EXHIBIT 10.11
TRANSLATION FROM THE HEBREW
Lease Agreement
Beit Hacrystal
UNPROTECTED LEASE AGREEMENT
Made and signed in Bnei-Brak on December 31, 1999
By and between:
Nichsei Crystal Lemischar (Ramat-Gan)
(Private Company Registration No. 51-036459-9)
A private company duly registered in Israel
Whose address for the purpose of this agreement is
at 00, Xxxxxxxxxx Xx., Xxxxx-Xxx.
(hereinafter: the "Lessor")
of the first part
And:
XACCT Technologies (1997) Ltd.
(Private Company Registration No. 51-249311-5)
Whose address for the purpose of this agreement is
at 00, Xxxxxx Xxxxxx, Xxxx Xxxx
(hereinafter: the "Lessee")
of the other part
Whereas the Lessor is the registered owner of the property known as
Parcel No. 365 in Block No. 6109, situated at 00, Xxxxxxxxxx
Xxxxxx, Ramat Gan, covering a registered area of approximately
2,852 sq.x. xxxxx (hereinafter: the "Lot"); and
Whereas the Lessor has built on the Lot, inter alia, a project
consisting of an 8-10 floor office building, a commercial level
and a gallery, with four basement levels, covering a total area
of circa 9,500 sq.m. for office use, circa 1,000 sq.m. for
commercial use and circa 12,000 sq.m. basements, the basement
levels primarily to
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consist of an underground parking lot and approximately 1,200
sq.m. technical space (hereinafter: the "Building"); and
Whereas the Lessor is, accordingly, also the holder and owner of a
Building unit on the second floor above the ground floor facing
north-east covering approximately 455 sq.x. xxxxx (including a
pro rata share in the common property) (hereinafter: the
"Second-Floor Leasehold"), as well as a unit covering the entire
area of the third floor above the ground floor covering
approximately 1,200 sq.x. xxxxx (including a pro rata share in
the common property) (hereinafter: the "Third-Floor Leasehold"),
all as marked in the area encircled by red in the attached
diagram (hereinafter: the "Diagram"), marked A, constituting an
inseparable part hereof (the Second-Floor Leasehold and the
Third-Floor Leasehold shall hereinafter be referred to as: the
"Leasehold"); and
Whereas the Lessee wishes to lease the Leasehold under unprotected
lease pursuant to the Tenants Protection Law (Combined Version)
5732-1972 (hereinafter: the "Law") or any other law; and
Whereas the Lessor wishes to lease the Leasehold under an unprotected
lease pursuant to the Tenants Protection Law (Combined Version),
5732-1972, or any other law;
NOW, THEREFORE, IT IS AGREED AND STIPULATED BY AND BETWEEN THE PARTIES AS
FOLLOWS:
1. PREAMBLE, APPENDIXES AND HEADINGS:
1.1 The Preamble hereto constitutes an inseparable part hereof.
1.2 The appendixes hereto constitute an inseparable part hereof
and shall be deemed as the provisions hereof.
1.3 The headings herein are for convenience only and shall not be
used for the interpretation of the contents thereof.
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2. PARTIES' DECLARATIONS
2.1 The Lessor hereby declares that it is the sole holder and
Owner of the Leasehold, that it is authorized to lease the
Leasehold to the Lessee and that there is no impediment of
whatever nature to leasing the Leasehold to the Lessee.
2.2 The Lessee hereby declares that it has viewed and examined the
Leasehold, that following such examination it has found same
fit for its purposes and objectives and that it waives any
contention with respect to defect, the right to cancel the
transaction due to a defect or incompatibility with respect to
the Leasehold other than hidden defect, with respect to the
location of the Leasehold and the identification thereof, and
it agrees to accept the Leasehold in its condition on the date
of entering into this Agreement, subject to the completions
pursuant to the plans and technical specification attached
hereto.
3. TRANSACTION AND TERM THEREOF
3.1 The original term of lease
The Lessor hereby leases the Leasehold to the Lessee and the
Lessee hereby leases the Leasehold from the Lessor for a lease
term commencing no later than 60 days as of the date of
delivery of the Third-Floor Leasehold's interior plans by the
Lessee and no later than 75 days as of the date of delivery of
the Second-Floor Leasehold's interior plans and ending three
years as of the commencement of the lease of the Second-Floor
Leasehold (hereinafter: the "Original Term of Lease"). The
Lessee shall deliver complete and adapted interior plans no
later than 30 days following the date of signature hereof. It
is agreed that a delay by the Lessor in handing over the
Leasehold of up to 14 days vis-a-vis the said dates shall not
constitute a breach.
