AN AGREEMENT
Made and entered into in Tel-Aviv on the 11th day of May, 1999
BY AND BETWEEN
1. BANK HAPOALIM B.M. (p.c.52-000011-8) (hereinafter "BHP")
2. ATAD INVESTMENTS COMPANY LTD. (p.c.51-089763-0) (hereinafter
"ATAD")
(BHP and ATAD shall be hereinafter referred to jointly and severally
as "the BANK")
3. REVADIM (NECHASIM) LTD. (p.c.51-073528-5) (hereinafter "the
BUYER")
all of them of ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
of the first part;
AND
1. AMPAL-AMERICAN ISRAEL CORPORATION
(c/o Ampal Israel)
of 111 Arlozorov Street, Tel-Aviv
(hereinafter "AMPAL")
2. AMPAL DEVELOPMENT (ISRAEL) LTD. (p.c.52-000238-7)
of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter "AMPAL DEVELOPMENT")
3. AMPAL FINANCIAL SERVICES LTD. (p.c.52-002104-9)
of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter "AMPAL FINANCING")
4. AMPAL (ISRAEL) LTD. (p.c.52-002622-0)
of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter "AMPAL ISRAEL")
(AMPAL, AMPAL DEVELOPMENT, AMPAL FINANCING, and AMPAL ISRAEL shall
be hereinafter referred to jointly and severally as "the
PURCHASERS")
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5. NIR LTD. (p.c.52-000062-2)
of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter "NIR")
of the second part;
WHEREAS The BANK represents and warrants that ATAD is, and was at all times
at which it held the Shares (as hereinafter defined), a wholly owned
subsidiary of BHP; and
WHEREAS The BANK represents and warrants that ATAD is the record owner and
holder, and BHP through ATAD is the beneficial owner, of 5,874,281
Ordinary Shares, as defined in the Shares Transfer Agreement,
attached hereto as Annex "A" (hereinafter "the "Shares Transfer
Agreement"), of 3,350 4% Preferred Shares (as defined in the Shares
Transfer Agreement), and of 122,536 6.5% Preferred Shares (as
defined in the Shares Transfer Agreement) (the Ordinary Shares, the
4% Preferred Shares, and the 6.5% Preferred Shares are collectively
referred to herein as "the Shares"), and that the Shares and ATAD's
holding therein are free and clear of any Third Party Right (as
hereinafter defined); and
WHEREAS BHP is interested in transferring and selling the Shares to the
PURCHASERS, and the PURCHASERS are interested in purchasing the
Shares on the terms and conditions and for the consideration as set
out in the Shares Transfer Agreement; and
WHEREAS Each one of the PURCHASERS is an owner of rights in certain real
estate (hereinafter "the Real Estate Rights") as specified in the
Real Estate Agreements, copies of which are attached hereto as
Annexes "B", "C", "D" and "E" (hereinafter "the Real Estate
Agreements"); and
WHEREAS Each of the PURCHASERS is interested in selling to the BUYER, and
the BUYER is interested in buying from each of the respective
PURCHASERS, the Real Estate Rights owned by it, on the terms and
conditions and for the consideration as set out in the relevant Real
Estate Agreement; and
WHEREAS NIR has the right to be registered as the owner of the Bnei Brak
Branch of BHP, as defined in the Lease Agreement, copy of which is
attached hereto as
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Annex "F" (hereinafter "the Lease Agreement"), and NIR and BHP are
interested in entering into the Lease Agreement;
NOW, THEREFORE, it has been declared, agreed and warranted between the parties
as follows:
1. PREAMBLE, CAPTIONS, DEFINITIONS, AND ANNEXES
1.1 The preamble to this Agreement and the Annexes hereto, including their
annexes, form an integral part hereof.
1.2 Captions used in this Agreement are solely for convenience of reading
and shall not be used for the interpretation or determination of the
validity of this Agreement or any provision hereof.
1.3 In this agreement the following terms shall have the meanings ascribed
to them:
1.3.1 "This Agreement" or "the Agreement" - this Agreement and all the
Annexes, amendments or additions to it, as well as any document to be
furnished in accordance with the provisions hereof.
1.3.2 "Third Party Right" - Any lien, pledge, mortgage, suit, demand, claim,
attachment and/or debt or obligation towards whatsoever third party
and/or whatsoever other third party right.
1.3.3 "Amount of the Deposit" - As defined in the Shares Transfer Agreement.
1.3.4 "Dollar" - U.S. Dollar.
1.3.5 "The PURCHASERS' Attorney" - Any of the attorneys from the office of
Firon, Karni, Sarov & Firon, Advs., of 111 Arlozorov Street, Tel-Aviv,
alone and/or in any combination.
1.3.6 "The BANK's Attorney" - Advs. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Doron and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of
63 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Street, Tel-Aviv, alone and/or in any combination.
1.3.7 "The Closing Date" - As defined in Section 8. hereinafter.
1.3.8 "The Latest Date" - 120 days from the date of signing this Agreement or
such later date to be agreed upon by the parties in writing.
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1.4 The following Annexes are attached to this Agreement and form an
integral part thereof:
1.4.1 Annex "A" - The Shares Transfer Agreement
1.4.2 Annex "B" - The Arlozorov A Real Estate Agreement
1.4.3 Annex "C" - The Holon, Panorama and Allenby Real Estate Agreement
1.4.4 Annex "D" - The Rosh ▇▇▇▇ and Ramat Hasharon Real Estate Agreement
1.4.5 Annex "E" - The Arlozorov B Real Estate Agreement
1.4.6 Annex "F" - The Lease Agreement
1.4.7 Annex "G" - Form of Agreement by and among the BANK, Rebar Financial
Corp., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and Raz ▇▇▇▇▇▇▇▇▇
2. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
2.1 Representations and Warranties of the BANK and of the BUYER
The BANK and the BUYER represent, warrant, covenant and undertake, all
as relevant to each and every one of them respectively, the following to
be true and correct on the date hereof and that the following will be
true and correct on the Closing Date, and are aware and acknowledge that
the PURCHASERS and NIR have agreed to enter into this Agreement and the
transactions contemplated therein in reliance on these representations,
warranties, covenants and undertakings of the BANK:
2.1.1 ATAD is a private company duly registered in Israel; its registration
number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; it is wholly
owned and controlled by BHP; and it is an active company lawfully
conducting its business and it has all the powers and authorities to
enter into this Agreement and to fulfill all its undertakings hereunder.
2.1.2 The BUYER is a private company duly registered in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇, it
is wholly owned and controlled by BHP; and it is an active company
lawfully conducting its business and it has all the powers and
authorities to enter into this Agreement and to fulfill all its
undertakings hereunder.
2.1.3 BHP is a public company duly registered as a bank in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇, and
it is an active company lawfully
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conducting its business and it has all the powers and authorities to
enter into this Agreement and to fulfill all its undertakings hereunder.
2.1.4 Save as set out in Section 7.1 hereunder, each of BHP and ATAD and the
BUYER have completed all such corporate acts and proceedings required
under their incorporation documents and under law for entering into this
Agreement and the fulfillment of its undertakings hereunder.
2.1.5 ATAD is the record owner and holder of the Shares; the Shares and ATAD's
rights therein are free and clear of any Third Party Right, and there is
nothing to prevent the sale and transfer of the Shares to the PURCHASERS
as set out hereinafter in this Agreement and the Shares Transfer
Agreement.
2.1.6 On October 30, 1985, and at all times thereafter until the Closing Date,
BHP was, is, and will be the "Beneficial Owner" (as the term is defined
in Section 912 of the New York Business Corporation Law), directly or
through ATAD (which is and always was a wholly owned subsidiary of BHP),
of not less than 20% of the outstanding voting stock of AMPAL.
2.1.7 On October 30, 1985, and at all times thereafter until the day of
transfer of the Shares to the PURCHASERS, BHP was, is, and will be an
"Interested Shareholder" for the purposes stated in Section 912 of the
New York Business Corporation Law.
2.1.8 On the Closing Date, BHP will be the sole record and Beneficial Owner
and holder of the Shares and will transfer the Shares to the PURCHASERS
free and clear of any Third Party Right.
2.2 Representations and Warranties of the PURCHASERS
Each of the PURCHASERS and NIR hereby represent, warrant, covenant and
undertake, all as relevant to each and every one of them respectively,
the following to be true and correct on the date hereof and that the
following will be true and correct on the Closing Date, and is aware and
acknowledges that the BANK and the BUYER have agreed to enter into this
Agreement and the transactions contemplated therein in reliance on these
representations, warranties, covenants and undertakings of the
PURCHASERS:
2.2.1 AMPAL is a corporation duly organized in the State of New York, U.S.A.,
whose Ordinary Shares are traded on the AMEX; it is an active company
lawfully conducting its business, and has all the powers and authorities
to enter into this Agreement and to fulfill all its undertakings
hereunder.
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2.2.2 AMPAL DEVELOPMENT is a public company duly registered in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; and
it is an active company lawfully conducting its business and it has all
the powers and authorities to enter into this Agreement and to fulfill
all its undertakings hereunder.
2.2.3 AMPAL FINANCING is a public company duly registered in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; and
it is an active company lawfully conducting its business and it has all
the powers and authorities to enter into this Agreement and to fulfill
all its undertakings hereunder.
2.2.4 AMPAL ISRAEL is a public company duly registered in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; and
it is an active company lawfully conducting its business and it has all
the powers and authorities to enter into this Agreement and to fulfill
all its undertakings hereunder.
2.2.5 NIR is a public company duly registered in Israel; its registration
number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; and it is an
active company lawfully conducting its business and it has all the
powers and authorities to enter into this Agreement and to fulfill all
its undertakings hereunder.
2.2.6 Save as set out in Section 7.1 hereinafter, each of the PURCHASERS and
NIR has completed all such corporate acts and proceedings required under
its incorporation documents and any law for entering into this Agreement
and the fulfillment of all its undertakings hereunder.
2.2.7 The PURCHASERS are aware of AMPAL's condition, rights and obligations,
and the rights attached to the Shares under AMPAL's Certificate of
Incorporation and Bylaws and they purchase the Shares by virtue of this
Agreement and the Shares Transfer Agreement based on AMPAL's condition,
rights and obligations, and the said rights as they are, without any
reliance on any representations and/or warranties of the BANK regarding
AMPAL's condition, rights and obligations, and the said rights.
3. THE SHARES TRANSFER AGREEMENT
3.1 Simultaneously with the signing of this Agreement, the BANK and the
PURCHASERS are signing the Shares Transfer Agreement under which BHP
undertakes to sell and transfer the Shares to the PURCHASERS on the
Closing Date in the apportionment set out therein, all on the terms and
for the consideration as set out in the Shares Transfer Agreement.
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3.2 ATAD undertakes to do everything required in order to enable BHP to
fulfill its undertakings under Section 3.1 above and under the Shares
Transfer Agreement. Without derogating from the generality of the
aforesaid, ATAD and BHP undertake that ATAD will transfer the Shares to
BHP and complete the transfer prior to the Closing Date, in order to
enable their transfer by BHP to the PURCHASERS in accordance with the
provisions of the Shares Transfer Agreement.
3.3 The Shares will be sold and transferred to the PURCHASERS in the
portions and for the consideration as follows:
3.3.1 To AMPAL - 3,517,683 Ordinary Shares, 3,350 4% Preferred Shares, and
122,536 6.5% Preferred Shares in consideration for:
3.3.1.1 The transfer of the Amount of the Deposit; and
3.3.1.2 $3,420,000 (plus interest in the rate of LIBOR + 0.75% per
annum from April 12, 1999 until the date of actual payment);
and
3.3.1.3 $3,210,208
All as set out and detailed in Sections 3.3.1 and 4 of the Shares
Transfer Agreement.
3.3.2 To AMPAL DEVELOPMENT - 1,560,450 Ordinary Shares in consideration of
$7,802,248, all as set out and detailed in Sections 3.3.2 and 5 of the
Shares Transfer Agreement.
3.3.3 To AMPAL FINANCING - 660,803 Ordinary Shares in consideration of
$3,304,013, as set out and detailed in Sections 3.3.4 and 6 of the
Shares Transfer Agreement.
3.3.4 To AMPAL ISRAEL - 135,345 Ordinary Shares in consideration of $676,726,
all as set out and detailed in Sections 3.3.4 and 7 of the Shares
Transfer Agreement.
4. THE REAL ESTATE AGREEMENTS
Simultaneously with signing this Agreement and the Shares Transfer
Agreement, the BUYER and each of the PURCHASERS, respectively, are
signing the following Real Estate Agreements:
4.1 The Real Estate Agreement Annex "B" hereto between AMPAL and the BUYER
regarding the sale of the "Arlozorov A Property", as defined therein, to
the BUYER.
