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2024-08-06
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF
THE SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported) August 6,
2024
Strawberry
Fields REIT, Inc.
(Exact
name of registrant as specified in its charter)
Maryland |
|
001-41628 |
|
84-2336054 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
file
number) |
|
(IRS
employer
identification
no.) |
6101
Nimtz Parkway |
|
|
|
|
South
Bend, Indiana |
|
|
|
46628 |
(Address
of principal executive offices) |
|
|
|
(Zip
Code) |
(574)
807-0800
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
Registered pursuant to Section 12(b) of the Act:
Title
of each class registered |
|
Trading
Symbol(s) |
|
Name
of exchange on which registered |
Common
Stock, $0.00001 par value |
|
STRW |
|
NYSE
American |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1933 (§240.12b-2 of this chapter)
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Cautionary
Note Regarding Forward-Looking Statements
This
Current Report on Form 8-K filed by Strawberry Fields REIT, Inc. (the “Company”) includes information that may constitute
forward-looking statements. These forward-looking statements are based on the Company’s current beliefs, assumptions and expectations
regarding future events, which in turn are based on information currently available to the Company. By their nature, forward-looking
statements address matters that are subject to risks and uncertainties. Forward-looking statements include, without limitation, statements
relating to projected industry growth rates, the Company’s current growth rates and the Company’s present and future cash
flow position. A variety of factors could cause actual events and results, as well as the Company’s expectations, to differ materially
from those expressed in or contemplated by the forward-looking statements. Risk factors affecting the Company are discussed in detail
in the Company’s filings with the Securities and Exchange Commission. The Company undertakes no obligation to publicly update or
revise any forward-looking statement, whether as a result of new information, future events or otherwise, except to the extent required
by applicable securities laws.
Item
1.01 Entry Into a Material Definitive Agreement
On
August 6, 2024, Strawberry Fields REIT, Inc. (the “Company”) issued approximately NIS 146 million (Approx. $38 million) principal
amount of its new Series A Bonds Due in September 2026 (the “Bonds”), pursuant to a Deed of Trust between the Company and
Mishmeret Trust Services Company Ltd., an Israeli trust company, as trustee, dated as of August 4, 2024. The Bonds will be listed for
trading on the Tel Aviv Stock Exchange. The Bonds are unsecured obligations of the Company denominated in Israeli shekels (NIS). The
Company will pay interest on the 2026 Bonds at a rate of 6.97% per year, until the final maturity date of September 30, 2026. The net
proceeds of the sale of the Bonds will be used for working capital and general corporate purposes, which may include redemption of the
Company’s outstanding debt.
The
Bonds have not been and will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and may
not be offered or sold in the United States absent registration under the Securities Act or an applicable exemption from such registration
requirements. The Bonds were offered solely to investors outside the United States and were not offered to, or for the account or benefit
of, U.S. Persons (as defined in Regulation S under the Securities Act).
On
August 6, 2024, the Company published a press release regarding the sale and issuance of the Bonds. A copy of the Company’s press
attached to this Current Report on Form 8-K as Exhibit 99.1.
Item
2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The
information set forth in Item 1.01 is incorporated by reference into this Item 2.03.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Strawberry
Fields REIT, INC. |
|
|
|
|
Date: |
August
6, 2024 |
|
|
|
|
By: |
/s/
Moishe Gubin |
|
|
Moishe
Gubin |
|
|
Chief
Executive Officer and Chairman |
|
Exhibit
10.1
DEED
OF TRUST
Section
|
|
Subject
|
|
Page
|
Deed
of Trust |
|
3 |
1 |
|
Introduction,
Definitions and Interpretation |
|
4 |
2 |
|
Issuance
of Bonds; Terms of Issue; Equal Rank |
|
11 |
3 |
|
Purchase
of Bonds by the Company and/or an Affiliate and Performing Distributions |
|
13 |
4 |
|
Issue
of Additional Bonds |
|
13 |
5 |
|
Company’s
Undertakings |
|
15 |
6 |
|
Securing
the Bonds, financial obligations, dividend distribution restriction |
|
25 |
7 |
|
Early
Redemption |
|
29 |
8 |
|
Right
to Call for Immediate Repayment |
|
32 |
9 |
|
Claims
and Proceedings by the Trustee |
|
38 |
10 |
|
Trust
of Proceeds |
|
39 |
11 |
|
Authority
to Demand Payment to Holders through Trustee |
|
40 |
12 |
|
Powers
to Delay the Distribution of Funds |
|
40 |
13 |
|
Notice
of Distribution |
|
41 |
14 |
|
Refraining
from Payment for a Reason Which is not Dependent on the Company |
|
41 |
15 |
|
Receipt
by Bondholders and Trustee |
|
43 |
16 |
|
Presentation
of Bonds to the Trustee; Registration in Connection with Partial Payment |
|
44 |
17 |
|
Investment
of Funds |
|
44 |
18 |
|
Company’s
Undertakings vis-a-vis Trustee |
|
45 |
19 |
|
Counsel
|
|
48 |
20 |
|
Other
Agreements |
|
48 |
21 |
|
Reports
on Matters Relating to Trusteeship |
|
49 |
22 |
|
Wages
and Coverage of Trustee’s Expenses |
|
50 |
23 |
|
Special
Powers |
|
50 |
24 |
|
Trustee’s
Power to Engage Agents |
|
52 |
25 |
|
Indemnification
of the Trustee |
|
53 |
Section
|
|
Subject
|
|
Page
|
26 |
|
Notices |
|
58 |
27 |
|
Waivers,
Compromises, and Changes to the Deed of Trust |
|
59 |
28 |
|
Register
of Bondholders |
|
60 |
29 |
|
Release |
|
61 |
30 |
|
Appointment
of the Trustee, Roles of the Trustee, Powers of the Trustee and Termination of Trustee’s Office |
|
61 |
31 |
|
Bondholders’
Meetings |
|
64 |
32 |
|
Applicable
Law |
|
64 |
33 |
|
Exclusive
Jurisdiction |
|
65 |
34 |
|
Trustee’s
Liability |
|
65 |
35 |
|
Addresses |
|
65 |
36 |
|
Authorization
to MAGNA |
|
65 |
First
Addendum of the Deed of Trust – Bond Certificates (Series A) |
|
67 |
The
Terms Listed on the Overleaf |
|
69 |
1 |
|
General |
|
69 |
2 |
|
The
Bonds |
|
70 |
3 |
|
Terms
of Bonds (Series A) |
|
70 |
4 |
|
Payments
of Principal and Interest of the Bonds (Series A) |
|
72 |
5 |
|
Postponement
of Dates |
|
73 |
6 |
|
Securing
the Bonds |
|
73 |
7 |
|
Refraining
from Payment for a Reason Which is not Dependent on the Company |
|
73 |
8 |
|
Register
of Bondholders |
|
73 |
9 |
|
Splitting
Bond Certificates |
|
73 |
10 |
|
Transfer
of Bonds |
|
74 |
11 |
|
Early
Redemption |
|
74 |
12 |
|
Purchase
of Bonds by the Company and/or an Affiliate |
|
74 |
13 |
|
Waivers;
Compromises, and Changes to the Deed of Trust |
|
75 |
14 |
|
Bondholders’
Meetings |
|
75 |
15 |
|
Receipt
from Bondholders |
|
75 |
16 |
|
Right
to Call for Immediate Repayment |
|
75 |
17 |
|
Notices |
|
75 |
18 |
|
Governing
Law and Jurisdiction |
|
75 |
19 |
|
Order
of Priorities |
|
75 |
Second
Addendum of the Deed of Trust - Bondholders’ Meetings |
|
76 |
Third
Addendum to the Deed of Trust - Urgent Representation for Bondholders |
|
85 |
Appendix
22 - Trustee’s Fee |
|
90 |
Deed
of Trust
Entered
into and executed in Tel Aviv on [___] [__], 2024
Between:
Strawberry
Fields REIT, Inc (Maryland Company Number: 842336054)
Nimitz
Parkway, South Bend, Indiana, 46628-6101
Telephone:
+1(574)807-0800
Fax:
+1(574)807-0900
(the
“Company”)
Of
the first part;
and:
Mishmeret
Trust Services Ltd.
48
Menachem Beg Road, Tel Aviv
Telephone:
03-6374351
Fax:
03-6374344
(the
“Trustee”)
Of
the second part;
Whereas: | The
Company’s board of directors resolved to approve the issuance of Bonds (Series A) in
accordance with the terms specified in this Deed of Trust.; and |
Whereas: | On
July 7, 2024, S&P Maalot Ltd. announced the determination of rating of ilA+ for the issuance
of the Bonds (Series A) of the Company, in a total scope of ILS 100 million par value; and |
Whereas: | The
Company declares that as of the signature of this Deed, the Company meets all of the conditions
of the rating agency (as the term is defined below) for rating the series of Bonds with the
rating set forth above; and |
Whereas: | The
Trustee is a private company limited by shares that is incorporated in Israel under the Companies
Law, 5759-1999, whose main purpose is to engage in trusteeship; and |
Whereas: | The
Trustee has declared that there is no impediment under the Securities Law, 5728-1968 or any
other law for its engagement with the Company under this Deed of Trust and that it meets
the requirements and conditions of eligibility set forth under the Securities Law for the
Trustee to serve as a trustee for holders of bonds (Series A); and |
Whereas: | The
Trustee has no personal interest in the Company and the Company has no material interest
in the Trustee; and |
Whereas: | The
Company declares that there is no impediment under any law (whether in Israel or abroad)
and/or any agreement for the performance of an issue of the Bonds under the terms of this
Deed and/or its engagement with the Trustee under this Deed of Trust and has received all
of the approvals under any law (in Israel or outside of Israel) and/or any agreement for
the execution of the issuance under this Deed; and |
Whereas: | The
Bonds (Series A) will be listed for trade in the stock exchange, as defined below; and |
Whereas: | The
company is incorporated under the laws of the state of Maryland in the United States and
its ordinary shares are listed for trading on the New York Stock Exchange (NYSE) and on the
Stock Exchange (as defined below); and |
Whereas: | The
Company has requested that the Trustee to serve as a trustee for the Holders of the Bonds
(Series A) and the Trustee has agreed to sign this Deed of Trust and act as a trustee for
the bondholders, all subject to and in accordance with the terms of this Deed of Trust; and |
Therefore
it is agreed, declared and stipulated between the Parties as follows:
1. | Introduction,
Definitions and Interpretation |
| 1.1 | The
preamble to this Deed of Trust and the appendices attached hereto constitute integral and
substantial parts hereof. |
| 1.2 | The
division of this Deed of Trust into sections and the titles of the sections are provided
for the sake of convenience and orientation alone, and should not be used for the purpose
of interpretation. |
| 1.3 | All
of the provisions of this Deed in the plural form shall imply the singular and vice-versa,
and all of the provisions in the masculine form shall imply the feminine form and vice-versa,
and all of the provisions relating to an individual shall imply a corporation as well, all
provided that there is no other explicit provision. |
| 1.4 | In
any matter related to the terms of the bonds (series A) that is not mentioned in this deed,
as well as in any case of conflict between the provisions of Israeli law that cannot be conditioned
and this deed, the parties shall act in accordance with the provisions of Israeli law that
cannot be conditioned. |
In
the event of any conflict between the provisions set forth in the Prospectus in connection with this Deed of Trust and/or the Bonds,
the provisions of this Deed of Trust shall take precedence. It should be clarified that, to the best of the Company’s knowledge,
as of the date of this Deed of Trust, there is no conflict between the provisions regarding the Bonds described in the Prospectus and
the provisions of this Deed of Trust and the accompanying documents.
| 1.5 | In
this Deed of Trust and in the bonds, the following expressions shall have the meanings set
forth beside them: |
| 1.5.1 | “Bonds
(Series A)” or the “Bonds” – the Bonds (Series A) that
are issued by the Company in accordance with the Prospectus , as well as additional bonds
(Series A) issued by the Company, if any; |
| 1.5.2 | “Person”:
any individual, corporation, partnership, joint venture, trust; |
| 1.5.3 | The
“Stock Exchange” – the Tel Aviv Stock Exchange Ltd.; |
| 1.5.4 | “Authorized
Shareholders” –each of (a) Mr. Moshe Gubin and Mr. Michael Blisko or all
their estates, spouses and/or descendants; (b) any trust in favor of any of the individuals
listed in clause (a) above only; |
| 1.5.5 | “Financial
Statements” – consolidated statements of the company’s assets and liabilities,
consolidated statements of activities, consolidated statements of changes in net assets,
consolidated statements of cash flows and consolidated appendices on investments for a certain
fiscal period that are prepared in accordance with U.S. GAAP and as required by any other
accounting standard to which the Company may be subject, as it will be in effect from time
to time; |
| 1.5.6 | “Rating”
– Rating by the rating company, as defined below; |
| 1.5.7 | “Dollar”
or “USD” – the United States dollar. |
| 1.5.8 | “Special
Resolution” – a resolution passed in a general meeting of Bondholders (Series
A), who are present themselves or by their agent whose Bonds represent at least 50% of the
balance of the par value of the Bonds (Series A), or in an adjourned meeting attended by
the Bondholders (Series A), themselves or by their agent, who hold at least 20% of the balance
of the par value as stated, and which is passed (whether in the original meeting or adjourned
meeting) with a majority of at least two thirds (2/3) of the balance of the par value of
the Bonds (Series A) represented in the vote, excluding abstentions; |
| 1.5.9 | “Ordinary
Resolution” – a resolution passed by a simple majority at a general meeting
of the bondholders, in which at least two bondholders who together hold at least twenty-five
percent (25%) of the remaining outstanding par value balance of the bonds value were present
(in person or by proxy) or at an adjourned meeting attended by any number of bondholders
(in person or by their proxy); |
| 1.5.10 | “Subsidiary”:
Strawberry Fields REIT Ltd., a company incorporated in the British Virgin Islands and is
wholly owned directly by the Partnership. |
| 1.5.11 | “Rating
Company” or the “Rating Agency”– Standard and Poor’s
Maalot Ltd. (“Maalot”) and/or Midroog Ltd. (“Midroog”)
or another rating company that is registered under the Regulation of the Activities of Credit
Rating Companies, 5714-2014; |
| 1.5.12 | The
“Nominee Company” – the nominee company of the Tel Aviv Stock Exchange
Ltd or any other nominee company that shall replace it, provided that all the Company’s
securities that the Company is required to register with a nominee company in Israel will
be registered under its name; |
| 1.5.13 | The
“Law” or the “Securities Law” – the Securities
Law, 5728-1968 and the regulations thereunder, as they may be from time to time; |
| 1.5.14 | The
“Companies Law” – the Companies Law, 5759-1999 and the regulations
thereunder, as they may be from time to time; |
| 1.5.15 | “Trading
Day” – a day on which transactions are performed in the stock exchange; |
| 1.5.16 | “Business
Day” or “Bank Business Day” – any day on which the clearing
house of the stock exchange and most of the banks in Israel are open for the performance
of transactions; |
| 1.5.17 | “Holder”
and/or “Bondholder” – as the term “Holder” and/or “Bondholder”
is defined in the Securities Law; |
| 1.5.18 | “The
Tender”: The auction on the fixed annual interest rate to be borne by the Bonds
(Series A) that will be issued by the Company in accordance with the Prospectus; |
| 1.5.19 | “Register”
– a register of bondholders, as set forth in Section 28 of this Deed; |
| 1.5.20 | “Shares
with Voting Rights” – share capital of any corporation or other legal entity
at any time, which establishes voting rights in the appointment of directors and in general
meetings; |
| 1.5.21 | “Trustee”:
Mishmeret Trust Services Ltd. and/or anyone who will serve from time to time as trustee of
the bondholders under this Deed; |
| 1.5.22 | “Principal
Amount” – the par value amount of the Bonds that are not yet paid; |
| 1.5.23 | The
“Group” – the Company and the companies held by it, directly and
indirectly; |
| 1.5.24 | “Regulatory
Codex” – The Regulatory Codex – Title 5 – Principles of Business
Management, Part 2 – Capital, Measurement and Risk Management, Chapter 4 – Management
of Investment Assets, as published by the Capital Market, Insurance and Savings Authority
in the Ministry of Finance, as updated from time to time; |
| 1.5.25 | “This
Deed” or “Deed of Trust” – this Deed of Trust, including
the appendices attached hereto and constituting an integral part hereof; |
| 1.5.26 | “The
Partnership” – Strawberry Fields Realty LP, a limited partnership incorporated
in Delaware, of which the Company is the General Partner; |
| 1.5.27 | 1.5.27
“Change of control” – If any person, with the exception of one or
more Authorized Shareholders (as defined above), holds or becomes the holder, directly or
indirectly, of more than 50% of the total voting rights of shares with voting rights in the
Company; However, if the Company becomes a Subsidiary Corporation (as defined below), directly
or indirectly, of the holding company, the holding company will not be deemed a person per
se, if (a) the holding company owns, directly or indirectly, 100% of the Company’s
share capital; and (b) upon completion of a transaction to that effect, a person, with the
exception of one or more Authorized Shareholders, shall not hold or become the holder, directly
or indirectly, of more than 50% of the total voting rights of shares with voting rights of
the holding company; |
| 1.5.28 | “Subsidiary
Corporation” – with regard to any individual, any corporation, general partnership
or limited partnership or other business entity, which: (a) on the effective date, more than
50% of the voting rights of shares with voting rights or other rights (including partnership
rights) are entitled to vote (regardless of any particular event) in appointment of directors,
managers, or their trustees that are owned or controlled, directly or indirectly, by (1)
such individual; (2) such individual and one or more subsidiary corporations of such individual;
or (3) one or more subsidiary corporations of the individual; or (b) on the effective date,
holder of control, either directly or indirectly, including joint control; |
| 1.5.29 | “Reporting
Corporation” – as defined in the Securities Law, or a corporation traded
on a stock exchange outside of Israel, listed in the Second Addendum or Third Addendum of
the Securities Law; |
| 1.5.30 | “Bond
Certificate” - a certificate of the Bonds in the form attached as the First
Addendum to this Deed; |
| 1.5.31 | The
“Prospectus” –prospectus that includes a public offering and registration
for trading of the bonds (Series A) and an exchange tender offer, which also constitutes
a shelf prospectus of the Company, dated ____________; |
| 1.5.32 | In
this Deed of Trust and the Bonds, the Rating of the Bonds will have the meanings set
forth in the table below: |
|
“A
plus” |
Maalot
rating of ilA+ or Midroog rating of A1 or another corresponding rating determined by another rating company that rate or will rate
the Bonds (Series A). |
|
“A” |
ilA
rated by Maalot or A2 when rated by Midroog or a rating parallel to the aforesaid ratings that will be determined by another rating
company that rates or will rate the Bonds (Series A). |
|
|
|
|
“A
minus” |
ilA-
rated by Maalot or A3 when rated by Midroog or a rating parallel to the aforesaid ratings that will be determined by another rating
company that rates or will rate the Bonds (Series A). |
|
|
|
|
“BBB
Plus” |
ilBBB+
rated by Maalot or Baa1 when rated by Midroog or a rating parallel to the aforesaid ratings that will be determined by another rating
company that rates or will rate the Bonds (Series A). |
|
|
|
|
“BBB” |
ilBBB
rated by Maalot or Baa2 when rated by Midroog or a rating parallel to the aforesaid ratings that will be determined by another rating
company that rates or will rate the Bonds (Series A). |
|
|
|
|
“BBB
Minus” |
ilBBB-
rated by Maalot or Baa3 when rated by Midroog or a rating parallel to the aforesaid ratings that will be determined by another rating
company that rates or will rate the Bonds (Series A). |
| 1.6 | As
long as the Bonds are listed for trade on the Stock Exchange, in any event in which the rules
and guidelines of the Stock Exchange apply or will apply to any operation under this Deed
of Trust, the operation dates as stated and the manner of performance will be determined
in accordance with the rules and guidelines of the Stock Exchange. It is clarified that the
performance of actions as stated (including if bylaws and guidelines of the Stock Exchange
are modified) will not derogate from the agreements of the parties under this Deed. |
| 1.7 | In
any event of a conflict between the Deed of Trust and the accompanying documents, the provisions
of the Deed of Trust will govern. |
| 1.8 | In
the event of termination of the issuance of the Bonds for any reason, the validity of this
Deed of Trust will be concluded. |
| 1.9 | The
Trustee’s actions are valid even if a defect is discovered in his appointment or eligibility. |
| 1.10 | The
Trustee’s signature on the Trust Deed does not constitute an opinion by the Trustee
as to the nature of the offered securities or the advisability of investment in these securities. |
| 1.11 | In
every place in this Deed where it is stated “subject to any law” (or a similar
phrase), it means subject to the provisions of cogent law. |
2. | Issuance
of Bonds; Terms of Issue; Equal Rank |
| 2.1 | The
Company will issue the Bonds (Series A) as described in the preamble of this Deed. The Bonds
(Series A) that will be issued under the Prospectus (if any are issued) will be listed for
trade on the Stock Exchange and the Company will make reasonable efforts so that the Bonds
(Series A) will be traded on the Stock Exchange until they are fully repaid. |
| 2.2 | The
terms of the Bonds (Series A) that are issued under the Prospectus will be as follows: |
The
Bonds (Series A), offered to the public in consideration for their par value, are registered, repayable in three (3) not equal annual
installments which will paid on September 30 of each of the years 2024 through 2026 (inclusive), such that each of the first two payments
on the account of the principal amount constitutes 6% of the principal of the total par value of the Bonds (Series A) and the third and
last payment on the account of the principal amount will be 88% of the total par value of the Bonds (Series A). The Bonds (Series A),
bearing annual interest (unlinked) in a fixed rate as set forth in the Tender, and that is payable on September 30, 2024 and on the days
of March 31 and September 30 of each of the years 2025 to 2026 (inclusive) (the first interest payment will be made on September 30,
2024 and the last interest payment will be made on September 30, 2026, together with the last payment of the principal amount) for the
period of the six months ending on the day before the payment date (the “Interest Period”). The interest rate which
will be paid for a particular interest period (other than the first interest period as defined below) (meaning, the period which begins
on the payment day of the prior interest period and ending on the last day before the payment date immediately after the commencement
date) shall be calculated as the annual interest rate divided by two. The first interest payment will be made on September 30, 2024 for
the period beginning on the first trading day after the date of the Tender of the Bonds (Series A) and ending on September 29, 2024 (the
“First Interest Period”), calculated on the basis of 365 days per year, based on the number of days in this period,
and the last interest payment will be made on September 30, 2026.
The
Bonds (Series A) shall not be linked (principal and interest).
The
payments on account of the principal and/or the interest in respect of the Bonds will be paid to those whose names will be registered
in the Register on March 19 and September 18 with respect to every relevant period preceding to the date of the repayment of such payment.