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3.2 Option
3.2.1 The Lessee is hereby granted an optional right
(option) to extend the Original Term of Lease for
three additional years as of the end of the Original
Term of Lease (hereinafter: the "First Option Term"),
subject to giving the Lessor a 90-days prior written
notice before the end of the Original Term of Lease
of its wish to exercise the option, and subject
further to the provisions of sub-clause 3.2.2.
3.2.2 The right to extend the Lease Agreement as aforesaid
shall be subject to the Lessee's fulfillment of all
the provisions hereof throughout the Original Term of
Lease, including payment of the rent applicable to it
hereunder with respect thereto, as well as full and
timely fulfillment of all its other obligations. It
is agreed that all the provisions hereof pertaining
to the Original Term of Lease shall also apply during
the First Option Term, subject to the changes herein
set out.
3.3 Shortening the Original Term of Lease
3.3.1 The Lessee declares that it is aware that the
duration of the Original Term of Lease is a
fundamental provision hereof and hence the Lessee
shall not be entitled to shorten the Original Term of
Lease without the Lessor's prior written approval.
Should the Lessee leave the Leasehold prior to the
end of the Original Term of Lease, for whatever
reason, without the Lessor's prior written approval,
the Lessee shall continue paying the full rent for
the Leasehold hereunder to the Lessor, up to the end
of the Original Term of Lease.
3.3.2 The provisions hereof shall also apply to the
management fee payable by the Lessee to the
management company as
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hereinafter specified, as well as all other financial
obligations payable by it pursuant to this Agreement,
solong as the duty to pay rent applies to the Lessee.
3.3.3 Notwithstanding the foregoing the Lessee may find an
alternative lessee or a sub-lessee under the same
terms, provided that such alternative or sub-lessee
shall be acceptable to the Lessor and shall furnish
sureties to the Lessor's full satisfaction. The
Lessor shall not unreasonably withhold its consent
with respect to such alternative or sub-lessee.
4. RENT AND ADDITIONAL PAYMENTS
4.1 Rent during the Original Term of Lease and date of payment:
In consideration for the rights to lease the Leasehold during
the Original Term of Lease, the Lessee undertakes to pay rent
to the Lessor in the amounts and installments as follows:
4.1.1 The rent for each month during the Original Term of
Lease shall be as follows:
a. For the Third-Floor Leasehold - the amount
of NIS 97,344 (agreed representative rate
- NIS 4.16 per one American dollar x $19.5
x 1200 sq.m.) per month, plus VAT at law.
b. For the Second-Floor Leasehold - the amount
of NIS 36,910 (agreed representative rate
- NIS 4.16 per one American dollar x $19.5
x 455 sq.m.) per month, plus VAT at law.
The rent for the Third-Floor Leasehold
together with the rent for the Second-Floor
Leasehold shall hereinafter be referred to
as: the "Rent").
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4.1.2 The parties agree that the Rent shall be linked to
the Consumer Price Index (hereinafter: the "Linkage
Differences") as follows:
Index differences shall be added to each payment
(hereinafter: the "Differences") so that where it is
clarified that the new index exceeds the basic index
in respect of any payment on account of the Rent, the
Lessee shall pay an increment on the Rent to the
Lessee at the rate equivalent to the increase of the
new index vis-a-vis the basic index, the Linkage
Differences increment being paid together with each
payment on account of the Rent.
In this Agreement:
"Index" - means the Consumer Price Index (including
vegetables and fruits, without neutralizing any of
the index components) that is published monthly by
the Central Bureau of Statistics or any other entity
superseding same, or any other index published in its
place (subject to the ratio between such indexes).
It is agreed that the basic index means the index for
November 1999 published on December 15, 1999.
"New Index" - the Consumer Price Index last published
prior to the actual payment of any of the Rent
payments.
4.1.3 Linkage Differences, as aforesaid, shall be added to
each payment. In addition to the Linkage Differences,
the Lessee shall pay VAT at its present rate under
law on the actual date of payment to the Lessor,
against receipt of tax invoice at law, by means of a
postdated check for the date such VAT is payable by
the Lessor.
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4.1.4 The Rent for the Original Term of Lease shall be paid
on the following dates:
a. On the date of signature hereof the Lessee
shall pay Rent to the Lessor for 9 months in
advance (NIS 402,756 with the addition of
VAT at law).
b. The balance of the Rent, together with the
Linkage Differences and the VAT at law,
shall be paid by the Lessee to the Lessor in
consecutive equal quarterly installments on
the first of the Gregorian month following
three months from the commencement of the
Lease, and every three Gregorian months up
to the end of the Lease.
