Exhibit 4.13
UNOFFICIAL TRANSLATION
AGREEMENT FOR THE PROVISION OF CONSULTANCY SERVICES
FOR THE DEVELOPMENT OF REAL ESTATE PROJECTS
Signed and executed on May 31, 2006
by and between:
ELBIT MEDICAL IMAGING LTD.
of 00 Xxxxx Xxx., Xxx Xxxx
Xxxxxx
(hereinafter referred to as "EMI")
-and-
CONTROL CENTERS LTD.
of 00 Xxxxx Xxx., Xxx Xxxx
Xxxxxx
(hereinafter referred to as "CCL")
WHEREAS: EMI is engaged in the acquisition, initiation, planning,
development, construction, renovation, management and maintenance
(collectively referred to in this Agreement as "DEVELOPMENT"), of
Real Estate Projects as hereinafter defined;
AND WHEREAS: CCL has know-how and experience in the Development of projects
similar in kind to the Real Estate Projects;
AND WHEREAS: EMI has requested CCL to extend to EMI such know how and
experience and provide to EMI the Services as hereinafter defined
in relation to the Real Estate Projects;
AND WHEREAS: CCL possesses the ability, means and resources required for the
provision of said Services and it has expressed its consent to the
provision of same in accordance with the provisions of this
Agreement and to the provision of aviation services;
AND WHEREAS: The parties are desirous of drafting and concluding the terms and
conditions of said transaction;
NOW, THEREFORE, THE PARTIES HERETO, IN CONSIDERATION OF THE PROMISES AND OF THE
MUTUAL REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS CONTAINED HEREIN,
HEREBY AGREE AS FOLLOWS:
1. PREAMBLE AND HEADINGS
1.1 The Preamble to this Agreement constitute an integral part
hereof.
1.2 The headings of the sections and subsections of this Agreement
are for convenience of reading only and are not to be
attributed any constructive or other meaning.
1.3 Words in this Agreement used in a any gender shall extend to
include the other gender; words used in this Agreement in the
singular number shall extend to and include the plural, all
words in the plural number shall extend to and include the
singular; the term person or body in this agreement shall be
extended to include any natural person and/or a company and or
a corporation or incorporation of people whether or not
incorporated; the term including shall mean inclusive and not
limited to.
UNOFFICIAL TRANSLATION
2. DEFINITIONS
2.1 COMPANY: Elbit Medical Imaging Ltd. and its subsidiaries and
affiliated companies
2.2 CCL: Control Centers Ltd. and its subsidiaries and affiliated
companies;
2.3 AGREEMENT: this Agreement including all and any annexes and
annexures thereto and amendments thereof;
2.4 REAL ESTATE PROJECTS: Real estate projects designated for any
of the following designations or a combination thereof,
namely: commercial and entertainment centers (including malls
or any other type of shopping center whether roofed and/or
scattered and/or other); permanent and/or temporary and/or
seasonal residence; offices and/or business structures and/or
wheelhouses; congress and/or lecture and/or convention
centers; hotels and/or guesthouses and/or apartment hotels;
vacations lodges; leisure and/or entertainment and/or sport
and/or health centers; and any other real estate project which
development and/or construction and/or renovation is
determined by the Company, whether alone or with others'
participation;
2.5 SERVICES: The services detailed in section 5 hereto;
2.6 PRIMARY INITIATION: the Company's management resolution to
initiate a Real Estate Project and the principal determination
as to its nature and/or designation and/or location and/or any
other determination essential to commence the initiation of a
Real Estate Project;
2.7 LETTER OF NOTIFICATION: the Company's notification to CCL as
to its intention to commence the initiation of a Real Estate
Project;
2.8 SERVICE COMPANY: a subsidiary and or affiliate company of CCL,
whether directly or indirectly owned, which will provide the
Services on behalf of CCL to the Company or the Execution
Company in terms of this Agreement;
2.9 EXECUTION COMPANY: a subsidiary and or affiliate of the
Company, whether directly or indirectly owned, whether wholly
or partially owned, which develops and/or carries out the Real
Estate Project and is responsible for its execution;
2.10 PROJECT'S BUDGET: as shall be defined by the Company in
relation to each Real Estate Project subject to its nature and
designation;
2.11 COMPLETION OF REAL ESTATE PROJECT: as shall be defined in the
contractor's agreement relating to each respective Real Estate
Project and in want thereof, upon the grant by the relevant
local municipality of completion permits;
2.12 AGREEMENT APPROVAL DATE: the date upon which the final of all
approvals required for the entering into force of this
Agreement as per section 8.1 below, is granted;
3. REAL ESTATE PROJECTS AND THE ENGAGEMENT FOR THE PROVISION OF THE
SERVICES
3.1 CCL hereby declares that it has the know-how, ability,
experience and facilities required for the provision of the
Services in a full, efficient and professional manner for each
Real Estate Project being the object of this Agreement. CCL
hereby confirms that such declaration constitutes a
representation based on which EMI consents to the execution of
this Agreement.
