respect thereof and
to return them when the need to continue holding them comes to an end.
Furthermore, the parties undertake to maintain confidentiality in
respect of the terms and conditions hereof, save for the commercial
details insofar as such are required by an external entity or external
entities or for the Tenant's activity.
28. NOTICES AND WARNINGS
(a) Any notice and/or warning and/or request sent from one party
to the other in connection herewith shall be sent by
registered mail or delivered by hand to the addresses of the
parties set forth below (or any other address of which
appropriate written notice is given), and such notice or
warning shall be deemed to have been delivered to the
addressee upon its actual delivery - if delivered by hand, and
if sent by mail in Israel - at the end of 72 hours from being
placed in the mail, with the postage fees having been fully
paid in advance.
(b) The addresses of the parties as aforesaid are:
(1) the Company - Matam - Science Industries Centre Ltd,
Postal Agency Matam 31905 Haifa;
(2) the Tenant - at the premises.
32
29. The parties warrant and confirm that they have read this agreement and
all the clauses and appendices hereto and they have understood the
contents, nature and significance thereof and agree to the provisions
thereof.
AS WITNESS THE HANDS OF THE PARTIES:
-------------------- --------------------
THE COMPANY THE TENANT
33
APPENDIX "I"
ADDENDUM TO THE TENANCY AGREEMENT DATED
BETWEEN: MATAM - SCIENCE INDUSTRIES CENTRE HAIFA LTD
PC 00-000000-0
(hereinafter referred to as "the Company")
OF THE ONE PART
AND: XXXXX MICRO-ELECTRONICS LTD
PC 00-000000-0
(hereinafter referred to as "the Tenant")
OF THE OTHER PART
WHEREAS the Tenant wishes the Company to manage the building's common
areas (as defined below);
AND WHEREAS the Company has agreed to see to the management and
maintenance of the building's common areas for the
consideration and subject to the terms, conditions and
provisions specified in this addendum (hereinafter referred
to as "the addendum") and the appendices hereto;
AND WHEREAS the Tenant wishes catering services to be provided in the
building to its employees and guests;
AND WHEREAS the Company has agreed to assign a section of the
building's common areas which shall serve as a dining room
(as defined below) for the purpose of providing catering
services to the companies renting areas in the building and
their guests for the consideration and subject to the
terms, conditions and provisions specified in this addendum
and the appendices hereto;
34
ACCORDINGLY, IT IS WARRANTED AND PROVIDED BETWEEN THE PARTIES AS FOLLOWS:
1. RECITALS
1.1 The recitals and appendices hereto constitute an integral part
hereof.
1.2 This addendum constitutes an integral part of the tenancy
agreement executed between the parties on __________________
(hereinafter referred to as "the agreement").
2. DEFINITIONS
In this addendum -
"THE BUILDING" - as defined in the tenancy agreement;
"THE CONTRACTOR" - Norcate Ltd, which has undertaken to supply catering
services to the tenants in building 30 and its guests in accordance
with the terms and conditions of the agreements executed between it and
each of the tenants in building 30 or any other contractor elected by
the tenants in building 30 in accordance with the terms and conditions
of the agreements executed between them and the contractor;
"THE TENANTS IN BUILDING 30" - i.e. Aurec, ABB, Xxxxx Israel and/or
anyone renting areas in the building from the Company instead of any of
them;
"THE TENANT'S EMPLOYEES" - the Tenant's employees and guests and/or
anyone permitted by the Tenant's representative (as defined below) to
enter the dining room (as defined below) and to use the catering
services as defined below in this clause, all in accordance with the
written guidelines given by the representative to the contractor;
"THE COMPANY'S REPRESENTATIVE" - anyone appointed from time to time by
the Company in its exclusive discretion to supervise and monitor the
use made of the dining room;
"THE TENANT'S REPRESENTATIVE" - a representative appointed by the
Tenant, whose position involves the ordering of the catering services,
approval of the contractor's invoices and the payment thereof, and any
routine acts in connection with the catering services;
35
"THE DINING ROOM" - an area of approx. 315 square metres in building 30
as marked in red in appendix "A" which is designated for the purpose of
operating a dining room and the provision of the catering services as
defined below, which includes a dining hall (designated to accommodate
approx. 120 seats for diners) and a kitchen for heating and/or
rewarming;
"THE CATERING SERVICES" - the preparation of meals and their service to
the Tenant's employees in the dining room in the manner, to the extent
and subject to the terms, conditions and provisions provided
hereinbelow;
"COMMON AREA" or "COMMON AREAS" - as defined in the tenancy agreement
and together with the dining room as defined above;
"THE ROUTINE EXPENSES" - expenses in respect of maintaining the common