4.1.5 Full and timely payment of the Rent or any other
payment applicable to the Lessee hereunder, is a
fundamental provision hereof, and failure to timely
settle any payment shall be deemed as a fundamental
breach hereof by the Lessee, and shall grant the
Lessor all the relief hereunder and pursuant to the
Law, including the right to claim removal of the
Lessee from the Leasehold immediately after the delay
in payment provided that any delay of up to 5 working
days shall [handwritten: "not" (-signed-),(-stamped &
signed-)] constitute a fundamental breach of this
Agreement.
4.1.6 In addition to the Leasehold, the Lessee hereby
leases from the Lessor the right to use 5 reserved
parking places and 50 non-reserved parking places.
4.1.7 In consideration for the right to use the parking
places, the Lessee shall pay the Lessor monthly
amounts as follows:
a. For the monthly right to use 5 reserved
parking places - the amount of NIS 2,808
(agreed
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representative rate of NIS 4.16 per
one American dollar x 5 x 135$) with the
addition of VAT and Linkage Differences.
b. For the monthly right to use 50 non-reserved
parking places - the amount of NIS 20,800
(agreed representative rate of NIS 4.16 per
one American dollar x 50 x 100$) with the
addition of VAT and Linkage Differences.
c. The Rent for the use of the parking places
is in addition to the Rent for the
Leasehold and shall be paid jointly, on the
date of each payment on account of the Rent.
4.1.8 The Lessee is hereby granted the option to lease at
least 30 more non-reserved parking places during the
Term of Lease at $100 (to be converted into New
Shekels on the date of exercising the option, linked
to the index) per parking place, with the addition of
VAT and Linkage Differences.
4.1.9 To remove any doubts, it is hereby clarified that the
Lessor shall pay the municipal property tax for the
parking lot.
4.2 The Rent during the First Option Term shall increase by 10%
as follows:
4.2.1 The Rent during the First Option Term shall be NIS
147,680 per month ($35,000 at the agreed
representative rate of NIS 4.16 per American dollar)
with the addition of VAT at law, linked as of the
date of the basic index.
4.2.2 All the provisions of this Agreement with respect to
the Original Term of Lease, including, without
derogating from the generality of the aforesaid, the
manner of linkage
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of the basic monthly Rent during the Option Term to
the index, the addition of VAT and the date of
payment of the Rent, shall fully apply to the Option
Term, respectively.
4.3 Taxes and obligatory payments
4.3.1 The Lessee shall pay all taxes and obligatory
payments applicable to the holder of a Leasehold and,
inter alia, shall bear payments of general rates,
business tax, sign fees, electricity, water,
telephone (including permanent usage fees), payment
to the management and services company and all other
and/or additional current expenses with respect to
current maintenance of the Leasehold, as of the date
of accepting possession in the Leasehold.
4.3.2 The Lessee declares that it is aware that a
management and services company is and/or shall be in
operation in the Building for the purpose of
providing maintenance, operation, repair and upkeep
services of the Building, its facilities and the
common property therein, including gardening,
lighting, air-conditioning, operation of elevators,
guarding the Building, etc.
The Lessee undertakes to fully and timely effect, as
provided herein and/or in the management agreement,
all the payments payable to the management company
and/or the Lessor in consideration for the
management services.
4.4 Stamping
Stamping fees with respect to this Agreement, if necessary,
apply to the Lessee and be fully borne by it.
4.5 Effecting an obligatory payment by the Lessor
4.5.1 Should the Lessee fail to timely effect any of the
payments applicable to it pursuant to the provisions
of clause 4
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herein (including all sub-clauses thereof) the Lessor
may pay in such event any such payment in place of
the Lessee and the Lessee shall have to refund same
to the Lessor upon the Lessor's first demand.
To remove any doubts it is hereby clarified that
nothing in the foregoing shall constitute an
undertaking by the Lessor to make any payment in
place or on behalf of the Lessee.
4.5.2 In the event that any of the parties makes any
payment in place of the other party or on its behalf,
as aforesaid, the other party shall refund any such
payment to the paying party immediately upon demand
and any such payment shall be subject to the
provisions of clause 9.1 hereinbelow.
5. TERMS OF LEASE
5.1 Changes to the Leasehold
5.1.1 The Lessee may perform interior changes to the
Leasehold at its expense solely pursuant to a plan to
be submitted to the Lessor for its prior written
approval. The Lessee shall not make any changes to
the Leasehold which are not interior changes nor
shall it make any changes relating to the Building's
construction or systems (including air- conditioning,
plumbing, elevators systems and so forth).
5.1.2 The Lessor shall not unreasonably withhold its
approval to the Lessee with respect to planning the
interior of the Leasehold as the Lessee deems fit,
and for this purpose to make changes in the Leasehold
(other than prohibited changes as aforesaid), subject
to the approval of the management company which shall
not unreasonably withhold such approval.