Notwithstanding the foregoing, the final payment of the principal and the interest shall be made against delivery of the bond certificates
to the Company as of the time of the last payment, meaning on September 30, 2026, at the Company’s registered office or at any
other place that it announces, provided that such notice shall be given by the Company no later than five business days prior to the
date set for making the last payment.
| 2.3 | The
Company reserves the right to perform early repayment of the Bonds upon the fulfillment of
the terms set forth in Section 7 of this Deed. |
| 2.4 | The
Bonds (Series A) will all have equal rank pari-passu, among themselves, in connection with
the Company’s obligations under the Bonds (Series A), and without priority or preference
of one over the other. |
3. | Purchase
of Bonds by the Company and/or an Affiliate and Performing Distributions |
| 3.1 | The
Company reserves the right, subject to any law that may not be conditional, to acquire the
Bonds (Series A) at any time and from time to time, without derogating from the obligation
to repay the Bonds (Series A) in circulation. The Company will submit an immediate report
in connection with the purchase of the Bonds if and as often as required to do so according
to the applicable law. If no immediate report is filed, then in the event of a purchase as
stated, the Company will notify the Trustee of this in writing. If the Company acquires Bonds
(Series A) during trading in the Stock Exchange, the Company will file a request to the clearing
house of the Stock Exchange for the withdrawal of the Bonds Certificates acquired as stated. |
In
the event of a purchase by the Company as stated above, the acquired Bonds (Series A) will expire automatically, will be voided and will
be delisted from trade, and the Company may not reissue them. The provisions above will not harm the Company’s right to redeem
the Bonds (Series A) in advance as stated in Section 7 below.
| 3.2 | The
Controlling Shareholder of the Company (directly or indirectly) and/or its relative (as the
term is defined in the Securities Law) and/or a subsidiary of the Company and/or affiliated
company and/or associated company of the Company and/or a corporation under the control of
any of the above (directly or indirectly) (excluding the Company itself, regarding which
the provisions of 3.1 above shall apply) (an “Affiliated Party”)
may acquire and/or sell Bonds (Series A) at their discretion (and subject to any law), at
any time and from time to time, including by way of the Company’s issuance of Bonds.
In the event of an acquisition and/or sale as stated by a Subsidiary Corporation of the Company
and/or a corporation under its control, the Company will notify the Trustee immediately of
this. The Bonds (Series A) that are held as stated by an Affiliated Party will be considered
to be an asset belonging to the Affiliated Party, and if they are listed for trade, they
will not be delisted from trade in the Stock Exchange and will be transferrable as are the
other Bonds (Series A). The Bonds (Series A) that are owned by an Affiliated Party will not
grant to the Affiliated Party voting rights in a meeting of the Bondholders (Series A) and
will not be counted for the purpose of determining a legal quorum required to commence such
meetings. A meeting of Holders will take place based on the provisions of the Second Addendum
of the Deed of Trust. An Affiliated Party will report to the Company, if required under law
to do so, regarding an acquisition of Bonds (Series A) and the Company will provide the Trustee,
at its request, with a list of Affiliated Parties and the quantities held thereby on the
date requested by the Trustee, based on the reports received as stated from Affiliated Parties.
It is clarified that a report on the MAGNA system or the MAYA website, if the Company ceased
to be a Reporting Corporation, will be considered to be a report to the Trustee for the purposes
of this Section. |
| 3.3 | The
provisions of this Section above alone will not obligate the Company, an Affiliated Party
or the Bondholders (Series A) to purchase Bonds (Series A) and/or sell the Bonds (Series
A) in their possession. |
| 4.1 | Extending
the series of Bonds (Series A) |
The
Company may, from time to time, without requiring the consent of the Trustee and/or the Holders existing at the time, issue additional
Bonds (Series A) (whether in a private placement or in the framework of a prospectus and/or by an amendment to a prospectus whether by
a shelf offering or by any other means), including to an Affiliated Party (as defined in Section 3.2 above), under the terms that
it sees fit (the terms of the additional bonds that are issued will be identical to the terms of the Bonds (Series A) in circulation)
and provided that the total value of the bonds (series A), after the expansion, will not exceed 550 million NIS par value. The Company
will refer to the Stock Exchange with a request to list for trade the additional Bonds (Series A) as stated, when they are offered.
Notwithstanding
the above, an additional issuance of Bonds (Series A) will be performed subject to receipt of confirmation of the Stock Exchange and
subject to all of the terms set forth below being fulfilled: (a) the Rating of the Bonds (Series A), as the Rating may be at the time
will not be harmed by the additional issuance of the Bonds (Series A) as stated (i.e. the Rating before the expansion of the series will
not change immediately after its expansion following the aforesaid expansion). For the purpose of this section, it is clarified that
in the event in which the Bonds (Series A) are rated by more than one Rating Company, the ratings test for the purpose of this section
will take place, at any time, based on the higher of the ratings; (b) on the date of the additional issue, in accordance with the most
recent financial statements published before the date of the additional issue, and after retroactively taking into account the performance
of the additional issue, the Company will meet all the financial obligations set forth in Section 6.4 below (without taking into account
the cure and waiting periods enumerated in connection with the same financial obligations); (c) on the date of the additional issue there
are no grounds for calling for the immediate payment of the bonds as set forth in Section 8.1.
The
Company will provide the Trustee, before the additional issuance is actually carried out and subject to it (and in the event a tender
is held for classified investors, no later than the date on which the tender for classified investors takes place) with a written confirmation
that is signed by the CEO or a senior officer in the financial department of the Company regarding (in this subsection: “Confirmation”):
(1) the fulfillment of the aforesaid conditions on the date of the Confirmation (excluding the condition in subsection (a) above, for
which the Company shall provide the consent of the Rating Company as described below); (2) that on the date of the Confirmation the Company
is not in breach of any of its material obligations to the Bondholders (Series A).
It
is clarified that the exchange for the expansion of the Bonds (Series A) will be transferred directly to the Company with the condition
that the Company provided the Trustee with the aforementioned approvals. In any case of an additional issue as stated, the increase of
the series in practice will occur subject to receipt of prior consent from the Rating Company whereby the rating before the expansion
of the series will not change downwards immediately after its expansion following the aforesaid expansion. Confirmation from the Rating
Company will be published in an immediate report before the actual expansion of the series.
This
right of the Company will not exempt the Trustee from examining the additional issue as stated, if such an obligation applies to the
Trustee under law, and will not derogate from the rights of the Trustee and the Bondholders under this Deed, including their right to
call for immediate repayment of the Bonds as stated in Section 8 below.
Subject
to the provisions of the Deed of Trust, the Trustee shall act as trustee for the Bonds (Series A) as they will be in circulation from
time to time, and this also in the event of a series expansion, and the consent of the Trustee for such service for the expanded series
will not be required. The Bonds (Series A) that will be in circulation before the expansion of the Series A and the additional Bonds
(Series A) which will be issued (if at all) as described in this section above, shall constitute (from the date of their issue) one series
for all purposes, and the Deed of Trust shall also apply to all of the abovementioned additional Bonds (Series A) that the Company will
issue. The additional Bonds (Series A) shall not grant the right for the payment of principal and/or interest with regard to Bonds (Series
A) for which the effective date for their payment was prior to the date of their issue. In the case of such expansion of the series,
the applicable tax consequences including with regard to calculation of the rate of deduction, if required, as set forth in Section 2.23
of Chapter 2B of the Prospectus and in accordance with the provisions of any law as in effect on the date the additional bonds are issued.
| 4.2 | Without
derogating from the generality of the above, the Company reserves the right, subject to any
law, to issue an additional series of bonds at any time and from time to time (whether in
a private placement or in the framework of a prospectus and/or by an amendment to a prospectus
whether by a shelf offering or by any other means) and without being required to receive
the consent of the Bondholders (Series A) and/or the consent of the Trustee, as applicable,
and including an Affiliated Party (as defined in Section 3.2 above), and/or other securities
as the Company sees fit and this without harming the Company’s repayment obligation
under this Deed of Trust. In addition, if the Company issued an additional series of bonds
and this bond series is not secured (and so long that it is not secured), the rights of the
series in liquidation will not be preferred over those of the Bonds (Series A) (in this Section
4.2 alone: the “Additional Issuance”). In the event that the Company issues
other bonds (of a different series) that are secured by collateral and / or liens (of any
kind), then the other bonds will be prioritized in liquidation over the bonds (Series A)
only with respect to those collateral and / Or liens included in such other bonds. For the
avoidance of doubt it shall be clarified that the provisions of this section do not prevent
the Company from issuing additional bonds of any kind which would be secured by collateral
and / or liens of any kind at the Company’s sole discretion. Without derogating from
the above, the aforesaid rights of the Company, will not prevent the Trustee from examining
the implications of the additional issue as stated, and will not derogate from the rights
of the Trustee and the Bondholders under this Deed, including their right to call for immediate
repayment of the Bonds as stated in Section 8 below. |
Subject
to the provisions of any law, the Company shall notify the Trustee about the Additional Issuance before it is carried out.
5. | Undertakings
of the Company |
| 5.1 | The
Company hereby undertakes to pay, on the dates prescribed, all of the amounts of principal
and interest (including any additional interest and interest on arrears, insofar as such
interest is borne) that will be paid under the terms of the Bond (Series A), and comply with
all of the other terms and obligations imposed thereon under the terms of the Bonds (Series
A) and under this Deed. Additionally, the Company undertakes to list the Bonds for trade
in the Stock Exchange and to reasonably act that the Bonds continue to be listed for trade
in the Stock Exchange until the date of final payment. |
| 5.2 | Adjustment
of the interest rate due to a change in the rating of the Bonds (Series A): |
For
the purpose of this section, it shall be clarified that in the event in which the Bonds (Series A) are rated by more than one rating
company, an examination of the rating for the adjustment of the interest rate to the change in the rating (if any such change occurs)
will take place based on the lower of the ratings.
The
interest rate that the Bonds (Series A) will bear will be adjusted for a change in the rating of the Bonds (Series A), as set forth below
in this section:
It
is clarified that if adjustment of interest is required in accordance with the mechanism described in this Section 5.2 above and
below, and based on the mechanism described in Section 5.3 below, in any event, the maximum additional interest rate will not exceed
1.5% above the interest rate determined in the tender. (the “Limitation of the Maximum Additional Interest Rate”).
In
this regard:
A
rating of A, A-, BBB+, BBB, and BBB- – are as defined in the table in Section 1.5.33 above.
“Base
Rating” – a rating of ilA+ or equivalent.
“Additional
Interest Rate” – additional interest provided to the bondholders at a rate of 0.25% per year for a decrease of each notch
in the rating of Bonds below the Base Rating until a maximum interest addition of 1.5% per year at most (the “Limitation on
the Additional Interest Rate”).
| A. | If
the rating of the Bonds (Series A) by the rating company (in the case of replacing a rating
company, the Company shall transfer to the Trustee a comparison of the scale rating of the
outgoing rating agency and the scale rating of the incoming rating agency) are updated during
the any interest period, so that the rating to be determined to the Bonds (Series A) is lower
by one notch or more (the “Reduced Rating”) below the Base Rating, the
annual interest rate on the outstanding principal of the Bonds (Series A) will increase by
the additional interest rate according to the steps set forth, and this is for the period
that commences on the date of publication of the Reduced Rating by the rating agency until
the earlier of (a) repayment in full of the principal amount balance of the Bonds (Series
A) or (b) the date of the rating increase pursuant to Section 5.2 (d) below. If the interest
rate was raised earlier in respect of deviations from financial covenants as stated in paragraph
5.3 below, then the rise in the interest rate due to a decline in rating as aforesaid will
be limited according to the limit of the maximum interest rate increase. |
| B. | No
later than the end of two trading days from the receipt of a notice from the rating company
regarding the lowering of the rating of the Bonds (Series A) to the Lowered Rating as defined
above, the Company will publish an immediate report, in which the Company states: (1) that
the rating was lowered, the Lowered Rating, the rating report and the date on which the Lowered
Rating of the Bonds (Series A) comes into effect (the “Date of Lowering the Rating”);
(2) deviation / non-deviation from the financial covenants described in Section 5.3
below based on the most recent financial statements of the Company published before the date
of the immediate report, as well as whether a change has occurred to the interest for the
deviation / non-deviation from the financial covenants as stated; (3) the precise interest
rate that the principal amount balance will bear for the period beginning on the current
interest period and until the Date of Lowering the Rating (the interest rate will be calculated
based on 365 days per year) (the “Original Interest” and the “Original
Interest Period,” respectively); (4) the interest rate that the principal amount
balance will bear as of the Date of Lowering the Rating and until the actual next interest
payment date, i.e.: the Original Interest in addition to the additional interest rate per
year (the interest rate is calculated based on 365 days per year) (the “Updated
Interest”), and this subject to the limitation on the maximum interest increase
and the Limitation on the Additional Interest Rate (5) the weighted interest rate paid by
the Company to the holders of Bonds (Series A) on the upcoming interest payment date, arising
from the provisions of subsections (3) and (4) above; (6) the annual interest rate reflected
from the weighted interest rate; (7) the annual interest rate and the semiannual interest
rate (the semiannual interest rate will be calculated as the annual interest divided by the
number of interest payments per year, namely by two) for the following periods. |
| C. | If
the date of the commencement of the rating of the Bonds (Series A) with the Lowered Rating
occurs during the days beginning four days before the date set forth for payment of any interest
and ending on the interest payment date that is closest to the date set forth above (the
“Deferral Period”), the Company will pay to the holders of the Bonds (Series
A), on the upcoming interest payment date, the Original Interest, before the change, alone,
while if the interest rate is not increased prior thereto due to a deviation from the financial
covenants as stated in Section 5.3 below, the interest rate arising from the additional interest
in the rate equal to the rate of the additional annual interest during the Deferral Period
(calculated based on 365 per year),will be paid on the following interest payment date and
all subject to the maximum interest increase and the Limitation on the Additional Interest
Rate. The Company will announce, in an immediate report, the precise interest rate for payment
on the upcoming interest payment date. |
| D. | In
the event of updating the rating of the Bonds (Series A) by the rating company, in a manner
impacting the interest rate that the Bonds (Series A) will bear as stated in Section 5.2(a)
above or 5.2(d) below, the Company will inform the trustee thereof in writing within
one business day from the publication of the immediate report as stated. |
| E. | In
the event that after the reduction of the rating in a manner that will impact the interest
rate that the Bonds (Series A) will bear as stated in Section 5.2(a) above, the rating
company will update the rating for the Bonds (Series A) upwards, the annual interest that
the principal amount will bear on the relevant date of payment of the interest will decrease
at the additional interest rate or part thereof, in accordance with the abovementioned established
levels, for the period in which the Bonds (Series A) were rated with the High Rating alone
(meaning, as of the publication date of the rating report regarding the increase of the rating),
such that the interest rate that the unpaid balance of the principal of the Bonds (Series
A) will bear after the update of the rating upwards to a rating equal or higher to the Base
Rating will be the interest rate determined in the tender, as published by the Company in
an immediate report regarding the results of the issuance, without any addition for the reduction
of the rating as stated in this Section 5.2 (and in any event, the interest rate that the
Bonds will bear will not be less that the interest rate determined in the tender). In such
a case, the Company will act in accordance with the provisions of subsections (a) through
(c) above, mutatis mutandis, arising from the High Rating instead of the Lowered Rating. |
| F. | If
the Bonds (Series A) cease to be rated at all for a reason dependent on the Company (for
example, but not only, due to non-fulfillment of the Company’s obligations vis-à-vis
the rating company, including due to failure to provide payments and/or reports that the
Company has undertaken to provide towards the rating company) for a period exceeding 21 trading
days, before the final payment, the cessation of the rating will be considered as the maximum
Lowered Rating , such that the additional interest rate will amount to 1.5% (even if the
interest rate increased in accordance with subsection (A) above prior to such date), even
if the interest rate was increased prior thereto due to a deviation from the financial covenants
as stated in Section 5.3 below (but subject to the limitation on the maximum interest
increase), and the provisions of subsection (b) through (d) above will apply accordingly,
without derogating from the provisions of Section 8.1.21 below. For the avoidance of doubt,
it shall be clarified that if the Bonds (Series A) cease to be rated, before the final payment,
for a reason independent of the Company, the above will not impact the interest rate as stated
in Subsection (a) above and the provisions of this Section 5.2 (e) will not apply. |
| G. | In
the case in which the rating company is replaced or the Bonds (Series A) cease to be rated
by the rating company (even if the Bonds (Series A) are rated by several rating companies),
the Company will publish an immediate report, within one trading day from the date of the
change, in which the Company will announce the circumstances of the replacement of the rating
company or the cessation of the rating, as applicable. |
| H. | For
the avoidance of doubt, it is clarified that: (1) a change in the outlook for the rating
of the Bonds (Series A) will not lead to a change in the interest rate that the Bonds (Series
A) will bear as stated in this section above; and (2) if the Bonds (Series A) are rated by
more than one rating company and as long as they are rated by more than one rating company
as stated, subsection (e) above will not apply, other than in a case in which all of the
rating companies together cease to rate the Bonds (Series A), and the determination of the
rating for the purpose of corresponding the interest rate to the change in the rating (if
such a change occurs) shall be done, at any time according to the lowest rating among them. |
| I. | In
the case of a reduction of the rating, the Company will act in accordance with Subsection
(b) above. If before the Date of Lowering the Rating, an increase occurs to the interest
rate due to a deviation from one or more of the financial covenants based on the mechanism
set forth in Section 5.3 below, the change that occurs to the interest for the adjustment
mechanism set forth in this Section 5.2 above will be limited, according to the limitation
on the maximum interest increase. |
| J. | The
Company undertakes to act such that, to the extent that it is in its control, the Bonds (Series
A) are Rated by at least one Rating Company during the entire duration of the Bonds (Series
A), and for the same purpose, the Company undertakes, inter alia, to pay the Rating
Company the payments that it has undertaken to pay to the Rating Company, and to provide
the Rating Company with the reports and information required thereby in the framework of
the engagement between the Company and the Rating Company. In this regard, the non-performance
of payments that the Company has undertaken to pay to the Rating Company and the failure
to provide the reports and information required by the Rating Company in the framework of
the engagement between the Company and the Rating Company will be deemed to be reasons and
circumstances that are under the Company’s control. The Company does not undertake
to refrain from replacing the Rating Company or to refrain from terminating the engagement
therewith during the duration of the Bonds (Series A). In the event in which the Company
replaces the Rating Company even if at the time of replacement it is not the only rating
company that rates the Bonds (Series A) at the time of the replacement and/or terminates
the work of a Rating Company (in the event in which it is not the only Rating Company), the
Company undertakes to report the same in an immediate report and to inform the Trustee and
the Bondholders thereof, and state the reasons for the change of the Rating Company in its
notice, no later than one Trading Day from the date of the replacement as stated and/or the
date of the decision to terminate the work of the Rating Company, whichever is earlier. It
shall be clarified that the provisions above will not derogate from the right of the Company
to replace the Rating Company or terminate the work of the Rating Company at any time (in
the event in which it is not the only Rating Company), at its exclusive discretion and for
any reason that it sees fit. |
| 5.3 | Adjustment
of the interest rate as a result of deviation from financial covenants: |
The
interest rate that the Bonds (Series A) will bear will be adjusted due to a deviation from the financial covenants set forth below:
|
(1) |
Should the financial debt to EBITDA ratio (as defined below)
exceed 8 (the “Covenant of Net Financial Debt to EBITDA Ratio”).1 |
For
the purpose of this subsection (1) only:
“Financial
Debt” – Interest-bearing debt for short and long term from banks and other financial creditors plus interest-bearing
debt to the Bondholders of the Bonds issued by the Company, on the basis of the Company’s most recent financial statements.
“EBITDA”
– net profit/loss plus interest, taxes, depreciation, amortization and profit or loss from the sale of securities calculated according
to the four quarters that ended on the date of the relevant financial statements –according to the Company’s financial statements.
1
The net financial debt to EBITDA ratio, based on the Company’s consolidated financial statements as of March 31, 2024, is 6.75.
This ratio is calculated by dividing the net financial debt of 558,916,111 by the EBITDA of 82,821,744.
|
(2) |
Should the ratio of EBIDTA to total debt service payments of
the company (DSCR) decreases below 1.10 (“the DSCR covenant”).2 For purpose of this subsection (2) only: |
“Total
debt service payments of the Company” - (a) The sum of ongoing interest and principal payments of the company and its subsidiaries
in respect of financial debt incurred by them, excluding the final principal payments according to the amortization schedules of the
financial debt With the exception of recent fund payments classified in the financial statements under current liabilities; plus (b)
mortgage insurance payments of the Company and its subsidiaries in respect of their assets; all calculated based on the four quarters
ending on the relevant financial reporting date, in accordance with the consolidated financial statements of the Company.
| (3) | Should
the consolidated equity of the Company (including minority rights) as of the last day on
any calendar quarter according to the Company’s financial statements is less than USD
30 million (this amount will not be linked to any linkage base) (in this Section 5.3: the
“Equity Covenant”).3 |
The
Covenant of Net Financial Debt to EBITDA, the DSCR and the Equity Covenant shall collectively be referred to as the “Financial
Criterion” and together, they shall be referred to as the “Financial Covenants.” It is clarified that
if adjustment of interest is required in accordance with the mechanism described in this Section 5.3 above and below, and based on the
mechanism described in Section 5.2 above, and pursuant to any other section in this Deed (if any), then in any event, the maximum aggregate
rate of the additional interest rate will not exceed the maximum interest increase limitation (as defined in Section 5.2 above). Arrears
interest, if applicable in accordance with Section 4(a) of the terms of the overleaf, will be added to the said rate and will not constitute
part thereof.
2
The DSCR ratio is calculated based on the four quarters ending on the financial reporting date of the Company, which is March 31,
2024. The calculated ratio is 1.64, comprising an EBIDTA of 82,821,744 and total debt service payments of the company amounting to 50,536,787.
3
The total equity of the Company as of March 31, 2024, is 48,233,684.
In
this regard:
The
“Additional Interest Rate” - additional interest at a rate of 0.25% per annum for a deviation from the Financial Covenants.
The
increase of the interest rate will take place only once for each deviation from any of the Financial Covenants, if such a deviation occurs,
and the interest rate will not be increased again in the event that the deviation from the relevant Financial Covenants continues (in
this regard, it shall be clarified that if the deviation from any of the Financial Covenants is remedied and thereafter there is an additional
deviation, the aforesaid addition will apply). It shall be emphasized that in the event in which due to a decrease in the rating of the
Bonds, the annual interest rate is increased in accordance with the provisions of Section 5.2 above, in any event, the additional interest
rate under the same section, together with the additional interest rate under this Section 5.3, for the deviation from the Financial
Covenants, will not exceed the limitation on the maximum interest increase.