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4.2 The Real Estate Agreement Annex "C" hereto between AMPAL DEVELOPMENT and
the BUYER regarding the sale of the "Holon Property", "Panorama
Property" and "Allenby Property", all as defined therein, to the BUYER.
4.3 The Real Estate Agreement Annex "D" hereto between AMPAL FINANCING and
the BUYER regarding the sale of the "Rosh ▇▇▇▇ Property" and "Ramat
Hasharon Property", all as defined therein, to the BUYER.
4.4 The Real Estate Agreement Annex "E" hereto between AMPAL ISRAEL and the
BUYER regarding the sale of the "Arlozorov B Property", as defined
therein, to the BUYER.
4.5 The PURCHASERS undertake to support and assist the BUYER in all
necessary acts required to register the rights in the various Properties
that are subject of the Real Estate Agreements Annexes "B", "C", "D" and
"E" hereto in the name of the BUYER in the Land Registry Offices, after
the Determining Date, as defined in each Real Estate Agreement,
including, subject to the provisions of each relevant Real Estate
Agreement, by signing any necessary document and submitting any
necessary document which is in the relevant PURCHASER's possession;
provided however, but without derogating from the respective provisions
of the respective Real Estate Agreement, that all the expenses and/or
any financial obligations incurred due to any such support and
assistance will be borne and paid solely by the BUYER.
5. THE LEASE AGREEMENT
Simultaneously with the signing of this Agreement, NIR and BHP will sign
the Lease Agreement Annex "F" hereto.
6. Simultaneously with the signing of this Agreement the BANK, Rebar
Financial Corp., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and Raz ▇▇▇▇▇▇▇▇▇ are signing an
agreement in the form of Annex "G" hereto, in connection with the
agreement among them of May 12, 1996, and in connection with the
transfer of the Shares according to the Shares Transfer Agreement.
7. CONDITIONS PRECEDENT
7.1 The sale and transfer of the Shares and the payment of the consideration
therefor under the Shares Transfer Agreement, the sale of the Real
Estate Rights under the Real Estate Agreements and the payment of the
consideration therefor, and the start of the lease under the Lease
Agreement are subject to the fulfillment of all the following conditions
precedent (hereinafter "the Conditions Precedent"):
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7.1.1 The receipt of unconditional and unreserved approval of the Director of
Restrictive Trade Practices (hereinafter "the Director") under the
Restrictive Trade Practices Law, 5748-1988) for the transfer of the
Shares.
7.1.2 The approval of this Agreement by AMPAL's Related Parties Transactions
Committee.
7.1.3 The approval of the transactions which are the subject of this Agreement
and the Annexes thereto and the execution thereof, by AMPAL's Board of
Directors.
7.1.4 The approval of the transactions which are the subject of this Agreement
and the Annexes thereto and the execution thereof, by a majority of
AMPAL's Shareholders participating in the voting thereon at a
shareholders meeting.
7.1.5 The approval of this Agreement, its Annexes and the transactions
contemplated thereunder by the Audit Committee of AMPAL DEVELOPMENT and
by the boards of directors and the general shareholders meetings of each
one of AMPAL DEVELOPMENT, AMPAL FINANCING, AMPAL ISRAEL, and NIR.
7.1.6 The approval of this Agreement, its Annexes and the transactions
contemplated thereunder by BHP's Audit Committee and Related Parties
Transactions Committee, and BHP's Board of Directors, and by the Board
of Directors and the general shareholders meetings of each of ATAD and
the BUYER.
7.1.7 All representations and warranties are true and correct and all
covenants and undertakings have been performed as of the Closing Date.
7.1.8 Officers' Certificates will be submitted to the effect that all
representations and warranties are true and correct, all covenants and
undertakings have been performed and all necessary approvals have been
obtained as of the Closing Date.
7.2 The parties will cooperate as required for the purpose of obtaining the
approval of the Director as aforesaid in Section 7.1.1 above, and inter
alia, will file within 14 days from the date of signing the Agreement a
proper application to the Director, and thereafter will furnish the
Restrictive Trade Practices Authority any document or information
required by it for the purpose of giving the said approval.
7.3 Each party will bear all of its expenses incurred with respect to the
fulfillment of the Conditions Precedent.
7.4 If any of the Conditions Precedent is not fulfilled by the Latest Date
this Agreement, including, to avoid any doubt, all its Annexes, will
terminate, automatically, at the end of
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14 days from the Latest Date, unless all the Conditions Precedent have
been fulfilled prior to the end of the said period of 14 days. In the
event of such termination none of the parties hereto will have any claim
of whatsoever sort against any other party hereto in connection with
this Agreement and/or any of its Annexes and/or the process that led to
the execution thereof and/or the failure to fulfill the Conditions
Precedent and/or the termination of this Agreement and its Annexes,
except for any amount due under Section 7.3 above and 14.1 hereunder;
and except that each of the parties will have a claim against any other
party if such other party does not pursue in good faith the fulfillment
of the Conditions Precedent.
7.5 The parties recognize that the PURCHASERS will request a Fairness
Opinion from ▇▇▇▇▇▇ Brothers or any other investment banker selected by
AMPAL, and that the PURCHASERS' various committees, boards of directors
and shareholders' meetings will rely on such Fairness Opinion in
deciding whether or not to approve the transactions which are the
subject of this Agreement and of the Annexes thereto, and the execution
thereof.
8. THE CLOSING DATE
After the fulfillment of all Conditions Precedent, BHP and AMPAL shall
determine the date (the "Closing Date") which will not be later than 14
days from the date on which all the Conditions Precedent are fulfilled
and which will be the "Determining Date" for the purpose of the Shares
Transfer Agreement, each of the Real Estate Agreements and the Lease
Agreement.
To remove doubt, it is declared and clarified that the Closings of the
Shares Transfer Agreement, each one of the Real Estate Agreements, and
the Lease Agreement will be held simultaneously, and no such closing
will be considered complete unless all the said closings are completed
in accordance with each relevant agreement. On the Closing Date,
authorized representatives of all parties will convene at the place(s)
to be determined by AMPAL and BHP, and all actions that are required
under this Agreement and/or any of its Annexes to be done on the Closing
Date and/or Determining Date and/or at the Closing will be done
simultaneously.
9. If, prior to the Closing Date any shareholder of AMPAL (other than Rebar
Financial Corp. (hereinafter "Rebar") and any of Rebar's shareholders,
directors and office holders) makes a written demand or claim, against
AMPAL and/or any of its directors and/or office holders and/or other
shareholders, with respect to this Agreement and/or any of the
transactions contemplated thereunder, and if AMPAL provides the legal
opinion of its US Attorneys, under which such claim and/or demand is
reasonably likely to result in a judgment imposing payment on the
parties hereto or any of them in an
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amount exceeding $5,000,000 or may delay the Closing Date by six months
or more, then AMPAL shall have the right to terminate this Agreement and
all of its Annexes by giving written notice of such termination to the
other parties hereto. In the event of such termination, none of the
parties hereto will have any claim of whatsoever sort against any other
party hereto in connection with this Agreement and/or any of its Annexes
and/or the process that led to the execution thereof and/or their
termination and/or the failure to fulfill the Conditions Precedent,
except for any amount due under Section 14.1 hereunder.
10. INDEMNIFICATION
10.1 The Bank agrees to indemnify and hold harmless the PURCHASERS and their
officers, directors, employees, agents and attorneys (each, an
"Indemnitee") from and against 22.7% of any and all liabilities, losses,
damages, penalties, actions, judgments, suits, claims, costs and
expenses (including but not limited to attorneys' fees, disbursements
and expenses) of any kind whatsoever (collectively, "Losses") arising
out of, based upon or relating to this Agreement and/or any of its
annexes or any of the transactions contemplated thereby, suffered or
incurred by any of them in connection with any (i) suit, action
proceedings, claim and/or demand (including, without limitation, class
action and derivative claims by the holders of any securities issued by
any of the Purchasers, (ii) any suit, action proceedings, claim,
investigation or demand by the United States Securities and Exchange
Commission or the Israeli Securities Authority or any other United
States or Israeli governmental or regulatory agency or authority, but
always after deducting from the Losses all sums received by the relevant
Indemnitee from its insurance company or any other third party which is
not an Indemnitee, as indemnification of such Losses, and provided
however that in no event shall the Bank be liable to pay the Indemnitee,
under this Section 10.1, more than $1,000,000. However, the Bank shall
not indemnify an Indemnitee for any amount to be borne by said
Indemnitee in satisfaction of that Indemnitee's deductible ("hishtatfut
atsmit") under the said Indemnitee's Insurance Policies.
10.2 Promptly after receipt by any Indemnitee of notice of any claim, suit
action or proceeding (any of the foregoing, an "Action") from any Person
who is not a party to this Agreement or to its respective Annex, which
Action may give rise to a claim for indemnification hereunder, the
Indemnitee shall give reasonable written notice thereof to the Bank; but
the failure to give such notice in a timely fashion shall not relieve
the Bank from any liability hereunder except to the extent, if any, that
the Bank is materially prejudiced by such delay. In case any Action is
brought against any Indemnitee, the Bank shall be entitled to
participate in such defense after giving a written notice to the
Indemnitee, stating its desire to do so, within fourteen days after the
Bank was given
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notice of the Action. In the event that the Bank does not give the
Indemnitee such timely notice of its desire to participate in any
defense of any such Action, the Indemnitee shall be free to conduct the
defense as it deems fit without the participation of the Bank. In any
event, the defense of any such Action shall be controlled by the
Indemnitee. The Bank shall not have any power or authority to settle
such Action without the written consent of the affected Indemnitees. The
affected Indemnitees in any Action shall have the right and power to
settle such Action but the Bank will be exempt from its indemnification
obligations under Sections 10.1 and 10.2 above, if such settlement is
not coordinated with the Bank in advance.
10.3 To remove doubt it is declared and clarified that the provisions of
Sections 10.1 and 10.2 above shall in no way prejudice any party's right
to full and prompt compensation and indemnification for 100% of its
Losses which result from a breach by any of the other parties of any of
its representations, warranties or obligations under this Agreement
and/or any of its annexes and/or any applicable law.
11. SETTLEMENT OF DISPUTES
Any disagreement, dispute, or difference of opinion arising among the
parties concerning this Agreement and/or any of its Annexes or any of
their terms (including a question of their validity), the signing,
implementation, interpretation and/or application thereof, will be
brought for determination by a single arbitrator to be agreed upon by
the parties within 14 days of the date on which any of the parties
requests such arbitration. In the absence of agreement among the parties
on the identity of the arbitrator, the arbitrator's identity shall be
determined, at the written request of any of the parties, by the
Chairman of the Board of Management of BHP and the Chairman of the Board
of Directors of AMPAL within 7 days of such request, and failing such
determination, by the District Court of Tel-Aviv at the request of any
of the parties hereto, provided that such party notifies the other
parties to this Agreement or its relevant Annex in writing of its
intention to do so at least ten (10) days in advance.
The arbitrator will not be bound by the rules of evidence and procedure,
however he shall be obliged to make his award according to the
provisions of the substantive law and the provisions of this Agreement
and/or its relevant Annex, to substantiate his award as well as any
decision, and his decision will be final and binding upon all the
respective parties.
The arbitration will take place in Israel.
12. NO WAIVER OF RIGHTS
No waiver, extension, reduction, or abstention from acting by any of the
parties is to be
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considered a waiver of its rights under this Agreement or its relevant
Annex or under any law and shall not prevent any claim whatsoever.
13. WITHHOLDING TAX
To remove doubt, it is declared and agreed that each payment under any
of the Real Estate Agreements and under the Shares Transfer Agreement is
subject to withholding tax, as such duty exists under any applicable
law, and unless a proper exemption authorization is submitted prior to
such payment, the proper tax will be withheld from any such payment.
14. STAMP DUTY, ATTORNEY'S FEES AND EXPENSES
14.1 Stamp duty with respect to this Agreement, the Shares Transfer
Agreement, and the Lease Agreement, if any, will be borne by the parties
in equal portions, i.e., half by the BANK and half by the PURCHASERS.
14.2 Subject to the provisions of Section 14.1 above, each party shall bear
its own expenses and attorney's fees in connection with this Agreement
and its implementation.
15. MISCELLANEOUS
15.1 Without derogating from their undertakings under this Agreement and/or
any of its Annexes, each of the parties undertakes and agrees to perform
such further and additional acts and sign or furnish such further and
additional documents as shall be necessary or required for the
implementation of this Agreement and its Annexes.