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5.1.3 In the event that the Lessee violates its foregoing
undertaking, the Lessor shall be entitled to restore
the Leasehold to its former condition at the Lessee's
expense.
5.1.4 The Lessee undertakes to perform the completions
and/or changes, if any, to the best of its ability,
prudently, without causing any damage to the
Leasehold and/or the Building, in compliance with the
management company's instructions, if any, with
respect to the manner of performing the works.
The Lessee shall bear any direct or indirect damages
and the consequences thereof caused to the Leasehold
or the Building due to performing the completions
and/or arising from such type of changes in the
Leasehold.
5.2 Signs and telephones
The Lessee may not install any sign on the exterior space of
the Leasehold. Signs shall only be installed at the spots
designated therefor, after obtaining the prior written
approval of the management company and the Lessor, both with
respect to the actual placement of the sign, and the size and
shape thereof.
The Lessor has no objection to the Lessee installing telephone
lines in the Leasehold, at its expense.
5.3 Orderly maintenance and Lessor's inspection
5.3.1 The Lessee hereby undertakes to look after the
Leasehold and everything attached therein by the
Lessor and/or by the Lessee throughout the Original
Term of Lease, and to upkeep the Leasehold and
procure the orderly maintenance thereof.
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5.3.2 Any failure or damage caused by the Lessee, its
employees, agents, or visitors, other than damage due
to reasonable wear, shall be repaired by the Lessee
within a reasonable period of time, at its expense.
Any failure that is the fault of the Lessor shall be
repaired by the Lessor within a reasonable period of
time.
5.3.3 Should the Lessee fail to repair such damages and
failures within a reasonable period of time, taking
into account the type of repair, after notice has
been given and which the Lessee has failed to rectify
within 7 days, the Lessor may, however, is not
obligated to, repair same and the Lessee shall bear
all the expenses of the repairs made by the Lessor.
5.3.4 The Lessee shall make any payment to the Lessor
pursuant to sub-clause 5.3.3 above within 7 days from
the date on which the invoice for the repairs has
been submitted to it, and any such payment shall be
subject to the provisions of sub-clause 9.1 hereof.
5.3.5 The Lessee hereby undertakes to permit the Lessor,
its employees and agents, to enter the Leasehold at
reasonable times, after prior coordination, in the
course of the Original Term of Lease, to examine the
condition of the Leasehold and to perform any
maintenance works therein.
5.3.6 The Lessor, its employees and agents may further
enter the Leasehold at reasonable times, subject to
prior coordination, in the course of the last six
months of the lease, to show same to prospective
purchasers or lessees.
5.3.7 The Lessor's duty to coordinate entry into the
Leasehold in advance as aforesaid shall not apply to
emergencies such as fire, flood, and so forth
requiring immediate entry into the Leasehold.
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5.4 Prohibited uses
5.4.1 The Lessee may only use the Leasehold for the purpose
of hi-tech and offices and not for any other purpose.
5.4.2 Without derogating from the foregoing in sub-clause
5.4.1 above, the Lessee may not:
a) Perform in the Leasehold any work making
unreasonable noise or spreading smoke,
odors, pollution etc.
b) Use the Leasehold for purposes which are
prohibited under any law.
5.4.3 In the event that the use under the purpose of the
lease requires a license under law, the Lessee
undertakes to obtain such license.
The Lessee shall bear any liability with respect to
managing a business in the Building without a license
where a license is necessary.
5.5 Renovation of the Leasehold
5.5.1 To remove any doubt, it is hereby clarified that any
renovations performed in the Building (including
renovations made in whole or in part by and at the
Lessee's expense) shall be the exclusive property and
ownership of the Lessor and the Lessee shall not be
entitled to any compensation or indemnification due
to such renovations, and the Lessee shall deliver
possession in the Leasehold to the Lessor upon
completion of the Term of Lease, the property being
clean and tidy, including all renovations and
improvements made in the property.
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5.5.2 Without derogating from the generality of the
foregoing with respect to the Lessee's obligations
relating to the use of the Leasehold and the
operation thereof, it is hereby expressly agreed and
stipulated by the parties that the Lessee shall be
exclusively responsible for obtaining all approvals,
permits, and licenses necessary for operating its
business in the Leasehold under the provisions of any
law, including a business license, a sign license and
any other license or permit required for the purpose
of performing the renovations.
6. DAMAGES TO THIRD PARTIES AND INSURANCE
6.1 Without derogating from the Lessee's liability under this
Agreement and/or under any law, the Lessee hereby undertakes
to issue the following insurance policies at its expense:
The Lessor shall not bear any liability whatever for damage
caused to the Lessee's body or property, to its employees,
customers, visitors, invitees or any third party, including
tenants adjacent to the Leasehold, caused in consequence of or
due to the use of the Leasehold by the Lessee or anyone on its
behalf.
