Unofficial Translation] DEED OF TRUST made and entered into at Tel Aviv on the 19th day of May 2009
Exhibit
4.37
[Unofficial
Translation]
made and
entered into at Tel Aviv on the 19th day of
May 2009
Between:
BLUE
SQUARE REAL ESTATE LTD.
of 2
Ha’amal Street, Rosh Ha’ayin
Telephone:
00-0000000/1
Fax:
00-0000000
(hereinafter: “the
Company”)
of
the one part;
And:
HERMETIC
TRUST (1975) LTD.
of 000
Xxxxxxxx Xxxxxx, Xxx Xxxx
Telephone:
00-0000000
Fax:
00-0000000
(hereinafter: “the
Trustee”)
of
the other part;
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WHEREAS:
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The
board of directors of the Company decided on May 18, 2009 to offer the
public, by way of a shelf prospectus which the Company will publish in May
2009 (hereinafter: “the
Prospectus” or “the Shelf Prospectus”),
a series of Debentures (Series C) having an overall par value of up to NIS
500,000,000, a series of Debentures (Series D) having an overall par value
of up to NIS 500,000,000 a series of Debentures (Series E) having an
overall par value of up to NIS 500,000,000, a series of Debentures (Series
F) having an overall par value of up to NIS 500,000,000, a series of
Debentures (Series G) having an overall par value of up to NIS 500,000,000
convertible into ordinary shares of the Company, a series of Debentures
(Series H) having an overall par value of up to NIS 500,000,000
convertible into ordinary shares of the Company, all in the manner and on
the conditions that will be stipulated in this Deed of Trust;
and
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WHEREAS:
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The
Trustee is a company limited by shares which was incorporated in Israel in
February 1995 in accordance with the Companies Ordinance, whose main
object is to engage in trusteeships;
and
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WHEREAS:
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The
Trustee has declared that there is no bar or impediment under the
Securities Law, 5728-1968, or any other law, to its entering into this
Deed of Trust with the Company and that it complies with the qualification
requirements and conditions prescribed in the Securities Law to serve as a
trustee for the issue of the Debentures that are the subject matter of the
Prospectus; and
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1
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WHEREAS:
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The
Company has made a request to the Trustee to serve as trustee for the
holders of the Debentures (Series C-H), and the Trustee has agreed
thereto, all subject to and in accordance with the terms and conditions of
this Deed of Trust;
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Now
therefore it is agreed, declared and stipulated between the parties as
follows:
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1.
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Preamble,
interpretation and the
definitions
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1.1
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The
preamble to this Deed of Trust and the appendices attached hereto form a
fundamental and integral part
hereof.
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1.2
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The
division of this Deed of Trust into clauses and the insertion of headings
to the clauses has been done for the sake of caution and as place-finders
only, and no use shall be made thereof for purposes of
interpretation.
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1.3
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Everything
stated in this clause in the plural shall also include the singular and
vice versa, and
everything in the masculine gender shall also include the feminine, and
vice versa, and
anything relating to a person shall also include a body corporate,
wherever there is no express and/or implied provision to the contrary in
this Deed and/or unless the content and the context otherwise
dictates.
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1.4
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In
this Deed of Trust and in the Debentures (Series C to H) the following
expressions will have the meanings set opposite them, unless a different
meaning is to be inferred from the content or the
context:
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“This Deed” or “the Deed of
Trust”
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This
Deed of Trust including the appendices attached hereto which form an
integral part hereof;
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“The Offering Report” or
“the Shelf Offering
report”
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As
defined in Paragraph 2.1 of the Prospectus;
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“The
Prospectus”
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A
shelf prospectus the Company will publish in May 2009, inter alia in respect
of the issue of the Debentures (Series C-H);
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“The
Debentures”
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The
Debentures (Series C-H) of the Company, which will be issued in accordance
with the Prospectus and which are in circulation at the time in
question;
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“The
Trustee”
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Hermetic
Trust (1975) Ltd. and/or whoever serves from time to time as trustee for
the holders of the Debentures in accordance with this
Deed;
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“Register”
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A
register of holders of the Debentures of each of the series C-H as stated
in the First Schedule to this Deed;
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“Debenture holders”
and/or “holders of the
Debentures”
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The
persons whose names are registered for the time being in the register of
holders of the Debentures of each of the series C to H and in the case of
several joint holders, the joint holder whose name stands first in the
register;
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“Debenture
certificate”
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In
respect of each of the aforesaid series of Debentures – a debenture
certificate the wording of which appears in the First Schedule to this
Deed;
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“The Law” or “the Securities
Law”
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The
Securities Law, 5728-1968 and the regulations pursuant thereto, as in
force from time to time;
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“Principal”
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The
par value of the Debentures of the relevant series that are in
circulation, which has not yet been repaid;
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“Trading
day”
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A
day on which the banks in Israel are open for the execution of
transactions;
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“The
Stock Exchange”
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The
Tel Aviv Stock Exchange Ltd.;
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“Business day” or “banking business
day”
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Any
day on which most of the banks in Israel are open for the execution of
transactions with the public;
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“The
Offering Report”
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A
shelf offering report that will be prepared and published in accordance
with the provisions of Section 23A(f) of the Securities Law, 5728-1968, in
which all the special conditions for the offer of each of the series of
the Debentures offered pursuant to the Prospectus will be completed,
including the composition of the units offered, in accordance with the
provisions of any law and in conformity with the regulations and
directives of the Stock Exchange, as in force for the time
being;
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“The
Nominee Company”
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Bank
Hapoalim Nominee Company Ltd.;
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“The
Stock Exchange Clearing House”
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The
Tel Aviv Stock Exchange Clearing House
Ltd.
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3
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2.
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Issue of the
Debentures and applicability of the Deed of
Trust
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The
Company will issue shares in accordance with the Prospectus as
follows:
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2.1
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Up
to four series of registered Debentures (Series C to F), where of each of
the series of Debentures will have an overall par value of up to NIS
500,000,000, repayable (principal) in a number of installments which shall
not be less than one and not more than fifteen (15) annual installments,
or which shall not be less than one installment and shall not exceed
thirty (30) half-yearly installments, payable at the times as set forth in
the Offering Report, as will be described in the Offering Report, pursuant
to which each of the aforesaid series will first be offered; the
indexation basis (or absence of indexation) and the type of interest the
principal amount of Debentures of each of the aforesaid series that will
be issued will bear shall be specified in the Offering Report pursuant to
which each of the aforesaid series is first issued. The rate of
interest the principal amount of the Debentures of each of the aforesaid
series that will be issued in accordance with the Prospectus will bear, or
the margin above or below the base interest the principal amount of the
Debentures of each of the aforesaid Debentures will bear, as the case may
be, will be specified in the Offering Report or will be fixed in a tender
pursuant to which the initial offering of the Debentures of that series
will be made. The interest in respect of the Debentures of each
of the aforesaid series will be payable each year in one annual payment or
in two half-yearly payments or in four quarterly payments, as will be
specified in the Offering Report pursuant to which each of the aforesaid
series is initially offered. The dates and number of repayments
of principal, the indexation basis (or absence of indexation), the type of
interest, the rate of interest or the manner for fixing it and the times
for payment of interest on the Debentures of each of the aforesaid series,
will be fixed by the Company immediately prior to the initial offering of
the Debentures of the relevant
series.
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2.2
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Up
to two series of registered convertible Debentures (Series G to H), where
each of the series of Debentures will have an overall par value of NIS
500,000,000, repayable (principal) in a number of payments which shall not
be less than one payment and shall not exceed fifteen (15) annual
payments, or which shall not be less than one payment and shall not exceed
thirty (30) half-yearly payments, payable at the times as set forth in the
Offering Report, all as will be described in the Offering Report, pursuant
to which each of the aforesaid series will be initially offered (“the Convertible
Debentures”); the indexation basis (or absence of indexation) and
the type of interest the principal of each of the series of Convertible
Debentures that will be issued will bear shall be specified in the
Offering Report pursuant to which each of the series of Convertible
Debentures of is initially offered; the rate of interest the principal
each of the series of Convertible Debentures that will be issued in
accordance with the Prospectus will bear, or the margin above or below the
base interest the principal of the Debentures of each of the aforesaid
series will bear, as the case may be, will be specified in the Offering
Report or will be fixed in a tender pursuant to which the initial offering
of the Debentures of that series will be made; the interest in respect of
the Debentures of each of the aforesaid series will be paid each year in
one annual payment or in two half-yearly payments or in four quarterly
payments, as will be described in the Offering Report pursuant to which
each of the aforesaid series is initially offered. The times
and number of repayments of principal, indexation basis (or absence of
indexation), the type of interest, the rate of interest or the manner for
fixing it and the times for payment of interest on the Debentures of each
of the aforesaid series, will be decided by the Company immediately prior
to the initial offering of Debentures of the relevant series, as will be
specified in the Offering Report pursuant to which each such series is
initially offered (“the
Initial Offering of the Convertible Debentures”); the Convertible
Debentures of each of the series will be convertible into ordinary shares
of NIS 1 par value each of the Company, on any trading day commencing from
the date of their listing for trading on the Stock Exchange and up to a
number of days before the end of the period of the Debentures of that
series, save and except a number of days prior to the effective date for
partial redemption in accordance with the directives of the Stock Exchange
and up to the date on which the partial redemption is effected, with this
being at a conversion rate that will be fixed in the shelf offering
report, subject to adjustments as stated in Paragraph 2.12.2.6B of the
Prospectus, in such manner and on such conditions as will be set forth in
the first Offering Report of Convertible Debentures of that series, in
accordance with the fixing of such details by the Company immediately
prior to the Initial Offering of the Convertible Debentures of the
relevant series.