15.2 The provisions of this Agreement and its relevant annexes shall
supersede and replace all previous representations, agreements,
undertakings, and understandings made between the parties in anything
concerning the sale and purchase of the Shares and/or the Real Estate
Rights. It is clarified, to avoid doubt, that all agreements regarding
credit facilities and other banking services between BHP and any of the
other parties and the rights attributed to the Shares held by BHP in
AMPAL ISRAEL in accordance with the Articles of Association of AMPAL
ISRAEL are not affected by this Agreement.
15.3 This Agreement (including its Annexes) constitutes the entire agreement
between the parties in the matters set out therein, and no amendment or
modification therein will be valid unless in writing signed by the
relevant parties.
15.4 Subject to the provisions of Section 11 above, each of the parties
hereto irrevocably submits to the exclusive jurisdiction of the
competent courts of the District of Tel-Aviv-Yafo in all matters
connected with this Agreement and all its Annexes or arising therefrom.
-14-
15.5 Subject to Section 11 of the Shares Transfer Agreement, the rights and
obligations of the parties under this Agreement or pursuant thereto will
be governed by and construed in accordance with the laws of the State of
Israel, including, to avoid doubt, such rules applying foreign laws, if
and to the extent such rules are applicable.
15.6 Any amount due by one party to another under Annexes "A", "B", "C", "D",
or "E", which is denominated in such Annex in U.S. Dollars, is to be
paid in U.S. Dollars.
15.7 The addresses of the parties for the purpose of this Agreement are as
set out in the preamble hereto. Any notice, direction or other
instrument required or permitted to be given by a party hereunder shall
be made in writing and may be given by mailing the same registered mail,
postage pre-paid, or by delivering the same addressed to such other
party at their address aforesaid. Any notice, direction or other
instrument if delivered shall be deemed to have been given or made on
the date on which it was actually delivered; or if mailed shall be
deemed to have been given or made on the seventh business day following
the day on which it was mailed. The parties hereto may change their
address for service hereunder from time to time by notice given in
accordance with the foregoing.
IN WITNESS WHEREOF the parties have executed this Agreement:
---------- ----------
BANK HAPOALIM ▇.▇. ▇▇▇▇ INVESTMENTS COMPANY LTD.
---------- ----------
REVADIM (NECHASIM) LTD. AMPAL-AMERICAN ISRAEL CORPORATION
---------- ----------
AMPAL DEVELOPMENT (ISRAEL) LTD. AMPAL FINANCIAL SERVICES LTD.
---------- ----------
NIR LTD. AMPAL (ISRAEL) LTD.
SHARES TRANSFER AGREEMENT
ANNEX "A"
LIST OF ANNEXES
Annex 4.1.1 Form of Original Stock Certificates Issued to BHP for
3,517,683 Ordinary Shares, 3,350 4% Preferred Shares and 122,536
6.5% Preferred Shares of AMPAL
Annex 4.1.2 Form of the BANK's Representation Letter in respect of the AMPAL
Shares
Annex 4.1.3 Form of BHP's Stock Power in respect of the AMPAL Shares
Annex 4.1.4 Form of BHP's Secretary's Certificate in respect of the AMPAL
Shares
Annex 4.1.5 Form of AMPAL's Opinion of Counsel in respect of the AMPAL
Shares.
Annex 4.2.1 Form of AMPAL's irrevocable instruction to BHP regarding the
Amount of the Deposit.
Annex 5.1.1 Form of Original Stock Certificate issued to BHP for 1,560,450
Ordinary Shares of AMPAL in respect of the AMPAL DEVELOPMENT
Shares.
Annex 5.1.2 Form of the BANK's Representation Letter in respect of the AMPAL
DEVELOPMENT Shares
Annex 5.1.3 Form of BHP's Stock Power in respect of the AMPAL DEVELOPMENT
Shares
Annex 5.1.4 Form of BHP's Secretary's Certificate in respect of the AMPAL
DEVELOPMENT Shares
Annex 5.1.5 Form of AMPAL's Opinion of Counsel in respect of the AMPAL
DEVELOPMENT Shares
Annex 5.1.6 Form of the AMPAL DEVELOPMENT's Representation Letter.
Annex 6.1.1 Form of Original Stock Certificate issued to BHP for 660,803
Ordinary Shares of AMPAL in respect of AMPAL FINANCING Shares
Annex 6.1.2 Form of The BANK's Representation Letter in respect of AMPAL
FINANCING Shares
-2-
Annex 6.1.3 Form of BHP's Stock Power in respect of AMPAL FINANCING Shares
Annex 6.1.4 Form of BHP's Secretary's Certificate in respect of AMPAL
FINANCING Shares
Annex 6.1.5 Form of AMPAL's Opinion of Counsel in respect of AMPAL FINANCING
Shares
Annex 6.1.6 Form of the AMPAL FINANCING Representation Letter
Annex 7.1.1 Form of Original Stock Certificate issued to BHP for 135,345
Ordinary Shares of AMPAL in respect of the AMPAL ISRAEL Shares
Annex 7.1.2 Form of the BANK's Representation Letter in respect of the AMPAL
ISRAEL Shares
Annex 7.1.3 Form of BHP's Stock Power in respect of the AMPAL ISRAEL Shares
Annex 7.1.4 Form of BHP's Secretary's Certificate in respect of the AMPAL
ISRAEL Shares
Annex 7.1.5 Form of AMPAL's Opinion of Counsel in respect of the AMPAL ISRAEL
Shares
Annex 7.1.6 AMPAL ISRAEL's Representation Letter
Annex 8 Form of notices of resignation from AMPAL's Board of Directors to
be signed by Messrs. ▇▇▇▇▇▇ Elinav and ▇▇▇▇▇▇ ▇▇▇▇▇
ANNEX "A"
SHARES TRANSFER AGREEMENT
Made and entered into in Tel-Aviv on the _____ day of _____, 1999
BY AND BETWEEN
1. BANK HAPOALIM B.M. (p.c.52-000011-8) (hereinafter "BHP")
2. ATAD INVESTMENTS COMPANY LTD. (p.c.51-089763-0) (hereinafter
"ATAD")
both of ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(BHP and ATAD shall be hereinafter referred to jointly and severally
as "the BANK")
of the first part;
AND
1. AMPAL-AMERICAN ISRAEL CORPORATION
(c/o Ampal Israel)
of 111 Arlozorov Street, Tel-Aviv
(hereinafter "AMPAL")
2. AMPAL DEVELOPMENT (ISRAEL) LTD. (p.c.52-000238-7)
of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter "AMPAL DEVELOPMENT")
3. AMPAL FINANCIAL SERVICES LTD. (p.c.52-002104-9)
of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter "AMPAL FINANCING")
4. AMPAL (ISRAEL) LTD. (p.c.52-002622-0)
of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter "AMPAL ISRAEL")
(AMPAL, AMPAL DEVELOPMENT, AMPAL FINANCING, and AMPAL ISRAEL shall
be hereinafter referred to jointly and severally as "the
PURCHASERS")
of the second part;
-2-
WHEREAS The BANK represents and warrants that ATAD is, and was at all times
at which it held the Shares (as hereinafter defined), a wholly owned
subsidiary of BHP; and
WHEREAS The BANK represents and warrants that ATAD is the record owner and
holder, and BHP through ATAD is the beneficial owner, of 5,874,281
Ordinary Shares (as hereinafter defined), of 3,350 4% Preferred
Shares (as hereinafter defined), and of 122,536 6.5% Preferred
Shares (as hereinafter defined)) (the Ordinary Shares, the 4%
Preferred Shares, and the 6.5% Preferred Shares are collectively
referred to herein as "the Shares"), and that the Shares and ATAD's
holding therein are free and clear of any Third Party Right (as
hereinafter defined); and
WHEREAS BHP is interested in transferring and selling the Shares to the
PURCHASERS, and the PURCHASERS are interested in purchasing the
Shares, all on the terms and conditions and for the consideration as
set out hereinafter in this Agreement; and
WHEREAS Simultaneously with signing this Agreement the BANK, the PURCHASERS
and others are also signing the agreement (hereinafter the "Main
Agreement") to which this Agreement is attached as Annex "A" and
other agreements which are attached to the Main Agreement as Annexes
"B", "C", "D", "E", "F" and "G" thereto (hereinafter the "Other
Agreements").
NOW, THEREFORE, it has been declared, agreed and warranted between the parties
as follows:
1. PREAMBLE, CAPTIONS, DEFINITIONS, AND ANNEXES
1.1 The preamble to this Agreement and the Annexes hereto form an integral
part hereof.
1.2 Captions used in this Agreement are solely for convenience of reading
and shall not be used for the interpretation or determination of the
validity of this Agreement or any provision hereof.
1.3 In this Agreement the following terms shall have the meanings ascribed
to them:.
-3-
1.3.1 "This Agreement" or "the Agreement" - this Agreement and all the
Annexes, amendments or additions to it, as well as any document to be
furnished in accordance with the provisions hereof.
1.3.2 "Ordinary Shares" - Class A Stock of $1 (one dollar) par value each in
AMPAL.
1.3.3 "4% Preferred Shares" - 4% Cumulative Convertible Preferred Stock of $5
par value each in AMPAL.
1.3.4 "6.5% Preferred Shares" - 6.5% Cumulative Convertible Preferred Stock of
$5 par value each in AMPAL.
1.3.5 The "Shares" - As defined in the preamble to this Agreement.
1.3.6 "Third Party Right" - Any lien, pledge, mortgage, suit, demand, claim,
attachment and/or debt or obligation towards whatsoever third party
and/or whatsoever other third party right.
1.3.7 "Amount of the Deposit" - A sum of 12,880,000 dollars deposited by AMPAL
on April 13, 1999 as a dollar deposit in Account No.370959 in the name
of AMPAL at the BHP Branch (No. 608) at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, together
with interest thereon which was actually accrued in said deposit from
the day of deposit until the time of its transfer to BHP according to
the provisions of this Agreement.
1.3.8 "Dollar" - U.S. Dollar.
1.3.9 "The PURCHASERS' Attorney" - Any of the attorneys from the office of
Firon, Karni, Sarov & Firon, Advs., of 111 Arlozorov Street, Tel-Aviv,
alone and/or in any combination.
1.3.10 "The BANK's Attorney" - Advs. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Doron and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of
63 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Street, Tel-Aviv, alone and/or in any combination.
1.3.11 "The Determining Date" - The date which BHP and AMPAL will determine as
the Closing Date in accordance with the provisions of Section 8 of the
Main Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
2.1 Representations and Warranties of the BANK
The BANK represents, warrants, covenants and undertakes the following to
be true and correct as of the date hereof and that the following will be
true and correct on the Determining Date and is aware and acknowledges
that the PURCHASERS have agreed to enter into this Agreement and the
transactions contemplated herein in
-4-
reliance on these representations, warranties, covenants and
undertakings of the BANK:
2.1.1 ATAD is a private company duly registered in Israel; its registration
number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; it is wholly
owned and controlled by BHP; and it is an active company lawfully
conducting its business and it has all the powers and authorities to
enter into this Agreement and to fulfill all its undertakings hereunder.
2.1.2 BHP is a public company duly registered as a bank in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇, and
it is an active company lawfully conducting its business and it has all
the powers and authorities to enter into this Agreement and to fulfill
all its undertakings hereunder.
2.1.3 Save as set out in Section 7.1 of the Main Agreement each of BHP and
ATAD have completed all such corporate acts and proceedings required
under their incorporation documents and under law for entering into this
Agreement and the fulfillment of their undertakings hereunder.
2.1.4 ATAD is the record owner and holder of the Shares; the Shares and ATAD's
rights therein are free and clear of any Third Party Right, and there is
nothing to prevent the sale and transfer of the Shares to the PURCHASERS
as set out hereinafter in this Agreement.
2.1.5 On October 30, 1985, and at all times thereafter until the Determining
Date, BHP was, is, and will be the "Beneficial Owner" (as the term is
defined in Section 912 of the New York Business Corporation Law),
directly or through ATAD (which is and always was a wholly owned
subsidiary of BHP), of not less than 20% of the outstanding voting stock
of AMPAL.
2.1.6 On October 30, 1985, and at all times thereafter until the day of
transfer of the Shares to the PURCHASERS, BHP was, is, and will be an
"Interested Shareholder" for the purposes stated in Section 912 of the
New York Business Corporation Law.
2.1.7 On the Determining Date, BHP will be the sole record and Beneficial
Owner and holder of the Shares and will transfer the Shares to the
PURCHASERS free and clear of any Third Party Right.