The Lessee undertakes to indemnify the Lessor for any amount
the Lessor is obligated to pay as aforesaid, if any, including
any ancillary expense, such as the cost of legal proceedings.
(Handwritten: [-Stamped & Signed-] On the other hand, the
Lessor undertakes to notify the Lessee of any such demand
within 7 days of the date it learned thereof, so as to enable
it to defend against same.)
INSURING THE CONTENTS OF THE LEASEHOLD
6.1.1 The Lessee undertakes to insure the contents of the
Leasehold and, without derogating from the generality
of
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the foregoing, the furniture, the equipment,
facilities and inventory therein, as well as any
change, improvements, renovation and additions to the
Leasehold made and/or to be made in the Leasehold by
the Lessee and/or on its behalf, of whatever nature,
all the foregoing being at restoration value against
loss or damage due to risks of fire, explosion,
earthquake, riots, strikes, malicious damage, xxxxx,
xxxxxxx, flood, water damages, electrical damages,
burglary and robbery, injury by aircraft, supersonic
explosion and collision.
6.1.2 The Lessee undertakes to update the amounts of the
insurance, from time to time, so as to reflect at all
times the full value of the insured property as
aforesaid in sub-clause 5.1.1 above.
6.1.3 The Lessee undertakes at all times that the policy
issued by it as aforesaid in sub-clause 6.1.1 above,
or any other policy issued by it, shall incorporate
an express clause whereby the insurer expressly
waives any subrogation right vis-a-vis the Lessor,
and the management company and/or their
representatives. Such waiver of subrogation shall
also apply to the other lessees/tenants in the
Building (provided that the insurance policies of
the tenants' and the lessees' contents incorporate
a clause with respect to waiver of indemnification
vis-a-vis all the lessees and/or tenants in the
Building) and/or anyone on behalf of the foregoing.
The aforesaid respecting waiver of the subrogation
right shall not apply in the event of malicious
damage.
The Lessee hereby exempts the Lessor and the
management company and anyone acting on their behalf
from liability with respect to loss or damage for
which the Lessee is or should have been entitled for
indemnity under the policy to be issued as aforesaid.
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EMPLOYERS AND THIRD PARTY
6.1.4 THIRD PARTY - the Lessee undertakes to issue a policy
covering liability to third parties insuring the
Lessee's liability for bodily and/or property damage
of any person and/or entity arising from operating in
and/or in the vicinity of the Leasehold.
The insurance shall be for a limit of liability of no
less than the NIS equivalent of US$500,000 per event
per period.
The insurance shall be extended to indemnify the
Lessor for its liability to the Lessee's actions
and/or omissions subject to a cross liability clause
under which the insurance shall be deemed as if
issued separately for each of the insured's
individuals.
Such insurance shall not be subject to any limitation
on liabilities arising from fire, explosion, alarm,
lifting, loading and unloading devices, defective
sanitary devices, poisoning, any harmful substance in
drinks or foods, strikes and lockouts as well as a
subrogation claim on the part of the National
Insurance Institute.
EMPLOYERS' LIABILITY - the Lessee undertakes to issue
at its expense an employer's liability insurance
covering the Lessee's liability to its employees for
bodily damage arising from and while at work, in a
limit of liability of no less than the NIS equivalent
of US$5,000,000 per event per period.
The insurance shall be extended to indemnify the
Lessor for its liability to the Lessee's employees
where it is established that it is their employer.
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Such insurance shall not include any limitation on
works at altitude and at depth, work hours,
contractors, sub- contractors and youth employment.
6.1.5 The policies issued by the Lessee as aforesaid in
clause 6 hereof shall be referred to as the
"Lessee's Policies".
CROSS LIABILITY
6.1.6 Furthermore, the Lessee hereby undertakes that any
third party and employer's insurance issued by it
hereunder shall be subject to a "cross liability"
clause under which the insurance shall be deemed as
if made separately for each of the insured's
individuals.
POLICIES IN EFFECT
6.1.7 The Lessee undertakes to fulfill all the terms of the
Lessee's Policies and to ensure timely payment of the
premiums.
INSURER'S APPROVAL
6.1.8 The Lessee shall present to the Lessor, no later than
30 days as of the signature hereof, an approval from
the insurance company stating that the Lessee's
policies were issued for the Lessee. Such approvals
shall be presented once every insurance year by the
Lessee without the Lessor's demand. It is hereby
expressly agreed that the presentation of such
approvals or presentation of the Lessee's Policies
and the examination thereof by the Lessor or anyone
on its behalf shall not constitute approval that the
Lessee's Policies or such approvals are in compliance
with the contents of the insurance clause and same
shall not derogate from the Lessee's responsibility
hereunder.