3.2 EMI shall inform CCL via Letter of Notification as to the
Primary Initiation of each Real Estate Project for which EMI
shall request Services to be provided, immediately upon the
commencement of such Primary Initiation. Letter of
Notification shall include Real Estate Project's particulars,
including its nature, designation, location, expected cost,
various expected stages of its planning, construction
commencement
UNOFFICIAL TRANSLATION
and completion dates etc, and all and any other information
known to EMI as at the Letter of Notification date and
required fort he commencement of the provision of Services.
3.3 CCL hereby undertakes to confirm to EMI within 15 business
days as and from the date of receipt of the Leter of
Notification, as to its consent to provide the services for
the Real Estate Project specified in the Letter of
Notification. Of the avoidance of doubt, failure by CCL to so
notify shall be construed as a decline to provide the Services
for the relevant Real Estate Project.
3.4 CCL has the right to use subcontractors as well as other
internal and/or external consultants' services for the
fulfillment of its undertakings hereunder, and all without any
additional payment and/or consideration by EMI. CCL may assign
all or part of its rights and obligations hereunder, in
respect of one or more Real Estate Projects, to a Service
Company. NOTWITHSTANDING THE AFORESTATED, CCL HEREBY
UNDERTAKES AND GUARANTEES THAT SHOULD IT UTILIZE THE
ASSISTANCE OF SAID SUBCONTRACTORS AND/OR PROVIDE THE SERVICES
THROUGH A SERVICE COMPANY, ALL ITS OBLIGATIONS HEREUNDER SHALL
BE CARRIED OUT BY SUCH THIRDS PARTY IN ACCORDANCE WITH CCL'S
DECLARATION IN SECTION 3.1 ABOVE, AS IF CCL ITSELF HAD BEEN
PROVIDING THE SERVICES.
4. SCOPE OF THIS AGREEMENT
4.1 This Agreement shall apply to the Following Real Estate
Projects:
4.1.1 A Real Estate Project which Primary Initiation has begun
following the date of the Agreement Approval Date;
4.1.2 A Real Estate Project which Primary Initiation has begun
prior to the Agreement Approval Date however no
agreement for the provision of consulting and/or
supervision services has been signed in its respect, it
has not yet reached the planning stage and Services are
required thereto ("EXISTING PROJECT"). A list of such
Existing Projects including their respective stages of
initiation is attached to this Agreement as Annex 4.1.2
thereto.
5. SERVICES
5.1 The Services to be provided by CCL to EMI in respect of each
Real Estate Project shall include:
5.1.1 COORDINATION OF PLANNING AND EXECUTION which shall
include statutory planning services, such as planning
for the grant of zoning approvals and construction
permits, coordination and supervision over the entire
specified planning outline of the Real Estate Project,
including and not limited to the locating of planners
and competent consultants and assistance to EMI in their
selection, negotiating with planners and consultants
selected by EMI and assistance to EMI in the preparation
of the transactions therewith, coordination and
supervision over the planning works including landscape
planning, local zoning plans, programs, detailed plans
and various working plans, coordination between EMI and
various planners and consultants, coordination between
EMI and and consultants and the planning and permit
authorities, coordination between and amongst the
individual consultants;
5.1.2 SUPERVISION: including over the completion of the
coordination of planning and execution works required as
UNOFFICIAL TRANSLATION
per the schedules and parameters determined by EMI and
CCL in respect of each Real Estate Project; which shall
include without limitation: locating of suitable
contractors and assistance to EMI in their selection,
negotiating with contractors, assisting EMI in the
preparation of transaction with the selected ones,
management of liaisons with contractors, coordination of
contractors and supervision over their works and
coordination between various bodies (e.g.
municipalities, planner, contractors, EMI etc.) as well
as supervision and coordination of all services required
prior to the completion of the Real Estate Project;
preparation of budgetary draft for the Real Estate
Project and the planned schedule for the execution
thereof and in addition assistance to EMI with carrying
out the marketing works of the Real Estate Project;
5.2 For the avoidance of doubt, it is hereby clarified that the
Services do not include the execution of the actual planning
of the Real Estate Project or the actual construction,
erection, renovation, management or maintenance, but rather
the coordination and supervision over same. The actual works
above stated, shall be executed by consultants, planners and
contractors selected by EMI with CCL's assistance, and the
costs and salaries of such consultants, planners and
contractors shall be borne by the Execution Company.