The
“Deviation Date” – the publication date of the financial statements that indicate the deviation.
| A. | If
the Company deviates from any of the financial covenants under the Company’s reviewed
or audited Financial Statements (the “Deviation”), the annual interest
rate that the unpaid balance of the Bonds (Series A) will bear will be increased by the additional
interest rate for the Deviation, above the interest rate as it was at the time, before the
change, for the period that begins from the Deviation Date and until the earlier of the full
repayment of the unpaid principal balance of the Bonds (Series A) or the date of the publication
of the Company’s Financial Statements whereby the Company does not have a deviation
from any of the financial covenants, all subject to the limitation on the maximum interest
increase. |
| B. | In
the event in which a Deviation from any of the Financial Covenants occurs as stated, no later
than the end of two trading days from the publication of the Company’s Financial Statements
indicating a deviation, the Company will publish an immediate report in which the Company
will state: (a) the aforesaid deviation, while specifying the financial covenants on the
date of the publication of the financial report and whether there is a change to the interest
rate following a change in the rating, if there is such a change as stated; (b) the updated
rating of the Bonds (Series A) based on the most recent rating report published before the
date of the immediate report; (c) the precise interest rate that the principal amount balance
will bear for the period beginning from the current Interest Period and until the Deviation
Date (the interest rate will be calculated based on 365 days per year) ( the “Original
Interest” and the “Original Interest Period”, respectively);
(d) the interest rate that the balance of the principal of the Bonds (Series A) will bear
as of the Deviation Date and until the upcoming actual interest payment date, i.e.: the Original
Interest with the addition of the additional annual interest rate (the interest rate will
be calculated based on 365 days per year) (the “Updated Interest”), and
this subject to the limitation on the maximum interest increase.; (e) the Weighted Interest
Rate that is paid by the Company to the Bondholders (Series A) on the upcoming interest payment
date, arising from the provisions of Subsection (c) and (d) above; (f) and the annual interest
rate reflected from the Weighted Interest Rate; (g) the annual interest rate and the semiannual
interest rate (the semiannual interest rate will be calculated as the annual interest divided
by the number of interest payments per year, namely, by two) for the subsequent periods;
Should the deviation linger after the first quarter of its occurrence, no later than one
business day from the date of the Company’s publishing its financial statements, audited
or reviewed (as the case may be), which indicate the deviation is continued, the Company
shall publish an immediate report in which the details of this section above shall be displayed,
according to the revised interest rate, and in reference to the continued deviation as aforesaid
in the definition of the term the “Additional Interest Rate”. |
| C. | In
the event in which the Deferral Date occurs during the days beginning four days before the
effective date for the payment of any interest and ending on the subsequent interest payment
date (the “Deferral Period”), the Company will pay the Bondholders (Series
A) on the subsequent interest date, the Original Interest prior to the change only, while
the interest rate arising from the addition of the interest in a rate equal to the additional
annual interest rate during the Deferral Period will be paid on the following interest payment
date. The Company will provide notice in an immediate report of the precise interest rate
for payment on the following interest payment date. |
| D. | In
the event of a deviation from any of the Financial Covenants in a manner that impacts the
interest rate that the Bonds (Series A) will bear (as stated in Paragraph A or Paragraph
E), the Company will inform the Trustee thereof in writing within one business day from the
date of the publication of the Financial Statements as stated. |
| E. | It
is clarified for the avoidance of doubt that in the event that after the Deviation the Company
publishes its Financial Statements, based on which the Company has not deviated from any
of the aforesaid Financial Covenants, the increase in the annual interest rate will be cancelled
for the deviation (and due to the deviation being continued, to the extent of its continuing
and as applicable) from any of the aforesaid Financial Covenants in a manner that annual
interest rate that the bonds will bear will be reduced at the rate of the interest increase
as aforesaid and this for the period in which the Company has not deviated from any of the
Financial Covenants, which shall begin on the date of the publication of the Financial Statements
that indicate non-deviation from the Financial Covenants, so that the interest rate that
will be borne by the outstanding balance of the principal of the Bonds (Series A) shall be
– if the interest rate has not previously been raised in respect of a decrease in the
rating of the Bonds (Series A) as stated in Section 5.2 above and if there is no deviation
from the other financial covenants – the interest rate that was determined in the Tender,
(and in any event, the interest rate that the Bonds will bear will not be less than the interest
rate determined in the Tender) or any other interest rate determined as a result of a decrease
in the rating of the Bonds (Series A) as stated in section 5.2 above. In such a case, the
Company will act in accordance with the provisions of Subsection (b) through (d) above, mutatis
mutandis, as applicable and with respect to the Company’s non-deviation from the same
Financial Covenants. It is clarified that in any case, the interest rate that the bonds will
bear will not be lower than the interest rate established in the Tender. |
| F. | The
examination regarding the Company’s non-deviation from the financial covenants will
be performed on the date of the publication of the Financial Statements by the Company and
as long as the Bonds (Series A) exist in circulation with respect to the Financial Statements
that the Company is required to publish until the same date. |
The
Company will specify as part of the notes to every financial report, the existence of a deviation or lack of deviation from the financial
covenants.
For
the avoidance of doubt, it shall be clarified that subject to the above and the limitation on the maximum interest increase, the additional
interest payments as a result of the Lowered Rating as stated in Section 5.2 above and/or as a result of the Company’s non-compliance
with any of the financial covenants as stated in this Section 5.3 above are aggregated. Therefore, in the event that a Lowered Rating
occurs, while in addition the Company deviates from any of the financial criterion, one or more, the Bondholders (Series A) will be entitled
to an increase in the interest rate as stated above, provided that the additional annual interest does not exceed the Limitation of the
Maximum Additional Interest Rate.
| A. | The
Company will transfer an amount equal to the near annual payment (as of that date) of the
interest amount of the Bonds, but no more than an amount equal to a half-year interest payment
(the “Interest Cushion Amount”) to the Trustee by transferring the amount
of the interest cushion from the account in the name of the Issue Coordinator, in which the
issue proceeds are held, to a bank account that will be opened by the Trustee under its name
in trust for the holders of the Bonds (Series A) only (the “Interest Cushion Account”).
The Company will pledge its rights in the Interest Cushion Account for the benefit of the
Trustee in any relevant territory as required. Except as set out in sections B through I
below, the Company hereby declares that it does not have any rights in the Interest Cushion
Account |
| B. | The
signature rights in the Interest Cushion Account will be the Trustee’s only. The funds
deposited in the Interest Cushion Account will be managed by the Trustee in accordance with
the provisions of Section 17 below. The Trustee will be liable vis-à-vis the Bondholders
(Series A) and/or the Company for any loss incurred due to investments as stated. |
| C. | If
on the morning of the fifth (5th) day of every calendar month after the end of
each calendar quarter and if it is not a business day, then the following business day (“Cushion
Completion Date”), the amount deposited in the Interest Cushion Account will be
lower than the Interest Cushion Amount , the Company will transfer to the Interest Cushion
Account on the date of completing the cushion (and if it is not a business day, then on the
following business day) an amount that is equal to the amount required for the completion
of the amount deposited in the Interest Cushion Account, on the date of completion of the
cushion, to the Interest Cushion Amount (together with The amount deposited at the time in
the Interest Cushion Account: “the Current Cushion Amount”). |
| D. | To
the extent that on the date of payment of the principal and/or interest in respect of the
Company, the deposited amount in the Interest Cushion Account exceeds the Current Cushion
Amount (“the Excess Amount”), the Company shall be entitled to instruct
the Trustee to make use of the Excess Amount for making payments of principal and interest
amounts that the Company is liable to pay to the Bondholders of Bonds (Series A). Under this
Deed and pursuant to the Company’s request, the Trustee will transfer to the Nominee
Company for payment on the date on which the payment is to be paid, up to the amount of the
payment that was relevant by the Company’s notice or up to the amount of the Excess
Amount, whichever is lower (and in the case of the transfer of the Excess Amount, subject
to receipt of a reference from the Company regarding the transfer of the balance of the amount
required for execution of the relevant payment to the Nominee Company). At the final and
last redemption date of the Bonds (Series A), the Company may instruct the Trustee to make
use of the Current Cushion Amount and the Excess Amount as it will be deposited in the Interest
Cushion Account for the purpose of a payment in respect of the Bonds or transfer it to the
Company (after full repayment of all the Bonds). |
| E. | It
is hereby clarified that if the series of bonds is increased or an additional interest rate
applies as stated in sections 5.2 and 5.3 above, the Company will deposit in the Interest
Cushion Account the funds that will constitute the Interest Cushion Amount in respect of
the increase or the updated interest rate within 5 business days from the date of publication
of the immediate report regarding the actual increase or the change in the interest rate
as aforesaid, as the case may be. |
| F. | It
is hereby clarified that the non-deposit of funds in the Interest Cushion Account within
10 business days from the date of completion of any cushion, whether as part of the issue
under this Prospectus or following the occurrence of events as specified in this section,
shall constitute grounds for calling for immediate repayment of the balance of the Bonds
(Series A) in circulation, as stated in subsection 8.1.29 below. |
| G. | For
the avoidance of doubt, it is clarified that the Company’s undertaking to transfer
the funds to the Interest Cushion Account is not guaranteed by a mechanism that will ensure
the performance of this undertaking. In the event that the Company fails to meet its obligation
to transfer the funds to the interest-rate account, the trustee will not be able to prevent
the breach of this undertaking, but rather to take the measures at his disposal according
to law and the deed of trust, to enforce on the Company to retroactively execute its undertaking. |
| H. | It
is hereby clarified that the Interest Cushion Amount (including the Current Cushion Amount),
including the profits accrued for the same amounts, will be held by the Trustee for the Bondholders
of the Bonds (Series A) only. The Company shall not have any rights or claims with respect
to these sums, save for (A) the right to issue an instruction in respect of the Excess Amount
and/or providing an instruction for the current cushion amount on the final and last repayment
date of the Bonds (Series A), as stated in subsection D above, and (B) Determination of the
money management policy in the Interest Cushion Account and its implementation at the Company’s
sole discretion, provided that the investment will be in investments as detailed in section
17 below. The Trustee will not be entitled to object to the investment policy and will not
be liable to the holders of the Series A Bonds and / or the Company for any damage and /
or loss caused by this policy. |
Without
derogating from the provisions of Section 25 below, from the issue proceeds, an amount of USD 250 thousand (based on the exchange rate
of the dollar, known on the day before the tender date) will be deposited in a bank account in Israel, opened by the Trustee in its name
in trust for the holders of the Bonds (Series A) only, which will be used for payment of the reasonable ongoing expenses and reasonable
management expenses of the trustee, in the case in which the Bonds (Series A) are called for immediate repayment (the “Expenses
Cushion Amount”). The Expenses Cushion Amount will be held until after the date of the full and final payment of the Bonds
(Series A). After receipt of approval from the senior officer in the financial department at the Company or from the Chief Executive
Officer of the Company regarding full payment of the Bonds (Series A), in a manner to the satisfaction of the Trustee, any remaining
Expenses Cushion amount, if any (in addition to all of the profits accrued) will be transferred to the Company in accordance with the
details provided by the Company. In the case in which the Expenses Cushion Amount is not sufficient to cover the expenses of the Trustee
in connection with call for immediate repayment of the Bonds (Series A), if any such event occurs, the Trustee will act in accordance
with the provisions of Section 25 below.
It
is hereby clarified that the funds in the Expenses Cushion Account shall be held in trust for the Bondholders only and the rights of
the Company in the expense account shall not be pledged in favor of the Trustee.
The
money management policy in the bank account where the Expenses Cushion amount will be determined and implemented at the sole discretion
of the Company, provided that the investment of its funds are in line with those specified in section 17 below. It is clarified that,
except as detailed above, the Company will not have rights in the funds in the Expenses Cushion. For the avoidance of doubt, it will
be emphasized that the trustee can determine at his absolute discretion that the amount of the expenses cushion can be deposited in the
interest cushion account and the company will not have any claim in this regard.
| 5.6 | Controlling
Shareholders’ Transactions |
The
Company clarifies that as of the date of signing this Deed, its shares are registered with the Securities and Exchange Commission (SEC)
in accordance with the U.S. Securities Exchange Act of 1934 (“U.S. Stock Exchange Act”). Various securities of the
Company are listed for trading under the U.S. Stock Exchange Act and are listed for trading on the New York Stock Exchange (“NYSE”).
Consequently, the Company is subject to the laws and regulations applicable to public companies in the United States in accordance with
the securities laws, NYSE rules and regulations applicable to publicly traded companies.
| 5.7 | Appointment
of a Company Representatives in Israel |
| 5.7.1 | After
the full, final and precise payment date of the Bonds (Series A) under the terms of the Deed
of Trust vis-à-vis the Bondholders, the Company undertakes that it will have a representative
on its behalf in Israel, to which legal process can be served to the Company and/or officers
thereof instead of their service to the Company’s address overseas, set forth in the
preamble to this Deed. |
| 5.7.2 | As
of the date of signing This Deed, the Company’s representative in Israel is the law
office of Fischer & Co (whose address at the time of signing This Deed is 146 Menachem
Begin Road, Tel Aviv (the “Company’s Representative in Israel”). |
| 5.7.3 | Service
to the Company’s Israel Representative will be considered valid and binding service
in connection with any claim and/or demand of the Trustee and/or the Bondholders (Series
A) under this Trust Deed. |
| 5.7.4 | The
Company will be permitted to replace the Company’s Israel Representative from time
to time but only if at the time of the replacement the Company shall report the details of
the new Company representative in an immediate report and will deliver a written notice to
the Trustee in parallel. |
| 5.7.5 | The
Company undertakes that in the event of the Company’s representative being replaced
in Israel, including in the event of his resignation, the Company shall appoint a representative
of the Company in Israel within a period not exceeding thirty (30) days. Until a new representative
is appointed, as mentioned above, the Company’s address in Israel for the purpose of
this Deed of Trust and for the serving of court pleadings will be the replaced representative’s
address. A breach of this section will constitute a material breach of the provisions of
the Deed of Trust. |
| 5.7.6 | Any
breach of this section will constitute a fundamental violation of the terms outlined in the
Deed of Trust. |
| 5.7.7 | It
is clarified that the funds resulting from the issuance, after deducting the amounts designated
to remain in the Interest Cushion Account, will be transferred to the Company upon its request. |
6. | Securing
the Bonds, Financial liabilities, a distribution restriction |
| 6.1 | The
Bonds (Series A) are not secured by collateral, any pledges, or in any other manner. For
details regarding the Company’s undertakings regarding the undertaking to avoid the
creation of a general pledge, see Section 6.4 below. |
| 6.2 | Upon
the execution of this Trust Deed, the Partnership and the Subsidiary Company will execute
irrevocable guarantees, without limitation as to the amount, to secure the Company’s
full obligations towards the trustee and/or the Bondholders (Series A) under this Deed, which
shall remain in effect until the complete repayment of the Company’s liabilities under
this Trust Deed (the “Guarantees”). The form of the Guarantees as described
above is attached as Appendix 6.2a and 6.2b to this Trust Deed. |
Despite
the aforementioned in section 6.2 above, in the event that all of the Subsidiary’s assets are transferred to a partnership (including
as part of a voluntary dissolution of the Subsidiary), and the Company will publish an immediate report on this matter, the guarantee
provided by the Subsidiary as stated (the “Subsidiary Guarantee”) will immediately and automatically terminate, and from
that moment it will be void, without requiring the consent of the Series A Bondholders and/or the Trustee’s consent. Notwithstanding
the above, the cancellation of the subsidiary’s guarantee will take effect subject to prior approval being received from the rating
company according to which the rating prior to the cancellation of the subsidiary’s guarantee will not change downward as a result.
| 6.3 | For
the avoidance of doubt, it is clarified that the Trustee is not subject to and will not be
subject to an obligation to examine, and in practice the Trustee has not examined and will
not examine, the need to provide securities to secure the payments to the Bondholders (Series
A). The Trustee was not asked to conduct, and the Trustee did not conduct in practice and
will not conduct, financial, accounting or legal due diligence as to the state of the Company’s
and/or the Partnership’s business. In its engagement in this Deed of Trust and the
Trustee’s consent to serve as a trustee for the Bondholders (Series A), the Trustee
does not express an opinion, explicitly or implicitly, as to the ability of the Company to
meet its obligations vis-à-vis the Bondholders (Series A) under this Deed. The provisions
above will not derogate from the Trustee’s obligations under any law and/or the Deed
of Trust, and will not derogate from the Trustee’s obligation (if such an obligation
applies to the Trustee under any law) to examine the impact of changes in the Company from
the date of the Prospectus and thereafter, if they may detrimentally impact the Company’s
ability to meet its obligations under this Deed of Trust vis-à-vis the Bondholders
(Series A). |
| 6.4 | Undertakings
Not to Create Pledges |
| 6.4.1 | The
Company will not create a general floating charge (or a similar lien in its characteristics
according to the law applicable to the Company) on all of its direct, existing and future
assets and rights for the benefit of any third party to secure its liabilities to any third
party, unless it has received prior consent from the Bondholders in a Special Resolution,
or unless it granted, at the same time as making the general floating charge on all of the
Company’s direct, existing and future assets and rights, as stated, in favor of a third
party, a floating charge in favor of the Bondholders, in the same rank, and that these liens
will be pari passu according to the ratio of the Company’s debts to each of the parties.
If such a lien is created, it will be done in coordination with the Trustee and in terms
to the satisfaction of the Trustee, and the trustee will be given certificates from a senior
official in the company that the lien does not contradict or contradict any other obligations
of the company and an opinion from a local attorney in connection with the creation of such
a lien, attesting that it is valid, enforceable and realizable under the relevant law. |
| 6.4.2 | For
the avoidance of doubt, the foregoing does not restrict (1) the Company from creating fixed
liens on all or some of its assets; (2) the Company from creating floating liens on one or
more specific assets of the Company; or (3) the ability of corporations controlled by the
Company to create any type of lien (whether fixed or floating) on any assets (including all
or most of the assets), with or without any restriction, or to guarantee Company liabilities
in any way. |
| 6.4.3 | For
the avoidance of doubt, the Trustee is not required to check the possibility and/or necessity
of registering the Company’s liabilities to avoid creating liens or any similar registration
in nature and substance outside of Israel, and the Company’s obligation as stated above
will be a contractual obligation towards the Trustee and the Bondholders. The Company hereby
confirms and declares that, as of the date of this Deed of Trust, it has not created or undertook
to create or registered floating liens on all of its direct assets and current and future
rights for which the undertaking as stated above is given. |
| 6.4.4 | The
Group’s companies will be permitted to sell, lease, assign, deliver or transfer their
property, in whole or in part, in any manner, to whoever they deem appropriate, without requiring
any consent of the Trustee and/or of the bondholders (Series A), as the case may be. The
Group’s companies are not required to notify the Trustee of a transfer or sale of any
asset of their assets except if what is involved is a sale or a transfer of “Material
Asset” according to the meaning of that term in Section 8.1 below, and in addition
they are not required to notify the Trustee regarding the creation of a pledge over their
assets, except a general floating charge on the Company’s overall property as stated
above. |
| 6.4.5 | It
shall be clarified that the Trustee does not have information that would enable it to ensure
the Company’s compliance with the undertakings set forth in this Section 6.2 above
(and its subsections) and therefore, for the examination of the Company’s compliance
with the provisions of this Section 6.2 above, the Trustee will rely on the Company’s
reports and the approvals set forth in this Section 6.2 above, and will not be required to
ensure the accuracy thereof. |
| 6.5 | Financial
Undertakings |
Until
after the full, final and precise repayment of the Bonds under the terms of Deed of Trust, and the fulfillment of the other obligations
of the Company vis-à-vis the Bondholders (Series A) under this Deed of Trust and the terms of the Bonds (Series A), the Company
will meet, at all times, each of the financial conditions set forth below:
| (1) | On
the last day of each calendar quarter, the consolidated equity of the Company (excluding
minority rights), as set forth in the Company’s financial statements, will not be less
than USD 20 million (this amount will not be linked to any linkage base). |
| (2) | On
the last day of each calendar quarter, the ratio between the Financial Debt and EBITDA (as
defined in section 5.3 above) shall not exceed 10; |
| (3) | The
DSCR ratio (as defined in section 5.3 above) shall not be less than 1.05. |
The
examination regarding the Company’s compliance with each of the Financial Covenants contained in subsections (1) to (3) above will
be performed as of the date of the publication of the Financial Statements by the Company and on their basis and as long as the Bonds
(Series A) exist in circulation, with respect to the quarterly/annual financial statements that the Company is required to publish by
the same date (“Date of the Examination”).
The
Company will indicate in the notes to its financial statements whether it meets each of the Financial Covenants. Within 15 days from
the date of publication of each financial statement, the Company will provide the Trustee with a confirmation from the Company’s
senior financial officer, or the Company’s CEO in regard to the Company’s compliance with each of the Financial Covenants,
along with an electronic data sheet showing the calculation and all according to the wording to the satisfaction of the trustee.
The
terms used for the Financial Covenants will be calculated and determined in accordance with the rules of the U.S. GAAP applicable to
the company at the time of signing the trust deed (“the determining accounting rules”).
If
there is a material change in the U.S. GAAP and/or regulatory changes in relation to the accounting rules that determine or if the company
adopts an accounting standard voluntarily and the adoption of the standard causes a material change, the above financial standards will
be applied according to the financial statements prepared according to the accounting rules that determine, ignoring the aforementioned
changes and the company will present to the trustee at the time of transfer a confirmation Compliance with the financial standards as
mentioned in this section above, every quarter, a compliance report with the accounting standards applied to the company in accordance
with the accounting rules that determine and everything in the wording to the satisfaction of the trustee. In the event of such a change,
the company will include in the financial statements, the data on which it based the calculation of the financial benchmarks listed above
(pro forma report).
“Substantial
change” for the purposes of this section - means a change of at least 5% in the aggregate, in relation to all the standard and
regulatory changes that have taken place, between the relevant benchmark as mentioned above, and the date of the financial statement,
as calculated according to the accepted accounting rules that will apply to the company at the date of the report, and the benchmark
the relevant one, for that date, as calculated according to the accounting rules that determine.
| 6.6 | Restricting
the Distribution of Dividends |
As
long as the Company does not breach any of the Financial Covenants noted in Section 6.5 above, no distribution restriction shall hinder
the Company. If the Company is in non-compliance one or more of the Financial Covenants as noted in Section 6.5 above, the Company can
make a distribution in an amount that does not exceed the amount required to meet the U.S. legal requirements applicable to REITs.
In
the event of a distribution while the Company is in deviation from one or more of the Financial Covenants as stated in Section 6.5 above,
as stated above, the Company will give the Trustee a prior notice of its intention to make a distribution along with a confirmation from
the senior financial officer in the Company that the amount of the distribution does not exceed the amount required to meet the U.S.
legal requirements applicable to REITs. The trustee will rely on the confirmation without being required to perform any examination on
the subject.
| 7.1 | Early
repayment initiated by the Stock Exchange |
In
the event that the Stock Exchange decides to delist the Bonds from trade because the public holdings of the Bonds is less than the amount
set forth in the guidelines of the Stock Exchange regarding delisting from trade, the Company will act as follows:
| a) | Within
45 days from the date of the resolution of the stock exchange’s board of directors
to delist from trade as stated, the Company will provide notice of an early repayment date
in which the Bondholder may redeem them. |
| b) | The
early redemption date with respect to the Bonds will occur no earlier than 17 days from the
date of the notice’s publication and no later than 45 days from the aforesaid date,
but shall not apply in a period between the effective date for the payment of interest and
the actual payment date thereof. |
| c) | On
the early redemption date, the Company will redeem the Bonds that the holders thereof request
to redeem, based on the balance of their par value in addition to the interest that has accrued
on the principal until the actual redemption date (the calculation of the interest will be
performed on the basis of 365 days per year). |
| d) | Determination
of the early redemption date as stated above will not harm the redemption rights set forth
in the Bonds for any of the Bondholders that do not redeem them on the early redemption date
as set forth above; however, the Bonds will be delisted from trade in the Stock Exchange,
and will be subject to the tax implications that arise as a result. |
Early
redemption of the Bonds as stated above will not grant any of the Bondholders that redeems them as stated with the right to an interest
payment for the period following the redemption date.
The
Company will publish a notice of the early redemption date in an immediate report. The notice as stated will also specify the early redemption
consideration amount.
| 7.2 | Early
repayment initiated by the Stock Exchange |
The
Company may, at its exclusive discretion, call for the early redemption of the Bonds (Series A), at any time after the date which is
60 days from the date of listing for trade in the Stock Exchange, in which case the following provisions will apply – all subject
to the instructions of the Securities Authority and the provisions of the bylaws of the Stock Exchange and the guidelines thereunder,
as they may be at the relevant date:
The
frequencies of the early redemptions will not exceed one per quarter.