areas, including, inter alia, the following components:
(a) the cleaning and maintenance of the common area (including the
building's external walls and roof);
(b) the maintenance of the common equipment, elevators, air
conditioning equipment and the like;
(c) electricity in the common area;
(d) water in the building (including water in the conveniences on
all the floors);
(e) the costs of operating the dining room, including structural
insurance, the maintenance of the dining room structure and
rates, and save for the cost of obtaining the catering
services from the contractor for which the Tenant and all the
other tenants in building 30 are solely and exclusively
liable;
"THE INDEX" - the consumer price index published by the Central Bureau
of Statistics and Economic Research, including such index even if
published by another government institution, whether built on the same
data on which the existing index is built or not. If the index is
replaced as aforesaid, the Central Bureau of Statistics shall determine
the ratio between it and the cost of living index which replaces it;
"THE BASE INDEX" - the index for March 1996 which was published on 15th
April 1996 and which stands at 133.0 points, save where this addendum
expressly otherwise provides;
"THE DETERMINING INDEX" - the index known on the date of actually
effecting any payment;
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"THE PROPORTIONAL PART OF THE ROUTINE EXPENSES" - the Tenant's part of
the routine expenses, which shall be computed pursuant to the
proportional part rented by the Tenant in the building in relation to
the total area of the building, i.e. 21.6%;
"OVERHEADS AND MANAGEMENT FEES" - payment for the general management of
the common area which shall constitute 12% of the proportional part of
the routine expenses;
"THE DINING ROOM EXPENSES" - payment for the assignment of an area in
the building for the operation of the dining room and the expenses
involved therein.
3. MANAGEMENT OF THE COMMON AREAS
3.1 The parties hereby agree and undertake that the Company
and/or someone acting on its behalf shall manage the
maintenance of the common areas in the building on standards
acceptable in buildings which were constructed in the
Centre, and in consideration the Tenant shall pay the
Company the proportional part of the routine expenses as
defined above.
The Tenant shall pay the proportional part of the routine
expenses in accordance with the provisions of clause 5
below.
3.2 It is hereby agreed that in addition to payment of the
proportional part of the routine expenses as provided above,
the Tenant shall also pay the Company, at the same times,
overheads and management fees as defined above for managing
the maintenance of the common areas.
3.3 In addition to and without derogating from the provisions of
sub-clauses 3.1 and 3.2 above, the Tenant shall pay the
Company in respect of the dining room expenses as provided
below:
3.3.1 the area of the premises for the purpose of
paying rent for the premises each month, as
prescribed in clause 1(a) of the agreement (i.e.
1,646 square metres) shall be increased by 5.3%
to 1,733 square metres, commencing from the date
of the dining room's operation;
3.3.2 for the avoidance of doubt, it is hereby agreed
that the increase of the area of the premises as
provided in sub-clause 3.3.1 above is for the
purpose of charging for the dining room
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expenses alone and such shall not add to
and/or alter the Tenant's rights insofar as
the rental of areas in the building are
concerned and/or increase the actual area of
the premises.
3.4 It is hereby agreed between the parties that the Company's
representative may permit the provision of catering services
in the dining room to the employees and guests of companies
which are not renting areas in building 30 (hereinafter
referred to as "the external company"), provided that prior
written consent thereto is given by the tenants in building
30 together renting more than 66% of the areas being let in
the building, and subject to the external company
participating in the dining room expenses at a rate
determined by the Company's representative.
Monies for participation in expenses collected from the
external company as provided in this sub-clause shall be
distributed amongst the tenants in building 30 which
participate in the dining room expenses as provided in
clause 3.3 above. The distribution shall be effected pro
rata to the tenants' share of the payment of the dining room
expenses.
3.5 It is hereby agreed that the Company and/or the Company's
representative may use the dining room to hold special
functions, provided that use as aforesaid may only be made
by prior coordination with Xxxxx in order to prevent,
insofar as possible, impairment of the catering services.
It is further hereby agreed that the Tenant and/or any of
the tenants in building 30 may hold special functions in the
dining room, provided that the date of holding the special
function is coordinated with the Tenant in building 30
[sic].