5.3 By rendering of the Services by CCL in terms of this
Agreement, CCL shall serve as a service provider and as such
CCL shall abide by the Execution Company's instructions and be
subject thereto. In the absence of such Execution Company's
instructions, CCL shall abide by instructions provided by
EMI's.
6. CONSIDERATION FOR SERVICES
6.1 In consideration for the [provision of the Services, CCL shall
be entitled to receive from the Execution Company, total
amount as consideration equal to 5% (five percent) of actual
construction costs of the Real Estate Project including VAT if
and to the extent applicable ("CONSIDERATION"). For the
purpose of determining the Consideration, ACTUAL CONSTRUCTION
COSTS shall be calculated as total actual cost of the Real
Estate Project excluding land acquisition costs, project
financing costs and Consideration costs as per this Agreement
(not including financing and credit costs provided by
contractors and subcontractors). Notwithstanding anything
hereinabove stated, the rate of Consideration to which CCL
shall be entitle for the provision of the Services to Existing
Projects, shall not exceed the rate specified in Annex 4.1.2
in repect of each relevant Existing Project ("MAXIMUM
CONSIDERATION RATE"), and calculation of rate out of each
relevant project as detailed in sections 6.2.1 - 6.2.4
(inclusive) below, shall be carried out respectively to the
rates of consideration detailed in such sections as a fraction
of the Maximum Consideration Rate.
6.2 Payment of the Consideration to CCL shall be executed, mutatis
mutandis to the particular nature of each relevant Real Estate
Project, in accordance with the following milestones:
6.2.1 Upon the grant of planning approval (or any other
approval and/or permit similar in nature) CCL shall be
entitled to 25% of Consideration or 1.25% of respective
Real Estate Project' budget as shall be known as at the
date of such receipt of planning approval;
UNOFFICIAL TRANSLATION
6.2.2 Upon the grant of construction permit (or any other
approval and/or permit similar in nature) CCL shall be
entitled to additional 10% of Consideration and in total
1.75% of respective Real Estate Project' budget as shall
be known as at the date of grant of construction permit
. It is hereby clarified that calculation of
Consideration as per this section shall be execute while
addressing changes, if and to the extent carried out, to
the respective Real Estate Project' budget, so that
total consideration payable to CCL upon receipt of
construction permit shall total the rates
herein-specified out of the respective Real Estate
Project' budget known and prevailing as aty the date of
payment of this respective installment;
6.2.3 Upon the completion of the Real Estate Project CCL shall
be entitled, subject to the provision of section 6.2.4
below, to additional 55% of Consideration and in total
4.5% of respective Real Estate Project' budget as shall
be known as at its completion date. It is hereby
clarified that calculation of Consideration as per this
section shall be execute while addressing changes, if
and to the extent carried out, to the respective Real
Estate Project' budget, so that total consideration
payable to CCL upon completion of the Real Estate
Project shall total the rates herein-specified out of
the respective Real Estate Project' budget known and
prevailing as at the date of payment of this respective
installment;
6.2.4 Upon the completion of the Real Estate Project and in
any event not later than 90 days following completion of
same, CCL (or the respective Service Company) and EMI
(or the respective Execution Company) shall carry out a
general accounting to calculate the Actual Construction
Costs and the amount equal to the balance of
Consideration (10% of Consideration or 0.5% of Actual
Construction Costs) which has not yet been paid.
Execution of said open balance of the Consideration
shall be subject to approval of and external accountant
as to the final accounting.