In
the event that early redemption is determined in a quarter in which an interest payment is also scheduled, or a date for payment of partial
redemption or a date for payment of final redemption, the early redemption will take place on the date scheduled for the payment as stated.
In
this regard, a “quarter” shall mean each of the following periods: January-March, April-June, July-September, October-December.
The
minimum amount of each early repayment will not be less than ILS 1 million. Notwithstanding the above, the Company may perform early
redemption in a scope of less than ILS 1 million, provided that the scope of the redemptions will not exceed one per year.
Any
amount that is paid in early repayment by the Company will be repaid with respect to all of the Bondholders (Series A), pro-rata based
on the par value of the Bonds (Series A) that are held thereby.
Upon
the passing of a resolution by the Company’s board of directors regarding the performance of early redemption as stated above,
the Company will publish an immediate report with a copy to the Trustee no less than seventeen (17) days and no more than forty five
(45) days before the early redemption date. The early redemption date will not occur during the period between the effective date for
the payment of interest for the Bonds (Series A) and between the actual date for the payment of the interest. In the immediate report
as stated, the Company will publish the principal amount that will be repaid in the early redemption, as well as the interest that has
accrued for the amount of the principal as stated until the early redemption date, in accordance with the provisions below.
Early
redemption will not occur for part of a series of Bonds (Series A) if the last redemption amount is less than ILS 3.2 million.
If
the Company performs partial early repayment, the Company will pay the interest accrued only for the part redeemed, and not the entire
unpaid balance of the Bonds (which are redeemed on the partial repayment date).
On
the partial early redemption date, if any, the Company will issue an immediate report about: (1) the partial redemption rate in terms
of the unpaid balance; (2) the partial redemption rate in terms of the original series; (3) the partial redemption interest rate on the
redeemed part; (4) the interest rate that will be paid in partial redemption is calculated regarding the unpaid balance; (5) the interest
rate that will be paid in the partial redemption, calculated regarding the unpaid balance; (6) update of the partial redemption rates
that remain, in terms of the original series; (6) the effective date for eligibility to receive the early redemption of the principal
of the Bonds that will exist twelve (12) days before the date determined for the early redemption.
The
amount that will be paid to the Bondholders (Series A) in the event of early redemption will be the amount that is the higher of the
following: (1) the market value of the balance of the Bonds (Series A) available for early repayment which is determined based on the
average closing price of the Bonds (Series A) in thirty (30) trading days before the date on which the board of directors resolves to
perform the early redemption, however, if the early repayment date has been determined on the date on which interest is paid, the amount
equal to the interest amount paid on the same date for the bonds will be reduced from the average unit price as stated; (2) the undertaking
value of the Bonds (Series A) available for early redemption in circulation, i.e. the principal in addition to interest that the bonds
carry at the early maturity date until the date of the actual early redemption; (3) the balance of the cash flow of the Bonds (Series
A) that are available for early redemption (principal in addition to the interest that the bonds carry at the early maturity date), when
discounted based on the yield of government bonds (as defined below) with an addition of 3%, calculated on an annual basis. Discount
of the Bonds (Series A) available for early redemption will be calculated as of the early redemption date and until the last payment
date determined with respect to the Bonds (Series A) available for early redemption.
In
this regard: “yield of government bonds” shall mean the weighted average of the yield for redemption (gross) in a
period of seven business days, ending two business days before the date of notice of early redemption, of the series of government bonds
that are not index-linked, with interest in a fixed rate, and that during their average life is the closest to the average life of the
bonds on the relevant date, i.e. one series with the closest average life higher than the life of the bonds (Series A) on the relevant
date, and one series with the average life below the Bonds (Series A) on the relevant date, and whose weight will reflect the average
life of the Bonds on the relevant date.
In
the case of payment of additional interest following the early redemption, the additional interest will be paid on the par value redeemed
in early redemption only.
The
Company will provide the Trustee, within five trading days from the date of the Board of Director’s resolution, with confirmation
signed by the senior officer in the financial field or CEO of the Company regarding calculation of the payment amount. The wording of
the confirmation will be to the satisfaction of the Trustee.
8. | Right
to Call for Immediate Payment |
| 8.1 | Upon
the occurrence of one or more of the events listed in this section below, the provisions
of Section 8.2 will apply, as applicable: |
| 8.1.1 | In
the event that the Company does not pay any amount owed in connection with the debt or the
Deed of Trust for the purpose of this section, the Company will have a period of seven (7)
business days to remedy the breach, unless other period specified in this Deed of Trust. |
| 8.1.2 | In
the event that the Company files a stay of proceedings order or in the event that a stay
of proceedings order is given against the Company or if the Company files a motion for a
settlement or arrangement with creditors of the Company under Section 350 of the Companies
Law or according to the Insolvency and Economic Rehabilitation Law, 2018 (“Insolvency
Law”) or similar procedure under foreign law (excluding for the purpose of a merger
with another company as stated in Section 8.1.17 below and/or a change to the structure of
the Company solely or a division that is not prohibited under the terms of this Deed, excluding
making arrangements between the Company and its shareholders and/or holders of option warrants
(that are exercisable into shares) of the Company, that are not prohibited under the terms
of this Deed and will not impact the ability to repay the Bonds (Series A)). |
| 8.1.3 | If
a request is filed under Section 350 of the Companies Law or in accordance with the provisions
of the Insolvency Law against the Company (without its consent) that is not rejected or dismissed
within 45 days from the date of its submission or a similar proceeding is performed towards
it. It is clarified that for the purpose of this Section 8.1.3, a request under Section 350
of the Companies Law or in accordance with the provisions of the Insolvency Law with respect
to the Company will be in accordance with Israeli law or a parallel proceeding in foreign
law, parallel to the Israeli proceeding. |
| 8.1.4 | In
the event that the Company passes a liquidation resolution (excluding liquidation for as
a result of a merger with another company as stated in Section 8.1.17 below) or if a fixed
and final liquidation order is given by a court and/or a fixed liquidator is appointed for
it or a similar decision is made or a similar functionary is appointed by the Company and/or
towards it. It is clarified that for the purpose of this subsection, liquidation proceedings
with respect to the Company will be in accordance with Israeli law or a parallel proceeding
in foreign law, parallel to the Israeli proceeding. |
| 8.1.5 | In
the event that a temporary liquidation order is given or a temporary liquidator or any similar
functionary appointed or any judicial decision of a similar nature is given, and such order
or decision as stated is not rejected or dismissed within 45 days from the date on which
the order is given or the decision made, as applicable. Notwithstanding the above, the Company
will not be given any remedial period with respect to applications or orders that are filed
or given, as applicable, by the Company or with its consent. It is clarified that for the
purpose of this subsection, liquidation proceedings with respect to the Company will be in
accordance with Israeli law or a parallel proceeding in foreign law, parallel to the Israeli
proceeding. |
| 8.1.6 | In
the event that an application is filed for receivership or to appoint a receiver (temporary
or permanent) or any similar functionary appointed for the Company or a material asset of
the Company (as defined below), or if an order is given to appoint a temporary receiver or
any similar functionary appointed that is not rejected or dismissed within 45 days from the
submission or granting, as applicable; or, if an order is given to appoint a fixed receiver
for the Company or for a material asset of the Company (as defined below) or a similar order
under law applicable to the Company. Notwithstanding the above, the Company will not be given
any remedial period with respect to applications or orders that were submitted or granted
as applicable by the Company or with its consent. It is clarified that for the purpose of
this subsection, receivership proceedings with respect to the Company will be in accordance
with Israeli law or a parallel proceeding in foreign law, parallel to the Israeli proceeding. |
| 8.1.7 | If
a attachment is placed on a material asset of the Company (as this term is defined below)
or execution actions are performed in connection with a material asset of the Company (as
this term is defined below) and the attachment is not removed or the action is not terminated,
as applicable, within 90 days from the date on which it is applied or performed, as applicable
Notwithstanding the above, the Company will not be given any remedial period with respect
to orders or requests that are given or filed, as applicable by the Company or with its consent.
It is clarified that for the purpose of this subsection, attachment proceedings or execution
proceedings with respect to the Company will be in accordance with Israeli law or a parallel
proceeding in foreign law, parallel to the Israeli proceeding. |
| 8.1.8 | If
the holders of pledges exercised the liens on a material asset of the Company (as this term
is defined below) |
| 8.1.9 | If
the Company has ceased, or provided notice of its intent to cease its payments or ceases
or has provided notice of its intent to cease to continue its business, as they may be from
time to time. |
| 8.1.10 | If
a material deterioration occurs in the business of the Company compared to its state on the
date of the first issuance of the Bonds (Series A); and there is a real concern that the
Company will be unable to pay the Bonds (Series A) on time or there is a concrete concern
that the Company will be unable to uphold its material undertakings toward the Bondholders. |
| 8.1.11 | If
there is a change of control, and the Company does not publish a tender offer for the purchase
of all the Bonds, at a price not less than their nominal value, within 45 days of the aforementioned
event. |
| 8.1.12 | If
immediate payment is called (and with regard to subsections (2) and (3) the demand for such
immediate repayment was not removed within ten (10) days from the date on which such immediate
repayment was made: (1) another series of bonds that is issued by the Company and listed
for trade on the Stock Exchange or (2) a debt and/or several cumulative debts of the Company
and/or corporations it holds the value of which (or in the aggregate) is USD 100 million
at least or its extent (or aggregate extent) exceeds 15% of the total assets of the Company
based on the most recent financial statements, whichever is lower, based on the most recent
consolidated financial statements of the Company published (whether audited or reviewed),
whichever is lower, (provided that if the debts are cumulative, they were immediately repaid
simultaneously or close to each other) (the debts described in subsection (2) shall be referred
to in this section as the “Other Debt”). For the purpose of subsection
(2) above, a loan with no recourse to the Company and/or to the Partnership and/or to the
Subsidiary shall not be considered as a different debt as aforesaid. In the event that the
covenants set forth above are met, the aforesaid grounds shall apply, as of the same date
on which the Company is required to pay the other debt (subject to the curing period set
forth above) and not from the date of providing the same debt for early repayment, if these
dates do not overlap. |
| 8.1.13 | If
the Company does not meet any of its financial obligations stated in Section 6.5 above for
two consecutive quarters. |
| 8.1.14 | If
the Company has performed a distribution contrary to the distribution limitation provisions,
as set forth in Section 6.6 above. |
| 8.1.15 | If
the rating of the Bonds (Series A) by the rating company is lowered to a rating that is lower
than a rating of BBB minus. In the case of replacing the rating company, the Company will
provide the trustee with a comparison of the rating scales of the replaced rating company
and the rating scales of the new rating company. |
For
the purpose of this section below, it shall be emphasized that in the event that the Bonds (Series A) are rated by more than one rating
company, an examination of the rating based on the grounds for calling for immediate repayment above will take place, throughout, based
on the lower rating among them.
| 8.1.16 | If
the Company sells to another/ others all of its assets or its main assets during one calendar
quarter, and the holders of the Bonds (Series A) do not consent in advance to the sale with
a decision passed with an ordinary resolution. “Sale to Another” –
sale to any third party (including the controlling shareholder of the Company and/or corporations
under his control), excluding a sale to corporations that are fully held by the Company;
“Main Assets of the Company” – an asset or a number of assets the
value of which and/or the aggregate value of which (as applicable) in the most recent financial
statements published before the occurrence of the relevant event exceeds 50% of the scope
of its assets in the balance sheet of the Company based on the financial statements as stated,
unless all the consideration for the sale (a) is invested in the field of activity of the
Company, and the investment agreement as aforesaid will be signed within twelve (12) months
from the date of the sale, (b) or will be used for early redemption (partial of full) of
the Bonds in accordance with the provisions of Section 7.2 above and/or for the purchase
Bonds (Series A) (partial or full. With regard to subsections (a) and (b) – on the
date of sale, confirmation will be received from the Board of Directors of the Company with
regard to the intention to make use of the sales consideration for the purposes stated in
subsection (a) or (b) above. |
| 8.1.17 | In
the event that a merger was performed (excluding a merger with a company under the Company’s
full control) with the prior consent of the holders of the Bonds (Series A) with a special
resolution, unless the absorbing entity undertakes all of the Company’s undertakings
vis-à-vis the Bondholders (Series A) and in addition, the Company or absorbing company
declared (as applicable) vis-à-vis the holders of the Bonds (Series A), including
through the trustee, at least 10 business days before the date of the merger, that there
is no reasonable concern following the merger that the absorbing entity will be unable to
uphold its obligations vis-à-vis the holders of the Bonds (Series A). The provisions
of this section will not derogate from the other grounds for calling immediate repayment
granted to the holders of the Bonds in accordance with this section 8.1 above and below.
Additionally, as of the period of 30 days before the date of the planned merger and until
the merger date, all of the grounds listed in this Section 8.1 above and below will also
apply with respect to the absorbing company, as if it were the Company. With respect to the
provisions of this Deed that are derived from the financial statements of the Company, an
examination will be performed with respect to the financial statements of the absorbing company,
as it may be after the merger. In this regard, it should be emphasized that the cause of
action in this section shall not apply to a merger between companies fully owned by the Company. |
| 8.1.18 | If
trade of the Bonds (Series A) in the Stock Exchange is suspended by the Stock Exchange in
accordance with the provisions of the Fourth Part of the bylaws, excluding suspension on
grounds of the creation of ambiguities as stated in the Fourth Law of the bylaws of the Stock
Exchange and 60 days have transpired from the suspension date during which it was not removed. |
| 8.1.19 | If
the Company is dissolved or terminated for any reason (subject to Section 8.1.17 above). |
| 8.1.20 | If
the Company breaches the terms of the Bonds (Series A) or the terms of the Trust Deed with
a fundamental breach, including if it is discovered that any of the material representations
by the Company in the Bonds and/or Trust Deed is incorrect and/or incomplete, and the Trustee
has notified the Company in writing that it is required to remedy the breach, and the Company
fails to remedy the breach as stated within 14 days of the date on which the notice was provided. |
| 8.1.21 | If
the Bonds (Series A) cease to be rated for a period exceeding 60 consecutive days following
reasons and/or circumstances that are under the Company’s control. In this regard,
the non-performance of payments that the Company has undertaken to make to the rating company
and failure to provide information and reports required by the rating company in the framework
of the engagement between the Company and the rating company will be considered reasons and
circumstances that are under the control of the Company. It is hereby clarified that insofar
as the Bonds (Series A) are rated by more than one rating company and as long as they are
rated by more than one rating company as stated, this Section 8.1.21 shall apply only in
the event that all the rating companies together will stop rating the Bonds (Series A) for
a period exceeding 60 consecutive days due to reasons and/or circumstances that are under
the Company’s control as detailed above. |
| 8.1.22 | In
the event that the Company expands a series of Bonds (Series A), or issue addition series
of bonds and/or other securities contrary to the provisions of Section 4 above. |
| 8.1.23 | If
the Company ceases to be a Reporting Corporation. |
| 8.1.24 | If
the Company does not publish a financial report that it is required to publish under any
law or under the provisions of the Deed of Trust, within 30 days from the deadline on which
it was required to publish the same. |
| 8.1.25 | If
the Bonds (Series A) are delisted from trade in the Stock Exchange. |
| 8.1.26 | If
the Company breaches any of its obligations to avoid creating pledges as stated in Section
6.2 above. |
| 8.1.27 | If
a “going concern” note is recorded in the Company’s financial statements
for a period of two consecutive quarters. |
| 8.1.28 | If
the Company breaches any of the provisions related to the appointment of a representative
for service of court documents. |
| 8.1.29 | If
the Company should breach any of its material undertakings to deposit an interest cushion
as aforementioned in section 5.5 above. In this regard, the Company shall have a period of
seven (7) days to remedy the breach. |
| 8.1.30 | If
the Company should breach any of its material undertakings to deposit an expenses cushion
as aforementioned in section 5.6 above. In this regard, the Company shall have a period of
seven (7) days to remedy the breach. |
For
the purpose of this Section 8, a “Material Asset of the Company” is an asset or assets in the aggregate of the Company
or corporations held by the Company, the value of which on the relevant date, based on the most recent consolidated financial statements
(audited or reviewed) of the Company published before the same date exceeds 50% of the scope of the assets in the consolidated balance
sheet of the Company based on the financial statements as stated.
| 8.2 | Upon
the occurrence of any of the events set forth in Sections 8.1.1 until 8.1.30 (inclusive)
above, the following provisions will apply, as applicable: |
| 8.2.1 | The
Trustee will be required to convene a meeting of the holders of Bonds (Series A), that will
convene 21 days from the date of the invitation (or a shorter time in accordance with the
provisions of Section 8.2.5 below), and the agenda of which will contain a resolution regarding
calling for immediate repayment of the entire unpaid balance of the Bonds (Series A) due
to the occurrence of any of the events set forth in Sections 8.1.1 through 8.1.30 (inclusive)
above, as applicable. The invitation will state that if the event set forth in Section 8.1
above, for which the meeting was convened, will be cancelled, terminated or removed, by the
date for which the meeting was called, the invitation for the meeting of the Bondholders
will be cancelled as stated above. |
| 8.2.2 | A
resolution of the holders to call for the immediate repayment of the Bonds (Series A) will
be passed in a meeting of holders that is attended by holders of at least fifty percent (50%)
of the balance of the par value of the Bonds (Series A), with a majority of holders of the
balance of the par value of the Bonds represented in the vote, excluding abstentions, or
with a majority as stated in a deferred meeting of holders that is attended by holders of
at least twenty percent (20%) of the balance as stated. |
| 8.2.3 | In
the event in which by the date of convening the meeting as stated, none of the events set
forth in Sections 8.1.1 through 8.1.30 (inclusive) above was cancelled, terminated or removed,
and the resolution in the meeting of holders of the Bonds (Series A) as stated is passed
in the manner required as set forth in Section 8.2.2 above, provided that such resolution
made was not annulled in an at a meeting as stated in section 8.2.2 (regarding the majority
and the required quorum), the trustee will be required, within a reasonable amount of time,
to call for the immediate repayment of the entire unpaid balance of the Bonds (Series A),
provided that the Company was given a written warning of 15 days of his intention to do so. |
| 8.2.4 | Publication
of the invitation for the meeting as stated will be sent by the trustee to the Company for
publication, and the invitation for the meeting will constitute prior written consent to
the Company of its intent to act to call for immediate repayment of the Bonds as stated. |
| 8.2.5 | The
Trustee may, at its discretion, shorten the count of 21 days as stated in Section 8.2.1 above
and/ or the 15 days of warning mentioned in section 8.2.3 above and / or not to give a notice
at all, in the case in which the trustee is of the opinion that there is a reasonable concern
that waiting this period or providing the warning, as applicable, will harm the possibility
of calling for immediate payment of the Bonds or harm the rights of holders. |
| 8.2.6 | In
the event that any of the subsections of Section 8.1 above provides a period in which the
Company may perform an action or make a decision as a result of which the grounds for calling
for immediate repayment are terminated, the trustee or holders may call for immediate repayment
as stated in this Section 8 only if the period set forth as stated transpires and the grounds
are not terminated; however, the trustee may shorten the aforesaid period if it feels that
the same may materially harm the rights of the holders. |
| 8.2.7 | For
the avoidance of doubt, it shall be clarified that the provisions of this Section 8.2 above
will not derogate from the authority of the trustee to call for immediate repayment of the
Bonds (Series A) at its discretion and subject to the deed of trust. |
| 8.2.8 | Notwithstanding
the provisions of this Section 8.2 above, in the event that the Company asks the Trustee
in writing to appoint an urgent representation, it shall act in accordance with the provisions
set forth in the Third Schedule to the Deed of Trust. |
| 8.2.9 | For
the avoidance of doubt, it is clarified that calling for immediate repayment will take place
based on the balance of the par value of the Bonds (Series A) that have not yet been paid,
including interest differentials that have accrued on the principal, including arrears interest
(if relevant), while the interest is calculated for the period beginning after the last day
for which interest was paid and until the actual date of immediate payment (calculation of
the interest for a subpart will take place based on 365 days per year). |
| 8.2.10 | For
the avoidance of doubt, it is clarified that the right to call for immediate repayment as
stated above and/or calling for immediate repayment will not derogate from or harm any other
or additional remedy available to holders of the Bonds (Series A) or the trustee under the
terms of the Bonds (Series A) and the provisions of this Deed or under law, and calling a
debt for immediate repayment upon the occurrence of any of the cases set forth in Section
8.1 above will not constitute any waiver of the rights of the holders of the Bonds or the
trustee as stated. |
9. | Claims
and Proceedings by the Trustee |
| 9.1 | In
addition to any provision in this Deed and as a right and personal authority, the Trustee
shall be entitled, at any time, at its reasonable discretion, and without providing notice,
to perform any of the proceedings, including legal proceedings and motions to receive orders,
as it shall see fit and pursuant to any law, for the purpose of realizing and/or defending
the rights of the Holders of Bonds (Series A) and in order to enforce the Company’s
performance of another of the Company’s undertakings according to the Deed of Trust.
The above shall not damage and/or derogate from the rights of the Trustee to begin legal
and/or other proceedings even if the Bonds (Series A) were not called for immediate repayment,
all for the defense of the Bondholders (Series A) and/or for the purpose of granting any
order regarding the matters of the trusteeship and pursuant to the provisions of any law.
Notwithstanding the statements of this Section, it is clarified that the right to call for
immediate repayment shall only be established in accordance with the provisions of Section
8 above, and not on behalf of this Section. |
| 9.2 | Pursuant
to the provisions of the Deed of Trust, the Trustee is entitled but not obligated to convene
a general assembly of the Bondholders (Series A) in order to discuss and/or accept its instruction
for any matter relating to the Deed of Trust. |
| 9.3 | Whenever
the Trustee shall be obligated according to the terms of the Deed of Trust to perform any
action, including commencing proceedings or filing actions according to the request of the
Bondholders (Series A), as stated in this Section, the Trustee shall be entitled, at its
sole discretion, to delay the performance of any said action until it receives instructions
from the general assembly of Bondholders (Series A) in a regular resolution and/or the instructions
of the court how to act, provided that the convening of the assembly or the petition to the
court shall be performed on the first possible date. For the removal of doubt it shall be
clarified that the Trustee shall not be entitled to delay the performance of actions or proceedings
as stated in the event in which the delay may harm the rights of the Bondholders (Series
A). |
| 9.4 | The
Trustee shall be entitled, pursuant to any special resolution as stated above, to waive the
covenants that it shall see fit regarding the existence of those undertakings, entirely or
partially, of the Company. |
| 9.5 | The
Trustee is entitled, prior to performing any legal proceedings, to convene an assembly of
Bondholders (Series A) in order to determine in a regular resolution which proceedings to
take for the realization of their rights under this Deed. Similarly, the Trustee shall be
entitled to again convene the assembly of Bondholders (Series A) for the purpose of receiving
instructions for any matter relating to the management of the proceedings as stated, provided
that the convention of the assembly shall be performed on the first possible date under the
provisions of the second supplement to the Deed of Trust and the delay of the proceedings
shall not harm the rights of the Holders. |
All
of the funds held from time to time by the Trustee, excluding his wages, expenses and the repayment of any debt therefor, in any manner
including but not limited to as a result of calling the Bonds for immediate repayment and/or as a result of the proceedings that it will
conduct, if any, against the Company, will be held thereby in trust and shall remain in its possession for the purposes and in the priority
as follows: First – the clearance of expenses, payments, levies and undertakings incurred by the Trustee, placed thereon
or caused as a result of the actions of managing the trusteeship or in another manner in connection with the terms of the Deed of Trust,
including its fees (and under the condition that the Trustee will not receive its fees from both the Company the Bondholders). Second
– the payment of any other sum according to the ‘indemnification undertaking’ (as the term is defined in Section
25.1 below); Third – the payment to the Bondholders carried out in installments according to Section 25.4.2 below, first
to the holders that bore payments more than their proportionate share and thereafter to holders that bore payments based on their proportionate
share, all as set forth in Section 25.4.2 below;
The
balance will serve for the purposes within the following priority: (a) first – in order to pay the Holders the arrears interest
for the Bonds they are owed according to the Bonds (Series A), if applicable, conditions pari-passu, and in a relative manner to the
sum of the arrears interest which each of them are owed without preference or precedence towards any of them; (b) second –in order
to pay the Holders of Bonds (Series A) the principal arrears owed to them under the terms of the Bonds held thereby, pari-passu, in a
manner that is relative to the principal sums in arrears to which they are owed, without any preference or priority right regarding any
of them ; (c) third – in order to pay the Holders of Bonds (Series A) the interest amounts they are owed according to the conditions
of the Bonds pari-passu, and in a manner relative to the sum which each of them are owed without any preference or precedence to any
of them; (d) fourth – in order to pay the Holders the principle sums they are owed according to the Bonds held thereby pari-passu,
whether the time came for the removal of the principle sums or not, in a manner relative to the sums they are owed, without any preference
in connection with the issuance ahead of time of Bonds (Series A) by the Company or in another manner; (e) the balance – if existing,
will be paid to the Company by the Trustee or vice versa, as applicable.
Withholding
tax will be deducted from the payments to the Bondholders (Series A), as long as there is an obligation to deduct it according to any
law.
It
shall be clarified that if the Company must bear any of the expenses but does not do so, the Trustee will act reasonably to receive the
sums as stated from the Company and in the event that it will succeed in receiving them, they will be held thereby in trust and will
serve in its possession for the purposes and according to priority as detailed in this Section.
11. | Authority
to Demand Payment to Holders through Trustee |
The
Trustee may direct the Company to transfer to it part of the payment that the Company must pay to the Bondholders, (in this section:
“the Relevant Payment”) for the purpose of financing the Proceedings and / or expenses and / or the Trustee’s
fee under this Deed of Trust (in this section: the “Amount of Financing”) as long as the Company did not bear the
Amount of the Financing and / or deposit with the Trustee in advance the Amount of the Financing. The Company shall transfer the Amount
of the Financing to the Trustee no later than the date of payment of the relevant payment. The Company may not refuse to act in accordance
with the said notice, and will be seen as complying with its undertakings toward the Bondholders if it proves that it transferred the
entire Amount of Financing to the Trustee, as aforesaid. May it be made clear that the Amount of Financing transferred to the Trustee
will be deducted from the interest payment only. Until no later than one business day from the determined date for payment of the Relevant
Payment from which the Amount of Financing will be deducted, an immediate report will be published stating the Amount of Financing, its
purpose and the up-to-date amounts of interest and the interest rate to be paid to the Bondholders in the framework of the Relevant Payment.
Additionally, the Company will state in the said immediate report, that the Amount of Financing transferred to the Trustee will be considered
payment to the Bondholders for all intents and purposes.
The
amount of financing that the Trustee may instruct the Company to transfer to it as stated above in this section, to the extent that the
decision of the holders of the matter has not been received previously and / or in the matter (including a decision in connection with
the taking of the proceedings and / or the execution of the actions for which the amount of the financing and / or the appointment of
representatives and / or advisors to the trustee is required) will be limited to ILS 500,000 (plus VAT) (The “Ceiling Amount”).
It is hereby clarified that the Ceiling Amount does not limit the Trustee’s right to receive indemnification from the Company and
/ or the Bondholders.
The
above shall not release the Company from its debt to bear the expense payments and the fees as stated when it is obligated to bear them
according to this Deed or by any law. Similarly, the above shall not derogate from the obligation of the Trustee to act reasonably to
acquire the sums to which the Holders are entitled from the Company, which will serve to finance the proceedings and/or expenses and/or
the fees of the Trustee according to the Deed of Trust.
12. | Powers
to Delay the Distribution of Funds |
Notwithstanding
the statements of Section 10 above, if the financial sum, which will be received as a result of performing the proceedings as stated
above and which will be called at any time for a distribution in accordance with Section 10 above, shall be less than ILS 1 million,
the Trustee shall not be obligated to distribute it and it shall be entitled to invest the said sum, entirely or partially, in investments
permitted according to the Deed of Trust as set forth in Section 17 below, and it shall be entitled to replace these investments
from time to time in other permitted investments as it sees fit. If these investments and their profits, together with additional funds
that are received by the Trustee for are a sum that is not sufficient to pay the aforesaid amount, the Trustee shall pay them to the
Holders in accordance with the set of priorities as stated in Section 10 above. In the event in which up to the earlier of: the
closest interest/principle payment date or a reasonable time after receiving the said financial sum, the Trustee shall not be in possession
of a sum that is sufficient to pay at least ILS 1 million as stated, the Trustee shall be entitled to distribute the funds in its possession
to the Bondholders.
Notwithstanding
the provisions of this Section 12 above, the Bondholders (Series A) shall be entitled, according to a regular decision, to instruct the
Trustee to pay them the funds received by the Trustee and called for distribution, as stated in Section 10 above, even if their sums
amount to less than ILS 1 million. Notwithstanding the above, the payment of the Trustee’s fees and the Trustee’s expenses
shall be paid from the said funds immediately upon reaching their date (and regarding the expenses already paid by the Trustee, the sums
shall be returned to the Trustee immediately upon the funds arriving in the Trustee’s possession) even if the funds that the Trustee
received are less than ILS 1 million as stated.
13. | Notice
of Distribution |
The
Trustee shall notify the Bondholders (Series A) of the date and place where any payment was performed from among the payments mentioned
in Sections 10-12 above, in an advance notice of 14 days that shall be sent in the manner set forth in Section 27 below.101226
After the date determined in the notice, the Bondholders (Series A) shall be entitled to interest according to the rate determined in
the Bonds, only for the balance of the principle sum (if existing) after deducting the sum that was paid.
14. | Refraining
from Payment for a Reason Which is not Dependent on the Company |
| 14.1 | Any
sum to which the Bondholders (Series A) are entitled and was not paid in practice on the
date set forth for its payment, for a reason independent of the Company, while the Company
was ready and able to pay it in full and on time (the “Impediment”), shall
not bear interest from the date set forth for its payment and the Bondholders (Series A)
shall be only be entitled to those sums to which they were entitled on the date set forth
for the repayment of the payment at the expense of the principle or the interest. |
| 14.2 | The
Company shall deposit with the Trustee, on the earliest date possible after the date determined
for payment and no later than the end of 14 days from the date set forth for payment, the
sum of the payment that was not paid on time, as stated in Section 14.1 above, and shall
provide written notice based on the addresses found in its possession, if any, to the Bondholders
(Series A) of the said deposit, and the said deposit shall be considered as removing that
payment to the Holder and in the event of removing that is entitled for that Bond, it shall
also be considered as a deposit of the Bond (Series A) by the Company. 14.1 The above
will not derogate from the obligations of the Company to bear the wages of the Trustee and
its expenses, all in accordance with the provisions of this Deed. |
| | |
| 14.3 | Any
sum held by the Trustee in trust for the Holders shall be deposited by the Trustee in a bank
and will be invested thereby, in its name or its order, at its discretion in investments
permitted to it according to Section 17 below. If the Trustee did so, it shall only
be obligated to those eligible for those sums for the consideration that it shall receive
from the realization of the investments, less the expenses connected to the said investment,
including for the management of the trust account and less its fees and debt payments and
it shall pay to those eligible against the evidence that will be requested thereby to its
full satisfaction. After the Trustee will receive notice from the Holder of the removal of
the impediment as stated, the Trustee will transfer to the Holder all of the funds accumulated
for the deposit and derived from the exercise of their investment, less all of the reasonable
expenses and trust account management fees and less any tax by law. The payment will be performed
against the presentation of that evidence, which shall be accepted by the Trustee, regarding
the right of the Holder to receive it. |
| 14.4 | The
Trustee shall hold these funds and shall invest them according to the provisions of Section
17 below, until the end of one year from the final date for the repayment of the Bond
(Series A), but the Trustee shall return the accumulated sums in its possession (including
their profits) less its expenses and less its fees and other expenses which it expended in
accordance with the provisions of this Deed (such as fees of service providers, etc.) to
the Company and the Company shall hold these sums in trust for the Bondholders (Series A)
entitled to those sums for a period of up to the end of seven (7) years from the final repayment
date of the Bonds (Series A), and regarding the funds that will be transferred to it by the
Trustee as stated above, the provisions of Subsection14.3 above shall apply to it, mutatis
mutandis. Funds that are not demanded from the Company by the Bondholders (Series A) at the
end of seven (7) years from the final payment date of the Bonds (Series A) will be transferred
to the Company’s ownership after 30 days from providing notice to the aforesaid holders
by the Company, in writing, based on the addresses listed in its possession, if any, and
it may use the remaining funds for any purpose. |
| | |
| 14.5 | The
Company shall provide written confirmation to the Trustee of the return of the sums as stated
in Section 14.4 above, and regarding their receipt in trust for the Bondholders (Series A)
and it shall indemnify the Trustee for any action and/or expense and/or damage of any kind
that will be caused to it due to and for the transfer of the funds as stated, unless the
Trustee acted with negligence (excluding negligence exempted by law as shall be from time
to time), with a lack of good faith or with malice. 14.4 |
15. | Receipt
by Bondholders and Trustee |
| 15.1 | A
signed receipt from the Bondholder (Series A) or a reference from a member of the Stock Exchange
regarding the execution of the transfer or the execution of the transfer via the TASE Clearing
House for the principle and interest sums paid thereto by the Trustee for the Bonds shall
absolutely release the Trustee for all matters related to the essence of executing the payment
of the sums denominated in the receipt. |
| | |
| 15.2 | A
receipt from the Trustee regarding the deposit of the principle and interest sums in its
possession for the benefit of the Bondholders (Series A) as stated, shall be considered a
receipt from the Bondholders (Series A) for the purpose of the statements of Section 15.1
above, in relation to the release of the Company for all connected to the execution of the
payment of the sums denominated in the receipt. |
| 15.3 | The
sums distributed as stated in Sections10and 12 above shall be considered as payment
at the expense of the repayment of the Bonds (Series A). |
16. | Presentation
of Bonds to the Trustee; Registration in Connection with Partial Payment |
| 16.1 | The
Trustee may demand from the Bondholders (Series A) to present the Trustee, upon any interest
payment or partial payment of principal and interest, with the Certificate of the Bonds (Series
A) for which the payments are made. A Bondholder (Series A) will be required to present the
Certificate of the Bond as stated, provided that the above will not require the Bondholder
(Series A) to bear any payment and/or expense and/or impose on the Bondholder (Series A)
liability and/or any debt. |
| | |
| 16.2 | The
Trustee may record on the certificate of the Bonds (Series A) a note regarding the amounts
paid as stated above, and the date of their payment. |
| | |
| 16.3 | The
Trustee may, in any special case at its discretion, waive the presentation of the Certificate
of Bonds (Series A) after being provided by the Bondholder (Series A) a waiver and/or guarantee
that is sufficient to its satisfaction for damage that may be caused as a result of the non-registration
of the note as stated, all as it sees fit. |
| | |
| 16.4 | Notwithstanding
the above, the Trustee may, at its reasonable discretion, hold records in another manner
regarding partial payments as stated. |
All
of the funds that the Trustee may invest under the Deed of Trust will be invested thereby in Bank Leumi Le Israel B.M. or in Bank Hapoalim
Ltd or in another bank in Israel with a rating of no less than AA in its name or for its deposit, in investments according to the Company’s
provisions, all subject to the terms of the Deed of Trust, provided that it deposits in bank deposits, treasury funds issued by the Bank
of Israel and/or government bonds issued by the Bank of Israel.
In
the event that it does so, it will only owe to those entitled to the same amounts the consideration received from the exercise of the
investments, less its fees and expenses, charges and expenses related to the aforesaid investment and managing the trust accounts, the
fees and less the obligatory payments applicable to the trust account, and the Trustee will act in accordance with the provisions of
Sections 12 and/or 14 above, as applicable, with the balance of the funds as stated.
18. | Company’s
Undertakings vis-à-vis Trustee |
The
Company hereby undertakes vis-à-vis the Trustee and Bondholders, as long as the Bonds (Series A) have not yet been fully repaid,
as follows:
| 18.1 | To
maintain and manage the Company’s business and the business of its subsidiaries in
an orderly and a proper manner. |
| | |
| 18.2 | To
notify the Trustee and allow the Trustee to participate in all general meetings (whether
annual general meetings or special general meetings) of the Company’s shareholders,
including through the use of communication media at the Company’s expense, without
granting the Trustee voting rights in such meetings. Notices through the MAGNA or MAYA systems
will be deemed sufficient notices for the purpose of summoning the trustee to the general
meetings. |
| | |
| 18.3 | To
provide the Trustee or his authorized representative (of whose appointment the Trustee will
notify the Company at the time of his appointment) any information about the Company or entities
under its control (including explanations, calculations and documents related to the Company,
its business and its business position and information which, according to the reasonable
judgment of the Trustee, is required to protect the rights of the Bondholders) within ten
(10) business days from the date of the Trustee’s request, and instruct the Company’s
accountants and legal advisors to do so, no later than ten (10) business days from the date
of the Trustee’s request, as long as, in the Trustee’s reasonable opinion, the
information is required by the Trustee and his attorneys for the purpose of exercising and
implementing the Trustee’s powers and rights under This Deed. It should be noted that
the documents can be delivered by electronic media and/or personally. |
| 18.4 | To
administer and keep account books and regular records in accordance with the provisions of
any law applicable to the Company, and to allow the Trustee and/or whoever is appointed in
writing by the Trustee for this purpose, to review, at a time agreed upon in advance and
at any reasonable time, no later than ten (10) business days from the date of the Trustee’s
request, in any register and/or records as stated. It is noted that the documents can be
delivered to the trustee by electronic media and/or personally. |
| | |
| 18.5 | To
notify the Trustee in writing immediately and no later than three (3) business day after
being made aware of any case in which an attachment is placed and/or execution proceedings
take place on a material asset of the Company (as this term is defined in Section 8.1
above) and in any event in which a receiver, special manager and/or temporary and/or permanent
receiver and/or trustee who is appointed in the framework of a request for a stay of proceedings
under Section 350 of the Companies Law and/or any functionary, against the Company is appointed
with respect to a material asset of the Company, and to take, at its expense, any reasonable
means required in order to remove such an attachment or terminate the receivership, liquidation
or management, as applicable. |
| | |
| 18.6 | No
later than ten (10) business days from the date of publication of the Company’s annual
financial statements, the Company will provide the Trustee with a confirmation signed by
the Company’s CEO or the most senior financial officer in the Company, according to
which, based on examinations he/she performed during the period commencing on the later date
of the date of This Deed or the date of the confirmation given to the Trustee, and until
the date of giving such confirmation, the Company has not breached This Deed, nor did it
breach any of the provisions of the Bonds, unless expressly stated otherwise in the confirmation. |
| 18.7 | If
the Company ceases to be a Reporting Corporation, any reporting required from a company that
is not a Reporting Corporation in accordance with the Regulatory Codex, including instructions
regarding investments by institutional investors in non-governmental bonds. Each such report
shall be signed by the CEO (or the person holding such a position even if their title is
different) and the most senior officer in the field of finance in the Company. In the event
of a report being delivered in accordance with the aforementioned, the Company shall deliver
a notice to the TASE for publication in the MAYA system according to which the Company has
committed The trustee is notified in accordance with this Section that the holder of the
bonds may receive a copy of it upon presentation of a certificate of ownership. |
| | |
| 18.8 | To
deliver to the Trustee, at its request, all the statements, presentations, documents, details
and/or additional information that may be reasonably required by the Trustee to protect the
rights of the Bondholders, no later than fifteen (15) business days from the date of the
Trustee’s request. |
| | |
| 18.9 | To
deliver to the Trustee a copy of any document or any information provided by the Company
to the Bondholders. |
| | |
| 18.10 | To
provide the Trustee with written notice, signed by a senior officer of the Company or the
CEO of the Company, no later than five business days from the date of a written request of
the Trustee, of the performance of any payment to the Bondholders under the Deed of Trust
and of the balance of the amounts that the Company owes under the Deed of Trust at the same
date to the Bondholders after the performance of the aforesaid payment. |
| | |
| 18.11 | To
provide the Trustee with copies of notices and invitations provided to the Company, as stated
in Section 26 of this Deed. |
| | |
| 18.12 | To
notify the Trustee in writing of any change to its name or address no later than two trading
days from the day of the change. |
| | |
| 18.13 | The
Trustee will maintain the confidentiality of the information sent to him according to this
Section, will not reveal it to anyone else and will not make any use of it, unless the discovery
or use thereof is required in order to fulfill the Trustee’s position by law, according
to the Deed of Trust or according to a court order. |
| 18.14 | To
provide the Trustee, no later than 15 days from the date of the issue of the Bonds (Series
A) under the Prospectus and/or from the expansion of Series A as stated in Section 4.1, a
copy true to the original of the bond certificate. |
| 19.1 | The
Company hereby irrevocably appoints the Trustee as its counsel to execute and perform in
its name and place all of the technical actions that it must perform under the terms included
in this Deed, and to act in its name generally with respect to the technical actions that
the Company must perform under this Deed and has not performed, or to perform some of the
authorities granted thereto, and to appoint any other person as the Trustee sees fit, and
to perform its position under this Deed, subject to the Company having failed to perform
the technical actions that it must perform under this Deed within 14 days, as determined
by the Trustee from the date of the Trustee’s demand, provided that it acted reasonably. |
| 19.2 | An
appointment under Section 19.1 above shall not obligate the Trustee to perform any action,
and the Company hereby exempts the Trustee and its agents in advance in the event in which
it does not perform any action, and the Company waives in advance any claim vis-à-vis
the Trustee and its agents for any damage caused or that may be caused to the Company directly
or indirectly, for this, on the basis of any action that is not performed by the Trustee
and its agents as stated above. |
Subject
to the provisions of the law and the limitations imposed on the Trustee by law, the fulfillment of the Trustee’s position under
this Deed or its position as a trustee will not prevent it from engaging with the Company in other agreements or performing transactions
therewith during the ordinary course of its business, provided that the same does not create a conflict of interests with serving as
a trustee for the Bondholders (Series A).
21. | Reports
on Matters Relating to Trusteeship |
| 21.1 | The
Trustee will be required to submit a report regarding the actions performed in accordance
with the provisions of Section 35h1 of the Securities Law. |
| | |
| 21.2 | The
Trustee will prepare, by June 30 of each year, for the previous calendar year, an annual
report of the Trustee’s affairs (the “Annual Report”). |
| | |
| 21.3 | The
Annual Report will include a report of extraordinary events in connection with the trusteeship
that occurred during the past year. |
| | |
| 21.4 | The
Trustee will publish (itself or through the Company at the request of the Trustee) the Annual
Report on the MAGNA system. |
| | |
| 21.5 | In
the event that the Trustee becomes aware of a material breach of this Deed and/or of the
terms of the Bonds (Series A) on the part of the Company, based on public publications of
the Company or under a notice of the Company to the Trustee under Section 18.5 above, it
will notify the Bondholders (Series A) of the breach and the measures that it has taken to
prevent or enforce the fulfillment of the Company’s obligations by the Company, as
applicable. This obligation will not apply with respect to an event that is published by
the Company under law. This obligation of the Trustee is subject to its actual knowledge
of the breach event as stated. |
| | |
| 21.6 | The
Trustee will update the Company of any report filed under this Section 21 and pass on
to it a copy thereof. |
| | |
| 21.7 | The
terms of this section above will not derogate from any other or additional reporting obligation
imposed on the Trustee under any law. |
| | |
| 21.8 | The
Trustee must submit a report regarding activity performed under the provisions of Chapter
E1 of the Law at the reasonable request of the holders with at least ten percent (10%) of
the balance of the par value of the Bonds within a reasonable time from the date of the demand,
all subject to the confidentiality obligation borne by the Trustee vis-à-vis the Company
as stated in Section 35j(d) of the Law. |
| 21.9 | At
the request of holders of more than five percent (5%) of the balance of the par value of
the Bonds, the Trustee will transfer to the holders data and details regarding its expenses
in connection with the trust. |
| | |
| 21.10 | As
of the signing date of this Deed, the Trustee is insured under professional liability insurance
in the amount of USD 10 million for the period (the “Coverage Amount”).If
before the full payment of the Bonds (Series A), the Coverage Amount is less than USD 8 million
for any reason, the Trustee will update the Company no later than seven business days from
the date on which it was made aware of the aforesaid reduction from the insurer in order
to publish an immediate report on the matter. The provisions of this section will apply until
the date of entry to force of the Securities Regulations, which will regulate the insurance
coverage obligation of the Trustee. After the entry to force of the Regulations as stated,
the Trustee will be required to update the Company only in the case in which the Trustee
does not meet the Regulation requirements. |
22. | Wages
and Coverage of Trustee’s Expenses |
The
Company will pay the Trustee its fees as set forth in Appendix 22 of This Deed.
| 23.1 | The
Trustee may deposit all of the deeds and documents that indicate, represent and/or set forth
its right in connection with the trusteeship at the subject of this Deed, including in connection
with any asset that it possesses at the time, in a safe and/or another place determined,
with an banker and/or banking company and/or with an attorney. |
| 23.2 | The
Trustee may, within the performance of the trusteeship under the Deed of Trust, commission
any opinion or the counsel of any attorney, accountant, appraiser, assessor, broker or other
expert (the “Consultants”) and act in accordance with their conclusions,
whether the opinion or counsel was prepared at the request of the Trustee or the request
of the Company and the Trustee will not be responsible for any loss or damage caused as a
result of any action or omission performed thereby on the basis of the counsel or opinion
as stated, unless determined in an absolute judgment that the Trustee acted negligently (excluding
negligence exempt under law as it may be from time to time) and/or in bad faith and/or maliciously.
The Company will bear all of the expenses of hiring the Consultants appointed as stated,
provided that the Trustee will provide the Company with notice five days in advance of its
intent to receive an expert opinion or counsel as stated, provided that the expenses are
reasonable and commission such opinion or advice is required for the protection of the debenture
rights (Series A) under the Deed of Trust. If the same does not harm the rights of the holders,
the Trustee will provide the Company with notice five business days in advance of its intent
to receive an expert opinion or counsel as stated. The trustee will also provide the Company
reasonable detail as to the need for such an opinion or advice. |
| | |
| 23.3 | Any
counsel and/or opinion as stated may be provided, sent or received by a letter, telegram,
facsimile, email and/or other electronic means of transferring information, and the Trustee
will not be responsible for actions performed on the basis of advice and/or an opinion or
knowledge transferred via one of the methods mentioned above although it contains errors
and/or was not authentic, unless the same errors could have been discovered in a reasonable
inspection. |
| | |
| 23.4 | Subject
to any law, the Trustee will not be required to notify any party of the signature of the
Deed of Trust, and will not be permitted to intervene in any manner in the management of
the Company’s business or affairs, other than based on the authorities that will be
granted to the Trustee in this Deed or as agreed by the Company and the Trustee. The provisions
of this Section will not limit the Trustee in actions that it must perform in accordance
with the Deed of Trust. |
| 23.5 | The
Trustee will use in the trusteeship the powers, authorizations and permissions granted thereto
under the Deed of Trust, at its absolute discretion and subject to the other provisions of
this Deed. In the event that the Trustee does not, it will not bear liability for any damage
and/or loss and/or expense that is caused to the Company and/or the Bondholders and/or that
it may bear following any action and/or omission performed by the Trustee, including as a
result of mistakes in discretion, unless determined in an absolute judgment that the Trustee
acted negligently or in bad faith or maliciously or contrary to the provisions of this Deed,
all in accordance with and subject to the provisions of the law. |
| | |
| 23.6 | Unless
explicitly determined otherwise by Law or the provisions of this Deed, the Trustee is not
required to act in a manner which is not expressly detailed in this Deed of Trust so that
any information, including about the Company and/or in connection with the Company’s
ability to meet its obligations to bondholders comes to his attention, and this is not his
role. |
24. | Trustees’
Power to Engage Agents |
The
Trustee may, in the framework of managing the trusteeship’s business, if it is deemed necessary to protect the rights of the debenture
holders under the Deed of Trust, appoint agent/s that will act in its place, whether an attorney or another person, in order to perform
or participate in the performance of special actions that must be performed in connection with the trusteeship (as the term “Special
Operations” is defined in Appendix 22 below) and pay reasonable wages to any such agent, and without derogating from the generality
of the above, to take legal proceedings. The company will be entitled to object to such appointment for any reasonable reason, including
in the case where the sender is a competitor, either directly or indirectly, in the Company’s business. It will be emphasized that
the company will convey its reasonable grounds for objection up to 5 business days after the trustee’s notification of the aforementioned
appointment of a dispatcher.
It
is clarified that the appointment of an agent as stated will not derogate from the liability of the Trustee for its actions and those
of its agents. The Company undertakes to bear, in full, the reasonable cost involved in the employment of any such agent appointed by
the Trustee, provided that this is possible in the circumstances, and if this does not prejudice the rights of the Bondholders. The Trustee
will notify the Company in advance and in writing of its intention to appoint an agent and the costs involved.
25. | Indemnification
of the Trustee |
| 25.1 | The
Company and the Bondholders (on the relevant effective date as stated in Section 25.6 below,
each for its obligations as stated in Section 25.4 below) hereby undertakes to indemnify
the Trustee and all of its officers, employees, agents or an expert that it appoints and/or
that are appointed by the Trustee under the provisions of this Deed of Trust and/or under
a lawful decision that is passed in a meeting of Bondholders (Series A) under the provisions
of this Deed of Trust (the “Parties Eligible for Indemnification”): |
| 25.1.1 | For
any damage and/or loss and/or financial charge under a judgment (for which a stay is not
granted) or based on a settlement that has ended (if the settlement relates to the Company,
and the Company provides its consent to the settlement) the grounds of which are related
to actions performed by Parties Eligible for Indemnification or that they are required to
perform under the provisions of this Deed and/or under law and/or an instruction of a competent
authority and/or any law and/or at the request of the Bondholders (Series A) and/or at the
request of the Company and/or for their position under this Deed; and |
| 25.1.2 | For
the fees of the Parties Eligible for Indemnification and the reasonable expenses under the
circumstances incurred and/or that will be incurred, and for any damage and/or loss that
they sustain due to actions performed by the Parties Eligible for Indemnification or that
they are required to perform under the provisions of this Deed, and/or under law and/or an
instruction of the competent authority and/or under any law and/or at the request of the
Bondholders (Series A) and/or at the request of the Company and/or in connection with use
of the powers and authorities provided by virtue of this Deed, and in connection with any
legal proceedings, opinion of an attorney and other experts, negotiations, discussions, expenses,
insolvency proceedings, collection proceedings, debt arrangements, assessing the state of
debt, valuations, claims and demands with respect to any matter and/or item performed and/or
that is not performed in any manner with respect to the matter herein and/or their positions
under this Deed. |
All
provided that:
| 25.1.3 | The
Parties Eligible for Indemnification do not demand indemnification in advance regarding any
manner that cannot be delayed (without harming their right to retroactive indemnification
if and to the extent such right exists); |
| | |
| 25.1.4 | It
is not determined in a final judicial decision that the Parties Eligible for Indemnification
acted in bad faith and that the action was performed other than in the fulfillment of their
positions, other than in accordance with the provisions of the law and/or other than under
this Deed of Trust; |
| | |
| 25.1.5 | It
is not determined in a final judicial decision that the Parties Eligible for Indemnification
were negligent with negligence that is not exempt under law, as it may be from time to time; |
| | |
| 25.1.6 | It
is not determined in a final judicial decision that the Parties Eligible for Indemnification
acted maliciously; |
The
indemnification right under this Section 25.1 will be hereinafter: an “Indemnification Undertaking” or “Indemnification
Entitlement”.
It
is agreed that in any event in which it is claimed against the Parties Eligible for Indemnification that: (1) they acted in bad faith
or other than in the fulfillment of their roles, or not in accordance with the provisions of the law or the Deed of Trust, and/or (2)
they were negligent with negligence that is not exempt under law and/or (3) acted maliciously – they will be entitled to indemnification
immediately upon their request for payment of the Indemnification Undertaking amount; however, if it is determined in a final judicial
decision that they did in fact act as claimed against them as stated above, the Parties Eligible for Indemnification will return the
Indemnification Undertaking amounts paid to them.
| 25.2 | Without
derogating from the rights to compensation provided to the Trustee under law and subject
to the provisions of this Deed and/or the obligations of the Company under this Deed, the
Parties Eligible for Indemnification will be entitled to indemnification from the funds received
by the Trustee in the proceedings taken regarding the obligations that it has undertaken,
with respect to reasonable expenses incurred following the performance of the trusteeship
or in connection with such actions, which in their opinion are required to be performed and/or
in connection with use of the powers and authorities provided by virtue of this Deed and
in connection with all types of legal proceedings, opinions of attorneys and other experts,
negotiations, discussions, claims and demands regarding any matter and/or action that is
performed and/or not performed in any manner with respect to this, and the Trustee may delay
the funds available thereto and paid from them the amounts required in order to pay the indemnification
as stated. All of the said amounts will have priority over the rights of the Bondholders
(Series A) and subject to the provisions of any law, provided that the Trustee acts in good
faith and in accordance with the obligations imposed thereon under any law and under this
Deed. For the purpose of this Section, an action of the Trustee that is approved by the Company
and/or the Bondholders will be considered an action that is reasonably required. |
| | |
| 25.3 | Without
derogating from the Indemnification Undertaking in Section 25.1 above, in the event
that the Trustee is required, under the terms of the Deed of Trust and/or under law and/or
an instruction of a competent authority and/or any law and/or at the request of the Bondholders
(Series A) and/or at the request of the Company and/or to protect the rights of the Bondholders
(Series A) to perform any action including but not limited to commencing proceedings or filing
cases at the request of the Bondholders (Series A) as stated in this Deed, the Trustee will
be required to refrain from taking any such action until it receives, to its satisfaction,
a financial deposit to cover the Indemnification Undertaking (the “Financing Cushion”)
in the amount required, with first priority from the Company, and in the case in which the
Company still has not deposited the entire Financing Cushion on the date required to do so
by the Trustee, the Trustee will contact the Bondholders (Series A) that hold the Bonds (Series
A) on the effective date (as stated in Section 25.4 below), with a request that they
deposit the Financing Cushion amount, each its ‘relative share’ (as this term
is defined below). In the event in which the Bondholders (Series A) do not actually deposit
the entire “Financing Cushion” amount required, the Trustee will not be subject
to the obligation to take any action or relevant proceedings. The provisions above will not
exempt the Trustee from taking an urgent action required in order to prevent material detrimental
harm to the rights of the Bondholders (Series A). |
The
Trustee is authorized to determine the “Financing Cushion” amount and may again create an additional cushion as stated from
time to time, in the reasonable amount determined thereby. It shall be clarified that the payment by the holders under this Section will
not release the Company from its obligation to bear the aforesaid payment.
| 25.4 | The
Entitlement for Indemnification: |
| 25.4.1 | Shall
apply to the Company in any event of: (1) the Indemnification Entitlement is established
at the reasonable discretion of the Trustee and/or under any law and/or under the terms of
the Deed of Trust or in order to protect rights of the Bondholders (including due to a demand
of a holder that is required for the sake of protection as stated); and (2) actions performed
and/or required to be performed at the request of the Company, including due to a demand
as stated. |
| | |
| 25.4.2 | Shall
apply to Holders that hold, on the effective date (as stated in Section 25.6 below)
in any event of: (1) the Indemnification Entitlement is established at the demand of the
Bondholders (excluding entitlement established at the demand of Holders in order to protect
the rights of the Bondholders); and (2) non-payment by the Company of the Indemnification
Entitlement amount applicable thereto under Section 25.3 above (subject to the provisions
of Section 25.6 below). It shall be clarified that the payment in accordance with subsection
(2) above will not derogate from the obligation of the Company to bear the Indemnification
Entitlement in accordance with the provisions of Section 25.4.1 above. |
| 25.5 | In
any event in which the Company does not pay the entire amount required to cover the Indemnification
Entitlement and/or does not deposit the entire Financing Cushion amount, as applicable, and/or
the Indemnification Undertaking applies to holders under the provisions of Section 25.4.2
above and/or the Holders are called to deposit the Financing Cushion amount under Section
25.3 above, the following provisions shall apply: |
| 25.5.1 | The
funds will be collected in the following manner: |
| 25.5.1.1 | First
- the amount will be financed from the interest and then from the principal that the
Company is required to pay to the Bondholders (Series A) after the date of action. It is
clarified that in the event that use is made of the same amounts by the Trustee, since the
Company has not paid all of the amounts required to cover the Indemnification Undertakings
and/or has not deposited the entire amount of the Financing Cushion, the same amounts will
not be considered to have been repaid by the Company on account of the Bonds in favor of
the Bondholders; |
| | |
| 25.5.1.2 | Second
- if, in the Trustee’s opinion, the amounts deposited in the Financing Cushion
are insufficient to cover the Indemnification Undertaking, the holders that hold on the Effective
Date (as stated in Section 25.6 below) will deposit the missing amount, each in accordance
with the relative share (as this is defined), with the Trustee. |
“Relative
Share” shall mean: the relative share of the Bonds (Series A) held by the Holder on the relevant effective date as stated in Section
25.3 below of the total nominal value in circulation at the time. It is clarified that calculation of the relative share will remain
effective even if after the same date a change occurs to the nominal value of the Bonds held by the Holder.
It
shall be clarified that Bondholders that bear liability to cover expenses as stated in this Section above may bear expenses as stated
in this section above in excess of their relative share, and in such a case, the priority will apply to the repayment of the funds in
accordance with the provisions of Section 10 of This Deed.
| 25.6 | The
effective date for the determination of the obligation of a Holder in an Indemnification
Undertaking and/or payment of the Financing Cushion is as follows: |
| 25.6.1 | In
any event in which the Indemnification Undertaking and/or payment of the Financing Cushion
is required due to an urgent resolution or action required in order to prevent material detrimental
harm to the rights of the Bondholders (Series A), without a prior decision of the meeting
of Bondholders (Series A) – the effective date for the obligation will occur at the
end of the trading day of the day on which the action is taken or the decision is made, and
if the same day is not a trading day, on the previous trading day. |
| | |
| 25.6.2 | In
any event in which the Indemnification Undertaking and/or payment of the Financing Cushion
is required based on a resolution of the meeting of Bondholders (Series A) – the effective
date for the obligation will be the effective date for participation in the meeting (as this
date is determined in the assembly notice) and will also apply to a holder that is not present
or participating in a meeting. |
| 25.7 | Payment
of any amount imposed on the Company under this Section 25 by the Holders in lieu of the
Company will not release the Company from its obligation to bear the aforesaid payment. |
| | |
| 25.8 | With
regard to the priority of the reimbursement to Holders that bear payments under this Section
from the receipts by the Trustee, see Section 10 above. The Trustee will act reasonably
to return funds as stated that are paid by the Holders in place of the Company from the Company. |
| 26.1 | Any
notice on behalf of the Company and/or Trustee to the Bondholders will be provided through
a report on the MAGNA system of the Securities Authority (the Trustee may instruct the Company
and the Company will be required to immediate report on the MAGNA system on behalf of the
Trustee, regarding any report in the form provided in writing by the Trustee to the Company),.
Any notice that is published or sent as stated will be considered to have been provided to
a Bondholder on the date on which it was published as stated. |
| | |
| 26.2 | Any
notice or demand on behalf of the Trustee to the Company or on behalf of the Company to the
Trustee may be provided in a letter sent via registered mail based on the address set forth
in the Deed of Trust, or based on another address of which one party shall inform the other
in writing (including an email address) or through dispatch via email or an agent, and any
notice or demand will be considered to have been received by the Company: (1) in the event
of dispatch via registered mail – three business days from the day on which it is sent
via mail; (2) in the event of dispatch via email (with telephone verification of its receipt)
– one business day from the date on which it is sent; (3) in the event of delivery
by courier – upon the delivery by courier to the recipient or its offer for acceptance
of the recipient, as applicable. |
| | |
| 26.3 | Unless
otherwise expressly stated in this Deed, Anywhere in this Deed where Company is required
to furnish any information to the Trustee, an immediate report to be published by the Company
in MAGNA shall be deemed to be a due delivery to the Trustee of the said information therein. |
27. | Waivers,
Compromises, and Changes to the Deed of Trust |
Subject
to the provisions of any law, excluding regarding changes or waivers which are not negligible with respect to (1) payment dates
under the Bonds (including a technical change to the dates or effective date for payment4); (2) the interest
rate5, adjustments of the interest arising from non-compliance with the financial covenants and a change to the rating;
(3) undertakings of the Company in connection with the financial covenants and their breach; (4) undertakings of the Company in
connection with the distribution; (5) provisions related to the expansion of a series; (6) the provisions pertaining to the law
applicable to this Deed; (7) the terms of repayment and grounds for calling for immediate repayment; (8) the undertaking regarding
non-creation of pledges; (9) the appointment of a representative; and (10) Interest cushion and expenses cushion, the Trustee may,
from time to time and at any time when, in its opinion, there will not be harm to the rights of the Bondholders (Series A), waive
any breach or non-fulfillment of any of the terms of the Bonds or the non-fulfillment of any of the terms of the Deed of Trust by
the Company.
Subject
to the provisions of any law and with the prior approval in a special resolution, the Trustee may, whether before or after the principal
of the Bonds (Series A) is called for payment, settle with the Company in connection with any right or claim of the Bondholders (Series
A), waive any right or claim of the Bondholders (Series A) or any of them vis-à-vis the Company under the Deed of Trust and the
Bonds (Series A) and agree with the Company to any arrangement of their rights, including to waive any right or claim of the Bondholders
(Series A) vis-a-vis the Company under this Deed.
In
the event that the Trustee settles with the Company, waives any right or claim of the Bondholders (Series A) or agrees with the Company
to any arrangement of rights of the Bondholders (Series A) after receiving the prior consent of the meeting of Bondholders (Series A)
as stated above, the Trustee will be exempt from liability for this action, as approved by the general meeting, provided that the Trustee
does not breach a fiduciary duty and does not act in bad faith or maliciously or with negligence that is not exempt under law, in the
implementation of the resolution of the general meeting.
4Subject
to the TASE approval
5Subject
to the TASE approval.
Without
derogating from the provisions above, subject to the provisions of any law, the Company and the Trustee may, whether before or after
the principal of the Bonds is called for payment, change the Deed of Trust and its appendices (including a change to the terms of the
Bonds (Series A)) if one of the following is met:
| (a) | If
the Trustee is convinced that the change does not harm the rights of the Bondholders under
the Deed of Trust (excluding regarding the matters listed in subsections (1) to (12) above
in this section 28), provided that he has notified the Bondholders (Series A) of the same
in writing. |
| | |
| (b) | The
change is approved in a special resolution. |
In
any event of use of the Trustee’s right under this Section, the Trustee may demand from the Bondholders (Series A) that they provide
it or the Company with the Certificates of the Bonds in order to record a note thereon regarding any settlement, waiver, change or amendment
as stated, and at the request of the Trustee, the Company will record such a note. In any event of use of the Trustee’s right under
this Section, it will inform the Bondholders (Series A) thereof in writing within a reasonable time.
28. | Register
of Bondholders |
| 28.1 | The
Company will keep and manage in its registered offices a register of Bondholders (Series
A) in accordance with the Securities Law, which is open for the review of any person (the
Register). |
| 28.2 | The
Register shall record the names and addresses of the Bondholders, and the principal amounts
(and stated interest) owing to each Bondholder pursuant to the terms hereof from time to
time. The entries in the register shall be conclusive absent manifest error, and the Company,
the Trustee and the Bondholders shall treat each person whose name is recorded in the Register
pursuant to the terms hereof as a Holder hereunder for all purposes of this Deed of Trust.
The Company will not be required to record in the Register any notice regarding explicit,
implicit or estimated trusteeship, or a pledge or lien of any kind or any equitable right,
claim or offset or any other right, in connection with the Bonds (Series A). The Company
will solely recognize the ownership of a person in whose name the Bonds are recorded. The
legal heirs, estate managers or executors of the registered owner and any person entitled
to the Bonds, following a bankruptcy of any registered owner (and in the event of a corporation
– following its liquidation), shall be entitled to be registered in the Register as
a Holder after providing evidence which, in the opinion of the Company’s managers,
is satisfactory to establish the right of such person to be registered as a Bondholder. |
When
it is proved to the satisfaction of the Trustee that all of the Bonds (Series A) are paid, redeemed or when the Company deposits sufficient
amounts of money in trust with the Trustee which will suffice for the full and final redemption of the Bonds, in accordance with the
provisions of this Deed, as well as when it is proved to the satisfaction of the Trustee that all of his wages and all of the expenditures
made by the Trustee and/or his agents in connection with his operation according to the Deed of Trust and according to its provisions
are paid to him in full, and the Trustee is required, at the Company’s first request, to act upon the monies deposited with him
in respect of the Bonds (Series A) whose redemption was not requested, according to the terms stipulated in this Deed.
30. | Appointment
of the Trustee, the Trustee’s Roles, the Trustee’s Powers, and the Expiry of
the Trustee’s Service |
| 30.1 | The
Company hereby appoints the Trustee as a trustee for the Bondholders (Series A) alone under
the provisions of Section 35b of the Securities Law, including for the parties entitled to
payments under the Bonds (Series A) that are not paid after the date of payment. |
| 30.2 | The
trusteeship for the Bondholders and the roles of the Trustee under the terms of this Deed
will enter into force on the date of the allocation of the Bonds by the Company. The term
of the Trustee’s appointment will be until the date of the convening of the holders’
meeting in accordance with the provisions of section 35B(a1) of the Securities Law. |
| | |
| 30.3 | From
the date on which this Deed of Trust takes effect, the Trustee’s roles will be according
to all laws and this Deed. |
| | |
| 30.4 | The
Trustee will act in accordance with the provisions of the Securities Law. |
| | |
| 30.5 | The
Trustee will represent the bondholders (Series A) in every matter stemming from the Company’s
undertaking to them, and he will be entitled, for this purpose, to take action to exercise
the rights given to the holders according to the Securities Law or according to the Deed
of Trust. |
| | |
| 30.6 | The
Trustee is entitled to initiate any proceeding for the purpose of protecting the rights of
the holders in accordance with all laws and what is detailed in this Deed of Trust. |
| | |
| 30.7 | The
Trustee is entitled to appoint agents as detailed in Section 24 above. |
| | |
| 30.8 | The
Trustee’s actions are valid even if a defect is discovered in his appointment or eligibility. |
| | |
| 30.9 | The
Trustee’s signature on this Deed does not constitute an opinion on his part regarding
the nature of the offered securities or desirability of investment therein. |
| | |
| 30.10 | The
Trustee will not be required to notify any party of the signing of this Deed. The Trustee
will not interfere in any form whatsoever in the conducting of the Company’s business
or affairs and this is not included amongst his roles. Nothing in this section will restrict
the Trustee in any action which he must take in accordance with the provisions of this Deed. |
| | |
| 30.11 | Subject
to the provisions of all laws, the Trustee is not required to act in a manner which is not
expressly detailed in this Deed of Trust so that any information, including about the Company
and/or in connection with the Company’s ability to meet its obligations to bondholders
comes to his attention, and this is not his role. |
| 30.12 | Subject
to the provisions of all laws and what is stated in this Deed of Trust, the Trustee undertakes,
by his signing this Deed, to maintain in confidentiality all information provided to him
by the Company and will not disclose it to another and will not make any use thereof, unless
it’s disclosure or use is required for the purpose of fulfilling his role according
to the Securities Law, according to the Deed of Trust, or according to a court order. Said
duty of confidentiality will apply as well to any agent of the Trustee (including any consultant,
counsel, and so forth), Which, prior to receiving information from the Company, will sign
a confidentiality letter with the Company in a reasonable and acceptable manner. |
| | |
| 30.13 | The
Trustee is entitled to rely, in the framework of his trust, on any written document including
a letter of instruction, notice, request, consent or approval, purporting to be signed by
or originating from a person or entity which the Trustee believes in good faith was signed
by or originated from him. |
| | |
| 30.14 | The
provisions of the Securities Law will apply to the end of the Trustee’s service. |
| | |
| 30.15 | If
the Trustee’s service ended, a new trustee will be appointed in his place at a meeting
of the holders. |
| | |
| 30.16 | Despite
the aforesaid, a resolution of the holders on the termination of the trustee’s service
and his replacement with another trustee will be done, subject to any law, at a meeting at
which holders with 50% of the balance of the par value of the bonds (Series A) present, or
at a postponed meeting at which holders with at least 10% of said balance were present, with
a majority of over 75% of those present and attending the vote. |
| | |
| 30.17 | Subject
to the provisions of all laws, the Trustee whose service ended will continue serving in his
position until the appointment of another trustee. The Trustee will provide the new trustee
with all of the documents and amounts accrued by him in connection with the trust which is
the subject of the Date of Trust for Series A, and will sign any documents required for this
purpose. Any new trustee will have the same powers, obligations, and authorities, and he
will be able to act for all intents and purposes as if he was appointed as trustee in the
first place. |
| 30.18 | The
Company will publish an immediate report in any event of the resignation of the Trustee and/or
the appointment of a different trustee. |
Series
A Bondholders’ meetings will be conducted as stated in the Second Supplement of This Deed. At the Company’s request,
the Trustee will provide the Company, within two (2) business days from the date of the convening of each such meeting, the details of
all the bondholders who voted at the meeting (including the amount of bonds held by each of them) as well as their vote (for, against,
abstained, etc.) of each such bondholder. At the Company’s request, a copy of the ballots delivered to the Trustee by the bondholders
will be forwarded for review. The Company will keep this data confidential and will not be allowed to make use of the data except solely
for the purpose of monitoring the accuracy of the voting results.
The
only law which applies to this Deed of Trust and its appendices, including the bonds, is Israeli law. In the event of any matter that
is omitted from this Deed and in any event of a conflict between the provisions of the law and this Deed of Trust, the parties will act
only in accordance with the provisions of Israeli law which cannot be conditioned.
33. | Exclusive
Jurisdiction |
The
law applicable to this Deed of Trust, including its appendices, is the Israeli law only. In the event of a conflict between the provisions
of the law and this Deed of Trust, the parties shall act in accordance with the provisions of Israeli law which cannot be conditioned.
The
exclusive and sole jurisdiction in connection with this Deed of trust, including its appendices and the bond, as an appendix thereto,
is subject to the competence court in Tel Aviv- Jaffa.
The
Company and the Partnership shall not object to any motion by the Trustee and/or a bondholder that is submitted to an Israeli court for
the application of Israeli law matters of a compromise arrangement, debt settlement and/or insolvency, and shall not object if an Israeli
court seeks to apply Israeli law in matters a compromise arrangement, debt settlement and/or insolvency in connection with the Company
and/or the Partnership, and the Company and/or the Partnership shall not raise arguments against Israeli jurisdiction regarding procedures
taken by the Trustee and/or Bondholders as stated above.
| 34.1 | Notwithstanding
what is stated in any law and anywhere in the Deed of Trust, inasmuch as the Trustee acted
for the purpose of fulfilling his position in good faith and within a reasonable time, as
well as ascertained the facts which a reasonable trustee would have ascertained under the
circumstances, he shall not be liable for damage caused, unless it is determined in a final
judgment that the Trustee acted with severe negligence. It is clarified that inasmuch as
a contradiction shall be discovered between the provisions of this section and other provisions
in the Date of Trust, the provisions of this section shall prevail. |
| 34.2 | If
the Trustee acted in good faith and without negligence in accordance with the provisions
of section 35H(d2) or 35H(d3) of the Securities Law, he will not be liable for performing
said action. |
The
Parties’ addresses will be as detailed in the preamble to this Deed, or any other address regarding which appropriate written notice
is given to the other party.
36. | Authorization
to MAGNA |
In
accordance with the provisions of the Securities Regulations (Signature and Electronic Reporting), 5763–2003, the Trustee hereby
certifies to the entity authorized for the same on behalf of the Company, to electronically report to the Securities Authority regarding
this Deed of Trust.
In
witness whereof the Parties have signed:
|
|
|
Mishmeret
Trust Services Ltd.
|
|
Strawberry
Fields REIT, Inc
|
I
the undersigned, ___________, Advocate, of the offices of Fischer & Co, certify that this Deed of Trust was signed by Strawberry
Fields REIT, Inc through Mr./Ms. __________, whose signature binds the Company in connection with this Deed of Trust.
________________________
____________,
Adv.
First
Addendum
Certificate
of Bonds (Series A)
Issuance
of a series of ILS ____ million par value of Bonds (Series A), registered by name, of ILS 1 par value each, bearing fixed annual interest
in the rate determined by a Tender (the “Interest”), repayable (principal) in three (3) non equal payments at the
rate of 6% for each of the first payments from the principal and 88%% for the third and last payment from the principal, payable on September
30 of each of the years 2024 to 2026 (inclusive). The interest on the Bonds (Series A) will be paid in semiannual installments on September
30, 2024 and on March 31 and September 30 of each the years 2025 to 2026 (inclusive).
Bond
(Series A) Registered by Name
Number
1
Par
value ILS __________
Annual
interest: fixed at a rate determined by the Tender.
The
registered owners of the Bonds in this Certificate: The Nominee Company of the Tel Aviv Stock Exchange Ltd.
1. | This
certificate indicates that Strawberry Fields REIT, Inc (the “Company”)
will pay any party that is the registered owner of this Bond (the “Holder of the
Bond (Series A)”) on the effective date for the same payment. The payments will
be made on the following dates: |
On
September 30, 2024, 6% of the principal of the par value of the Bonds (Series A) that will be outstanding, on September 30, 2025 a rate
of 6% of the principal amount outstanding, and on September 30, 2026, 88% of the principal of the par value of the Bonds (Series A) which
are in circulation, all subject to the provisions listed on the overleaf and the Deed of Trust, dated [___] [___], [___] between the
Company, as one party, and Mishmeret Trust services Ltd. and/or any party that serves from time to time as a trustee of the Bondholders
under the Deed of Trust (the “Trustee” and the “Deed of Trust” respectively), as the other party.
2. | This
Bond is not linked (principal and interest). |
| |
3. | The
final payment of principle and the final payment of the interest will be made in exchange
for provision of the bond certificates (Series A) to the Company on the date of the final
payment (i.e. on September 30, 2026) at the Company’s registered office or in any other
place which the Company shall indicate. |
| |
4. | All
of the Bonds (Series A) shall have an equal security rating between them (Pari Passu) in
connection with the Company’s liabilities according to the Bonds (Series A) and without
a priority right or preference for one over another. |
| |
5. | This
Bond (Series A) is issued subject to the terms detailed on the overleaf, the terms detailed
in the Deed of Trust, and the Prospectus. |
Signed
by the Company on _______, 2024
By:
Authorized Signatory: ____________ |
Authorized Signatory: ___________ |
I
the undersigned, _________, Advocate, certify that this bond certificate was duly signed by Strawberry Fields REIT, Inc according to
its bylaws, by means of Mr. _____, and his signature binds the Company for purposes of this bond.
__________,
Adv.
The
Terms Listed on the Overleaf
In
this (Series A) bond, the following expressions shall have the following meanings and inasmuch as they are not defined below, shall have
the meaning given them in the Deed of Trust, unless a different meaning is implied by the context:
|
“Business
Day”
or
a “Bank Business Day” |
Any
day on which the exchange clearinghouse of most of the banks in Israel are open to carry out transactions. |
|
|
|
|
“Principal”
- |
The
unpaid par value of the (Series A) bonds. |
|
|
|
|
“Special
Resolution” – |
a
resolution passed in a general meeting of Bondholders (Series A), who are present themselves or by their counsel whose Bonds represent
at least 50% of the balance of the par value of the Bonds (Series A), or in an adjourned meeting attended by the Bondholders, themselves
or by their counsel, who hold at least 20% of the balance of the par value as stated, and which is passed (whether in the original
meeting or adjourned meeting) with a majority of at least two thirds (2/3) of the balance of the par value of the Bonds (Series A)
represented in the vote. |
|
|
|
|
“Ordinary
Resolution” - |
A
resolution passed by a simple majority at a general meeting of the Bondholders, in which at least two Bondholders who together hold
at least twenty-five percent (25%) of the outstanding par value balance of Bonds were present (in person or by their proxy); |
|
The
“Nominee Company” – |
The
Nominee Company of the Tel Aviv Stock Exchange Ltd or a nominee company that will replace it, provided all the Company’s securities
will be registered under its name. |
|
|
|
|
“Trading
Day” - |
A
day on which transactions are made in the Tel Aviv Securities Exchange Ltd. |
|
|
|
|
“Clearing
Housing of the Stock Exchange” - |
The
Securities Authority The Tel Aviv Stock Exchange Ltd. |
For
details regarding the Bonds (Series A), see section 2 1.11of the Deed of Trust.
3. | Terms
of Bonds (Series A) |
| a) | The
Bonds (Series A) will be repayable (principal) in three (3) non-equal installments of 6%
of the principal in each of the two first payments and at a rate of 88% in the third and
last payment, which will be paid on September 30 of each of the years 2024 to 2026 (inclusive). |
| | |
| b) | The
unpaid balance of the principal will bear fixed annual interest at the rate determined in
the Tender (but subject to adjustments in the case of a change to the rating of the Bonds
(Series A) and/or deviation from the financial covenants set forth in Sections 5.2 and 5.3,
respectively, in the Deed of Trust.6 |
| | |
| c) | (The
Bonds (Series A) shall not be linked. |
| | |
| d) | The
interest for the Bonds (Series A) will be paid in semiannual payments, on September 30, 2024
and on March 31 and September 30 of each of the years 2025 to 2026 (inclusive). |
6
It is clarified that if the Bonds (Series A) are rated by more than one reading company, the ratings test for the purpose of adjusting
the interest rate to a change in rating (if and inasmuch as there shall be such a change) shall be done, at all times, according to the
lower of the ratings.
| e) | The
first payment of principal in respect of the Bonds (Series A) will be on September 30, 2024.
The first payment of interest on the Bonds (Series A) will be paid on September 30, 2024
for the period beginning on the first trading day after the tender date and will end on the
last day before the date of the first interest payment (namely, on September 29, 2024) (the
“First Interest Period”) which shall be calculated according to the number
of days during this period on the basis of 365 days per year. The interest rate which will
be paid for a particular interest period (other than the First Interest Period) (meaning,
the period which begins on the payment day of the prior interest period and ending on the
last day before the payment date immediately after the commencement date) will be calculated
as the yearly interest rate as determined in the tender (the “Semiannual Interest
Rate”). The Company will publicize, in the immediate report on the results of the
tender, the initial interest rate, the annual interest rate that will be determined in the
Tender and the Semiannual Interest Rate. |
| | |
| f) | The
final payment of principle and the final payment of the interest will be made in exchange
for provision of the bond certificates (Series A) to the Company on the date of the final
payment (namely, on September 30, 2026) and the Company’s registered office or in any
other place which the Company shall indicate. Such notice by the Company will be published
no later than five (5) business days before the date of the final payment. |
| | |
| g) | It
is clarified that a person who is not registered in the registry on March 19 and September
18 of any relevant period preceding the payment date of that payment shall not be entitled
to payment of interest for the interest term beginning before the same date. |
4. | Payments
of Principal and Interest of the Bonds (Series A) |
| (a) | Every
payment on account of the principle and/or interest which shall be paid with a delay exceeding
seven (7) days from the date stipulated for its payment according to the bond terms, and
this for a reason under the Company’s control, shall bear lateness interest as defined
below, beginning on the date stipulated for its payment and until the date of actual payment.
Regarding this, the rate of interest in arrears shall be addition 3% to the interest rate
on bonds as stated in section 3(b) above, and all on a yearly basis (the “Arrears
Interest”). The Company shall give notice of the rate of Interest which has accrued
(inasmuch as it has accrued) on the precise interest rate for the period, including the annual
interest plus the arrears interest, as well as the date of payment, in an immediate report
and this two (2) trading days before the date of actual payment. |
| | |
| (b) | Payment
to those who are so entitled will be done by check or bank transfer and/or by means of the
Exchange Clearinghouse in favor of the bank account of the bondholders (Series A). If the
Company cannot, for any reason whatsoever which is not under the Company’s control,
pay any amount to those so entitled, the provisions of Section 14of the Trust Deed will
apply. |
| | |
| (c) | A
bondholder (Series A) who so wishes, will notify the Company of the details of the bank account
to be credited with payments to that same holder according to the Bonds (Series A) as aforesaid,
or of a change in the details of said account or his address, as applicable, in a notice
which will be sent by registered mail to the Company. The Company shall be required to act
in accordance with the notice from the holder regarding said change after the passing of
15 business days from the date on which the holder’s notice reached the Company. |
| | |
| (d) | If
a bondholder registered in the Registry did not timely provide the Company with details regarding
his bank account to be credited with the transfer of payments to the same holder, according
to the bond, every such payment will be made by check which will be sent by registered mail
to his last address registered in the Registry. Sending of a check to one so entitled by
registered mail as aforesaid will be considered for all intents and purposes as payment of
the amount determined therein on the date of its sending by mail, provided that the check
is deposited in the bank and actually paid. |
In
any event in which a date for payment on account of principle and/or interests falls on a day which is not a business day, the payment
date will be postponed to the first business day thereafter, without additional payment and the “Effective Date” for the
purpose of determining entitlement for redemption or interest will not change as a result.
See
Section 6 of the Deed of Trust.
7. | Refraining
from Payment for a Reason Which is not under the Company’s Control |
See
Section 14 of the Deed of Trust.
8. | Register
of Bondholders |
See
Section 28 of the Deed of Trust.
9. | Splitting
Bond Certificates |
| (a) | In
respect of the Bonds (Series A) registered in the name of one holder, the holder shall be
issued one certificate, or at his request, he shall be issued a number of certificates in
a reasonable amount (and the certificates mentioned in this section shall hereinafter be
called: the “Certificates”). |
| | |
| (b) | Every
bond certificate may be split to bond certificates where the sum of all of their par value
equals the amount of the par value of the certificate whose splitting is requested, provided
that said certificates shall not be issued except in reasonable amounts. We split will be
done in exchange for providing that same bond certificate together with a written request
signed by the registered holder given to the Company at its registered office for the purpose
of carrying out the split. All of the costs involved in the split, including taxes and levies,
if such shall apply, will fall on the party requesting the split. |
The
bonds may be transferred and their full par value, as well as in part, provided that it shall be in whole New Israel Shekels. Every bond
transfer shall be done by a letter of transfer in an accepted wording, duly signed by a the registered holder or his legal representatives
and by the recipient of the transfer orders legal representatives, which shall be provided to the Company at its registered office together
with the bond certificates transferred in accordance there with as well as every other proof required by the Company for the purpose
of proving the transferor’s right to transfer them. If tax or any other mandatory payment shall apply to the letter of transfer
of the bonds, proof of their payment shall be provided to the Company which shall be satisfactory to the Company. The Company’s
Articles of Incorporation which apply to the transfer shares which are fully paid and their assignment will apply, mutatis mutandis,
as applicable, on the manner of the transfer of the bonds and their assignment. In the event of a transfer of only a portion of the amount
of the determinate principle in a bond certificate, it is necessary to first split, according to the provisions of section 9 above, the
certificate to a number of certificates as required by the same, in a manner such that the sum of all of the determinate principle amounts
therein will be equal to the amount of the determinate principle of said bond certificate. After fulfilling all of these conditions,
the transfer shall be registered in the registry, and the Company shall be entitled to require that a notice regarding said transfer
be registered on the certificate of the transferred bond which will be provided to the transfer recipient or that he be issued a new
bond certificate in its place, and the transferee shall be subject to all of the conditions detailed in the transferred bond certificate
such that in a place that it states “the holder” it shall be seen as if it says “the transferee”, and he shall
be considered as a “holder” for purposes of the Deed of Trust.
Regarding
early redemption of the Bonds at the initiative of the Stock Exchange and early redemption at the initiative of the Company, see Section
57 of the Deed of Trust.
12. | Purchase
of Bonds by the Company and/or an Affiliate |
See
Section 3 of the Deed of Trust.
13. | Waivers;
Compromises, and Changes to the Deed of Trust |
See
Section 27 of the Deed of Trust.
The
general meetings of bondholders (Sears A) shall be convened and shall be conducted in accordance with what is stated in the Second
Supplement of the Deed of Trust.
15. | Receipt
from Bondholders |
See
Section 15 of the Deed of Trust.
16. | Right
to Call for Immediate Repayment |
See
Section 8 of the Deed of Trust.
See
Section 26 of the Deed of Trust.
18. | Applicable
Law and Judicial Authority |
See
Sections 32 and 0 of the Deed of Trust.
In
the event of a contradiction between this supplement and the Deed of Trust, the Deed of Trust shall prevail.
***
Second
Addendum
Bondholders’
Meetings (Series A)
1. | Entitlement
to Convening a Meeting |
| 1.1. | The
Trustee will convene a meeting of Holders if it sees that the same is necessary or at the
request of one or more Bondholder (Series A) who has at least 5% (five percent) of the balance
of the par value of the Bonds (Series A). In the event that those requesting the calling
of the meeting are bondholders, the Trustee will be entitled to require indemnification,
including in advance, from the requesters for the reasonable expenses involved. |
| | |
| 1.2. | It
shall be clarified that the indemnification demand by the Trustee shall not detract from
the calling of a meeting which was called for the purpose of initiating an action designed
to prevent harm to the rights of the bondholders and the indemnification demand shall not
derogate from the Company’s obligation to bear the expenses involved in calling the
meeting. |
| | |
| 1.3. | The
Trustee will call a meeting of bondholders within 21 days from the date on which the request
that it be convened is submitted to him, on a date which shall be stipulated and of the summons,
and provided that the date of convening will not be earlier than seven days and no later
than 21 days from the date of the summons; however the Trustee is entitled to advance the
convening of the meeting to at least one day after the summons date, if he believes that
this is required for the purpose of defending the holders’ rights; should he do so,
the Trustee will explain the reasons for advancing the convening date in the report regarding
the meeting summons. |
| | |
| 1.4. | If
the Trustee did not call a meeting of holders, according to the holder’s request as
aforesaid, within 21 days from the date he was requested as aforesaid, the holder is entitled
to convened the meeting, and provided that the date of convening will be within 14 days of
the end of the period in which the Trustee must call the meeting, and the Trustee will bear
the expenses incurred by the holder in connection with convening the meeting. |
| | |
| 1.5. | Every
meeting of bondholders (Series A) will take place in Israel and a place indicated by the
Company and/or the Trustee, and the Company will bear the reasonable expenses of convening
the meeting. |
2. | Meeting
Summons and Meeting Agenda |
| 2.1. | A
summons to a meeting by the Trustee for the purpose of consultation only with the bondholders
will be published at least one day before the date of its convening (“Consultation
Meeting”). An agenda will not be published for, and no resolutions will be adopted
at a Consultation Meeting. |
| | |
| 2.2. | A
summons to a meeting which is not a Consultation Meeting will be published in accordance
with the provisions of the Securities Law as it shall exist from time to time, at least 7
(seven) days, but no more than 21 days before the convening of the meeting ( “Summons”). |
| | |
| 2.3. | The
Trustee will determine the agenda at the bondholders meeting. One or more Bondholder (Series
A) who has at least 5% (five percent) of the balance of the par value of the Bonds (Series
A) is entitled to request that the Trustee include a topic on the holders’ meeting
which will be convened in the future, provided that the topic is appropriate in the Trustee’s
opinion for discussion at said meeting; |
| | |
| 2.4. | The
Trustee will be entitled to shorten the date of convening to at least one day after the date
of the summons if he saw that delay in convening the meaning constitutes or is likely to
constitute injury to the rights of the bondholders. Should he do so, the Trustee will explain
the reasons for advanced in the convening of the meeting in the report regarding the meeting
summons. |
| 2.5. | The
summons shall detail: |
| 2.5.1. | Location
where the meeting will be convened; |
| | |
| 2.5.2. | The
date and time on which the meeting will be convened; |
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| 2.5.3. | The
legal quorum for commencing the meeting as detailed in section 3 below; |
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| 2.5.4. | The
effective date for participation in the meeting. |
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| 2.5.5. | The
topics to be discussed at the meeting and proposed resolutions will be indicated; |
| 2.5.6. | Arrangements
regarding written voting; |
3. | The
Legal Quorum for Commencing the Meeting and Postponed Meeting |
| 3.1. | A
Consultation Meeting will take place with any number of participants. |
| | |
| 3.2. | A
meeting of bondholders so commence after it is proved that the required legal quorum as stated
below for holding the meeting is present. |
| | |
| 3.3. | Subject
to the presence of the required legal quorum for the meeting which was convened to adopt
special resolutions and subject to the provisions of the Securities Law and the Deed of Trust,
the legal quorum for holding a holders’ meeting is the presence of at least two bondholders
who have 25% (twenty-five percent) at least of the unpaid balance of the par value of the
bonds in circulation and that time, within half an hour from the time stipulated for opening
the meeting |
| | |
| 3.4. | If
within half an hour from the time stipulated for the opening of the meeting, a legal quorum
is not present, the meeting will be postponed to a different date which shall not be earlier
than two business days after the date stipulated for holding the original meeting or one
business day, if the Trustee believes that this is required for the purpose of protecting
the rights of the bondholders; if the meeting is postponed, the Trustee will explain the
reasons for this in the report regarding the postponed-meeting summons. |
| | |
| 3.5. | Other
than in connection with a meeting which was convened to adopt as resolution that is required
to be adopted as a special resolution and subject to the provisions of the Securities Law,
if you legal corm is not present at the postponed holders’ meeting within half an hour
from the time stipulated for its commencement, the quorum shall be legal with any number
of participants; if the meeting is convened following a request from the holders, as set
forth in Sections 1.2 and 1.3 above - the legal quorum of Bondholders will be one
or more holding at least 5% (five percent) of the balance of the par value of the bonds existing
in circulation on the effective date for the meeting. |
| | |
| 3.6. | Bonds
held by a related person (as defined in section 3.2 of the Deed) will not be taken into
consideration for the purpose of determining the legal quorum. |
At
every holders’ reading, the Trustee or whomever he appoints shall serve as chairperson of that same meeting.
| 5.1. | A
meeting which has been opened shall be adjourned at the notice of the Trustee or notice of
the chairperson of the meeting, and it may have one or more sessions. |
| | |
| 5.2. | In
a holders’ meeting which has a legal quorum, the meeting chairperson and/or the Trustee
are entitled to decide to hold an additional session which will take place on a different
date and location which will be determined by the Trustee ( “Adjourned Meeting”). |
| | |
| 5.3. | The
Trustee will be responsible for publicizing a notice regarding the date and location on which
the Adjourned Meeting will be convened, and provided that said notice shall be given 12 hours
at least before the convening of the Adjourned Meeting. |
| | |
| 5.4. | At
an Adjourned Meeting, only a topic which was on the agenda of the original meeting regarding
which no resolution was adopted will be discussed. |
| | |
| 5.5. | A
holder who was not present at the original meeting will be able to be present for the Adjourned
Meeting and vote on the topics which have been presented for vote (and for which the vote
has not yet been sealed) and will be presented for voting, subject to the fact that he proves
his ownership of bonds which are the subject of the meeting to the one calling the meeting
as of the effective date of the meeting is stipulated in summons notice for the meeting. |
6. | Provisions
for Special Meetings |
In
a meeting of bondholders the agenda of which contains one of the following, the provisions below will apply regarding the legal quorum
in a meeting of holders or an adjourned meeting, and regarding the majority required for passing the resolutions:
| 6.1. | In
a meeting the agenda of which contains calling the bonds for immediate repayment - the provisions
of Section 8.2.2 of the Trust Deed will apply. |
| 6.2. | In
a meeting the agenda of which contains removing the Trustee from his service - the provisions
of Section 30of the Trust Deed will apply. |
| | |
| 6.3. | A
change and/or amendment and/or addition to the Trust Deed - the provisions of Section 28
of the Deed of Trust will apply. |
At
a meeting on whose agenda includes a resolution on a topic regarding which it is stipulated in the Trust Deed or the bond that it is
subject to a special resolution, the legal quorum is the presence of bondholders who own fifty percent (50%) at least of the balance
of the bonds’ par value or at a postponed meeting, the presence of bondholders who own twenty percent (20%) at least of the balance
of the bonds’ par value. The required majority for adopting a special resolution (whether at the original meeting or at a postponed
meeting) is a majority of two-thirds (two thirds) of the balance of the bonds’ par value which is represented at the vote.
| 7.1. | The
Trustee or the bondholder, one or more, who owns at least 5% (five percent) of the balance
of the bonds’ par value (Series A) is entitled to make a written application to the
bondholders in a letter which will be attached to the ballot in order to convince them regarding
the manner of their vote on one of the topics raised for discussion at that same meeting
(in this supplement – “Position Statement”). |
| | |
| 7.2. | A
holder who wishes to make use of this right will give notice of the same to the Trustee during
the session in which it is resolved to bring that same topic to a vote and will provide the
Trustee with the Position Statement within 24 hours of the date of that same session. |
| | |
| 7.3. | Any
meeting which was summoned following a request by shareholders or by the shareholders as
detailed in sections 1.1 and 1.3, every holder will be entitled, by means of the Trustee,
to publish a Position Statement in relation to the topics which are on the agenda for the
meeting.1.21.3 |
| | |
| 7.4. | The
Trustee in the Company will be entitled, each one individually, to publish a Position Statement
in response to the Position Statement which was sent in accordance with 7.1 and 7.3 above,
or in response to another application to the bondholders. |
| 7.5. | Position
Statements will not be published at a Consultation Meeting. |
| 8.1. | The
vote at a meeting of the holders of the Bonds (Series A) will take place in relation to the
topics which were detailed in the summons only. |
| | |
| 8.2. | A
holder of a Bond (Series A) will be entitled to vote himself, by means of an agent appointed
in accordance with this supplement or by means of a ballot. |
| | |
| 8.3. | The
meeting chairperson is entitled to determine that votes will be by ballot or by means of
vote during the course of the meeting. In the event in which the chairperson determined that
the vote will be by means of ballot, the trustee will ensure that the text of the ballot
will be distributed to the holders, and will determine the date on which the vote is closed
by which time the holders must send the full and duly signed ballot to the Trustee. The Trustees
entitled to require that a holder declare, in the framework of the ballot, the existence
or absence of a conflict of interest (as defined infra) which he has, in accordance with
the Trustee’s judgment. A holder who does not fill out the ballot in full and/or does
not prove his entitlement to participate and vote at a meeting according to the provisions
of the Second Supplement will be considered as one who has not submitted a ballot and accordingly
has chosen not to vote on the topic(s) which are on the ballot. A fully filled out and duly
signed ballot in which the holder indicated his vote which reaches the Trustee by the deadline
determined for the same will be considered as presence at the meeting for the purpose of
breaching the legal quorum at the meeting. Accordingly, the Trustee may, at its discretion
and subject to any law, hold a voting meeting in which votes are held through ballots and
without convening the holders, and also hold a vote through ballots in a voting meeting (including
its adjourned meeting) in which the legal quorum is not present when the meeting is opened,
as required to pass the resolution on the agenda, provided that the Trustee receives, by
the time of closing the voting meeting, which is received in the notice to convene the meeting
or hold the vote, as applicable, ballots from the holders constituting the legal quorum required
for passing the resolution in the original meeting or an adjourned meeting, as applicable. |
| 8.4. | Unless
expressly stipulated otherwise in this Deed, the required majority for adopting any resolution
by the general meeting is an ordinary majority of the number of votes represented in the
vote and those voting for or against. Additionally, but subject to the provisions above,
the Trustee is entitled to decide at his discretion in accordance with the circumstances
whether adoption of a resolution requires a majority which is not ordinary. |
| | |
| 8.5. | The
Trustee will participate in the meeting without the right to vote. The Company may, through
its representatives, present matters before the discussion and respond to questions from
holders, if any. Notwithstanding the above, it shall be clarified that the Trustee may, at
its sole discretion, resolve that the meetings of holders, in whole or in part, will take
place in the absence of the Company or a representative on its behalf or a related holder
or any other person, without being subject to the obligation to provide grounds. |
| | |
| 8.6. | Holders
of the bonds are entitled to participate and vote in every general meeting on their own or
by means of representatives. Every voter by bondholders will be conducted according to the
number of votes such that every bondholder or his representative will be entitled to one
vote in respect of every ILS 1 par value from the total specified principle which has not
yet been repaid of the bonds based on which he is entitled to vote. In the event of joint
holders, only the vote by the requested registered first between them in the registry, whether
himself or by means of an agent. |
| | |
| 8.7. | A
bondholder or his agent are entitled to vote in respect of a portion of his votes in favor
of a particular proposed resolution, and against in respect of another portion, and in respect
of another portion to abstain, all as he sees fit. |
9. | Declaration
of Adoption of a Resolution |
The
declaration by chairperson that a resolution at a holders’ meeting was adopted or rejected, whether unanimously or by some majority,
shall be prima facie evidence of what is stated therein.
| 10.1. | A
letter appointment appointing an agent will be in written and will be signed by the a pointer
or by his authorized representative, in writing as required. If the pointer is a corporation,
the appointment will be made in writing, signed with of the corporation’s stamp and
the signature of the clerk of the corporation or the corporation’s representative who
is authorized to do so. A letter of appointment of an agent will be drafted in any common
form. An agent is not required to be a holder himself. |
| | |
| 10.2. | A
letter of appointment and the power of attorney or another certificate based on which the
letter of appointment is signed, or a certified copy of such a power of attorney, will be
deposited in the Company’s office prior to the time of the meeting regarding which
power of attorney is granted, unless otherwise stipulated in the notice calling the meeting. |
| | |
| 10.3. | A
vote cast in accordance with the terms in the document appointing an agent shall be valid
even if the grantor passes away beforehand or is declared legally incompetent or the letter
of appointment is annulled or the bond regarding which the vote was cast is transferred,
unless prior to the meeting, written notice regarding the death, declaration of incompetence,
annulment, or transfer, as applicable, is received in the Company’s registered office. |
| | |
| 10.4. | Subject
to the provisions of Section 11.2 above, every corporation which owns bonds is entitled by
written and duly signed authorization, to empower a person as it sees fit to act as its representative
at every meeting of bond owners, and a person thus authorized is entitled to act in the name
of the corporation which he represents. |
| 11.1. | The
Trustee will prepare minutes of the holders’ meeting and will maintain them in his
registered office for a period of seven years from the date of the meeting. The Trustee may
prepare minutes of a meeting of parts thereof by way of recording. |
| 11.2. | Minutes
signed by the chairperson of the meeting will serve as prima facie evidence of the matters
listed therein. A declaration by the chairperson of the meeting regarding adoption of a resolution
or its rejection and a notation regarding the matter in the minutes’ registry shall
serve as prima facie evidence of this fact. |
| | |
| 11.3. | The
registry of minutes of holders’ meetings will be maintained in the Trustee’s
registered office and will be open for examination by the Company and the bondholders, and
a copy thereof will be sent to the Company and to any bondholder requesting it. |
| | |
| 11.4. | The
Trustee will be entitled to delay delivery of any minutes, to any entity whatsoever, if in
his exclusive discretion, provision of the minutes, in whole or in part, may harm or cause
result in harm to the rights of bondholders (Series A). |
12. | A
person or persons appointed by the Trustee, the Company Secretary, and any other person or
persons so authorized by the Trustee will be entitled to be present at the bondholders’
meeting. In a case in which according to the Trustee’s reasonable discretion it shall
be necessary to engage in discussions during a portion of the meeting outside of the presence
of the Company’s representatives, then representatives of the Company or anyone on
their behalf will not take part in that same portion of the meeting. |
| |
13. | Everything
stated in this supplement is subject to the Deed of Trust. |
***
Third Addendum
Urgent
Representation for the Holders of Bonds
1. | Regarding
the Bonds (Series A), insofar as an urgent representation of the Bondholders of the Bonds
(Series A) as set forth below, the Company undertakes that the urgent representation shall
be appointed to act in accordance with the relevant provisions of Appendix 5.2.4.4 to Chapter
4 in Part 2 (Management of Investment Assets and Provision of Credit ) In Section 5 (Principles
of Business Conduct) in the Consolidated Circular,7 And the Company undertakes
to act in cooperation with the urgent representative and the trustee, to the extent necessary
for carrying out the tests required by them and formulating the decision of the urgent representatives,
and to transmit to the urgent representative office all the data and documents in the Company’s
possession that will be required of it for the Company and which were requested in writing. |
| 2.1 | The
Trustee may, or at the request of the Company in writing – will be obligated, to appoint
and convene the urgent representation from among the Holders of Bonds, as detailed below
(the “Urgent Representation”). |
| | |
| 2.2 | For
the Urgent Representation the Trustee will appoint three (3) Holders of Bonds, who to the
best of the Trustee’s knowledge, are holders of a par value higher than all of the
Holders of Bonds, and which will declare that they have fulfilled all of the conditions detailed
below (the “Members of the Urgent Representation”). In a case where any
of them cannot serve as a Member of the Urgent Representation, as stated, the Trustee will
appoint the Holder of Bonds with the next highest par value holding, for which all of the
conditions have been fulfilled, as detailed below. |
And
these are the conditions:
| 2.2.1 | The
Holder of Bonds does not have a conflict of interest due to the existence of any additional
material interest that is conflicting a matter derived from the office of the Urgent Representation,
and from his holding of Bonds. For the avoidance of doubt it shall be clarified that a Holder
who is a connected party (as the term is defined in Section 3.2of the Deed of Trust,
will be considered as having a conflict of interest as stated, and will not serve in the
Urgent Representation; |
7
http://ozar.mof.gov.il/hon/2001/law/Codex.asp
| 2.2.2 | During
the course of that same calendar year, a bondholder does not serve on similar representations
for other bonds whose aggregate amount exceeds the amount of the asset portfolio managed
by him, which was determined as the maximum amount allowing the service on the Urgent Representation
according to the Antitrust Commissioner’s orders in relation to establishment of an
urgent representation; |
| 2.3 | If
during his office in the Urgent Representation, one of the circumstances noted in Sections
2.2.1 and 2.2.2 above failed to be fulfilled, then the member’s office will expire
and the Member of the Representation as stated will notify as such in writing to the Trustee
and the Trustee will appoint another member in his place, from among the Holders of Bonds,
as stated in Section 2.2 above. |
| | |
| 2.4 | Prior
to the appointment of the Members of the Urgent Representation, the Trustee will receive,
from the candidates for serving as Members of the Urgent Representation, a declaration regarding
the existence of lack of conflicts of interest, as stated in Section 2.2.1 above, and regarding
serving in additional representations, as stated in Section 2.2.2 above. Similarly, the Trustee
is entitled to require such a declaration from the members of the Urgent Representation at
any time during the course of the Urgent Representation’s service. A holder who does
not provide said declaration will be considered as having a conflict of interests or preclusion
from service based on the Antitrust Commissioner’s orders as aforesaid, as applicable.
In relation to a declaration regarding a conflict of interest, the Trustee will check for
the existence of conflicting interests and to the extent required, will decide whether the
conflicts of interest disqualified that same holder from service on the Representation. It
should be clarified that the Trustee will rely on the said declarations and will not conduct
an additional personal test or investigation. The Trustee’s determinations in these
matters shall be final. |
| 2.5 | The
term of office of the Urgent Representation will end on the date where the Company will publish
the decisions of the Urgent Representation in connection with providing an extension to the
Company for the purpose of fulfilling the conditions of the Deed of Trust, as detailed in
Section 8 of the Deed of Trust, but in any event shall not exceed three months from
the appointment date. |
| 3.1 | The
Urgent Representation shall have the authority to grant a one-time extension to the Company
in connection with the dates for fulfilling any of the financial obligations set forth in
the Deed of Trust in a manner that will not apply as the grounds for immediate repayment
as in Sections 8.1.11 through 8.1.13 of the Deed of Trust, as applicable, for the entire
extension term, as granted, for a term that is up to the publication date of the financial
statements after the publication date of the financial statements, from which it arises that
the company did not fulfill a financial obligation for two consecutive calendar quarters
or for a term of up to 90 days, whichever is earlier. It shall be clarified that the period
of time up until the appointment of the Urgent Representation shall be taken into consideration
in the framework of the aforesaid extension, and it will not constitute cause for granting
any additional extension to the Company beyond the aforesaid. It shall be clarified that
the Urgent Representation’s activities and the collaboration between its members shall
be limited to discussion of the possibility of granting said extension and no other information
which does not relate to the granting of said extension shall be shared between the members
of the Representation. |
| | |
| 3.2 | If
an Urgent Representation is not appointed as aforesaid, or if the Urgent Representation decided
not to grant the Company and extension as stated in section 3.1 above, the Trustee will be
required to call a meeting of the bondholders in accordance with the provisions of section
8.2 of the Deed. |
The
above shall not derogate from the authority of the Trustee to convene an assembly of Holders of Bonds, including in relation to that
matter for which the Urgent Representation was convened. If the decision of the assembly of Holders of Bonds was made for that matter,
the decision of the assembly shall prevail over the decision of the Urgent Representation, including vis-à-vis the Company.
4. | The
Company’s Obligations in Connection with the Urgent Representation |
| 4.1 | The
Company undertakes to provide the Trustee all information in its possession or which it is
able to secure in connection with the identity of the bondholders and the scope of their
holdings. Similarly, the Trustee will act to secure said information in accordance with the
authorities granted him according to law. |
| | |
| 4.2 | In
addition, the Company undertakes to fully cooperate with the Urgent Representation and the
Trustee, inasmuch as required for the purpose of executing the required checks by them and
formulating the Urgent Representation’s decision, and to provide the Urgent Representation
all of the data and documents in its possession or which it is able to reasonably secure
which are required by it regarding the Company subject to the limitations of law. Without
derogating from the generality of the aforesaid, the Company shall provide Urgent Representation
with the relevant information for the purpose of formulating the decision, which to the best
of the Company’s knowledge shall not include any misleading detail and shall not be
lacking. |
| | |
| 4.3 | The
Company shall bear the Urgent Representation’s expenses, including the cost of employing
advisors and experts by the Urgent Representation or on its behalf and in this regards, the
provisions of section 25 of the Deed will apply, mutatis mutandis. |
| 5.1 | The
Urgent Representation shall act and decide on the matters that were placed before it as aforesaid
and its absolute discretion and shall not be liable, it or any of its members, officers therein,
their employees or advisors, and the Company and the bondholders hereby grant them a waiver
in relation to any claims, demands and lawsuits against them in respect of the fact that
they utilized or abstain from utilizing powers, authorities or the discretion granted them
according to the Deed of Trust and according to this supplement and in connection there with
or from any other action which they took their under, unless they did so maliciously and/or
in bad faith. |
| | |
| 5.2 | The
indemnification provision stipulated in section 25of the Date of Trust shall apply to
the members of the Urgent Representation and anyone acting on their behalf, as if they were
the Trustee. |
| | |
| 5.3 | The
Company shall publish an immediate report immediately upon the appointment of said Urgent
Representation, regarding the appointment of the Person Representation, the identity of its
members, and their powers. |
| | |
| 5.4 | The
Company will publish an additional immediate report about the Urgent Representation’s
decision. Upon the completion of the Urgent Representation’s service, the Company will
publish all of the information which was provided by the Company for the Urgent Representation’s
examination provided that there is nothing precluding its publication, by law. |
***
Appendix
22
Of
the Deed of Trust dated [______]
THE
TRUSTEE FEE
The
Company will pay the Trustee wages for his services, in accordance with this Deed of Trust, as detailed below:
1. | For
the entire trust year (or part thereof), commencing on the issuance date of the Bonds, the
Trustee will be paid annual wages in the sum of ILS 26,000 (the “Annual Fee”). |
| |
2. | For
the Trustee’s participation in the general meetings of the shareholders held in Israel,
the Trustee will be entitled to a fee of ILS 500. |
| |
3. | Additionally,
the Trustee will be entitled to a return on reasonable expenses from the Company, as defined
below: “Reasonable Expenses” – sums paid by the Trustee in the framework
of fulfilling his position and/or pursuant to the authorities granted thereto according to
this Deed, including: expenses and costs for the initiation and convening of an assembly
of holders of Bonds and expenses for the notices, transportation and advertisement publications
connected to the convening of the assembly, and as required by any law. |
| |
4. | Without
derogating from the generality of the above, the Trustee will be entitled to wage payments
from the Company in the sum of ILS 500 for each working hour required therefor for the Special
Operations to be performed in its position as Trustee, that include the following operations
(the “Special Operations”). |
| 4.1. | Operations
derived from a material breach or a concern of a material breach of the Deed by the Company; |
| | |
| 4.2. | Operations
in connection with the decision of the assembly of holders of Bonds to place the Bonds for
immediate repayment; |
| | |
| 4.3. | Operations
that the Trustee will be required to perform or will have to perform, in connection with
the convening of bondholders’ meetings due to a real concern of a material breach of
the Deed by the company; |
| 4.4. | Special
works (including, but not limited to, work required due to restructuring of the Company or
work due to the Company’s requirement) or due to the need to perform additional operations
in order to fulfill its role as a reasonable Trustee, due to a change in law (including regulations
to be established following Amendments 50 and 51 of the Securities Law) and/or regulations
and/or other binding provisions that will apply in connection with the actions of the Trustee
and its responsibilities according to this Deed of Trust. |
5. | VAT,
if applicable, will be added to each of the said sums, as applicable, and will be paid by
the Company. |
| |
6. | All
of the abovementioned sums will be linked to the index of June 2024, However, in any event,
a sum that is lower than the sum denominated in this Deed will not be paid. |
| |
7. | The
Trustee’s wages will be paid in respect of the period up until the end of the Trust
included in this Deed even if a receiver is appointed for the Company (or a receiver and
a manager), or whether the trust according to this Deed will be managed under the supervision
of the court, or not. |
| |
8. | The
aforesaid yearly fee will be paid at the end of every trust year. |
| |
9. | Subject
to the provisions of the Deed of Trust, all of the amounts described in this supplement will
have preference over monies due to the bondholders. |
| |
10. | To
the extent that the Trustee’s service as described in this Deed of Trust shall come
to an end, the Trustee will not be entitled to payment of his wages as of the date of the
commencement of service of the replacement trustee. To the extent that the Trustee’s
service ended during the course of the trust year, wages paid in respect of months in which
the Trustee did not serve as trustee for the bonds shall be refunded, as of the appointment
of the replacement trustee. This session will not apply regarding the initial trust year. |
| |
11. | The
appointment of a trustee to replace the trustee whose office ended according to Section 35b(a1)
or 35(14)(d) of the Securities Law, the Holders of Bonds of Series A will bear the difference
in the fees of the appointed trustee, as stated, than that which was paid to the Trustee
who was replaced, if the difference as stated is unreasonable, and the provisions of the
relevant laws will apply at the time of the replacement as stated. The obligation of the
Holders for the difference as stated will be performed by offsetting the relative part of
the difference from any payment that the Company will make to the Holders of Bonds in accordance
with the terms of the Deed of Trust and the transfer thereof will be directly from the Company
to the Trustee. |
| |
12. | If
according to any law there will be an obligation to deposit a guarantee applying to the Company
to ensure the Company’s obligation for the special expenses of the Trustee, the Company
will act in accordance with the provisions as stated. |
***
Exhibit
99.1
STRAWBERRY
FIELDS REIT INC. COMPLETES APPROX. NIS 146 MILLION ISSUANCE ON THE TEL AVIV STOCK EXCHANGE
South
Bend, IN. August 6, 2024 (ACCESSWIRE) – Strawberry Fields REIT, Inc. (NYSE AMERICAN: STRW) (the “Company”) announced
today that it issued approximately NIS 146 million (Approx. $38 million) principal amount of its new Series A Bonds Due in September
2026 (the “Bonds”), pursuant to a Deed of Trust between the Company and Mishmeret Trust Services Company Ltd., an Israeli
trust company, as trustee, dated as of August 4, 2024. The Bonds will be listed for trading on the Tel Aviv Stock Exchange. The Bonds
are unsecured obligations of the Company denominated in Israeli shekels (NIS). The Company will pay interest on the 2026 Bonds at a rate
of 6.97% per year, until the final maturity date of September 30, 2026. The net proceeds of the sale of the Bonds will be used for working
capital and general corporate purposes, which may include redemption of the Company’s outstanding debt.
The
Bonds have not been and will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and may
not be offered or sold in the United States absent registration under the Securities Act or an applicable exemption from such registration
requirements. The Bonds were offered solely to investors outside the United States and were not offered to, or for the account or benefit
of, U.S. Persons (as defined in Regulation S under the Securities Act).
About
Strawberry Fields REIT
Strawberry
Fields REIT, Inc., is a self-administered real estate investment trust engaged in the ownership, acquisition, development and leasing
of skilled nursing and certain other healthcare-related properties. The Company’s portfolio includes 110 healthcare facilities
with an aggregate of 12,500+ beds, located throughout the states of Arkansas, Illinois, Indiana, Kentucky, Michigan, Ohio, Oklahoma,
Tennessee and Texas. The 110 healthcare facilities comprise 100 skilled nursing facilities, eight assisted living facilities, and two
long-term acute care hospitals.
Safe
Harbor Statement
Certain
statements in this press release may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform
Act of 1995. Those forward-looking statements include all statements that are not historical statements of fact and those regarding our
intent, belief or expectations, including, but not limited to, statements regarding: future financing plans, business strategies, growth
prospects and operating and financial performance; expectations regarding the making of distributions and the payment of dividends; and
compliance with and changes in governmental regulations.
Words
such as “anticipate(s),” “expect(s),” “intend(s),” “plan(s),” “believe(s),”
“may,” “will,” “would,” “could,” “should,” “seek(s)” and similar
expressions, or the negative of these terms, are intended to identify such forward-looking statements. These statements are based on
management’s current expectations and beliefs and are subject to a number of risks and uncertainties that could lead to actual
results differing materially from those projected, forecasted or expected. Although we believe that the assumptions underlying the forward-looking
statements are reasonable, we can give no assurance that our expectations will be attained. Factors which could have a material adverse
effect on our operations and future prospects or which could cause actual results to differ materially from our expectations include,
but are not limited to: (i) the COVID-19 pandemic and the measures taken to prevent its spread and the related impact on our business
or the businesses of our tenants; (ii) the ability and willingness of our tenants to meet and/or perform their obligations under the
triple-net leases we have entered into with them, including, without limitation, their respective obligations to indemnify, defend and
hold us harmless from and against various claims, litigation and liabilities; (iii) the ability of our tenants to comply with applicable
laws, rules and regulations in the operation of the properties we lease to them; (iv) the ability and willingness of our tenants to renew
their leases with us upon their expiration, and the ability to reposition our properties on the same or better terms in the event of
nonrenewal or in the event we replace an existing tenant, as well as any obligations, including indemnification obligations, we may incur
in connection with the replacement of an existing tenant; (v) the availability of and the ability to identify (a) tenants who meet our
credit and operating standards, and (b) suitable acquisition opportunities, and the ability to acquire and lease the respective properties
to such tenants on favorable terms; (vi) the ability to generate sufficient cash flows to service our outstanding indebtedness; (vii)
access to debt and equity capital markets; (viii) fluctuating interest rates; (ix) the ability to retain our key management personnel;
(x) the ability to maintain our status as a real estate investment trust (“REIT”); (xi) changes in the U.S. tax law and other
state, federal or local laws, whether or not specific to REITs; (xii) other risks inherent in the real estate business, including potential
liability relating to environmental matters and illiquidity of real estate investments; and (xiii) any additional factors included under
“Risk Factors” in our Annual Report Form 10-K dated March 19, 2024, including in the section entitled “Risk Factors”
in Item 1A of Part I of such report, as such risk factors may be amended, supplemented or superseded from time to time by other reports
we file with the SEC.
Forward-looking
statements speak only as of the date of this press release. Except in the normal course of our public disclosure obligations, we expressly
disclaim any obligation to release publicly any updates or revisions to any forward-looking statements to reflect any change in our expectations
or any change in events, conditions or circumstances on which any statement is based.
Investor
Relations:
Strawberry
Fields REIT, Inc.
IR@sfreit.com
+1
(773) 747-4100 x422
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Strawberry Fields REIT (QX) (USOTC:STRW)
過去 株価チャート
から 8 2024 まで 9 2024
Strawberry Fields REIT (QX) (USOTC:STRW)
過去 株価チャート
から 9 2023 まで 9 2024