If a preferred date for the holding of a function by one of
the tenants in building 30 overlaps with a preferred date
for the holding of a function by a third party, preference
shall be given to the tenant in building 30.
For the avoidance of doubt and without derogating from the
Tenant's liability as provided in the agreement and this
addendum, it is hereby expressed that the Tenant shall be
liable for any damage to person and/or property occasioned
to the Tenant's employees and/or to any third party which is
directly or indirectly connected with a special function
held by the Tenant and/or anyone on its behalf in the dining
room.
If a claim is filed against Matam by any of the Tenant's
employees or by any third party in respect of damage for
which the Tenant is liable pursuant to this sub-clause, the
Tenant shall indemnify Matam, subject to
38
the Tenant being given notice regarding the existence of
the proceedings against the Company and to it being given
the opportunity to defend itself against the claims
raised within the framework of the aforementioned
proceedings, in respect of any amount which Matam is made
liable to pay any of the Tenant's employees and/or any
third party, together with trial costs and including
principal, interest, linkage, official fees, advocates'
professional fees, VAT and any other expenses deriving
from the claim.
3.6 Without derogating from the provisions of clauses 3.1 to 3.3
above and for the avoidance of doubt, it is hereby expressed
that on the ground floor and fourth floor of the building
there are expenses relating to the maintenance of the common
area which shall only be borne by the companies renting
areas on such floors pursuant to their proportional part of
the area let by the Company on such floors in relation to
the entire floor area.
4. LIABILITY WITH REGARD TO THE COMMON AREAS
4.1 The Tenant hereby warrants that it is aware and agrees that:
4.1.1 The catering services in the dining room,
including the payment in respect thereof, are
regulated in the agreement between the
contractor and the Tenant which is annexed
hereto as appendix "B".
Matam shall not be howsoever liable for the
catering services and, inter alia and without
derogating from the generality of the
aforegoing, for the quality of the food and/or
any damage to person and/or property occasioned
to the Tenant and/or any third party which is
directly and/or indirectly connected with the
catering services.
4.1.2 Without derogating from the provisions of clause
11 of the agreement, the Tenant alone shall be
liable vis-a-vis Matam and/or any third party,
as the case may be, for any injury, loss or
damage to person or property (and without
derogating from the generality of the
aforegoing, including property of the Tenant,
its employees and guests) which occurs or is
occasioned in the domain of the common areas in
consequence of an act and/or omission of the
Tenant and/or anyone acting on its behalf and/or
Matam and/or anyone acting on its behalf and the
aforementioned liability shall not be borne by
Matam, subject to the provisions set forth
below.
39
The Tenant's liability as provided above in this
sub-clause, insofar as it relates to an act or
omission of Matam and/or those acting on its
behalf, shall be in accordance with that defined
under the third party liability insurance policy
as provided in clause 12(a)(3) of the agreement,
with it being limited to an amount of US$
5,000,000 per event and in total for the entire
insurance term.
4.1.3 If a claim is filed against Matam by any third
party in respect of damage for which the Tenant
is liable pursuant to this clause 4, the Tenant
shall be liable to indemnify Matam, immediately
upon being requested to do so, in respect of any
amount which Matam shall be held liable to pay
the third party, together with all Matam's
expenses in respect of conducting the trial with
the third party and, without prejudice to the
generality of the aforegoing, principal,
interest, linkage, advocates' professional fees,
official fees, trial costs, VAT and any other
expenses deriving from the claim.
Matam's indemnity by the Tenant shall be
conditional upon the Tenant being given notice
regarding the existence of the proceedings
against Matam and upon the Tenant being given an
opportunity to defend itself against the claims
raised within the framework of the
aforementioned proceedings.
4.1.4 The Tenant undertakes to indemnify and/or
compensate Matam immediately upon being
requested to do so in respect of any damage
and/or expense occasioned to Matam in
consequence and in respect of a breach of the
Tenant's obligations pursuant to this addendum.
4.1.5 It is not the intention of this clause, and all
the sub-clauses hereof, to create rights in
favour of any third party.
4.1.6 The sub-clauses of this clause supplement and do
not derogate from each other.
4.1.7 For the purpose of clause 3.5 and this clause 4,
the expressions "damage" and "Matam" shall bear
the meaning prescribed in clause 12 of the
agreement.