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Upon the
first issue to the public of Debentures of any of the abovementioned series
(Series C to H), the Company will issue the appropriate debenture certificate
(including the conditions recorded on the reverse side thereof) in accordance
with the appropriate wording which is attached as a first schedule to this Deed,
in which all the particulars relevant to the Debentures of that series are
completed.
The
provisions of this Deed of Trust will apply to the Debentures that will be
issued as aforesaid in accordance with the Prospectus and which will be held
from time to time by the public, unless otherwise stated. For
purposes of this Deed of Trust, “public” means – any person who holds a
debenture (of Series C to H).
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3.
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Conditions of the
issue; purchase by the Company and additional
issues
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3.1
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The
Company will issue the Debentures under the conditions as set forth in the
Prospectus, in the Offering Report and in the Debentures. The
Company will be entitled to issue additional series of debentures of
different classes, whether same rank prior to the conditions of the
Debentures pursuant to the Prospectus, are equal or inferior
thereto.
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3.2
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The
Company reserves the right to buy debentures of this issue on the open
market at any time, whether on or off the Stock Exchange, at any price it
may deem fit, without prejudicing the obligation for repayment as
described above. In the case of such purchase by the Company,
the Company will give notice to that effect in an immediate report, a copy
of which shall be delivered to the Trustee. The debentures that
will be bought by the Company will be cancelled and will be expunged from
trading on the Stock Exchange, and the Company will not be entitled to
reissue same.
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3.3
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A
company under the control of the Company, the controlling shareholders in
the Company and/or companies under the control of the controlling
shareholders in the Company (hereinafter: “Related Holders”) are
entitled at any time to buy and/or sell Debentures at any price they may
deem fit, and to sell same accordingly. In the case of a
purchase and/or sale as aforesaid, the Company shall deliver an immediate
report/notice to that effect to the Trustee, upon it becoming aware of the
fact. The Debentures which are held as aforesaid by a Related
Holder will be deemed to be an asset of the Related Holder, and will not
be expunged from trading on the Stock Exchange. Debentures
which are held as aforesaid will not confer voting rights at meetings of
debenture holders and will not be taken into account for purposes of
determining the presence of a quorum at such
meetings.
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At the
time a meeting of debenture holders is held, the Trustee shall examine the
existence of conflicting interests of holders of debenture certificates
generally, according to the circumstances of the case. The Company
and the Trustee will take steps to convene class meetings of debenture holders
in accordance with the provisions of any law, decided cases, provisions of the
Securities Law and the regulations and directives that have been issued pursuant
thereto, as the Trustee shall direct. There is a presumption that
Related Holders have conflicting interests. In the case in which any
of the Related Holders holds Debentures of any series, there will be a necessity
for class meetings of debenture holders in a manner whereby one of the classes
of meetings will be a group that does not include Related Holders.
The
Trustee may, in its sole discretion, determine that a resolution requiring
approval of debenture holders of any series does not require a meeting of a
particular class (including the Trustee being entitled to decide that it does
not require the convening of a meeting of Related Holders) or that such meeting
will not be called.
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3.4
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The
Company may at any time, subject to any law, including in a period up to
the date of final redemption of the Debentures of a particular series,
issue additional Debentures of the same series (whether by way of a
private placement, or in the framework of a prospectus or pursuant to a
shelf offering report) at such price and in such manner as the Company
shall deem fit, including a different discount rate or premium than other
issues made of the same series, provided that it gives notice to that
effect to the debenture holders and to the Trustee of such
series. The Debentures which will be issued in the first
offering of the Debentures of that series pursuant to the Prospectus and
additional Debentures of the same series that will be issued (if any)
pursuant to this clause will (from the time of their issue) constitute one
series for all intents and purposes, and the Deed of Trust for that series
will also apply with respect to additional Debentures as aforesaid that
may be issued by the Company. In the case of an increase of a
series of Debentures forming part of Series C to H, the Trustee will have
the right to demand an increase in its remuneration proportionate to 50%
of the extent of the enlarged series, and by contracting under this Deed
the Company gives its consent in advance to an increase in the Trustee’s
remuneration as aforesaid. The Company will apply to the Stock
Exchange requesting to list the additional debentures for trading on the
Stock Exchange.
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3.5
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The
Company may at any time, without requiring the consent of the Trustee
and/or the consent of the debenture holders, issue additional series of
Debentures, whether same confer a right of conversion into shares of the
Company or do not confer such right, and on such conditions with regard to
redemption, interest, indexation, ranking for repayment in the event of a
winding-up and other conditions as the Company shall deem fit, whether
such conditions are more favorable than the conditions of the Debentures
offered pursuant to this Prospectus, equal or inferior
thereto. This right which the Company has does not exempt the
Trustee from examining such issue, wherever such obligation is imposed by
law on the Trustee, and it does not derogate from the rights of the
Trustee and of a meeting of debenture holders pursuant to this Deed,
including their right to make the Debentures immediately due and payable
as stated in Clause 7.2 or 7.3
below.
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The
Company will notify the Trustee, and the Trustee will notify the debenture
holders, about the issue of such Debentures.
It is
clarified that if at the time of a shelf offering report the Trustee serves as a
trustee for an additional series Debentures of the Company and/or the shelf
offering report relates to more than one series of Debentures, the possibility
of the Trustee serving as a trustee for the additional series of Debentures, or
any of them, will be examined both by the Company and by the Trustee, and
subject to the directive of the Securities Authority and/or the law which
applies at such time. If a different trustee is appointed for any of
series of Debentures as a result of the foregoing, the particulars of such
trustee will be described in the framework of the relevant offering
report.
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3.6
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Nothing
contained in this clause above shall in itself oblige the Company or the
debenture holders to buy Debentures or to sell the Debentures held by
them.
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3.7
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The
Company reserves the right to make early repayment of the Debentures upon
the fulfillment of the conditions set forth in Clause 6 of this
Deed.
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4.
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The Company’s
obligations
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The
Company hereby undertakes to pay all amounts of principal, interest and
indexation differences that will be payable pursuant to the terms and conditions
of the Debentures, and to comply with all the remaining conditions and
obligations imposed on it in accordance with the conditions of the Debentures
and pursuant to this Deed.
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5.
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Securing of the
Debentures
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5.1
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The
Debentures that will be offered pursuant to the shelf offering reports in
the framework of the Prospectus may be and may not be secured by any
encumbrance. In a case in which the Debentures are secured by
any collateral, the Trustee’s remuneration will be increased in accordance
with the provisions of Clause 3.4
above.
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The
Company reserves the right to create collateral security in favor of holders of
the Debentures that may be issued in accordance with the Shelf
Prospectus. Details about the mechanism for securing the Debentures
that will be issued in accordance with the Shelf Prospectus, to the extent that
they are secured by collateral, will be outlined in the framework of the
relevant shelf offering report, and the conditions for the amendment to the Deed
of Trust that is required by virtue of the addition of collateral security as
aforesaid will be such that shall be agreed in advance with the
Trustee.
For the
avoidance of doubt it is clarified that there shall be no obligation on the
Trustee to examine, and at the date of issue of a series from the shelf the
Trustee has in practice not examined and will not examine, the necessity for
providing collateral security to secure the payments to the debenture holders,
and the Trustee will not examine the economic value of the collateral security
that will be provided (if any) to secure the payment to the debenture
holders. Likewise the Trustee will not be required to carry out, and
in practice the Trustee has not carried out, a financial, accounting or legal
due diligence examination regarding the state of the business of the Company
and/or the subsidiaries, and will not carry out such examination at the time of
issue of a series from the shelf. By entering into this Deed of
Trust, and by it agreeing to serve as trustee for the debenture holders, the
Trustee is not expressing its opinion, whether expressly or impliedly, with
regard to the Company’s ability to meet its obligations to the debenture
holders. Nothing in the foregoing shall derogate from the duties and
obligations of the Trustee according to law and/or under the Deed of Trust,
including there being nothing which derogates from the Trustee’s obligation (to
the extent that such obligation applies to the Trustee according to any law) to
examine the effect of changes in the Company from the date of the Prospectus
onwards, where such changes could adversely affect the Company’s ability to meet
its obligations to the debenture holders. Nothing in the foregoing
shall derogate from the duties and obligations of the Trustee according to law
and/or according to the Deed of Trust.