2.2 Representations and Warranties of the PURCHASERS
Each of the PURCHASERS hereby represents, warrants, covenants and
undertakes, all as relevant to each and every one of them respectively,
the following to be true and
-5-
correct on the date hereof and that the following will be true and
correct on the Determining Date, and is aware and acknowledges that the
BANK has agreed to enter into this Agreement and the transactions
contemplated therein in reliance on these representations, warranties,
covenants and undertakings of the PURCHASERS:
2.2.1 AMPAL is a corporation duly organized in the State of New York, U.S.A.,
whose Ordinary Shares are traded on the AMEX; it is an active company
lawfully conducting its business, and has all the powers and authorities
to enter into this Agreement and to fulfill all its undertakings
hereunder.
2.2.2 AMPAL DEVELOPMENT is a public company duly registered in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; and
it is an active company lawfully conducting its business and it has all
the powers and authorities to enter into this Agreement and to fulfil
all its undertakings hereunder.
2.2.3 AMPAL FINANCING is a public company duly registered in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; and
it is an active company lawfully conducting its business and it has all
the powers and authorities to enter into this Agreement and to fulfill
all its undertakings hereunder.
2.2.4 AMPAL ISRAEL is a public company duly registered in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; and
it is an active company lawfully conducting its business and it has all
the powers and authorities to enter into this Agreement and to fulfil
all its undertakings hereunder.
2.2.5 Save as set out in Section 7.1 of the Main Agreement, each of the
PURCHASERS has completed all such corporate acts and proceedings
required under its incorporation documents and any law for entering into
this Agreement and the fulfillment of all its undertakings hereunder.
2.2.6 The PURCHASERS are fully aware of AMPAL's condition, rights and
obligations, and of the rights attached to the Shares under AMPAL's
Certificate of Incorporation and Bylaws and they purchase the Shares by
virtue of this Agreement based on AMPAL's condition, rights and
obligations, and the said rights as they are, without any reliance on
any representations and/or warranties of the BANK regarding AMPAL's
condition, rights and obligations, and the said rights.
3. THE TRANSACTION - GENERAL
3.1 BHP hereby undertakes, for the Consideration as set out hereinafter, to
sell and transfer on the Determining Date the Shares to the PURCHASERS
in the apportionment set out hereinafter, and that at the time of
transferring the Shares to the
-6-
PURCHASERS as provided hereunder, the Shares and the rights of BHP
therein will be free and clear of any Third Party Right whatsoever.
3.2 ATAD hereby undertakes to do everything required in order to enable BHP
to fulfill its undertakings under Section 3.1 above. Without derogating
from the generality of the aforesaid, ATAD and BHP undertake that BHP
will be the record owner and holder of the Shares and ATAD's rights
thereunder and that ATAD will transfer the Shares to BHP, the Shares and
ATAD's rights therein being free and clear of any Third Party Right
whatsoever and complete the transfer prior to the Determining Date, in
order to enable their transfer by BHP to the PURCHASERS as provided
hereunder.
3.3 The Shares will be sold and transferred to the PURCHASERS in the
portions and for the consideration as follows:
3.3.1 To AMPAL - 3,517,683 Ordinary Shares, 3,350 4% Preferred Shares, and
122,536 6.5% Preferred Shares (hereinafter "the AMPAL Shares") in
consideration of:
3.3.1.1 The transfer of the Amount of the Deposit; and
3.3.1.2 $3,420,000 plus interest in the rate of LIBOR plus 0.75% per
annum from April 12, 1999 until the date of actual payment
(herein the "Interest"); and
3.3.1.3 $3,210,208;
All as set out in Section 4 hereinafter.
3.3.2 To AMPAL DEVELOPMENT - 1,560,450 Ordinary Shares (hereinafter "the AMPAL
DEVELOPMENT Shares") in consideration of $7,802,248, as set out in
Section 5 hereinafter.
3.3.3 To AMPAL FINANCING - 660,803 Ordinary Shares (hereinafter "the AMPAL
FINANCING Shares")in consideration of $3,304,013, as set out in Section
6 hereinafter.
3.3.4 To AMPAL ISRAEL - 135,345 Ordinary Shares (hereinafter "the AMPAL ISRAEL
Shares") in consideration of $676,726, as set out in Section 7
hereinafter.
3.4 To avoid doubt, the completion of the transfer and sale of the Shares to
the PURCHASERS and the payment of the consideration therefor ("▇▇▇
▇▇▇▇▇▇▇") will take place simultaneously so that none of the Shares will
be transferred and sold to any of the PURCHASERS and no part of the
consideration therefor will be paid by the
-7-
PURCHASERS unless all the Shares are transferred and sold to the
PURCHASERS and all the consideration therefor is paid by the PURCHASERS
as provided hereunder.
3.5 All documents required to be signed and delivered on the Determining
Date (the "Closing") will be completed as required to effect the
transfer of the Shares to the PURCHASERS.
4. THE SALE AND TRANSFER TO AMPAL
4.1 On the Determining Date BHP will sell and transfer the AMPAL Shares to
AMPAL, and for that purpose BHP will sign and deliver to AMPAL the
following documents: (1) Original Stock Certificates Issued to BHP for
3,517,683 Ordinary Shares, 3,350 4% Preferred Shares and 122,536 6.5%
Preferred Shares of AMPAL, and (2) The BANK's Representation Letter, and
(3) BHP's Stock Power, bearing a medallion signature guaranteed by a
bank or a brokerage firm, and (4) BHP's Secretary's Certificate, and (5)
AMPAL's Opinion of Counsel, all in the forms attached as Annexes
4.1.1-4.1.5 hereto in respect of the AMPAL Shares.
4.2 On the Determining Date and against delivery of all signed documents
required to be delivered by BHP to the PURCHASERS:
4.2.1 AMPAL will transfer to BHP the Amount of the Deposit by signing the
irrevocable instruction attached hereto as Annex 4.2.1 and delivering it
to BHP.
4.2.2 AMPAL will pay BHP the sum of $3,420,000 plus the Interest, plus
$3,210,208 by bank check or bank transfer.
5. THE SALE AND TRANSFER TO AMPAL DEVELOPMENT
5.1 On the Determining Date BHP will sell and transfer the AMPAL DEVELOPMENT
Shares to AMPAL DEVELOPMENT, and for that purpose BHP will sign and
deliver to AMPAL DEVELOPMENT the following documents: (1) Original Stock
Certificate issued to BHP for 1,560,450 Ordinary Shares of AMPAL, and
(2) The BANK's Representation Letter, and (3) BHP's Stock Power bearing
a medallion signature guaranteed by a bank or a brokerage firm, and (4)
BHP's Secretary's Certificate, and (5) AMPAL's Opinion of Counsel, all
in the forms attached as Annexes 5.1.1-5.1.5 hereto in respect of the
AMPAL DEVELOPMENT Shares and AMPAL DEVELOPMENT will furnish the AMPAL
DEVELOPMENT's Representation Letter Annex 5.1.6 hereto.
5.2 On the Determining Date and against delivery of all signed documents
required to be delivered by BHP to the PURCHASERS, AMPAL DEVELOPMENT
will pay BHP a sum of $7,802,248 by bank check or bank transfer.
-8-
6. THE SALE AND TRANSFER TO AMPAL FINANCING
6.1 On the Determining Date BHP will sell and transfer the AMPAL FINANCING
Shares to AMPAL FINANCING, and for that purpose BHP will sign and
deliver to AMPAL FINANCING the following documents: (1) Original Stock
Certificate issued to BHP for 660,803 Ordinary Shares of AMPAL, and (2)
The BANK's Representation Letter, and (3) BHP's Stock Power bearing a
medallion signature guaranteed by a bank or a brokerage firm, and (4)
BHP's Secretary's Certificate, and (5) AMPAL's Opinion of Counsel, all
in the forms attached as Annexes 6.1.1-6.1.5 hereto in respect of AMPAL
FINANCING Shares and AMPAL FINANCING will furnish the AMPAL FINANCING
Representation Letter, Annex 6.1.6 hereto.
6.2 On the Determining Date and against delivery of all signed documents
required to be delivered by BHP to the PURCHASERS, AMPAL FINANCING will
pay BHP a sum of $3,304,013 by a bank check or by a bank transfer.
7. THE SALE AND TRANSFER TO AMPAL ISRAEL
7.1 On the Determining Date BHP will sell and transfer the AMPAL ISRAEL
Shares to AMPAL ISRAEL, and for that purpose BHP will sign and deliver
to AMPAL ISRAEL the following documents: (1) Original Stock Certificate
issued to BHP for 135,345 Ordinary Shares of AMPAL, and (2) The BANK's
Representation Letter, and (3) BHP's Stock Power bearing a medallion
signature guaranteed by a bank or brokerage firm, and (4) BHP's
Secretary's Certificate, and (5) AMPAL's Opinion of Counsel, all in the
forms attached as Annexes 7.1.1-7.1.5 hereto in respect of the AMPAL
ISRAEL Shares and AMPAL ISRAEL will furnish the AMPAL ISRAEL's
Representation Letter Annex 7.1.6 hereto.
7.2 On the Determining Date and against delivery of all signed documents
required to be delivered by BHP to the PURCHASERS, AMPAL ISRAEL will pay
BHP a sum of $676,726 by bank check or bank transfer.
8. RESIGNATION OF DIRECTORS
At the Determining Date, and against the payment by the PURCHASERS to
BHP of the consideration for the Shares as provided in Sections 4, 5, 6,
and 7 above, BHP shall deliver to AMPAL notices of resignation from
AMPAL's Board of Directors signed by Messrs. ▇▇▇▇▇▇ Elinav and ▇▇▇▇▇▇
▇▇▇▇▇, to become effective immediately upon delivery to AMPAL. The
notices will be in the form attached as Annex 8 to this Agreement.
9. This Agreement is subject to the fulfillment of all the Conditions
Precedent as defined and provided for in Section 7 of the Main
Agreement.
-9-
10. TAXES AND OTHER COMPULSORY PAYMENTS
Capital Gains Tax and/or Income Tax and New York Stamp and Transfer
Taxes (if applicable) on the sale of the Shares to the PURCHASERS will
be borne and paid by the BANK.
11. REGISTRATION OF SHARES
After the Determining Date, if requested by the PURCHASERS, BHP will
sign any document and take whatever action that is necessary in order to
complete the registration of the Shares in the name of each relevant
PURCHASER.
12. MISCELLANEOUS
To remove any doubt, it is declared and agreed that all the provisions
of Sections 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the Main Agreement
shall apply herein mutatis mutandis. However, it is specifically
declared and agreed that this Agreement and the rights and obligations
of the parties hereunder or pursuant hereto shall be governed by and
construed in accordance with the laws of the State of New York, U.S.A.,
including, to avoid doubt, such rules applying foreign laws, if and to
the extent such rules are applicable.
IN WITNESS WHEREOF the parties have signed:
---------- ----------
BANK HAPOALIM ▇.▇. ▇▇▇▇ INVESTMENTS COMPANY LTD.
---------- ----------
AMPAL-AMERICAN ISRAEL CORPORATION AMPAL DEVELOPMENT (ISRAEL) LTD.
---------- ----------
AMPAL FINANCIAL SERVICES LTD. AMPAL (ISRAEL) LTD.
ANNEX "B"
REAL ESTATE AGREEMENT
Made and entered into in Tel-Aviv on the _____ day of ______, 1999
BY AND BETWEEN
REVADIM (NECHASIM) LTD. (p.c. 51-073528-5)
of ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter "the BUYER")
of the first part;
AND
AMPAL-AMERICAN ISRAEL CORPORATION
(c/o Ampal (Israel) Ltd.)
of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter "AMPAL")
of the second part;
WHEREAS AMPAL is an owner of rights in the Arlozorov A Property, as
specified hereinafter in this agreement; and
WHEREAS AMPAL is interested in selling to the BUYER and the BUYER is
interested in buying from AMPAL its rights in the Arlozorov A
Property as defined hereinafter, all on the terms and conditions and
for the consideration specified herein; and
WHEREAS Simultaneously with signing this Agreement, the BUYER, AMPAL and
others are signing also the Agreement (hereinafter the "Main
Agreement") to which this Agreement is attached as Annex "B" and
other agreements which are attached to the Main Agreement as Annexes
"A", "C", "D", "E", "F" and "G" thereto (hereinafter the "Other
Agreements");
NOW, THEREFORE, it has been declared, agreed and warranted between the parties
as follows:
-2-
1. PREAMBLE, CAPTIONS, DEFINITIONS, AND ANNEXES
1.1 The preamble to this agreement and the annexes hereto form an integral
part hereof.