40
5. PAYMENT IN RESPECT OF THE MANAGEMENT AND MAINTENANCE OF THE COMMON
AREAS
5.1 Subject to the transfer of data on the planned budget as
provided in clause 5.4 below, the Tenant undertakes to pay
the Company, at the time of paying the rent as prescribed in
the agreement, the proportional part of the routine
expenses, as defined in clause 2 above, overheads and
management fees and dining room expenses, as provided in
this addendum and the appendices hereto.
5.2 The amount of the routine expenses and overheads and
management fees that shall be paid to the Company by the
Tenant, as prescribed in this addendum and the appendices
hereto, shall be detailed in a written request that the
Company shall give the Tenant from time to time, and they
shall be paid by the Tenant to the Company upon effecting
the next rent payment following the receipt of any request.
It is hereby agreed between the parties that the Tenant may
request from the Company, and the Company hereby undertakes
to furnish to the Tenant following receipt of such a
request, invoices or other documents approved by the
Company's comptroller (including agreements) attesting to
the amount of the routine expenses incurred by the Company
within the framework of maintaining the common areas.
5.3 For the avoidance of doubt, it is expressed and agreed by
the parties that the payment of monies by the Tenant to the
Company for the maintenance and management of the common
areas as prescribed in sub-clause 5.1 and 5.2 above shall be
effected commencing from the delivery of the premises to the
Tenant as provided in the agreement and until the end of the
tenancy term.
5.4 It is hereby agreed that one month before the commencement
of each calendar year during the tenancy term the Company
shall convey to the Tenant, for its inspection, data on the
planned budget for the management and maintenance of the
common areas (hereinafter referred to as "the planned
budget") for the coming calendar year. A deviation of more
than 5% from the planned budget shall necessitate the
Tenant's prior written consent (in respect of a deviation of
more than 5%).
For the avoidance of doubt, a deviation of up to 5% does
not require the Tenant's consent.
41
6. GENERAL
6.1 The Tenant hereby warrants that it is aware that pursuant to
the agreement that shall be executed/has been executed
between the Company and the contractor for the provision of
catering services, the Company is reserving unto itself,
inter alia, the right to bring about early termination of
the term for borrowing the dining room that shall be
given/has been given to the contractor, and such being by
giving 30 days' prior written notice to the contractor and
without being required to give grounds for its said
decision.
The Tenant warrants and undertakes that it does not and
shall not have any complaints and/or claims and/or demands
against the Company in connection therewith, provided that
the Company contracts with another contractor for the
provision of catering services and that the provision of the
catering services to the tenants in building 30 is not
affected.
6.2 It is hereby agreed that save for the provisions of this
addendum and the appendices hereto, there shall be no
alteration to the terms and conditions of the agreement and
the appendices thereto.
AS WITNESS THE HANDS OF THE PARTIES:
-------------------- --------------------
THE TENANT THE COMPANY
42
SPECIAL TERMS AND CONDITIONS APPENDIX
1. The Company warrants that it intends erecting in the area of the
Science Industries Park in Haifa, including the area known as Matam
West (hereinafter referred to as "the Centre") a building of a total
area of approx. 5,000 square metres (hereinafter referred to as "the
planned building") which shall be built on the basis of a specification
that shall be agreed between the parties and which shall not be
inferior to the specification of building 30 and building 23 which were
built by the Company in the Centre.
The location of the planned building shall be determined by Matam
within Matam West Park, by consent with Xxxxx - and Xxxxx shall not
object to the location on unreasonable grounds.
2. The Tenant warrants that it wishes to rent an area of approx. 2,500
square metres in the planned building for a term of seven years,
commencing at the end of the tenancy term in respect of the premises in
building 30, i.e. commencing from 15th May 1999.
3. It is hereby agreed that the location and size of the planned building
shall be determined by the Company in its discretion, having regard to
the Tenant's requirements.
4. It is further agreed between the parties that:
4.1 The Tenant shall notify the Company in writing by 15th
May 1997 if it wishes to increase or reduce the area which
it shall rent in the planned building by 500 metres.
4.2 The Tenant may sub-let an area of up to 40% and not more
than 1,000 square metres of the area which it shall rent in
the planned building for a period of up to
____________________; however, it is hereby expressed that a
sub-tenancy as aforesaid shall be conditional upon obtaining
the Company's prior written approval and to fulfillment of
the terms and conditions set forth below:
43
4.2.1 The Tenant shall give a written prior
undertaking to the Company's satisfaction that
it shall remain liable for the performance of
all its obligations to the Company, including
pursuant to the tenancy agreement and the
appendices thereto, that it shall be liable for
all the acts and/or omissions of the sub-tenant,
and that the sub-letting of the premises and/or
any part thereof by it shall not howsoever
derogate, directly or indirectly, expressly or
impliedly, from the Tenant's obligations to the
Company pursuant to the tenancy agreement and
the appendices thereto.
4.2.2 The Tenant shall give the Company written
approval from its parent company
____________________ that it agrees to the
Tenant sub-letting the premises and/or any part
thereof and that it is aware and agrees that the
guarantee which it has given for the performance
of the Tenant's obligations pursuant to the
tenancy agreement shall remain in force
unaltered and that the sub-letting shall not
howsoever derogate from its obligations and/or
the Tenant's obligations vis-a-vis the Company
as provided in the tenancy agreement and the
appendices thereto.
For the avoidance of doubt, it is hereby
expressed that the collaterals that the Tenant
shall give the Company, including the guarantee
of the parent company, shall serve to secure the
obligations of the Tenant and the sub-tenant.
4.2.3 The sub-tenant may not transfer and/or assign
and/or charge its rights in the premises to any
other entity.
4.2.4 The object of the sub-tenant and the nature of
its activity accord, in the Company's exclusive
discretion, with the normal activity in the
Centre.
4.3 The remaining areas in the planned building that are not let
to the Tenant shall be let to other entities in the
Company's exclusive discretion. Letting to other entities as
aforesaid shall be for a term of up to three years, and such
being in order to enable Zoran's future expansion by the
letting of additional areas in the planned building.
Notwithstanding the above provisions in this sub-clause, it
is hereby expressed that a decision regarding the entities
to which the areas in the planned building should be let and
for what period of time is within the Company's exclusive
discretion.
44
4.4 It is agreed between the parties that the rent which the
Tenant shall pay the Company for the rental of an area in
the planned building or for the alternative premises (as
defined in clause 6 below) shall be as provided below:
4.4.1 The monthly rent for each 1 square metre of the
area of the premises in the planned building or
in the alternative premises, as the case may be,
shall be $ 12.74 (twelve US dollars and seventy
four cents) together with due VAT and linkage to
the index (with the base index being the index
for February 1996), as follows:
4.4.1.1 the rent for 1,330 square metres
shall be linked, from the
commencement of the tenancy term and
until 15th May 2003, to the rate of
the dollar together with CPI
linkage;
4.4.1.2 in respect of the entire area rented
that is in excess of 1,330 square
metres, the rent shall be linked to
the Consumer Price Index in Israel,
with the base rate of exchange being
NIS 3.11 per US$ 1;
4.4.1.3 the rent for 1,330 square metres of
the area of the premises, as
provided in sub-clause 4.4.1 above,
shall, commencing from 16th May
2003, be identical to the average of
the rent for the area of the
premises in excess of 1,330 square
metres in accordance with the
provisions of sub-clause (2) and the
rent in NIS in May 2003 computed
pursuant to clause (1).
5. The Tenant hereby warrants that it is aware and agrees that the Company
is not undertaking to erect the planned building and that it does not
and shall not have any complaints and/or claims against the Company in
such regard.
The Tenant further warrants that it is aware that the decision on the
planned building's erection is conditional, inter alia, on obtaining
the approval of the Company's board of directors and on obtaining
approvals from the various competent authorities.
45
6. The parties hereby agree that if the planned building is not erected
for whatsoever reason, the Company shall let to the Tenant, and the
Tenant shall rent from the Company, alternative premises of an area of
approx. 1,330 square metres the specification whereof shall be of a
standard similar to that existing in the premises in building 30
mutatis mutandis (hereinafter referred to as "the alternative
premises").
The alternative premises shall be let to the Tenant for a period
commencing from 16th May 1999 and ending on 15th May 2003.
7. It is hereby agreed that all the other terms and conditions of the
tenancy agreement that shall be executed between the parties regarding
the area in the planned building or the alternative premises, as the
case may be, shall be in accordance with the terms and conditions of
the agreement executed between the parties regarding the rental of an
area in the building known as building 30 in the Centre, mutatis
mutandis.
AS WITNESS THE HANDS OF THE PARTIES:
-------------------- --------------------
THE COMPANY THE TENANT
46