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CANCELLATION OF POLICIES
6.1.9 It is further agreed that the Lessee's Policies shall
incorporate an express clause under which the
policies may not be canceled unless written notice
thereof is given by registered mail to the Lessor at
least 60 days in advance. (Handwritten: [-Stamped &
Signed-] Nothing in the foregoing shall derogate from
the Lessee's duty to procure alternative insurance.)
DAMAGE ARISING FROM RISKS
6.1.10 The Lessee hereby declares that it shall have no
claim and/or demand against the Lessor and the
management company and/or anyone acting on its behalf
due to damage arising from risks which the Lessee
undertook to insure as aforesaid in the above
clauses, and it exempts the Lessor and the management
company and/or anyone acting on their behalf from any
liability for such damages.
This clause is aimed at adding rather than derogating
from any other provision herein.
Breach of the insurance clause shall constitute a
fundamental breach of this Agreement.
6.2 If and to the extent that funds are obtained from the
insurance company for damages to the Leasehold or the common
property, such funds shall be used at the first phase for
repairing the Leasehold or other assets in the Building, and
the balance thereof shall be transferred to the Lessee.
7. VACATING THE LEASEHOLD AND RENOVATIONS THERETO
7.1 Vacating the Leasehold
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Subject to the provisions of sub-clause 3.3 above, the Lessee
undertakes to vacate the Leasehold at the end of the Original
Term of Lease or the Option Term or, in the event of
cancellation of the Agreement, prior to the end of the
Original Term of Lease, and return the same to the Lessor, it
being vacant of any person and chattel, in good, orderly and
serviceable condition, in the same condition as it was
received when it was first leased, other than reasonable
normal wear.
7.2 Renovations to the Leasehold
7.2.1 45 days prior to returning the Leasehold by the
Lessee to the Lessor the Lessor shall conduct an
examination of the Leasehold. At such time a protocol
shall be recorded, specifying the list of repairs
which the Lessee is obligated to perform pursuant to
the provisions of this Agreement, including repair of
damage and failures and repairs pertaining to
restoring the Leasehold to its previous condition,
other than ordinary wear arising from reasonable use
of the property. The Lessee shall make the necessary
repairs in accordance with the protocol.
7.2.2 It is agreed that the parties shall deem the period
necessary for making the repairs set out in
sub-clause 7.2.1 hereof as a period in which the
Lessee was in delay of vacating the Leasehold, and
such period shall be subject to all the provisions of
this Agreement with respect to delay in vacating the
Leasehold.
8. GENERAL PROVISIONS
8.1 Management agreement
8.1.1 The Lessee undertakes to enter into a management
agreement with the management company for the
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provision of services and maintenance to the
Building's facilities, upon signature of this
Agreement or at any other time, pursuant to the
Lessor's instructions to the Lessee. The form of the
management agreement is attached hereto, constituting
an inseparable part hereof.
8.1.2 The provisions and terms of the management agreement
shall be deemed as the provisions and terms hereof,
and any breach thereof or failure to fulfill same
shall be deemed as a breach of or non-compliance with
the provisions and terms of this Agreement.
8.1.3 The management fees (hereinafter: the "Management
Expenses") shall be linked to the index and be paid
by the Lessee to the Lessor or to the management
company as set out in sub-clause 8.a. of the services
agreement signed and/or to be signed by the Lessor
and the services company in the Building, and where
there is no reference in such clause, the Management
Expenses shall be paid as follows:
1. The Management Expenses shall be paid once
every three months, for three months in
advance, on the dates herein set forth for
payment of the Rent, being linked to the
index as aforesaid herein, however, in no
event shall the Management Expenses per
quarter be less than the Management Expenses
actually paid (including Linkage
Differences) for the preceding quarter.
2. The Lessee shall deliver to the Lessor, 7
(seven) days prior to the date of handing
over the Leasehold, 4 (four) checks signed
by it, each at the rate of the Management
Expenses anticipated for the quarter, with
the addition of Linkage Differences to the
index, as of the basic index up to
21
the index known on the date of delivery of
the checks, payable on the 1st of each
quarter.
3. On the 1st of each quarter the Lessee shall
hand over to the Lessor as follows:
A check for the Linkage Differences as of
the index known on the date of delivering
the checks, as set forth in sub-clause 2, up
to the new index for the Management Expenses
for such quarter.
A check to cover the Management Expenses for
the quarter following the last quarter for
which a check was given to the Lessor for
Management Expenses, with the addition of
Linkage Differences to the index, as of the
basic index up to the index known on the
date of delivering the check.
4. Only actual payment of the checks shall be
deemed as payment of the Management
Expenses.
5. A tax invoice shall be furnished to the
Lessee within seven (7) days of the date of
actual payment.