1.2 Captions used in this Agreement are solely for convenience of reading
and shall not be used for the interpretation or determination of the
validity of this Agreement or any provision hereof.
1.3 In this agreement the following terms shall have the meanings ascribed
to them:.
1.3.1 "This Agreement" or "the Agreement" - this agreement and all the
annexes, amendments or additions to it, as well as any document to be
furnished in accordance with the provisions hereof.
1.3.2 "Third Party Right" - Any lien, pledge, mortgage, suit, demand, claim,
attachment and/or debt or obligation towards whatsoever third party
and/or whatsoever other third party right.
1.3.3 "Arlozorov A Property" or the "Real Estate"- The real estate property
known as ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 661/5 at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tel-Aviv, of
which AMPAL is entitled to be registered as owner and of which today BHP
is registered as owner in its entirety, as specified in the extract,
copy of which is attached hereto as Annex 1.3.3.
1.3.4 "Dollar" - U.S. Dollar.
1.3.5 "AMPAL's Attorney" - Any of the attorneys from the office of Firon,
Karni, Sarov & Firon, Advs., of 111 Arlozorov Street, Tel-Aviv, alone
and/or in any combination.
1.3.6 "The BUYER's Attorney" - Advs. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ Hirschof
63 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Street, Tel-Aviv, alone and/or in any combination.
1.3.7 "The Determining Date" - The date which BHP and AMPAL will determine as
the Closing Date in accordance with the provisions of Section 8 to the
Main Agreement.
1.3.8 "BHP" - Bank Hapoalim B.M.
2. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
2.1 Representations and Warranties of the BUYER
The BUYER represents, warrants, covenants, and undertakes the following
to be
-3-
true and correct on the date hereof and that the following will be true
and correct on the Determining Date, and is aware and acknowledges that
AMPAL has agreed to enter into this Agreement and the transactions
contemplated therein in reliance on these representations, warranties,
covenants, and undertakings of the BUYER:
2.1.1 The BUYER is a private company duly registered in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; it
is wholly owned and controlled by BHP; and it is an active company
lawfully conducting its business and it has all the powers and
authorities to enter into this Agreement and to fulfil all its
undertakings hereunder.
2.1.2 BHP is a public company duly registered as a bank in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇, and
it is an active company lawfully conducting its business and it has all
the powers and authorities to enter into this Agreement and to fulfil
all its undertakings hereunder.
2.1.3 Save as set out in Section 7.1 of the Main Agreement, the BUYER has
completed all corporate acts and proceedings required under its
incorporation documents and under law for the entering into this
Agreement and the fulfillment of its undertakings hereunder.
2.1.4 BHP is the lessee and actual holder, for many years, of the Real Estate
according to a lease agreement between BHP and AMPAL.
2.1.5 The BUYER has examined independently, to its full satisfaction, and
knows well the Real Estate and AMPAL's rights in it from all aspects,
physical, planning, factual, and legal, the BUYER was given every
opportunity to make any examination, and the BUYER has found the Real
Estate suited to its purposes and is acquiring the rights therein "as
is", being fully aware of its condition and age, and it waives
absolutely and finally any demand and/or claim against AMPAL, including
in the matter of any unsuitability and/or defect in respect of the Real
Estate, whether disclosed or concealed, existing or future.
2.2 Representations and Warranties of AMPAL
AMPAL hereby represents, warrants, covenants and undertakes the
following to be true and correct on the date hereof, and the following
will be true and correct on the Determining Date, and is aware and
acknowledges that the BUYER has agreed to enter into this Agreement and
the transactions contemplated therein in
-4-
reliance on these representations, warranties, covenants and
undertakings of AMPAL:
2.2.1 AMPAL is a corporation duly organized in the State of New York, U.S.A.,
it is an active company lawfully conducting its business, and has all
the powers and authorities to enter into this Agreement and to fulfil
all its undertakings hereunder.
2.2.2 Save as set out in Section 7.1 of the Main Agreement, AMPAL has
completed all such corporate acts and proceedings required under its
incorporation documents and any law for entering into this Agreement and
the fulfillment of all its undertakings hereunder.
2.2.3 AMPAL is entitled to be registered as the owner of the Arlozorov A
Property, and its rights therein are free and clear of any Third Party
Right whatsoever, as set out in Annex 1.3.3, and they can be sold and
transferred to the BUYER.
3. THE TRANSACTION - GENERAL
AMPAL hereby undertakes to sell and transfer to the BUYER on the
Determining Date, the Real Estate and all of AMPAL's rights therein, the
Real Estate and AMPAL's rights therein being free and clear of any Third
Party Right whatsoever, for the consideration in the sum of $2,919,208
plus V.A.T. (hereinafter the "Consideration"), to be paid to it by the
BUYER as set out hereinafter.
4. THE SALE AND TRANSFER
4.1 On the Determining Date ("▇▇▇ ▇▇▇▇▇▇▇") the BUYER will pay AMPAL the
Consideration by bank check or bank transfer.
4.2 Against receipt of the Consideration in full, AMPAL will sign and submit
to the BUYER an irrevocable power of attorney in the form attached
hereto as Annex "4.2" which will enable the BUYER to do any act in
connection with transferring AMPAL's rights in the Arlozorov A Property
to the BUYER, including, inter alia, registering the transfer of these
rights at the Land Registry Office, signing any document for the purpose
of transferring the said rights and/or obtaining whatsoever approval
which is required for the transfer of the said rights as aforesaid, as
well as to appear before any competent authority in connection with the
abovementioned activities.
4.3 Immediately upon completion of full payment of the Consideration to
AMPAL, the validity of the lease agreement between AMPAL and BHP in
connection with the Arlozorov A Property will expire without any of the
parties thereto having any
-5-
demand and/or claim whatsoever towards the other, except in connection
with rental fees and other payments due to AMPAL, or prepaid by BHP, in
connection with the period up to the Determining Date, exclusive
possession in the Arlozorov A Property will pass to the BUYER, and the
BUYER will be permitted to register a caveat in connection with
acquisition of AMPAL's rights in the Arlozorov A Property.
4.4 After the full payment of the Consideration to AMPAL, AMPAL will act to
furnish the BUYER an authorization of Mas Shevach (Land Betterment Tax)
for the registration of the rights in the Arlozorov A Property in the
name of the BUYER at the Land Registry Office. It is agreed that the
BUYER will be responsible for the performance of all acts required for
the purpose of registering the rights in the Arlozorov A Property in its
name according to this Agreement, and will bear all payments involved
therewith. AMPAL, on its part, undertakes to cooperate with the BUYER
and/or the BUYER's Attorney and use its best effort to assist the BUYER
and/or the BUYER's attorney in this matter and sign the documents and
authorizations required for the purpose of completing the registration
of the said rights in the BUYER's name at the Land Registry Office as
aforesaid. If the authorization of Mas Shevach (Land Betterment Tax) is
not furnished to the BUYER within 180 (one hundred eighty) days of the
date on which the parties shall file the Land Betterment Tax forms and
affidavits as provided in Section 6.5 hereunder, then as soon as the Mas
Shevach Authorities determine the Mas Shevach with respect to this
transaction, AMPAL will either pay and/or provide the Mas Shevach
Authorities with guarantees covering, together, the entire Mas Shevach
determined by the Mas Shevach Authorities with respect to this
transaction, so that the Mas Shevach Authorization is furnished. It is
agreed that should AMPAL decide to contest and/or appeal the Mas Shevach
Authorities' determinations, the BUYER will not have to join such
contest and/or appeal, but will support and assist AMPAL's contest
and/or appeal.
5. This Agreement is subject to the fulfillment of all Conditions Precedent
as defined and provided for in Section 7 of the Main Agreement.
6. TAXES AND OTHER COMPULSORY PAYMENTS
6.1 Value Added Tax in respect of the transfers of AMPAL's rights in the
Real Estate as aforesaid in Section 4 above, will be borne and paid by
the BUYER. The BUYER will transfer the V.A.T. to the V.A.T. Authorities
directly and will issue a "Cheshbonit Mas Azmit" (Self Tax Invoice), as
provided by law.
-6-
6.2 Subject to the provisions of Sections 6.3 and 6.4 hereunder, all the
taxes, levies and fees, governmental and municipal, of any kind and
type, except for improvement levies, in respect of the period up to the
Determining Date, will be borne and paid by AMPAL or by BHP - in
accordance with the provisions of the lease agreement between AMPAL and
BHP in connection with the Real Estate, and in respect of the period
from the Determining Date - will be borne and paid by the BUYER alone.
In addition, any betterment levies, if any, which have not yet actually
been paid in respect of the Real Estate, will be borne and paid by the
BUYER.
6.3 Land Betterment Tax or Capital Gains Tax or Income Tax on the transfer
of AMPAL's rights in the Real Estate to the BUYER will be borne and paid
by AMPAL.
6.4 Acquisition Tax (Purchase Tax) on the transfer of AMPAL's rights in the
Real Estate to the BUYER will be borne and paid by the BUYER.
6.5 The BUYER and AMPAL will sign and file at the times set by law, Land
Betterment Tax forms and affidavits in connection with the transfer and
sale of AMPAL's rights in the Real Estate.
7. MISCELLANEOUS
To remove any doubt, it is declared and agreed that all the provisions
of Sections 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the Main Agreement
shall apply herein mutatis mutandis. However, it is specifically
declared and agreed that this Agreement and the rights and obligations
of the parties and BHP hereunder or pursuant hereto shall be governed by
and construed in accordance with the laws of the State of Israel.
IN WITNESS WHEREOF the parties have signed:
---------- ----------
AMPAL-AMERICAN ISRAEL CORPORATION THE BUYER
We, Bank Hapoalim B.M., hereby irrevocably agree to all the abovementioned
provisions regarding ourselves and/or having any bearing on us. We also hereby
irrevocably guarantee the full and prompt fulfillment of all the BUYER's
undertakings under the above Agreement.
-7-
We hereby waive any demand of prior request from the BUYER under Section 8 of
the Guarantee Law, 5727-1967. This guarantee shall remain in full force in spite
of any stay, postponement, waiver, or change in a guaranteed obligation of the
BUYER.
------------------------------
Bank Hapoalim B.M.
REAL ESTATE AGREEMENT "B"
ARLOZOROV 'A' PROPERTY
list of annexes
Annex 1.3.3 Copy of extract of real estate property known as ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
661/5 at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
Annex 4.2 Form of irrevocable power of attorney to be signed by AMPAL
REAL ESTATE AGREEMENT "C"
HOLON PROPERTY, PANORAMA PROPERTY, ALLENBY PROPERTY
list of annexes
Annex 1.3.3 Copy of extract of real estate property known as ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
159/2 at ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ 1.3.4 Copy of extracts of real estate property known as Block 10812,
Parcels 97 and 132 at Panorama Center ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Haifa.
Annex 1.3.5 Copy of extract of real estate known as Block 6933 Parcel 116 with
all its sub-parcels at ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tel-Aviv.
Annex 4.2 Form of irrevocable power of attorney to be signed by AMPAL
ANNEX "C"
REAL ESTATE AGREEMENT
Made and entered into in Tel-Aviv on the _______ day of ______, 1999
BY AND BETWEEN
REVADIM (NECHASIM) LTD. (p.c. 51-073528-5)
(hereinafter the "BUYER")
of ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
of the first part;
AND
AMPAL DEVELOPMENT (ISRAEL) LTD. (p.c. 52-000238-7)
of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter "AMPAL")
of the second part;
WHEREAS AMPAL is an owner of rights in the Real Estate defined herein as
"Holon Property", "Panorama Property" and "Allenby Property", as
specified hereinafter in this agreement; and
WHEREAS AMPAL is interested in selling to the BUYER and the BUYER is
interested in buying from AMPAL its rights in the Real Estate as
defined hereinafter, all on the terms and conditions and for the
consideration specified herein; and
WHEREAS Simultaneously with signing this Agreement, the BUYER, AMPAL and
others are signing also the Agreement (hereinafter the "Main
Agreement") to which this Agreement is attached as Annex "C" and
other agreements which are attached to the Main Agreement as Annexes
"A", "B", "D", "E", "F" and "G" thereto (hereinafter the "Other
Agreements");
NOW, THEREFORE, it has been declared, agreed and warranted between the parties
as follows:
-2-
1. PREAMBLE, CAPTIONS, DEFINITIONS, AND ANNEXES
1.1 The preamble to this agreement and the annexes hereto form an integral
part hereof.
1.2 Captions used in this Agreement are solely for convenience of reading
and shall not be used for the interpretation or determination of the
validity of this Agreement or any provision hereof.
1.3 In this agreement the following terms shall have the meanings ascribed
to them:
1.3.1 "This Agreement" or "the Agreement" - this agreement and all the
annexes, amendments or additions to it, as well as any document to be
furnished in accordance with the provisions hereof.
1.3.2 "Third Party Right" - Any lien, pledge, mortgage, suit, demand, claim,
attachment and/or debt or obligation towards whatsoever third party
and/or whatsoever other third party right.
1.3.3 "Holon Property" - The real estate property known as Block 7168 in
Parcel 159/2 at 39 Shenkar Street, Holon, in the ownership of AMPAL
DEVELOPMENT as specified in the extract, copy of which is attached
hereto as Annex 1.3.3.
1.3.4 "Panorama Property" - The real estate property known as part of Parcels
97 and 132 in Block 10812 at Panorama Center, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Haifa, of which AMPAL DEVELOPMENT is entitled to be registered as the
owner/perpetual lessee, and in respect of which two caveats are recorded
in favor of AMPAL DEVELOPMENT [under its former name - Bank Lecharoshet
B.M.] as specified in the extract, copy of which is attached hereto as
Annex 1.3.4.
1.3.5 "Allenby Property" - The real estate property known as Block 6933 Parcel
116 with all its sub-parcels, at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tel-Aviv, in the
ownership of AMPAL DEVELOPMENT as specified in the extract, copy of
which is attached hereto as Annex 1.3.5.
1.3.6 "The Real Estate" - The Holon Property, Panorama Property and Allenby
Property, jointly or severally, as the case may be.
1.3.7 "Dollar" - U.S. Dollar.
-3-
1.3.8 "AMPAL's Attorney" - Any of the attorneys from the office of Firon,
Karni, Sarov & Firon, Advs., of 111 Arlozorov Street, Tel-Aviv, alone
and/or in any combination.
1.3.9 "The BUYER's Attorney" - Advs. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
of 63 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Street, Tel-Aviv, alone and/or in any combination.
1.3.10 "The Determining Date" - The date which BHP and AMPAL will determine as
the Closing Date in accordance with the provisions of Section 7 to the
Main Agreement.
1.3.11 "BHP" - Bank Hapoalim B.M.
2. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
2.1 Representations and Warranties of the BUYER
The BUYER represents, warrants, covenants, and undertakes the following
to be true and correct on the date hereof and that the following will be
true and correct on the Determining Date, and is aware and acknowledges
that AMPAL has agreed to enter into this Agreement and the transactions
contemplated therein in reliance on these representations, warranties,
covenants, and undertakings of the BUYER:
2.1.1 The BUYER is a private company duly registered in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; it
is wholly owned and controlled by BHP; and it is an active company
lawfully conducting its business and it has all the powers and
authorities to enter into this Agreement and fulfill all its
undertakings hereunder.
2.1.2 BHP is a public company duly registered as a bank in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇, and
it is an active company lawfully conducting its business and it has all
the powers and authorities to enter into this Agreement and fulfill all
its undertakings hereunder.
2.1.3 Save as set out in Section 7.1 of the Main Agreement, the BUYER has
completed all corporate acts and proceedings required under its
incorporation documents and under law for the entering into this
Agreement and for the fulfillment of its undertakings hereunder.
2.1.4 BHP is the lessee and actual holder, for many years, of all the Real
Estate according to lease agreements between BHP and AMPAL.
2.1.5 The BUYER has examined independently to its full satisfaction and knows
well all of the Real Estate and AMPAL's' rights in it from all aspects,
physical,
-4-
planning, factual, and legal, the BUYER was given every opportunity to
make any examination, and the BUYER has found the Real Estate suited to
its purposes and is acquiring the rights therein "as is", being fully
aware of its condition and age, and it waives absolutely and finally any
demand and/or suit and/or claim against AMPAL, including in the matter
of any unsuitability and/or defect in respect of the Real Estate,
whether disclosed or concealed, existing or future.
2.2 Representations and Warranties of AMPAL
AMPAL hereby represents, warrants, covenants and undertakes the
following to be true and correct on the date hereof, and the following
will be true and correct on the Determining Date, and is aware and
acknowledges that the BUYER has agreed to enter into this Agreement and
the transactions contemplated therein in reliance on these
representations, warranties, covenants and undertakings of AMPAL:
2.2.1 AMPAL is a public company duly registered in Israel; its registration
number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; and it is an
active company lawfully conducting its business and it has all the
powers and authorities to enter into this Agreement and fulfill all its
undertakings hereunder.
2.2.2 Save as set out in Section 7.1 of the Main Agreement, AMPAL has received
from its organs so empowered under its incorporation documents and any
law, all the resolutions required in order to be authorized to duly
enter into this Agreement and fulfill all its undertakings hereunder.
2.2.3 AMPAL is the registered owner of the Holon Property and the Allenby
Property, is entitled to be registered as the owner of the Panorama
Property, and its rights in these Properties are free and clear of any
Third Party Right whatsoever, as set out in Annexes 1.3.3, 1.3.4, and
1.3.5, and they can be sold and transferred to the BUYER.
3. THE TRANSACTION - GENERAL
AMPAL hereby undertakes to sell and transfer to the BUYER on the
Determining Date, the Real Estate and all of AMPAL's rights therein, the
Real Estate and AMPAL's rights therein being free and clear of any Third
Party Right whatsoever, for the following consideration:
In consideration for AMPAL's rights in the Holon Property - $1,273,836
plus v.a.t.
In consideration for AMPAL's rights in the Panorama Property -
$3,078,438 plus v.a.t.
-5-
In consideration for AMPAL's rights in the Allenby Property - $3,449,974
plus v.a.t.
Total consideration - $7,802,248 plus v.a.t. (hereinafter the
"Consideration") to be paid to it by the BUYER as set out hereinafter.
4. THE SALE AND TRANSFER
4.1 On the Determining Date the BUYER will pay AMPAL the Consideration by
bank check or bank transfer.
4.2 Against receipt of the Consideration in full, AMPAL will sign and submit
to the BUYER an irrevocable power of attorney in the form attached
hereto as Annex "4.2" which will enable the BUYER to do any act in
connection with transferring AMPAL's rights in the Real Estate,
including, inter alia, registering the transfer of these rights at the
Land Registry Offices, signing any document for the purpose of
transferring the said rights and/or obtaining whatsoever approval which
is required for the transfer of the said rights as aforesaid, as well as
to appear before any competent authority in connection with the
abovementioned activities.
4.3 Immediately upon completion of full payment of the Consideration to
AMPAL, the validity of the lease agreements between AMPAL and BHP in
connection with all the Real Estate will expire without any of the
parties having any demand and/or claim whatsoever towards the other,
except in connection with rental fees and other payments due to AMPAL or
prepaid by BHP in connection with the period up to the Determining Date,
exclusive possession in the Real Estate will pass to the BUYER, and the
BUYER will be permitted to register a caveat in connection with
acquisition of AMPAL's rights in the Real Estate.
4.4 After the full payment of the Consideration to AMPAL, AMPAL will act to
furnish the BUYER authorizations of Mas Shevach (Land Betterment Tax)
for the registration of the rights in all the Real Estate in the name of
the BUYER at the Land Registry Offices, and certificates or
authenticated copies of certificates from the Registrar of Companies in
Israel or affidavits or any other documents required by the relevant
Land Registry Office, for the purpose of verifying the various changes
in AMPAL's name from its former names to its present name. It is agreed
that the BUYER will be responsible for the performance of all acts
required for the purpose of registering the rights in all the Real
Estate in its name according to this Agreement, and will bear all
payments involved therewith. AMPAL, on its part, undertakes to cooperate
with the BUYER and/or the BUYER's Attorney and use its best effort to
assist the BUYER and/or the BUYER's attorney in this matter and sign the
documents and authorizations required for the purpose of completing the
-6-
registration of the said rights in the BUYER's name at the Land Registry
Offices as aforesaid. If the authorizations of Mas Shevach (Land
Betterment Tax) are not furnished to the BUYER within 180 (one hundred
eighty) days of the date on which the parties shall file the Land
Betterment Tax forms and affidavits as provided in Section 6.5
hereunder, then as soon as the Mas Shevach Authorities determine the Mas
Shevach with respect to these transactions, AMPAL will either pay and/or
provide the Mas Shevach Authorities with guarantees covering, together,
the entire Mas Shevach determined by the Mas Shevach Authorities with
respect to these transactions, so that the Mas Shevach Authorizations
are furnished. It is agreed that should AMPAL decide to contest and/or
appeal the Mas Shevach Authorities' determinations, the BUYER will not
have to join such contest and/or appeal, but will support and assist
AMPAL's contest and/or appeal.
5. This Agreement is subject to the fulfillment of all Conditions Precedent
as defined and provided for in Section 7 of the Main Agreement.
6. TAXES AND OTHER COMPULSORY PAYMENTS
6.1 The Value Added Tax will be paid by the BUYER to AMPAL as part of the
Consideration. As AMPAL is a "▇▇▇▇▇ ▇▇▇▇▇" ("Financial Institution"),
AMPAL will pay the V.A.T. to the V.A.T. authorities and will file a
Teudat Iskat Akrai in accordance with Section15A of the Value Added Tax
(Registration) Regulations (1976-5736), and will provide the BUYER with
said Teudat Iskat Akrai immediately after its filing as aforesaid.
6.2 Subject to the provisions of Sections 6.3 and 6.4 hereunder, all the
taxes, levies and fees, governmental and municipal, of any kind and
type, except for improvement levies, in respect of the period up to the
Determining Date, will be borne and paid by AMPAL or by BHP - in
accordance with the provisions of the lease agreement between AMPAL and
BHP in connection with the Real Estate, and in respect of the period
from the Determining Date - will be borne and paid by the BUYER alone.
In addition, any improvement levies, if any, which have not yet actually
been paid in respect of the Real Estate, will be borne and paid by the
BUYER.
6.3 Land Betterment Tax or Capital Gains Tax or Income Tax on the transfer
of AMPAL's rights in the Real Estate to the BUYER will be borne and paid
by AMPAL.
6.4 Acquisition Tax on the transfer of AMPAL's rights in the Real Estate to
the BUYER will be borne and paid by the BUYER.
-7-
6.5 The BUYER and AMPAL will sign and file at the times set by law, Land
Betterment Tax forms and affidavits in connection with the transfer and
sale of AMPAL's rights in the Real Estate.
7. MISCELLANEOUS
To remove any doubt, it is declared and agreed that all the provisions
of Sections 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the Main Agreement
shall apply herein mutatis mutandis. However, it is specifically
declared and agreed that this Agreement and the rights and obligations
of the parties and BHP hereunder or pursuant hereto shall be governed by
and construed in accordance with the laws of the State of Israel.
IN WITNESS WHEREOF the parties have signed:
---------- ----------
AMPAL DEVELOPMENT (ISRAEL) LTD. THE BUYER
We, Bank Hapoalim B.M., hereby irrevocably agree to all the abovementioned
provisions regarding ourselves and/or having any bearing on us. We also hereby
irrevocably guarantee the full and prompt fulfillment of all the BUYER's
undertakings under the above Agreement. We hereby waive any demand of prior
request from the BUYER under Section 8 of the Guarantee Law, 5727-1967. This
guarantee shall remain in full force in spite of any stay, postponement, waiver,
or change in a guaranteed obligation of the BUYER.
------------------------------
Bank Hapoalim B.M.
REAL ESTATE AGREEMENT "C"
HOLON PROPERTY, PANORAMA PROPERTY, ALLENBY PROPERTY
list of annexes
Annex 1.3.3 Copy of extract of real estate property known as ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
159/2 at ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ 1.3.4 Copy of extracts of real estate property known as Block 10812,
Parcels 97 and 132 at Panorama Center ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Haifa.
Annex 1.3.5 Copy of extract of real estate known as Block 6933 Parcel 116 with
all its sub-parcels at ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tel-Aviv.
Annex 4.2 Form of irrevocable power of attorney to be signed by AMPAL
ANNEX "D"
REAL ESTATE AGREEMENT
Made and entered into in Tel-Aviv on the ______ day of ______, 1999
BY AND BETWEEN
REVADIM (NECHASIM) LTD. (p.c. 51-073528-5)
of ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter the "BUYER")
of the first part;
AND
AMPAL FINANCIAL SERVICES LTD. (p.c.52-002104-9)
of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter "AMPAL")
of the second part;
WHEREAS AMPAL is an owner of rights in the Real Estate defined herein as
Rosh ▇▇▇▇ Property and Ramat Hasharon Property, as specified
hereinafter in this agreement; and
WHEREAS AMPAL is interested in selling to the BUYER and the BUYER is
interested in buying from AMPAL its rights in the Real Estate as
defined hereinafter, all on the terms and conditions and for the
consideration specified herein; and
WHEREAS Simultaneously with signing this Agreement, the BUYER, AMPAL and
others are signing also the Main Agreement (hereinafter the "Main
Agreement") to which this Agreement is attached as Annex "D" and
other agreements which are attached to the Frame Agreement as
Annexes "A", "B", "C", "E", "F" and "G" thereto (hereinafter the
"Other Agreements");
NOW, THEREFORE, it has been declared, agreed and warranted between the parties
as follows:
-2-
1. PREAMBLE, CAPTIONS, DEFINITIONS, AND ANNEXES
1.1 The preamble to this agreement and the annexes hereto form an integral
part hereof.
1.2 Captions used in this Agreement are solely for convenience of reading
and shall not be used for the interpretation or determination of the
validity of this Agreement or any provision hereof.
1.3 In this agreement the following terms shall have the meanings ascribed
to them:.
1.3.1 "This Agreement" or "the Agreement" - this agreement and all the
annexes, amendments or additions to it, as well as any document to be
furnished in accordance with the provisions hereof.
1.3.2 "Third Party Right" - Any lien, pledge, mortgage, suit, demand, claim,
attachment and/or debt or obligation towards whatsoever third party
and/or whatsoever other third party right.
1.3.3 "Rosh ▇▇▇▇ Property" - The real estate property known as Block 13940
Parcel 39/6 at Hachalutzim Street, Rosh ▇▇▇▇, in the ownership of AMPAL
[(under its former name - Bank Ampal Lepituach Hataasiya Be-Israel B.M.]
as specified in the extract, copy of which is attached hereto as Annex
1.3.3.
1.3.4 "Ramat Hasharon Property" - The real estate property known as part of
Parcel 83 in Block 6415 at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Hasharon, of which
AMPAL is entitled to be registered as owner, and in respect of which a
caveat is recorded in favor of AMPAL [(under its former name - - Bank
Ampal Lepituach Hataasiya Be-Israel B.M.] as specified in the extract,
copy of which is attached hereto as Annex 1.3.4.
1.3.5 "The Real Estate" - The Rosh ▇▇▇▇ Property and Ramat Hasharon Property,
jointly or severally, as the case may be.
1.3.6 "Dollar" - U.S. Dollar.
1.3.7 "AMPAL's Attorney" - Any of the attorneys from the office of Firon,
Karni, Sarov & Firon, Advs., of 111 Arlozorov Street, Tel-Aviv, alone
and/or in any combination.
1.3.8 "The BUYER's Attorney" - Advs. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Doron and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
of 63 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Street, Tel-Aviv, alone and/or in any combination.
-3-
1.3.9 "The Determining Date" - The date which BHP and AMPAL will determine as
the Closing Date in accordance with the provisions of Section 7 to the
Main Agreement.
1.3.10 "BHP" - Bank Hapoalim B.M.
2. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
2.1 Representations and Warranties of the BUYER
The BUYER represents, warrants, covenants, and undertakes the following
to be true and correct on the date hereof and that the following will be
true and correct on the Determining Date, and is aware and acknowledges
that AMPAL has agreed to enter into this Agreement and the transactions
contemplated therein in reliance on these representations, warranties,
covenants, and undertakings of the BUYER:
2.1.1 The BUYER is a private company duly registered in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; it
is wholly owned and controlled by BHP; and it is an active company
lawfully conducting its business and it has all the powers and
authorities to enter into this Agreement and fulfill all its
undertakings hereunder.
2.1.2 BHP is a public company duly registered as a bank in Israel; its
registration number with the Registrar of Companies is52-000011-8, and
it is an active company lawfully conducting its business and it has all
the powers and authorities to enter into this Agreement and fulfill all
its undertakings hereunder.
2.1.3 Save as set out in Section 7.1 of the Main Agreement, the BUYER has
completed all corporate acts and proceedings required under its
incorporation documents and under law for the entering into this
Agreement and for the fulfillment of its undertakings hereunder..
2.1.4 BHP is the lessee and actual holder, for many years, of all the Real
Estate according to lease agreements between BHP and AMPAL.
2.1.5 The BUYER has examined independently to its full satisfaction and knows
well all of the Real Estate and AMPAL's rights in it from all aspects,
physical, planning, factual, and legal, the BUYER was given every
opportunity to make any examination, and the BUYER has found the Real
Estate suited to its purposes and is acquiring the rights therein "as
is", being fully aware of its condition and age, and it waives
absolutely and finally any demand and/or suit and/or claim against
AMPAL, including in the matter of any unsuitability and/or defect in
respect of the Real Estate, whether disclosed or concealed, existing or
future.
-4-
2.2 Representations and Warranties of AMPAL
AMPAL hereby represents, warrants, covenants and undertakes the
following to be true and correct on the date hereof, and the following
will be true and correct on the Determining Date, and is aware and
acknowledges that the BUYER has agreed to enter into this Agreement and
the transactions contemplated therein in reliance on these
representations, warranties, covenants and undertakings of AMPAL:
2.2.1 AMPAL is a public company duly registered in Israel; its registration
number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; and it is an
active company lawfully conducting its business and it has all the
powers and authorities to enter into this Agreement and fulfill all its
undertakings hereunder.
2.2.2 Save as set out in Section 7.1 of the Main Agreement, AMPAL has received
from its organs so empowered under its incorporation documents and any
law, all the resolutions required in order to be authorized to duly
enter into this Agreement and fulfill all its undertakings hereunder.
2.2.3 AMPAL is the registered owner of the Rosh ▇▇▇▇ Property, is entitled to
be registered as the owner of the Ramat Hasharon Property, and its
rights in these Properties are free and clear of any Third Party Right
whatsoever, as set out in Annexes 1.3.3 and 1.3.4, and they can be sold
and transferred to the BUYER.
3. THE TRANSACTION - GENERAL
AMPAL hereby undertakes to sell and transfer to the BUYER on the
Determining Date, the Real Estate and all of AMPAL's rights therein, the
Real Estate and AMPAL's rights therein being free and clear of any Third
Party Right whatsoever, for the following consideration:
In consideration for AMPAL's rights in the Rosh
▇▇▇▇ Property - $484,323 plus V.A.T.
In consideration for AMPAL's rights in the
Ramat Hasharon Property - $2,819,690 plus V.A.T.
Total consideration - $3,304,013 plus V.A.T.
(hereinafter the
"Consideration")
to be paid to it by the BUYER as set out hereinafter.
4. THE SALE AND TRANSFER
4.1 On the Determining Date the BUYER will pay AMPAL the Consideration by
bank check or bank transfer.
-5-
4.2 Against receipt of the Consideration in full, AMPAL will sign and submit
to the BUYER an irrevocable power of attorney in the form attached
hereto as Annex "4.2" which will enable the BUYER to do any act in
connection with transferring AMPAL's rights in the Real Estate,
including, inter alia, registering the transfer of these rights at the
Land Registry Offices, signing any document for the purpose of
transferring the said rights and/or obtaining whatsoever approval which
is required for the transfer of the said rights as aforesaid, as well as
to appear before any competent authority in connection with the
abovementioned activities.
4.3 Immediately upon completion of full payment of the Consideration to
AMPAL, the validity of the lease agreements between AMPAL and BHP in
connection with all of the Real Estate will expire without any of the
parties having any demand and/or claim whatsoever towards the other,
except in connection with rental fees and other payments due to AMPAL or
prepaid by BHP in connection with the period up to the Determining Date,
exclusive possession in the Real Estate will pass to the BUYER, and the
BUYER will be permitted to register a caveat in connection with
acquisition of AMPAL's rights in the Real Estate.
4.4 After the full payment of the Consideration to AMPAL, AMPAL will act to
furnish the BUYER authorizations of Mas Shevach (Land Betterment Tax)
for the registration of the rights in all the Real Estate in the name of
the BUYER at the Land Registry Offices, and certificates or
authenticated copies of certificates from the Registrar of Companies in
Israel or affidavits or any other documents required by the relevant
Land Registry Office, for the purpose of verifying the various changes
in AMPAL's name from its former names to its present name. It is agreed
that the BUYER will be responsible for the performance of all acts
required for the purpose of registering the rights in all the Real
Estate in its name according to this Agreement, and will bear all
payments involved therewith. AMPAL, on its part, undertakes to cooperate
with the BUYER and/or the BUYER's Attorney and to use its best effort to
assist the BUYER and/or the BUYER's Attorney in this matter and sign the
documents and authorizations required for the purpose of completing the
registration of the said rights in the BUYER's name at the Land Registry
Offices as aforesaid.
If the authorizations of Mas Shevach (Land Betterment Tax) are not
furnished to the BUYER within 180 (one hundred eighty) days of the date
on which the parties shall file the Land Betterment Tax forms and
affidavits as provided in Section 6.5 hereunder, then as soon as the Mas
Shevach Authorities determine the Mas Shevach with respect to these
transactions, AMPAL will either pay and/or provide the Mas Shevach
Authorities with guarantees covering, together, the entire Mas
-6-
Shevach determined by the Mas Shevach Authorities with respect to these
transactions, so that the Mas Shevach Authorizations are furnished.
It is agreed that should AMPAL decide to contest and/or appeal the Mas
Shevach Authorities' determinations, the BUYER will not have to join
such contest and/or appeal, but will support and assist AMPAL's contest
and/or appeal.
5. This Agreement is subject to the fulfillment of all Conditions Precedent
as defined and provided for in Section 7 of the Main Agreement.
6. TAXES AND OTHER COMPULSORY PAYMENTS
6.1 The Value Added Tax will be paid by the BUYER to AMPAL as part of the
Consideration. As AMPAL is a "▇▇▇▇▇ ▇▇▇▇▇" ("Financial Institution"),
AMPAL will pay the V.A.T. to the V.A.T. authorities and will file a
Teudat Iskat Akrai in accordance with Section15A of the Value Added Tax
(Registration) Regulations (1976-5736), and will provide the BUYER with
said Teudat Iskat Akrai immediately after its filing as aforesaid.
6.2 Subject to the provisions of Sections 6.3 and 6.4 hereunder all the
taxes, levies and fees, governmental and municipal, of any kind and
type, except for improvement levies, in respect of the period up to the
Determining Date, will be borne and paid by AMPAL or by BHP - in
accordance with the provisions of the lease agreement between AMPAL and
BHP in connection with the Real Estate, and in respect of the period
from the Determining Date - will be borne and paid by the BUYER alone.
In addition, any improvement levies, if any, which have not yet actually
been paid in respect of the Real Estate, will be borne and paid by the
BUYER.
6.3 Land Betterment Tax or Capital Gains Tax or Income Tax on the transfer
of AMPAL's rights in the Real Estate to the BUYER will be borne and paid
by AMPAL.
6.4 Acquisition Tax on the transfer of AMPAL's rights in the Real Estate to
the BUYER will be borne and paid by the BUYER.
6.5 The BUYER and AMPAL will sign and file at the times set by law, Land
Betterment Tax, forms and affidavits in connection with the transfer and
sale of AMPAL's rights in the Real Estate.
7. MISCELLANEOUS
To remove any doubt, it is declared and agreed that all the provisions
of Sections 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the Main Agreement
shall apply herein mutatis mutandis. . However, it is specifically
declared and agreed that this Agreement and the rights and obligations
of the parties and BHP hereunder or
-7-
pursuant hereto shall be governed by and construed in accordance with
the laws of the State of Israel.
IN WITNESS WHEREOF the parties have signed:
---------- ----------
AMPAL FINANCIAL SERVICES LTD. the BUYER
We, Bank Hapoalim B.M., hereby irrevocably agree to all the abovementioned
provisions regarding ourselves and/or having any bearing on us. We also hereby
irrevocably guarantee the full and prompt fulfillment of all the BUYER's
undertakings under the above Agreement. We hereby waive any demand of prior
request from the BUYER under Section 8 of the Guarantee Law, 5727-1967. This
guarantee shall remain in full force in spite of any stay, postponement, waiver,
or change in a guaranteed obligation of the BUYER.
------------------------------
Bank Hapoalim B.M.
REAL ESTATE AGREEMENT "D"
ROSH ▇▇▇▇ PROPERTY AND RAMAT HASHARON PROPERTY
list of annexes
Annex 1.3.3 Copy of extract of real estate property known as Block 13940 Parcel
39/6 at Hachalutzim Street Rosh ▇▇▇▇
Annex 1.3.4 Copy of extract of real estate property known as Block 6415 Parcel
83 at 90, Sokolov Street, Ramat Hasharon
Annex 4.2 Form of irrevocable power of attorney to be signed by AMPAL
ANNEX "E"
REAL ESTATE AGREEMENT
Made and entered into in Tel-Aviv on the _______ day of ________, 1999
BY AND BETWEEN
REVADIM (NECHASIM) LTD. (p.c. 51-073528-5)
of ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter the "BUYER")
of the first part;
AND
AMPAL (ISRAEL) LTD. (p.c. 52-002622-0)
of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
(hereinafter "AMPAL")
of the second part;
WHEREAS AMPAL is an owner of rights in the Real Estate, as specified
hereinafter in this agreement; and
WHEREAS AMPAL is interested in selling to the BUYER and the BUYER is
interested in buying from AMPAL its rights in the Real Estate as
defined hereinafter, all on the terms and conditions and for the
consideration specified herein; and
WHEREAS Simultaneously with signing this Agreement, the BUYER, AMPAL and
others are signing also the Main Agreement (hereinafter the "Main
Agreement") to which this Agreement is attached as Annex "E" and
other agreements which are attached to the Main Agreement as Annexes
"A", "B", "C", "D", "F" and "G" thereto (hereinafter the "Other
Agreements");
NOW, THEREFORE, it has been declared, agreed and warranted between the parties
as follows:
-2-
1. PREAMBLE, CAPTIONS, DEFINITIONS, AND ANNEXES
1.1 The preamble to this agreement and the annexes hereto form an integral
part hereof.
1.2 Captions used in this Agreement are solely for convenience of reading
and shall not be used for the interpretation or determination of the
validity of this Agreement or any provision hereof.
1.3 In this agreement the following terms shall have the meanings ascribed
to them:.
1.3.1 "This Agreement" or "the Agreement" - this agreement and all the
annexes, amendments or additions to it, as well as any document to be
furnished in accordance with the provisions hereof.
1.3.2 "Third Party Right" - Any lien, pledge, mortgage, suit, demand, claim,
attachment and/or debt or obligation towards whatsoever third party
and/or whatsoever other third party right.
1.3.3 "Arlozorov B Property" or the "Real Estate"- The real estate property
known as Block 6213 Parcels 661/4 and 661/3, of which AMPAL is
registered as owner, as specified in the extracts, copies of which are
attached hereto as Annexes 1.3.3A and 1.3.3B.
1.3.4 "Dollar" - U.S. Dollar.
1.3.5 "AMPAL's Attorney" - Any of the attorneys from the office of Firon,
Karni, Sarov & Firon, Advs., of 111 Arlozorov Street, Tel-Aviv, alone
and/or in any combination.
1.3.6 "The BUYER's Attorney" - Advs. Advs. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Doron and ▇▇▇▇▇▇▇
▇▇▇▇▇▇ of 63 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Street, Tel-Aviv, alone and/or in any
combination.
1.3.7 "The Determining Date" - The date which BHP and AMPAL will determine as
the Closing Date in accordance with the provisions of Section 7 to the
Main Agreement.
1.3.8 "BHP" - Bank Hapoalim B.M.
2. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
2.1 Representations and Warranties of the BUYER
The BUYER represents, warrants, covenants, and undertakes the following
to be true and correct on the date hereof and that the following will be
true and correct on the Determining Date, and is aware and acknowledges
that AMPAL has agreed to enter into this Agreement and the transactions
contemplated
-3-
therein in reliance on these representations, warranties, covenants, and
undertakings of the BUYER:
2.1.1 The BUYER is a private company duly registered in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; it
is wholly owned and controlled by BHP; and it is an active company
lawfully conducting its business and it has all the powers and
authorities to enter into this Agreement and fulfill all its
undertakings hereunder.
2.1.2 BHP is a public company duly registered as a bank in Israel; its
registration number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇, and
it is an active company lawfully conducting its business and it has all
the powers and authorities to enter into this Agreement and fulfill all
its undertakings hereunder.
2.1.3 Save as set out in Section 7.1 of the Main Agreement, the BUYER has
completed all corporate acts and proceedings required under its
incorporation documents and under law for the entering into this
Agreement and for the fulfillment of its undertakings hereunder.
2.1.4 BHP is the lessee and actual holder, for many years, of the Real Estate
according to a lease agreement between BHP and AMPAL.
2.1.5 The BUYER has examined independently to its full satisfaction and knows
well the Real Estate and AMPAL's rights in it from all aspects,
physical, planning, factual, and legal, the BUYER was given every
opportunity to make any examination, and the BUYER has found the Real
Estate suited to its purposes and is acquiring the rights therein "as
is", being fully aware of its condition and age, and it waives
absolutely and finally any demand and/or suit and/or claim against
AMPAL, including in the matter of any unsuitability and/or defect in
respect of the Real Estate, whether disclosed or concealed, existing or
future.
2.2 Representations and Warranties of AMPAL
AMPAL hereby represents, warrants, covenants and undertakes the
following to be true and correct on the date hereof, and the following
will be true and correct on the Determining Date, and is aware and
acknowledges that the BUYER has agreed to enter into this Agreement and
the transactions contemplated therein in reliance on these
representations, warranties, covenants and undertakings of AMPAL:
2.2.1 AMPAL is a public company duly registered in Israel; its registration
number with the Registrar of Companies is ▇▇-▇▇▇▇▇▇-▇; and it is an
active company lawfully conducting its business and it has all the
powers and authorities to enter into this Agreement and fulfill all its
undertakings hereunder.
-4-
2.2.2 Save as set out in Section 7.1 of the Main Agreement, AMPAL has received
from its organs so empowered under its incorporation documents and any
law, all the resolutions required in order to be authorized to duly
enter into this Agreement and fulfill all its undertakings hereunder.
2.2.3 AMPAL is the registered owner of the Arlozorov B Property, its rights in
these Properties are free and clear of any Third Party Right whatsoever,
as set out in Annexes 1.3.3a and 1.3.3b, and they can be sold and
transferred to the BUYER.
3. THE TRANSACTION - GENERAL
AMPAL hereby undertakes to sell and transfer to the BUYER on the
Determining Date, the Real Estate and all of AMPAL's rights therein, the
Real Estate and AMPAL's rights therein being free and clear of any Third
Party Right whatsoever, for the consideration in the sum of
$676,726(plus V.A.T. (hereinafter the "Consideration"), to be paid to it
by the BUYER as set out hereinafter.
4. THE SALE AND TRANSFER
4.1 On the Determining Date the BUYER will pay AMPAL the Consideration by
bank check or bank transfer.
4.2 Against receipt of the Consideration in full, AMPAL will sign and submit
to the BUYER an irrevocable power of attorney in the form attached
hereto as Annex "4.2" which will enable the BUYER to do any act in
connection with transferring AMPAL's rights in the Real Estate,
including, inter alia, registering the transfer of these rights at the
Land Registry Office, signing any document for the purpose of
transferring the said rights and/or obtaining whatsoever approval which
is required for the transfer of the said rights as aforesaid, as well as
to appear before any competent authority in connection with the
abovementioned activities.
4.3 Immediately upon completion of full payment of the Consideration to
AMPAL, the validity of the lease agreements between AMPAL and BHP in
connection with the Real Estate will expire without any of the parties
having any demand and/or claim whatsoever towards the other, except in
connection with rental fees and other payments due to AMPAL or prepaid
by BHP in connection with the period up to the Determining Date, the
provisions set out in Annex 4.3 regarding six parking spaces shall come
into force, exclusive possession in the Real Estate will pass to the
BUYER, and the BUYER will be permitted to register a caveat in
connection with acquisition of AMPAL's rights in the Real Estate.
4.4 After the full payment of the Consideration to AMPAL, AMPAL will act to
furnish the BUYER an authorization of Mas Shevach (Land Betterment Tax)
for the registration of
-5-
the rights in all the Real Estate in the name of the BUYER at the Land
Registry Offices, and certificates or authenticated copies of
certificates from the Registrar of Companies in Israel or affidavits or
any other documents required by the relevant Land Registry Office, for
the purpose of verifying the various changes in AMPAL's name from its
former names to its present name. It is agreed that the BUYER will be
responsible for the performance of all acts required for the purpose of
registering the rights in all the Real Estate in its name according to
this Agreement, and will bear all payments involved therewith. AMPAL, on
its part, undertakes to cooperate with the BUYER and/or the BUYER's
Attorney and use its best efforts to assist the BUYER and/or the BUYER's
Attorney in this matter and sign the documents and authorizations
required for the purpose of completing the registration of the said
rights in the BUYER's name at the Land Registry Offices as aforesaid.
If the authorization of Mas Shevach (Land Betterment Tax) is not
furnished to the BUYER within 180 (one hundred eighty) days of the date
on which the parties shall file the Land Betterment Tax forms and
affidavits as provided in Section 6.5 hereunder, then as soon as the Mas
Shevach Authorities determine the Mas Shevach with respect to this
transaction, AMPAL will either pay and/or provide the Mas Shevach
Authorities with guarantees covering, together, the entire Mas Shevach
determined by the Mas Shevach Authorities with respect to this
transaction, so that the Mas Shevach Authorization is furnished. It is
agreed that should AMPAL decide to contest and/or appeal the Mas Shevach
Authorities' determinations, the BUYER will not have to join such
contest and/or appeal, but will support and assist AMPAL's contest
and/or appeal.
5. This Agreement is subject to the fulfillment of all Conditions Precedent
as defined and provided for in Section 7 of the Main Agreement.
6. TAXES AND OTHER COMPULSORY PAYMENTS
6.1 The Value Added Tax will be paid by the BUYER to AMPAL as part of the
Consideration. As AMPAL is a "▇▇▇▇▇ ▇▇▇▇▇" ("Financial Institution"),
AMPAL will pay the V.A.T. to the V.A.T. authorities and will file a
Teudat Iskat Akrai in accordance with Section15A of the Value Added Tax
(Registration) Regulations (1976-5736), and will provide the BUYER with
said Teudat Iskat Akrai immediately after its filing as aforesaid.
6.2 Subject to the provisions of Sections 6.3 and 6.4 hereunder, all the
taxes, levies and fees, governmental and municipal, of any kind and
type, except for improvement levies, in respect of the period up to the
Determining Date, will be borne and paid by AMPAL or by BHP - in
accordance with the provisions of the lease agreement between AMPAL and
BHP in connection with the Real Estate, and
-6-
in respect of the period from the Determining Date - will be borne and
paid by the BUYER alone. In addition, any improvement levies, if any,
which have not yet actually been paid in respect of the Real Estate,
will be borne and paid by the BUYER.
6.3 Land Betterment Tax or Capital Gains Tax or Income Tax on the transfer
of AMPAL's rights in the Real Estate to the BUYER will be borne and paid
by AMPAL.
6.4 Acquisition Tax on the transfer of AMPAL's rights in the Real Estate to
the BUYER will be borne and paid by the BUYER.
6.5 The BUYER and AMPAL will sign and file at the times set by law, Land
Betterment Tax forms and affidavits in connection with the transfer and
sale of AMPAL's rights in the Real Estate.
7. MISCELLANEOUS
To remove any doubt, it is declared and agreed that all the provisions
of Sections 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the Main Agreement
shall apply herein mutatis mutandis. However, it is specifically
declared and agreed that this Agreement and the rights and obligations
of the parties and BHP hereunder or pursuant hereto shall be governed by
and construed in accordance with the laws of the State of Israel.
IN WITNESS WHEREOF the parties have signed:
---------- ----------
AMPAL (ISRAEL) LTD. THE BUYER
We, Bank Hapoalim B.M., hereby irrevocably agree to all the abovementioned
provisions regarding ourselves and/or having any bearing on us. We also hereby
irrevocably guarantee the full and prompt fulfillment of all the BUYER's
undertakings under the above Agreement.
We hereby waive any demand of prior request from the BUYER under Section 8 of
the Guarantee Law, 5727-1967. This guarantee shall remain in full force in spite
of any stay, postponement, waiver, or change in a guaranteed obligation of the
BUYER.
------------------------------
Bank Hapoalim B.M.
REAL ESTATE AGREEMENT "E"
ARLOZOROV 'B' PROPERTY
list of annexes
Annex 1.3.3A Copy of extract of real estate property known as ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
661/3 at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
Annex 1.3.3B Copy of extract of real estate property known as ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
661/4 at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
Annex 4.2 Form of irrevocable power of attorney to be signed by AMPAL
Annex 4.3 Provisions regarding 6 parking spaces