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5.2
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The
Company will be entitled to sell, let under leasehold, assign, make over,
encumber or otherwise dispose of all and/or part of its assets, in favor
of whomever it deems fit, without any limitation, and at any ranking,
including for securing series of debentures or other obligations, and
without the necessity for the consent of the Trustee or the debenture
holders and without it being obliged to notify the Trustee about the
creation of such encumbrances.
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5.3
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The
Debentures will rank pari passu amongst
themselves in connection with the Company’s obligations pursuant to the
Debentures of that series, and without one series having a right of
priority or preference over
another.
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6.
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Early redemption of
the Debentures
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6.1
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Early
redemption due to delisting from
trading
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After the
Debentures have been listed for trading on the Stock Exchange, and if and to the
extent that after such listing for trading it is decided by the Stock Exchange
on the delisting of the Debentures which are not convertible due to a decline in
the value of the series of Debentures below the amounts specified in the Stock
Exchange directives or of the delisting of the Convertible Debentures due to a
decline in the value of the public’s holdings below the amount specified in the
Stock Exchange directives as aforesaid, the Company will be entitled to allow
early redemption of the Debentures (Series C to H). Unless the
Company gives notice to the contrary in the shelf offering report pursuant to
which a particular series of Debentures forming part of the series (C to H) is
offered for the first time, the Company will not allow such early redemption of
the series due delisting as aforesaid.
If the
Company elects to allow redemption of the Debentures of the aforesaid series (C
to H), the Company will act as follows:
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6.1.1
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Within
45 days from the date of the decision by the board of directors of the
Stock Exchange, the Company will give notice about the date of early
redemption on which the holder of Debentures will be entitled to redeem
same. The Company will pay the holder the principal and the
interest which has accrued up to the date of actual
redemption.
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Notice
regarding the date of early redemption will be published in an immediate
report and also in two widely-circulating Hebrew dailies in Israel and
shall be delivered in writing to all the registered debenture
holders.
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6.1.2
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The
date of early redemption that will fall with respect to Debentures that
are not convertible (Series C to F) not earlier than 17 days from the date
of publication of the notice, and with respect to the Convertible
Debentures (Series G to H) not earlier than 30 days from the date of
publication of the notice, and with respect to all the series of
Debentures not later than 45 days from the aforesaid date, but not during
the period between the date fixed for payment of interest and the date of
actual payment thereof.
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6.1.3
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At
the time of early redemption the Company will redeem the Debentures which
the holders thereof have requested to redeem, according to the balance of
the par value thereof plus indexation differences and the interest that
has accrued on the principal up to the date of actual redemption
(calculation of the interest shall be made on a basis of 365 days in the
year).
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Fixing of
a date for early redemption as aforesaid does not prejudice the redemption
rights specified in the Debentures or the rights of conversion of the
Convertible Debentures, for any of the debenture holders who do not redeem the
Debentures at the time of early redemption as aforesaid, but the Debentures will
be delisted and the tax implications arising from this will apply to
them.
Early
redemption of the Debentures as aforesaid will not confer the right to payment
of interest in respect of the period subsequent to the date of redemption on any
person who held the Debentures that were redeemed as aforesaid.
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6.2
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Early
redemption on the Company’s
initiative
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The
Company will be entitled to make the Debentures of any of the Series C to
H, which will be offered pursuant to the offering report and in accordance
with the Shelf Prospectus subject to early redemption, on such terms and
conditions, price, mechanism, timetable and the remaining conditions that
are specified in the Stock Exchange directives as in force for the time
being, as shall be specified in the first offering report of the
Debentures of the relevant series.
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7.
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Immediate
repayment
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7.1
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On
the occurrence of one or more of the events enumerated
below:
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7.1.1
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If
the Company does not pay any amount that is due from it in connection with
the Debentures within 30 days after the due date for payment thereof has
arrived.
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7.1.2
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If
a provisional liquidator has been appointed by a court, or a valid
resolution has been passed for the winding-up of the Company (save and
except a winging-up for purposes of merging with another company and/or a
change in the Company’s structure), and such appointment or such decision
has not been set aside within 20 business days from the date on which it
was granted.
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7.1.3
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If
an attachment is imposed on material assets of the Company, in whole or in
part, and the attachment is not removed within 60 days from the date on
which it was imposed.
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7.1.4
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An
Execution Office operation is executed against a material asset of the
Company, in whole or in part, and the operation is not set aside within 60
days.
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7.1.5
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If
a receiver is appointed for the Company and/or for its material assets, in
whole or in part, and the appointment is not set aside within 60
days.
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7.1.6
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If
the Company ceases payments on the Debentures and/or gives notice of its
intention to cease payments on the
Debentures.
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7.1.7
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If
the Company ceases to continue to engage in and/or conduct its businesses
and/or gives notice of its intention to cease continuing to engage in its
businesses and/or the conduct
thereof.
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7.1.8
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If
another series of debentures the Company has issued has been made
immediately due and payable.
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7.1.9
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If
a stay of proceedings order is granted under Section 350 of the Companies
Law, 5759-1999 against the Company, and such order is not set aside within
60 (sixty) days from the date of commencement
thereof.
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7.1.10
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If
an application is lodged in relation to the Company for the making of an
arrangement with the Company’s creditors pursuant to Section 350 of the
Companies Law, 5759-1999, or if a stay of proceedings order is granted
against the Company in accordance with the aforesaid section, and the
application or the order has not been withdrawn or set aside within 60
days from the date of filing or the date of grant thereof, as the case may
be.
|
|
|
7.1.11
|
If
the Company is liquidated or expunged for any
reason.
|
|
|
7.1.12
|
If
a genuine fear exists that the Company will cease payments on the
Debentures and/or will cease to continue its businesses and/or be due to
cease continuing its businesses and/or a material fear exists that it will
cease conducting its business.
|
|
|
7.1.13
|
Upon
the occurrence of any event that constitutes material prejudice and/or
could cause material prejudice to the rights of the holders of Debentures
of that series.
|
The provisions of Clauses 7.2 or 7.3
below will apply as the case may be.
For
purposes of this clause “material asset” means – an asset the value of which in
the Company’s books exceeds 25% of the Company’s equity capital according to the
last consolidated financial statements (audited or reviewed), which were
published prior to the date of the event.
11
|
|
7.2
|
Upon
the occurrence of any of the events noted in Clauses 7.1.1 to 7.1.11 above
(inclusive):
|
|
|
7.2.1
|
The
Trustee will be obliged to call a meeting of debenture holders the date
for convening of which will be after 30 days from the date of calling
thereof (or an earlier date in accordance with the provisions of Clause
7.2.4 below), whose agenda shall contain a resolution regarding the making
of the entire unpaid balance of the Debentures immediately due and payable
by virtue of the occurrence of one of the events mentioned in Clauses
7.1.1 to 7.1.11 above (inclusive).
|
|
|
7.2.2
|
In
the event that up to the date of convening of the meeting any of the
events described in Clauses 7.1.1 to 7.1.11 above (inclusive) has not been
set aside or removed, and the resolution at such meeting of debenture
holders is passed as a special resolution (as defined in the Second
Schedule to this Deed), the Trustee will be obliged, within a reasonable
time, to make the entire unpaid balance of the Debentures immediately due
and payable.
|
|
|
7.2.3
|
A
copy of a notice calling such meeting shall be sent by the Trustee to the
Company immediately upon publication of the notice and it shall constitute
prior written warning notice to the Company of the Trustee’s intention to
act as aforesaid.
|
|
|
7.2.4
|
The
Trustee may, in its discretion, shorten the aforesaid period of 30 days
(as mentioned in Clause 7.2.1 above) in a situation in which the Trustee
is of the opinion that any delay in making the Company’s debt due and
payable endangers the rights of the debenture holders, but under no
circumstances shall the aforesaid period be shortened to less than 7
days.
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|
|
7.3
|
On
the occurrence of any of the events described in Clauses 7.1.12 to 7.1.13
above (inclusive):
|
|
|
7.3.1
|
Each
of the debenture holders and the Trustee will be entitled, but not
obliged, to call a meeting of debenture holders, the date for convening of
which shall be after 30 days from the date on which it was called (or an
earlier date in accordance with the provisions of Clause 7.3.4 below),
whose agenda shall contain a resolution regarding the making of the entire
unpaid balance of the Debentures immediately due and payable by virtue of
the occurrence of any of the events mentioned in Clauses 7.1.12 to 7.1.13
above (inclusive).
|
|
|
7.3.2
|
In
a case in which a resolution is passed at a meeting of debenture holders
as referred to in Clause 7.3.1 above as a special resolution (as defined
in the Second Schedule to this Deed), the Trustee shall be obliged, within
a reasonable time, to make the entire unpaid balance of the Debentures
immediately due and payable.