8.2 Transfer of rights in the Leasehold
8.2.1 The Lessor shall be entitled to transfer or mortgage
its rights hereunder at any time, and to transfer or
mortgage its rights in the Leasehold or lease and
sell the Leasehold, provided it gives notice to the
transferee or the purchaser or leaseholder of the
rights (as the case may be) of the existence of this
Agreement, and the transferee or the purchaser or
leaseholder shall undertake all the Lessor's
undertakings hereunder. In such event the Lessee
shall have no claims or contentions with respect to
the transfer
22
of the rights and the sale thereof or
due to the lease of the Leasehold by the Lessor.
8.2.2 The Lessee shall not be entitled to transfer all or
any of its rights hereunder, nor permit others to use
all or any Part of the Leasehold whether for a
consideration or otherwise, or lease the same under
a sub-lease, directly or indirectly, to any person or
entity, all subject to sub-clause 3.3.3 above.
Notwithstanding the foregoing, the Lessee may include
another lessee from the group of the Lessee's
subsidiaries or affiliated companies (hereinafter:
the "Additional Lessee") in the Leasehold, and
provided further that the Additional Lessee shall
sign a promissory note to vacate the Leasehold on the
date when the Lessee is obligated to vacate the
Leasehold, and the Lessee shall be responsible for
all its undertakings pursuant to this Agreement as if
no additional lessee had been included in the
Leasehold.
Notwithstanding the foregoing, the Lessee may lease
the Second-Floor Leasehold by a sub-lease to a lessee
as agreed in coordination and consultation with the
Lessor. The Lessor shall not unreasonably withhold
its approval.
8.3 Denial of the applicability of tenants' protection laws
The Lessee hereby declares that it is aware that the Leasehold
and the Building wherein it is situated are a new leasehold
and building built after 1968, so that on the date of
commencing of the Tenant's Protection Law (Various Provisions)
5728-1968 there was no tenant in the Leasehold entitled to
have possession therein, that no key money whatsoever has been
paid or received with respect to the Leasehold or the lease
relationship created hereunder, nor any other consideration
whatsoever other than the Rent, and hence the provisions of
the Tenant's Protection Law (Combined Version), 5732-1872 or
any other law superseding same, or any other law designated or
to be designated to protect
23
tenants, shall not apply to this Agreement nor to the lease
hereunder, and in no event shall the Lessee be deemed as a
protected tenant, nor shall it be entitled to payment of any
key money or other payment upon vacating the Leasehold, and it
shall have to vacate the Leasehold on the date of vacation
and return same to the Lessor, it being free of any person and
chattel placed or installed by it in the Leasehold.
8.4 SURETIES
8.4.1 As surety to secure all the Lessee's undertakings
pursuant to this Agreement, including, without
derogating from the Lessee's other undertakings,
vacating the Leasehold on time, payment for any
damage caused to the Leasehold, payment of the Rent
and the payments applicable to the Lessee pursuant
to this Agreement, the Lessee shall furnish to the
Lessor, no later than 7 days as of the signature
hereof, an autonomous independent bank guarantee,
index linked, in the amount of NIS 402,756 (three
month Rent for the Leasehold) (in NIS, linked to the
Consumer Price Index) in effect for one year as of
the date of issuance thereof, and same shall be
extended on a yearly basis by 60 days following the
end of the Original Term of Lease and/or the Option,
as the case may be. The guarantee shall be returned
to the Lessee upon vacating the Leasehold and
settling all its undertakings pursuant to this
Agreement, including presentation of receipts with
respect to payment of municipal property tax and
payment to the maintenance company.
8.4.2 If the Lessee breaches any of its undertakings
pursuant to this Agreement, without derogating
from the generality of the definition, and in
particular should it fail to timely make any payment
applicable to it hereunder, and/or should it fail
to timely vacate the Leasehold, and/or if it
causes damage to the Leasehold, the Lessor may
exercise
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the guarantee and use the funds for rectifying the
breach and as compensation for such breach,
provided it warns the Lessee that it is about to
exercise the guarantees at least 14 days in advance.
The balance, if any, shall be returned to the
Lessee only after it actually vacates the Leasehold,
being linked to the Consumer's Price Index as of
the date of exercise of the guarantee up to the
date of returning the balance.
9. BREACHES AND RELIEF
9.1 In the event that the Lessee fails to make any of the payments
applicable to it hereunder in timely fashion, the
following provisions shall apply:
9.1.1 Any amount payable by the Lessee to the Lessor and/or
to the management company hereunder which has not
been settled on time, shall bear arrears interest at
the maximum rate then charged by Bank Leumi Le'Israel
Ltd. with respect to unauthorized deviations, as of
the date of payment herein set forth up to the actual
date thereof with the addition of VAT at law.