6.3 Upon receipt of CCL's confirmation as per section 3.3 above,
to provide the Service to a Real Estate Project, CCL shall be
entitled to Euro 50,000 (fifty thousand Euro) to cover
reasonable expenses it shall expend for its initial
preparation for the provision of the Services ("ADVANCE
EXPENSES AMOUNT"), to which following instructions shall
apply:
6.3.1 CCL shall notify EMI in advance, if and to the extent
possible, as to each planned expense, including nature,
amount and necessity of same;
6.3.2 CCL shall provide EMI with receipts or any other proof
of payment acceptable to EMI, for the former's expenses
not later than 2 months following the expenditure of the
expense ("RECEIPT PERIOD END");
6.3.3 Expense for which a receipt or any other proof of
payment acceptable to EMI shall not be provided as afore
stated, shall be deducted from the payment to be paid to
CCL in accordance with the instructions of section 6.2
above, immediately following the Receipt Period End;
UNOFFICIAL TRANSLATION
6.3.4 Should Advance Expenses Amount not be utilized within a
6 month period of its grant, CCL shall reimburse EMI
with such Advance Expenses Amount not so used;
6.3.5 In the event CCL had utilized the entire Advance
Expenses Amount or reimbursed EMI with the balance no
used as per the instruction oof section 6.3.4 above, and
thereafter necessitated additional expenses, then and in
such an event, CCL shall be entitled to reimbursement of
other expenses subject to the following:
(a) CCL will have furnished EMI with receipts or any
other proof of payment acceptable to EMI in
respect of all Advance Expenses Amount actually
utilized; and
(b) Total aggregate amount of expenses (Advance
Expenses Amount and others) to which CCL shall be
entitled for reimbursement shall not exceed Euro
75,000 (seventy five thousand Euro) per each Real
Estate Project.
6.4 Calculation of the Consideration to be paid to CCL (or the
Service Company as the case may be) in respect of each Real
Estate Project shall be carried out in the local operating
currency as per the respective location of each Real Estate
Project. Actual payment shall be carried out by EMI (or the
Execution Company as the case may be) in Euro, cased on the
exchange rate of the Euro and the respective operating
currency, prevailing as at the actual payment date.
6.5 Delay in any payment which due date has arrived in accordance
with the terms and conditions of thei Agrememtn, shall entail
arrears interest at a rate customarily used as arrears
interest to a good standing borrower in Bank Leumi Le'Israel
plus 0.25%, as and from the payment due date through actual
payment date.
7. DESIGNATION CHANGE AND CESSATION OF A REAL ESTATE PROJECT
7.1 Should the designation and/or nature and/or planning of a Real
Estate Project be changed following commencement of provision
of Services though prior to its completion ("DESIGNATION
CHANGE"), then and in such circumstances EMI shall be
entitled, as per its sole and absolute discretion and subject
to receipt of permits required if and to the extent so
required, to continue the transaction with CCL for the
provision of the Services in respect of such Real Estate
Project notwithstanding the Designation Change, and in such an
event the parties shall be governed by the following
provisions:
7.1.1 EMI shall notify CCL as to the date upon which the
Designation Change shall become effective ("DESIGNATION
CHANGE DATE") and the nature of the change;
7.1.2 The parties shall conduct an intermediate accounting to
calculate Actual Construction Costs of the Real Estate
Project immediately prior to the Designation Change
Date, and rate of Consideration to which CCL is entitled
through such Designation Change Date, in the form of the
final accounting (mutatis mutandis) and such
Consideration shall be paid to CCL immediately upon
completion of the accounting. It is hereby specifically
clarified that in no event, shall CCL be entitled to
rate of Consideration greater than that which is
determined in the milestone immediately following the
Designation Change Date, to
UNOFFICIAL TRANSLATION
which CCL may have been entitled should such Designation
Change had not been executed;
7.1.3 CCL shall furnish EMI with receipts or any other proof
of payment acceptable to EMI, for its expenses expensed
through the Designation Change Date, and additionally
shall reimburse EMI with the balance of the Advance
Expenses Amount not utilized by CCL prior to the
Designation Change Date;
7.1.4 Execution of Consideration as per section 7.1.2 above,
shall be subject to approval of and external accountant
as to the final accounting and EMI's audit committee and
board of directors.
7.1.5 Consideration to which CCL shall be entitled to
following Designation Change Date shall be calculated as
and from such date as a rate of the Real Estate
Project's Budget as adjusted to the Designation Change
and the provisions of this Agreement shall continue to
apply mutatis mutandis.
7.2 Notwithstanding the provisions of section 7.1 above, EMI shall
be entitled, in the event of a Designation Change to notify
CCL as to the cessation of the provision of the Services, and
in such an event the provisions of section 7.3 shall apply.
7.3 Should a Real Estate Project be terminated prior to its
completion for any reason, whether resulting from EMI's
initiative or otherwise, (including its sale to an unrelated
party), EMI shall notify CCL, at the earliest possible date,
as to the cessation of the Real Estate Project ("NOTICE OF
CESSATION") and as and from such time, CCL shall be prevented
from expensing any further expenses. CCL shall furnish EMI
with receipts or any other proof of payment acceptable to EMI,
for its expenses expensed prior to the Notice of Cessation,
and additionally shall reimburse EMI with the balance of the
Advance Expenses Amount not utilized by CCL prior such time.
Immediately following the receipt of the Notice of Cessation,
the parties shall conduct a bona fide negotiation as to the
rate of Consideration to which CCL shall be entitled for the
Service provided thereby prior to the cessation of the Real
Estate Project, however rate of Consideration under such
circumstances shall be a fraction of the Rea; Estate Project's
Budget known and prevailing as at the Notice of Cessation date
("FINAL ACCOUNTING"). It is hereby specifically clarified that
in no event, shall CCL be entitled to rate of Consideration
greater than that which is determined in the milestone
immediately following the Notice of Cessation date, to which
CCL may have been entitled had the Real Estate Project not
been terminated. It is hereby specifically agreed that
execution of the Final Accounting shall be subject to approval
of and external accountant as to such accounting and EMI's
audit committee and board of directors.
8. AVIATION SERVICES
8.1 EMI hereby declares its recognition of CCL being the parent
company of Jet Link Ltd. ("JET LINK") which provides aviation
service. CCL hereby declares, consents and approved, on behalf
and in the name of Jet Link, that it shall provide to EMI, Jet
Link's aviation services in consideration of payment of
aviation fees as per Jet Link's rates less a 5% discount.
8.2 Aviation service shall be provided to EMI and/or its
subsidiaries and/or affiliated companies as per EMI's request,
providing actual flight hours shall not exceed 125 flight
hours per calendar year.
UNOFFICIAL TRANSLATION
8.3 For the avoidance of doubt, it is hereby clarified that
nothing herein-contained shall cancel and/or detract from the
Agreement for the Provision of Aviation Services as executed
by and between EMI and Jet Link which shall remain valid for
the provision of aviation services to EMI and/or its
subsidiaries and/or affiliated companies for its day to day
operations relating to the commercial and entertainment
centers in Eastern and Central Europe.
9. TERM OF AGREEMENT
9.1 The entering into force and effect of this agreement is
subject to the approval of the audit committee, the board of
directors and the shareholders assembly of EMI, in that order,
as required by law. Approval of CCL's board of directors is
also required.
9.2 This Agreement shall remain in full force and effect for a
duration of 5 years as and from its entering into force as per
the provisions of section 9.1 above.
9.3 Termination of this Agreement for any reason, shall be
prospectively effective and shall not hinder or alter the
terms of any transaction for the provision of Services in
respect of which CCL has confirmed, in terms of section 3.3
above, its consent to provide Services.
10. MISCELLANEA
10.1 Any payment executed under this Agreement shall be carried out
against an invoice as required by law.
10.2 This Agreement shall be governed by the laws of the State of
placeStateIsfrael, with jurisdiction in all and any issue
relating thereto shall be vested in the competent courts in
Tel-Aviv - Yaffo.
10.3 Any and all disputes or disagreements between the parties
shall be presented to a mutually agreed arbitrator. The
arbitrator shall not be bound by the rules of evidence however
shall be required to substantiate his decision. Should the
parties fail to agree on the identity of the arbitrator, such
arbitrator shall be appointed by the President of the CPA
Bureau.
IN WITNESS WHEREOF THE PARTIES HAVE SIGNED THIS AGREEMENT:
--------------------------------------- ------------------------------------
ELBIT MEDICAL IMAGING LTD. CONTROL CENTERS LTD.
UNOFFICIAL TRANSLATION
ANNEX 4.1.2 to the AGREEMENT FOR THE PROVISION OF CONSULTANCY SERVICES
FOR THE DEVELOPMENT OF REAL ESTATE PROJECTS
NAME AND LOCATION OF NATURE OF THE REAL MAXIMUM
REAL ESTATE PROJECT ESTATE PROJECT STATUS OF INITIATION CONSIDERATION RATE
------------------- -------------- -------------------- ------------------
Liberec, Czech Rep. 5%
Xxxxxxxx, Xxxxxxx 0%
Xxxxx, Xxxxxxx 5%