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|
|
7.3.3
|
A
copy of the notice calling such meeting shall be sent by the party calling
the meeting to the Company and to the Trustee immediately upon publication
of the notice, and shall constitute prior written warning notice to the
Company about the intention to act as
aforesaid.
|
12
|
|
7.3.4
|
A
debenture holder or the Trustee, as the case may be, who calls the meeting
will be entitled, in his or its discretion, to shorten the aforesaid 30
day period (mentioned in Clause 7.3.1 above) in the event that the party
calling the meeting is of the opinion that any delay in making the
Company’s debt payable endangers the rights of the debenture holders, but
under no circumstances shall the aforesaid period be shortened to less
than 7 days.
|
|
|
7.3.5
|
The
Trustee, after it becomes aware of the fact, shall be responsible for
reporting to the debenture holders about the occurrence of any of the
events mentioned in Clauses 7.1.12 to 7.1.13 above (inclusive), whether on
the strength of public announcements the Company has published or in
accordance with a notice the Company has sent to it in accordance with the
provisions of Clause 22 below, shortly after this has been brought to its
notice and/or has been delivered to
it.
|
|
8.
|
Claims and proceedings
by the Trustee
|
|
|
8.1
|
In
addition to any other provision in this deed, the Trustee will be entitled
as a matter of right and independent authority, in its discretion, and it
will be obliged to do so by any special resolution passed at a meeting of
the debenture holders, and without giving additional notice to the
Company, to take all such proceedings, including legal proceedings as it
sees fit and subject to the provisions of any law, for purposes of
enforcing the Company’s obligations pursuant to this Deed, for purposes of
exercising the rights of the debenture holders and protecting their rights
under this Deed. The Trustee will be entitled to commence legal
and/or other proceedings also if the Debentures have not been made
immediately due and payable, in order to protect the rights of the
debenture holders and subject to any law. Notwithstanding the
contents of this clause, a right to make the Debentures immediately due
and payable shall only arise in accordance with the provisions of Clause 7
above and not on the strength of this
clause.
|
|
|
8.2
|
The
Trustee will be entitled, subject to any special resolution of the
debenture holders as aforesaid, to waive the compliance with such
obligations of the Company, in whole or in part, on such conditions as it
shall deem fit.
|
|
|
8.3
|
The
Trustee may, in its sole discretion and without the necessity for giving
notice to the Company, apply to the appropriate court with an application
for instructions on any matter connected with and/or arising from this
Deed.
|
|
|
8.4
|
Subject
to the provisions of this Deed, the Trustee is entitled, but not obliged,
to convene a general meeting of the debenture holders at any time in order
to consider and/or to obtain its instructions on any matter pertaining to
this Deed and it may reconvene such
meeting.
|
13
|
|
8.5
|
The
Trustee may, in its sole discretion, delay the performance of any act by
it in accordance with this Deed, for purposes of referring to a meeting of
debenture holders and/or to the court, until such time as it receives
instructions from the meeting of debenture holders and/or the instructions
of the court on how to act. Notwithstanding the foregoing, the
Trustee is not entitled to delay proceedings for making the Debentures
immediately due and payable which were decided upon by a meeting of the
debenture holders in accordance with the provisions of Clauses 7.2 or 7.3
above.
|
|
|
8.6
|
For
the avoidance of doubt it is hereby clarified that none of the provisions
set forth above shall prejudice and/or derogate from the Trustee’s right
which is hereby conferred on it to apply to judicial instances, in its
sole discretion, even before the Debentures are made immediately due and
payable, for purposes of the grant of any order in regard to the affairs
of the trust.
|
|
9.
|
Distribution of
receipts
|
All the
receipts that will be received by the Trustee in any manner, including, without
limitation, as a result of proceedings it may take, if any, against the Company,
shall be held by it in trust and shall serve in its hands for the following
objectives according to the order of priorities set forth below:
Firstly
for liquidating the expenses, payments, levies and undertakings the Trustee has
incurred, or were imposed on it, or which were caused due to or as a result of
actions for performing the trust or otherwise in connection with the conditions
of this Deed, including its remuneration (on condition that the Trustee shall
not receive double remuneration both from the Company and from the debenture
holders). Secondly – in order to pay the debenture holders the arrear
interest due to them pursuant to the conditions of the Debentures and subject to
the conditions of indexation contained in the Debentures pari passu and pro rata to the amount of
interest in arrears which is due to each of them, without any preference or
prior right for any of them; thirdly – in order to pay the debenture holders the
amounts of principal and/or arrears on principal which are due to them in
accordance with the Debentures held by them, pari passu and subject to the
conditions of indexation contained in the Debentures, whether or not the time
for payment of the amounts of principal has arrived and pro rata to the amounts that
are due to them, without any preference in connection with the precedence in the
time of issue by the Company of the Debentures or otherwise, and the balance, if
any, shall be paid by the Trustee to the Company or its
successors-in-title.
Payment
by the Trustee of the amounts to the debenture holders is subject to the rights
of other creditors of the Company, if there are such.
14
|
9A.
|
Power to demand
payment to the holders through the
Trustee
|
The
Trustee, in its sole discretion and without the necessity for giving any
explanation or grounds, may instruct the Company in writing (“Notice”) to transfer to the
Trustee, to the credit of such account as it shall direct, any payment the
Company owes to the holders, one banking business day before the intended date
of payment. The Company is not entitled to refuse to act in
accordance with such notice and the Company shall be deemed to have fulfilled
its obligation to the holders if it proves that it transferred the full amount
of the debt the due date for which has fallen to the credit of the account the
details of which were specified in the Notice. The Trustee will be
entitled to set off any amount the Company owes and/or the holders owe to the
Trustee (whether as payment on account of remuneration or as a reimbursement of
expenses) in accordance with the Trustee’s rights to receive such amounts
pursuant to this Deed of Trust, and it may do so without the necessity for a
resolution of a meeting of holders and/or the consent of the Company, on
condition that the Trustee notifies the holders and the Company by way of notice
in writing which the Company shall publish on the Magna and the Maya
system.
|
10.
|
Power to withhold
distribution of money
|
|
|
10.1
|
Notwithstanding
the contents of Clause 9 above, if the monetary amount that is received as
a result of the taking of the aforesaid steps which is available for
distribution at any time, as stated in that clause, is less than the rate
of interest in respect of the unpaid balance of the principal of the
Debentures and the interest, subject to the conditions of indexation of
the Debentures of the relevant series, the Trustee will be not obliged to
distribute same and it will be entitled to invest such amount, in whole or
in part, in investments which are permitted according to this Deed, and to
vary and replace such investment from time to time with other permitted
investments, as it sees fit.
|
|
|
10.2
|
When
the aforesaid investments, together with the profits thereon and together
with additional moneys which are received by the Trustee for purposes of
payment thereof to the debenture holders, if any, reach the amount
specified in Clause 10.1 above, the Trustee shall pay same to the
debenture holders as stated in Clause 9
above.
|
|
11.
|
Notice regarding
distribution and deposit with the
Trustee
|
The
Trustee shall notify the debenture holders about the day and the place on which
any of the payments mentioned in Clauses 9 and 10 above will be made, by way of
prior notice of 14 days which shall be delivered in the manner stipulated in
Clause 22 below.
After the
date fixed in the notice the debenture holders will be entitled to interest in
respect of the Debentures at the rate specified in the Debentures, only on the
balance of the amount of the principal (if any), after deduction of the amount
which has been paid or which was offered to them for payment as
aforesaid.
15
|
12.
|
Failure to make
payment for a reason over which the Company has no
control
|
|
|
12.1
|
Any
amount that is due to a debenture holder which has not been paid in
practice for a reason that is not dependent on the Company, at a time the
Company was prepared to make payment thereof, shall cease to bear interest
and indexation differences from the date specified for the payment
thereof, and the debenture holder will only be entitled to those amounts
to which he was entitled at the date specified for the effecting of such
payment on account of the principal, the indexation differences or the
interest.
|
|
|
12.2
|
The
Company shall deposit with the Trustee, not later than 14 business days
from the date specified for such payment, the amount of the payment which
was not paid for a reason that was not dependent on the Company, and such
deposit shall be deemed to be liquidation of such payment, and in the case
of liquidation of everything due in respect of the Debenture, also as
redemption of the Debenture.
|
|
|
12.3
|
The
Trustee shall deposit any such amount at a bank to the credit of those
account owners and shall invest such amounts in investments that are
permitted to it in accordance with the Deed of Trust, which are securities
of the State of Israel and other securities in which the laws of the State
of Israel allow the investment of trust moneys, all as the Trustee shall
see fit and subject to the provisions of the law. Where the
Trustee has done so, it will not be liable to the entitled persons in
respect of such amounts, except the proceeds that will be received from
realization of investments, less the expenses, commissions and compulsory
payment, if any, connected with the aforesaid investment in the management
of the trust account, less its
remuneration.
|
|
|
12.4
|
Out
of those moneys that were deposited as aforesaid, less all the expenses,
commissions, compulsory payments and its remuneration, the Trustee shall
transfer to every debenture holder for whom amounts and/or moneys that are
due to the debenture holders have been deposited with the Trustee, and
shall do so against presentation of such proof as may be demanded by the
Trustee to its full satisfaction.
|
|
13.
|
Presentation
of Debenture to the Trustee and registration in connection with partial
payment
|
|
|
13.1
|
A
debenture holder will be obliged, at the time of payment of any interest
or partial payment of principal, interest and indexation differences
pursuant to Clauses 9, 10 and 11 above, to present to the Trustee the
Debenture in respect of which the payments are being
made.
|
|
|
13.2
|
The
Trustee shall record a note on the Debenture regarding the amounts that
have been paid as aforesaid and the date of payment
thereof.
|
|
|
13.3
|
The
Trustee will be entitled in any special situation, in its discretion, to
waive the presentation of the Debenture after a deed of indemnity and/or
adequate guarantee to its satisfaction has been given to it in respect of
damage likely to be caused due to the non-recording of such note, all as
it shall see fit.
|
16
|
|
13.4
|
Notwithstanding
the foregoing, the Trustee may, in its discretion, maintain records in
another manner with regard to such partial
payments.
|
|
14.
|
The Company’s
obligations to the Trustee
|
The
Company hereby undertakes to the Trustee and the debenture holders that so long
as the Debentures (including the indexation differences thereon) have not been
paid, as follows:
|
|
14.1
|
To
notify the Trustee immediately and in writing in regard to the Company’s
reasonable fear that all or any of the events mentioned in Clause 7.1
above are likely to occur and in regard to the occurrence of all or any of
the events mentioned in Clause 7.1
above.
|
|
|
14.2
|
Not
later than the end of 30 days from the date of this Deed of Trust to
deliver to the Trustee an amortization table in an Excel file for payment
of the Debentures (principal and
interest).
|
|
|
14.3
|
To
notify the Trustee in writing within 4 business days about the effecting
of any payment to the debenture holders and in regard to the balance of
the amounts the Company owes at that time to the debenture holders after
the effecting of the aforesaid
payment.
|
|
|
14.4
|
To
continue to manage and operate the business of the Company in a regular,
proper and efficient manner.
|
|
|
14.5
|
Not
later than the date specified for the publication thereof, to deliver the
Company’s consolidated audited financial statements for the financial year
ended on December 31, of the preceding year and periodic reports to the
Trustee.
|
|
|
14.6
|
Not
later than the date specified for the publication thereof, to deliver the
Company’s consolidated interim financial statements and any quarterly
statement accompanied by a review report from an accountant in relation
thereto to the Trustee.
|
|
|
14.7
|
To
deliver to the Trustee, immediately upon the delivery thereof, any report
it is obliged to submit to the Securities Authority. Any report
that may be published by the Company on the Magna system (including
financial statements) shall be deemed to be actual delivery to the Trustee
in accordance with this clause.
|
|
|
14.8
|
Each
December 31 of every year, and so long as this Deed is in force, the
Company shall furnish the Trustee with a certificate signed by the
chairman of the board of directors or the CEO of the Company to the effect
that, to the best of his or their knowledge, as the case may be, in the
period from the date of the Deed and/or from the date of the previous
certificate that was delivered to the Trustee, whichever is the later, and
up to the date of giving of the certificate, there has been no breach of
this Deed by the Company (including a breach of conditions of the
Debenture) unless otherwise expressly
stated.
|
17
|
|
14.9
|
To
cause a situation that the Company’s accountant will, within a reasonable
time, provide the Trustee and/or such persons as the Trustee shall direct,
with any explanation, document, calculation or information concerning the
Company, its business and/or its assets that may be reasonably required,
in the Trustee’s discretion, for purposes of examinations that are
performed by the Trustee for purposes of protecting holders of the
Debentures that have been issued in accordance with the shelf offering
report.
|
|
|
14.10
|
To
maintain proper books of account in accordance with accepted accounting
principles.
|
|
|
14.11
|
The
Trustee, by its signing this Deed of Trust, undertakes to keep all
information given as aforesaid confidential. It is clarified
that the passing on of information to the debenture holders for purposes
of passing a resolution relating to their rights pursuant to the Debenture
or for purposes of providing a report regarding the condition of the
Company, does not constitute a breach of the Trustee’s confidentiality
undertaking.
|
|
|
14.12
|
To
notify the Trustee, immediately it becomes aware thereof, in regard to any
event in which an attachment has been imposed on its assets, in whole or
in part, and also in every case in which a receiver has been appointed for
its assets, in whole or in part, and immediately and at its expense to
take all the reasonable steps necessary for the removal of such attachment
or setting aside of the
receivership.
|
|
|
14.13
|
To
give the Trustee notice of all its general meetings (whether to annual
general meetings or to special general meetings of the shareholders of the
Company) without conferring a right on the Trustee to vote at such
meetings.
|
|
|
14.14
|
To
deliver to the Trustee, upon its written request, a certificate in writing
signed by the Company’s auditor that all the payments to the debenture
holders were paid on due date, and the balance of the par value of the
Debentures that are in circulation.
|
|
|
14.15
|
A
copy of every document the Company sends to its shareholders or to
debenture holders and any additional information in accordance with the
Trustee’s reasonable demand which is necessary for fulfilling the
Trustee’s function of protecting the rights of the debenture
holders.
|
|
|
14.16
|
To
deliver to the Trustee, upon its demand, an affidavit and/or declarations
and/or documents and/or particulars and/or information, as may be demanded
by the Trustee, in its sole discretion, for the exercise and
implementation of the powers, authorities and permissions of the Trustee
and/or its representatives in accordance with the Deed of
Trust.
|
18
|
15.
|
Additional
obligations
|
After the
Debentures have been made immediately due and payable, as defined in Clause 7
above, the Company shall from time to time and at any time that it is called
upon to do so by the Trustee, perform all the reasonable operations in order to
allow for and to enable the exercise of all the powers conferred on the Trustee,
and in particular the Company shall perform the following acts:
|
|
15.1
|
It
shall make the declarations and/or sign all the documents and/or shall
perform and/or cause the performance of all the requisite and/or necessary
acts in accordance with the law for giving validity to the exercise of the
powers, authorities and permissions of the Trustee and/or its
representatives.
|
|
|
15.2
|
It
shall give all the notices, the orders and instructions which the Trustee
may deem to be beneficial and may
demand.
|
|
|
15.3
|
For
purposes of this clause – a notice in writing signed by the Trustee
confirming that an act demanded by it, in the scope of its powers and
authorities, is a reasonable act, shall constitute prima facie evidence of
the fact.
|
|
16.
|
Other
agreements
|
Subject
to the provisions of the law and the restrictions that are imposed by law on the
Trustee, the fulfilling of its function as trustee, in accordance with this
Deed, or its status as a trustee, shall not prevent it from entering into
various contracts with the Company or from executing transactions with it in the
ordinary course of the Trustee’s business.
|
17.
|
Reporting by the
Trustee
|
Not later
than the end of 3 months from the end of each year of the trust the Trustee
shall draw up an annual report regarding the affairs of the trust (hereinafter:
“the Annual
Report”).
The
Annual Report shall contain details on the following subjects:
|
|
17.1
|
Current
particulars regarding the course of business of the trust in the preceding
year.
|
|
|
17.2
|
A
report on exceptional events in connection with the trust which occurred
during the course of the preceding
year.
|
The
debenture holders will be entitled to peruse the annual report at the Trustee’s
offices during working hours and will be entitled to receive a copy of the
report in accordance with a demand. A copy of the report shall be
furnished to the Company simultaneous with its being made available for perusal
of the debenture holders.
19
The
Trustee shall give the debenture holders notice regarding the time of submission
of the report, in the manner stated in Clause 22 below. If the
Trustee becomes aware of a material breach of this Deed by the Company, it shall
notify the debenture holders about the breach and about the steps it has taken
to prevent the breach or for the fulfillment of the Company’s obligations, as
the case may be.
|
18.
|
Remuneration and cover
of the Trustee’s expenses
|
The
Trustee’s remuneration is in accordance with an agreement between it and the
Company from the date of this Deed.
|
19.
|
Special
powers
|
|
|
19.1
|
The
Trustee will be entitled to lodge all the deeds and documents which
evidence, represent or specify its right in connection with any asset
which is for the time being in its possession, in a safe and/or at another
place it may choose, with any banker and/or any banking corporation and/or
with an attorney. Where the Trustee has done so, it will not be
liable in respect of any loss that may be caused in connection with such
deposit, unless the Trustee acted negligently or
maliciously.
|
|
|
19.2
|
The
Trustee may, in the scope of performing the affairs of the trust pursuant
to this Deed, requisition an opinion and/or advice of any attorney,
accountant, appraiser, valuer, surveyor, real estate agent or other
expert, and will be entitled to act in accordance with the conclusions
thereof, whether such opinion and/or advice was prepared at the request of
the Trustee and/or by the Company. The Trustee will not be
liable for any loss or damage that may be caused as a result of any act
and/or omission committed by it on the strength of such advice or opinion,
unless the Trustee acted negligently or
maliciously.
|
|
|
19.3
|
Any
such advice and/or opinion may be given, sent or received by way of
letter, telegram, facsimile and/or any other electronic means for the
transfer of information, and the Trustee will not be liable in respect of
acts it performed on the strength of advice and/or an opinion and/or
information transmitted in one of the ways mentioned above,
notwithstanding that errors were made in it and/or that they were not
authentic, unless the Trustee acted negligently or
maliciously.
|
|
|
19.4
|
In
a case in which the Trustee receives a certificate signed by the Company
through two directors of the Company and/or an assessment confirming that
in their opinion a transaction, step, operation or anything else being
done or intended to be done by the Company are desirable and are for the
benefit of the Company, this shall constitute sufficient proof that the
transaction, step, operation or thing are indeed desirable and for the
Company’s benefit. Where the Trustee has acted in reliance on
such certificate, it will not be liable for any damage and/or loss that
may be caused as a consequence of such step, operation and/or thing,
unless the Trustee acted negligently or
maliciously.
|
20
|
|
19.5
|
Subject
to the provisions of this Deed, the Trustee shall be entitled, but not
obliged, to call a general meeting of debenture holders at any time in
order to consider and discuss and/or to obtain its instructions on any
matter pertaining to this Deed, and it may reconvene such
meeting.
|
|
|
19.6
|
The
Trustee shall not be obliged to give notice to any party about the signing
of this Deed and it is not entitled to interfere in any way in the conduct
and management of the Company’s business or its affairs, except in
accordance with the powers and authorities conferred on the Trustee
pursuant to this Deed.
|
|
|
19.7
|
In
performing the trust The Trustee shall exercise the powers, permissions
and authorities that have been conferred on it under this Deed, in its
absolute discretion, and it will not be liable for any damage that may be
caused as a result of an error in such discretion, unless the Trustee
acted negligently or maliciously.
|
|
20.
|
Trustee’s power to
employ agents
|
The
Trustee will be entitled to appoint an agent/s to act in its stead, whether an
attorney or other person, in order to carry out or to participate in the
performance of special operations that require to be performed in connection
with the trust, and without derogating from the generality of the foregoing, the
taking of legal proceedings. The Trustee shall further be entitled to
make payment at the Company’s expense of the reasonable fees of any such agent,
and the Company shall refund any such expense to the Trustee immediately upon
its first demand, on condition that the Trustee gave the Company advance notice
regarding the appointment of such agents.
The
Trustee may at any time delegate the trusts, powers, permissions and authorities
granted to it under this Deed of Trust, in whole or in part, to another person
or to other persons, and any such delegation shall be made according to the
conditions and instructions (including permission to the agent to appoint an
agent) which the Trustee deems to be conducive, but the delegation of powers as
aforesaid shall not release the Trustee from any liability that would have been
imposed on it had it not been for the delegation of powers.
|
21.
|
Indemnification of the
Trustee
|
|
|
21.1
|
The
Trustee will be entitled to receive indemnity from the debenture holders
or from the Company, as the case may be, in respect of reasonable expenses
it has incurred and/or may incur in connection with the operations it has
performed or is obliged to perform by virtue of its obligation pursuant to
the terms and conditions of this Deed, and/or according to law and/or a
directive of a competent authority and/or any statute and/or on a demand
by the debenture holders and/or at the Company’s request, provided
that:
|
|
|
21.1.1
|
The
expenses in respect of liability for damage are
reasonable.
|
21
|
|
21.1.2
|
The
Trustee acted in good faith, and the act was performed in the scope of
fulfilling its function.
|
|
|
421.2
|
Without
prejudice to the rights to compensation and to indemnity granted to the
Trustee according to the law and/or without prejudice to the commitments
of the Company and/or the debenture holders in accordance with this Deed,
the Trustee, its attorney, manager, agent or other person appointed by the
Trustee in accordance with this Deed, will be entitled to receive
indemnity out of the moneys that will be received by the Trustee as a
consequence of proceedings it has taken and/or otherwise in accordance
with this Deed, with regard to the obligations they have assumed regarding
the expenses that have been incurred in the course of performing the trust
or in connection with such operations, which in their opinion were
necessary for performing the matters aforesaid and/or in connection with
the exercise of the powers and permissions conferred by virtue of this
Deed and also in connection with all kinds of legal proceedings, opinions
of attorneys and other experts, negotiations, discussions, expenses,
claims and demands relating to any matter and/or thing that was done
and/or was not done in any manner in relation to the foregoing, and the
Trustee may withhold money in its possession and make payment out of such
money of the requisite amounts for purposes of paying such
indemnity. All the aforesaid amounts will rank ahead of and
prior to the debenture holders and subject to the provisions of any law,
provided that the Trustee acted in good
faith.
|
|
|
21.3
|
Wherever
the Trustee is obliged pursuant to the terms and conditions of the Deed of
Trust and/or according to law and/or a directive of a competent authority
and/or any statute and/or upon a demand by the debenture holders and/or at
the request of the Company, to perform any act, including, without
limitation, the commencing of proceedings or the filing of claims on a
demand by the debenture holders, as stated in the Deed of Trust, the
Trustee will be entitled to refrain from taking any such action until it
receives a deed of indemnity to its satisfaction from the debenture
holders or any of them, and if the act is performed on a demand by the
Company, from the Company, in respect of any liability for damage and/or
for expenses that might be incurred by the Trustee and the Company or
either of them, as a consequence of the performing of such
act. The Trustee’s power to refrain from such act shall not
apply in circumstances where urgent action is necessary in order to
prevent material prejudice to the rights of the debenture
holders.
|
22
|
|
21.4
|
Notwithstanding
the contents of this Clause 21 above (including the sub-clauses hereof),
whenever the Trustee deems fit, for purposes of the protection and/or the
realization of the rights of the debenture holders, and/or is obliged,
according to the conditions of this Deed and/or according to law and/or a
directive of a competent authority and/or any law and/or at the request of
the Company and/or the debenture holders, to institute legal proceedings,
the Company shall deposit with the Trustee an amount that will be fixed by
the Trustee as the anticipated amount of the Trustee’s expenses in
connection with such proceedings. In the event that the Company
does not deposit the aforesaid amount at the time it was requested by the
Trustee to do so and/or where in the Trustee’s opinion there is doubt
regarding the Company’s ability to cover the expenses connected with the
taking of proceedings by the Trustee, the Trustee shall immediately call a
meeting of debenture holders in order to confirm their liability for the
cover of the expenses connected with the proceedings which the Trustee
will take. In a case in which the debenture holders refuse to
bear the expenses connected with the taking of proceedings by the Trustee,
there will be no obligation on the Trustee to take such
proceedings. It is hereby clarified that the agreement of the
debenture holders as aforesaid does not release the Company from its
obligations to bear and to cover all the expenses connected with the
taking of such proceedings. Likewise, all the moneys that will
be received from proceedings for realization shall also serve for refund
and cover of expenses which the debenture holders have undertaken to bear
as aforesaid.
|
|
|
21.5
|
It
is agreed that indemnity for the Trustee as set forth in this Clause 21 in
respect of: (1) operations it has performed and/or has been called upon to
perform by virtue of its obligation under the terms and conditions of the
Deed of Trust or for purposes of protecting the rights of the debenture
holders (including by virtue of a demand by a holder) – shall be borne and
paid by the Company; (2) acts it has performed and/or has been called upon
to perform at the request of the Company – shall be borne and paid by the
Company; and (3) actions it has performed and/or has been called upon to
perform on a request by the debenture holders (excluding acts as aforesaid
that were taken on a demand by holders for purposes of protecting the
rights of the debenture holders) – shall be borne and paid by the
debenture holders. It is further agreed that if there is an
obligation for indemnity on the Company as aforesaid and the
indemnification is not received from the Company within 60 days from the
Trustee’s demand, the holders will be liable for the indemnity to the
Trustee. It is clarified that actual payment by the holders to
the Trustee shall not derogate from the Company’s obligation to refund to
the holders the amount that was paid in a situation in which it was
obliged to make payment thereof in accordance with the provisions of this
Deed.
|
|
22.
|
Notices
|
|
|
22.1
|
Any
notice by the Company and/or the Trustee to the debenture holders shall be
given as follows:
|
|
|
22.1.1
|
By
reporting on the Magna system of the Securities Authority; (the Trustee
may instruct the Company and the Company shall be obliged to report
forthwith on the Magna system in the name and on behalf of the Trustee
with respect to any report in the text as will be transmitted to the
Company in writing by the Trustee); and
also by way of:
|
|
|
22.1.2
|
A
notice that shall be published in two widely circulating dailies that are
published in Hebrew in Israel;
|
|
or
|
23
|
|
by
sending a notice by registered mail to every registered holder of
Debentures according to his last address as recorded in the register of
debenture holders (in the case of joint holders – to the joint holder
whose name stands first in the
register).
|
|
|
Any
notice that may be published or sent as aforesaid, will be deemed to have
been delivered to the debenture holder on the date of publication thereof
as aforesaid or after three days from the date of posting thereof, as the
case may be.
|
|
|
22.2
|
Any
notice or demand by the Trustee to the Company may be given by way of
letter to be sent by registered mail according to the address set forth in
the Deed of Trust, or according to such other address of which the Company
has given the Trustee written notice, or by the transmission thereof by
facsimile or via a messenger, and any such notice or demand will be deemed
to have been received by the Company: (1) in the case of posting by
registered mail – after three business days from the date of delivery
thereof to the post office; (2) in the case of transmission by facsimile
(together with telephonic verification regarding the receipt thereof) –
after one business day from the day of its transmission; (3) and in the
case of it being sent via messenger – upon delivery thereof by the
messenger to the addressee or upon it being offered for acceptance to the
addressee, as the case may be.
|
|
|
22.3
|
Any
notice or demand by the Company to the Trustee may be given by letter to
be sent by registered mail according to the address set forth in the Deed
of Trust, or according to such other address of which the Trustee has
given the Company written notice, or by the transmission thereof by
facsimile or via a messenger, and any such notice or demand shall be
deemed to have been received by the Trustee: (1) in the case of posting by
registered mail – after three business days from the date of delivery
thereof to the post office; (2) in the case of transmission by facsimile
(together with telephonic verification regarding the receipt thereof) –
after one business day from the day of its transmission; (3) and in the
case of it being sent via messenger – upon delivery thereof by the
messenger to the addressee or upon it being offered to the addressee for
acceptance, as the case may be.
|
|
|
22.4
|
Copies
of notices and invitations to meeting that may be given by the Company
and/or the Trustee to the debenture holders – shall also be sent by the
Company in an immediate report, a copy of which shall be delivered to the
Trustee.
|
|
23.
|
Waiver; compromise;
and amendments to the terms and conditions of the Deed of
Trust
|
|
|
23.1
|
Subject
to the provisions of any law, the Trustee may from time to time and at any
time, if it has been persuaded that this does not, in its opinion,
constitute any form of prejudice to the rights of the debenture holders,
waive any breach or non-fulfillment by the Company of any of the terms and
conditions of this Deed.
|
24
|
|
23.2
|
Subject
to the provisions of the law and with prior approval to be given by a
general meeting of debenture holders of a particular class by a 75%
majority of the persons participating in the vote, at which the holders of
at least 50% of the balance of the par value of the Debentures of that
series which are in circulation were personally present or represented by
proxy, or at an adjourned meeting, at which the holders of at least 10% of
the aforesaid balance were personally present or represented by proxy, the
Trustee may, either before or after the principal of the Debentures
becomes due for payment, compromise with the Company in connection with
any right or claim of holders of the Debentures of that series and may
agree with the Company on any arrangement in connection with its rights or
the rights of holders of the Debentures of that series, including the
waiving of any right or claim of the debenture holders against the Company
in accordance with this Deed. Where the Trustee has compromised
with the Company after obtaining prior approval of the holders of the
Debentures as aforesaid, the Trustee will be exempt and released from any
liability in respect of such
action.
|
|
|
23.3
|
Subject
to the provisions of the law, the Trustee and the Company may, either
before or after the principal of the Debentures becomes due for payment,
alter the Deed of Trust (including an alteration to the terms and
conditions of the Debentures) if one of the following conditions is
fulfilled:
|
|
|
23.3.1
|
The
Trustee has been persuaded that the alteration is not prejudicial to the
debenture holders.
|
|
|
23.3.2
|
The
debenture holders have agreed to the proposed alteration, by way of a
special resolution passed at a general meeting of the debenture holders,
at which the holders of at least 50% of the unpaid balance of the
principal of the Debentures that are in circulation were personally
present or represented by proxy, or at an adjourned meeting, at which the
holders of at least 10% of the aforesaid balance were personally present
or represented by proxy.
|
|
|
23.4
|
The
Company shall lodge an immediate report in regard to any such
alteration.
|
|
|
23.5
|
The
general meetings mentioned in this clause above shall be called as stated
in the Second Schedule to this
Deed.
|
|
|
In
every case of the exercise by the Trustee of its right pursuant to this
clause above, the Trustee shall be entitled to demand from the debenture
holders that they deliver to it or to the Company their certificates, for
purposes of recording a note in regard to any compromise, waiver,
alteration or amendment as aforesaid and upon the Trustee’s demand, the
Company shall record such note on the certificates that will be delivered
to it.
|
25
|
24.
|
Release
|
When it
has been proved to the Trustee’s satisfaction that all the Debentures have been
repaid, redeemed or when the Company deposits in trust with the Trustee amounts
of money that will be sufficient for redemption, and where it has been proved to
the Trustee’s satisfaction that all the obligations and the expenses that were
incurred or caused by the Trustee in connection with this Deed and in accordance
with its instructions have been paid in full, the Trustee will be obliged, upon
the Company’s first demand, to deal with the moneys that were deposited in
respect of the Debentures redemption of which was not demanded, in accordance
with the terms and conditions stipulated in this Deed.
|
25.
|
Release
|
After it
has been proved to the Trustee’s satisfaction that all the Debentures have been
repaid, redeemed or after the Company has deposited amounts of money in trust
with the Trustee which will be sufficient for redemption, and after it has been
proved to the Trustee’s satisfaction that all the obligations and expenses that
were incurred or caused by the Trustee in connection with this Deed and in
accordance with the provisions hereof have been paid in full, the Trustee shall
be obliged, upon the Company’s first demand, to act with the moneys that have
been deposited in respect of Debentures the redemption of which was not
demanded, in accordance with the conditions stipulated in this
Deed.
|
25.
|
Appointment of new
Trustee and termination of its office as
trustee
|
|
|
25.1
|
The
provisions of the law will apply to the holding of office by the Trustee
and the expiration thereof and to the appointment of a new
trustee. Subject to the provisions of the law, the Trustee and
any trustee who replaces it shall be entitled to resign from their
positions as trustees after giving the Company three (3) months written
notice in which the reasons for the resignation shall be
specified.
|
|
|
The
resignation shall come into force only after confirmation by the court and
from the day fixed for this in the confirmation. In the case of
such resignation or in the event of the expiration of the Trustee’s term
of office, the court may appoint another trustee in place of the Trustee,
for such period and on such conditions as it sees
fit.
|
|
|
25.2
|
According
to the provisions of the Deed of Trust, where the Trustee or any trustee
who replaces it have acted in this way, they will not be responsible for
expenses or losses that may be caused as a result of their
resignation.
|
|
|
25.3
|
The
court may dismiss a trustee if it has not fulfilled its function properly
or if the court has found another reason for its
dismissal.
|
26
|
|
25.4
|
The
holders of ten percent of the unpaid balance of the Debentures and/or the
Company shall be entitled to convene a general meeting of holders of
debenture certificates. Any meeting that is convened as
aforesaid shall be entitled to decide, according to the vote of the
holders of at least fifty percent of the unpaid balance of the Debentures,
on the removal of the Trustee from its
office.
|
|
|
25.5
|
The
Securities Authority is entitled to apply to the court with an application
to terminate the Trustee’s term of office, in accordance with Section 35N
of the Law.
|
|
|
25.6
|
The
Trustee and the Company shall lodge an immediate report with the
Securities Authority regarding any event as mentioned above in this
clause, in connection with the Trustee’s term of
office.
|
|
|
25.7
|
Where
the Trustee’s term of office has expired, the court may appoint another
trustee for such period and on such conditions as it sees
fit. The Trustee whose term of office has expired shall
continue to serve in its function until the appointment of such other
trustee.
|
|
|
25.8
|
Every
new trustee will have the same powers, authorities and other permissions
and may act in all senses as if it was appointed as a trustee from the
outset, subject to the provisions of Section 35N of the
Law.
|
|
26.
|
Meetings of debenture
holders
|
Meetings
of debenture holders shall be conducted in the manner stated in the Second
Schedule to this Deed.
|
27.
|
Investment of
money
|
All the
moneys which the Trustee is entitled to invest in accordance with this Deed
shall be invested by it at a bank/s in its name or to its order, in investments
in which the laws of the State of Israel allow the investment of trust moneys
and as it deems conducive, all subject to the terms and conditions of this Deed
of Trust, provided that every investment in securities shall be in securities
that have been rated with a rating of not less than AA. Where the
Trustee has done so, it will not be liable to the entitled persons in respect of
those amounts, but only the proceeds which will be received from the realization
of the investments, less the expenses connected with the aforesaid investment
and the maintaining of the trust accounts, the commissions and less the
compulsory payments that are imposed on the trust account. The
Trustee shall transfer out of such moneys amounts to the debenture holders who
are entitled thereto, and shall do so as soon as possible after proof and
confirmations have been furnished to the Trustee regarding their right to such
amounts, to the Trustee’s full satisfaction, and less its expenses and
commission at a rate that shall be acceptable to it at such
time.
27
|
28.
|
Governing
law
|
The
Debentures are subject to the provisions of the Israeli law. On any
matter which has not been mentioned in this Deed and also in any instance of a
conflict between the provisions of the law and this Deed, the parties will act
in accordance with the provisions of the Israeli law. In every case
of a conflict between the provisions described in the Prospectus and/or in the
shelf offering report in connection with this Deed and/or the Debentures, the
provisions of this Deed shall prevail.
|
29.
|
Addresses
|
The
Debentures are subject to the provisions of the Israeli law. On any
matter that has not been mentioned in this Deed and also in any case of a
conflict between the provisions of the law and this Deed, the parties will act
in accordance with the Israeli law.
|
30.
|
General
|
Without
derogating from the other provisions of this Deed and of the Debenture, any
waiver, extension of time, indulgence, silence, failure to take action (“Waiver”) on the part of the
Trustee in regard to non-fulfillment or partial fulfillment or improper
fulfillment of any of the obligations to the Trustee under this Deed and the
Debenture, will not be deemed to be a waiver on the part of the Trustee of any
right, but as limited acquiescence to the particular instance in which it was
given. Without derogating from the other provisions of this Deed and
the Debenture, any alteration to the obligations to the Trustee necessitates the
obtaining of the Trustee’s prior written consent. Any other consent,
whether verbal or by way of waiver and failure to take action or in any other
manner that is not in writing, will not be deemed to be consent at
all. The Trustee’s rights under this Agreement are independent of one
another, and are in addition to any right which exists and/or which may exist
for the Trustee according to law and/or agreement (including this Deed and the
Debenture).
|
31.
|
Authorization for
Magna
|
In
accordance with the provisions of the Securities Regulations (Electronic
Signature and Reporting), 5763-2003, the Trustee hereby gives approval to the
authorized entity on behalf of the Company to report electronically to the
Securities Authority in regard to this Deed of Trust.
In
witness whereof the parties have hereunto signed
|
/s/
|
/s/ Xxxxx Xxxxxxxx, Xxxx
Xxxxx
|
|
|
Hermetic
Trust (1973) Ltd.
|
Blue
Square Real Estate Ltd.
|
I the
undersigned, Xxxxxx Xxxxx, Adv., certify that this Deed of Trust was signed
through Mr. Xxxxx Xxxxxxx and Xx. Xxxx Xxxxx and their signature binds Blue
Square Real Estate Ltd. in connection with this Deed of Trust.
|
/s/ Xxxxxx Xxxxx
|
||
|
Xxxxxx
Xxxxx, Adv.
|
||
|
Lic.
No. 32164
|
||
|
2
Ha’amal St., Rosh Ha’ayin
48092
|
28
ADDENDUM TO DEED OF TRUST
DATED MAY 20, 2009
entered
into at Tel Aviv on the 18th day of
October 2009
Between:
BLUE
SQUARE REAL ESTATE LTD.
of 2
Ha’amal Street, Rosh Ha’ayin
Telephone:
00-0000000/1
Fax:
00-0000000
(hereinafter: “the
Company”)
of
the one part;
And:
HERMETIC
TRUST (1975) LTD.
of 000
Xxxxxxxx Xxxxxx, Xxx Xxxx
Telephone:
00-0000000
Fax:
00-0000000
(hereinafter: “the
Trustee”)
of
the other part;
|
WHEREAS
|
On
May 20, 2009 the Company and the Trustee signed a deed of trust in
connection with the Shelf Prospectus the Company published on May 20, 2009
(hereinafter: “the Deed
of Trust”), pursuant to which the Company is entitled, inter alia, to issue
Debentures (Series C) of the Company (hereinafter: “Debentures (Series
C)”); and
|
|
WHEREAS
|
The
Company intends publishing a shelf offering report in accordance with the
Shelf Prospectus, pursuant to which the Company will for the first time
offer Debentures (Series C) (hereinafter: “the Shelf Offering
Report”); and
|
|
WHEREAS
|
On
October 7, 2009 Midroog Ltd. gave notice of having fixed a A1 rating for
the Company’s new series of debentures to an extent of up to NIS
300,000,000; and
|
|
WHEREAS
|
On
October 7, 2009 Standard & Poor’s Maalot gave notice of having fixed a
A+/negative rating for the Company’s new series of debentures to an extent
of up NIS 300,000,000; and
|
|
WHEREAS
|
As
an integral part of the Deed of Trust the parties hereby agree to make
alterations in the Deed of Trust which will apply in connection with
Debentures (Series C), as described below in this
Addendum;
|
29
Now
therefore it is agreed, declared and stipulated by the parties as
follows:
|
1.
|
It
is hereby clarified, agreed and declared that to the extent that any of
the provisions of the Deed of Trust have not been expressly altered, those
provisions will apply in full and will bind the parties in all
respects.
|
|
2.
|
It
is agreed that to the extent that the meaning of terms and expressions in
the Deed of Trust or any of them have not been expressly altered in this
Addendum, the meaning of the aforesaid terms and expressions will be the
same meaning as accorded to them in the Deed of
Trust.
|
|
3.
|
In
the Deed of Trust, in
connection with Debentures (Series C) only, the following
alterations will apply:
|
|
|
3.1
|
In
Clause 4 of the Deed of Trust, after the words “the interest”, the
following words will be added: “(including penalty interest, if same
applies)”.
|
|
|
3.2
|
In
Clause 7 of the Deed of Trust (immediate payment), the following changes
and additions will be made:
|
|
|
3.2.1
|
In
Clause 7.1.1 of the Deed of Trust, instead of: “30 days” there shall be
inserted: “21 days”.
|
|
|
3.2.2
|
Clause
7.1.14 shall be added to the Deed of Trust, as
follows:
|
|
|
“7.1.14
|
If
the Debentures (Series C) cease to be rated by any rating company, solely
for a reason dependent on the Company, and this is not rectified within 60
business days. For the removal of doubt it is clarified that if
the Debentures (Series C) are rated by a number of rating companies, then
for purposes of this clause “cessation of rating” means “cessation of
rating by all the rating
companies.”
|
|
|
3.3
|
In
Clause 14 of the Deed of Trust (the Company’s obligations to the Trustee)
Clauses 14.17 and 14.18 will be added as
follows:
|
|
|
“14.17
|
Even
if the Company ceases to be a reporting corporation, the Company shall
continue to deliver quarterly and annual financial statements to the
Trustee at the times at which a reporting corporation publishes same until
the final and absolute repayment of the Debentures (Series
C).
|
|
|
14.18
|
Solely
if this is dependent on the Company, the Company shall cause a situation
that the Debentures (Series C) will continue to be rated by any rating
company until a final and absolute repayment of the Debentures (Series
C).”
|
30
|
|
3.4
|
In
Clause 21 of the Deed of Trust, the following alterations and additions
will be made:
|
|
|
3.4.1
|
Clause
21.1.2 of the Deed of Trust after the words: “in good faith”, the words
“was not negligent” shall be
inserted.
|
|
|
3.4.2
|
In
Clause 21.2 of the Deed of Trust, wherever the word “expenses” appears the
word: “reasonable” shall be added ahead of
it.
|
|
|
3.4.3
|
In
Clause 21.5 of the Deed of Trust, at the end of the clause before the
period the following words will be added: “and in such case, the Trustee
will be obliged to address a demand to the Company for reimbursement of
this amount”.
|
|
|
3.5
|
In
Clause 23.3 of the Deed of Trust, the following paragraph will be added at
the end thereof:
|
|
|
“It
is clarified that a reduction in the rate of interest specified in the
debenture, a change in the times of payment of the principal and the
interest, the deletion of any of the grounds enumerated in Clause 7 of
this deed, or the deletion of any of the reports according to this deed
which the Company has undertaken to send to the Trustee – will be capable
of being changed only if the provisions specified in Clause 23.3.2 above
have been fulfilled”.
|
|
|
3.6
|
In
Clause 27 of the Deed of Trust, instead of: “at the bank/s” there shall be
substituted: “at one of the five largest banks”, and instead of: “provided
that any investment in securities shall be in securities that have been
rated with a rating of not lower than a AA rating” there shall be
inserted: “provided that any investment in securities shall be in
government bonds and/or in bank deposits
only.”
|
|
4.
|
It
is clarified that the alterations in the Deed of Trust as set forth in
this Addendum shall apply only in regard to the Debentures (Series C) and
this Addendum does not make the conditions set forth in this Addendum
applicable to other series of debentures the Company is entitled to offer
pursuant to the Shelf Prospectus (that is to say, Debentures (Series D to
H).
|
In
witness whereof the parties have hereunto signed:
|
/s/
|
/s/ Xxxx Xxxxx, Xxxx
Xxxxx
|
|
|
Hermetic
Trust (1975) Ltd.
|
Blue
Square Real Estate
Ltd.
|
31