9.1.2 In the event that the Lessee fails to fulfill any of
its undertakings pursuant to this Agreement,
including payments to any person, the Lessor and/or
the management company, may, however are not
obligated to, after giving prior notice to the
Lessee, effect any payment and/or undertaking as
aforesaid at their discretion, and charge the linkage
as of the date of effecting the payment, pending
receipt of the actual refund with the addition of 10%
(ten percent) handling fees.
9.2 Without derogating from the provisions of sub-clause 9.1
above, in the event that the Lessee breaches this Agreement
and fails to rectify such breach within 14 days as of receipt
of the Lessor's
25
notice, the Lessor and/or the management company shall be
entitled to all or any part of the relief, at their exclusive
discretion, as the case may be, as follows:
The Lessee shall pay the Lessor on the date of vacating or of
failing to hand over the Leasehold, as the case may be, in
addition to any damage caused to it, pre-estimated agreed
compensation at the rate of 3 months Rent hereunder, or the
last Rent actually paid by the Lessee to the Lessor prior to
the breach, whichever is latest, together with Linkage
Differences up to the actual date of vacating.
9.3 The relief granted to the Lessor and/or the management company
as set forth in sub-clause 9.2 above, shall also apply in the
following occurrences:
9.3.1 If bankruptcy or liquidation proceedings are
instituted against the Lessee and are not cancelled
within 30 days.
9.3.2 If a receiver is appointed for the Lessee and/or its
property and such appointment is not cancelled within
30 days.
9.4 Without derogating from any of the Lessor's rights and without
derogating from the provisions of sub-clauses 9.1, 9.2 and 9.3
above, in the event that the Lessee fails to vacate the
Leasehold at the end of the Term of Lease or on the date set
forth in sub-clause 9.2.1 above, the following provisions
shall apply:
9.4.1 The Lessee shall pay appropriate usage fees at the rate of 3
(three) month's Rent for each month of delay in vacating. Such
payment shall be effected on the last day of each month of
delay in vacating for the preceding month.
9.4.2 The Lessee shall pay all the amounts, payments and taxes
applicable to it hereunder, including management fees.
26
9.4.3 The payment set forth in this clause shall not create a lease
relationship between the Lessee and the Lessor with respect to
the period following termination of the Term of Lease or
vacating the Leasehold as herein set forth.
9.4.4 To remove any doubts it is hereby expressly declared that
nothing stated in this clause shall be deemed as a waiver of
the Lessor's rights, or consent that the Lessee shall be in
delay of vacating the Leasehold. Failure to vacate the
Leasehold on the date of vacating shall be deemed as a
fundamental breach of this Agreement, and the Lessor may
enforce such vacating in any manner available to it under law.
10. OFFSET
10.1 The Lessor and/or the management company may offset any amount
payable to either of them by the Lessee hereunder, and/or any
amount necessary for the performance of the Lessee's
undertakings pursuant to this Agreement, from any amount
payable to the Lessee and/or available to it in the account of
either of them.
10.2 The Lessee may not offset any amounts from its payments to the
Lessor and/or the management company.
10.3 Any claim of whatever nature on the part of the Lessee against
the management company shall not constitute a cause of
action on its part against the Lessor.
11. MISCELLANEOUS
11.1 There shall be no effect to any waiver, acquittal or extension
granted or made by either party unless given and made
expressly and in writing, and no waiver, acquittal or
extension with respect to any breach of this Agreement may be
interpreted or deduced from the mere action or omission which
is not an express written
27
notice. Delay or failure to utilize any right by any of the
parties hereunder shall in no event and under no circumstances
be deemed as waiver or a basis for estoppel against them by
any of the parties.
11.2 This Agreement cancels any prior agreement between the
parties whether granted, made or concluded orally or in
writing.
11.3 The Tel-Aviv courts shall have exclusive jurisdiction to hear
any matter pertaining to this Agreement and/or arising
herefrom including the implementation, breach or cancellation
hereof.
11.4 Any payment and/or any of the Lessee's undertakings shall be
made and/or granted, unless otherwise expressly stated herein,
at the Lessor's offices as stated in the preamble hereto.
11.5 Any notice pursuant to this Agreement shall only be made in
writing and sent to the parties in accordance to the addresses
stated in the preamble hereto or at the address respecting
which the Lessee gave notice to the Lessor in writing
following the signature hereof, or at the Leasehold.
Any notice from one party to the other shall be sent by
registered mail and shall be deemed to have been delivered to
its destination within 72 (seventy two) hours from its
dispatch for delivery by registered mail at a post office in
Israel being properly addressed.
IN WITNESS WHEREOF THE PARTIES HAVE SIGNED:
