2.11.1. Party A will pay ILS 2,168,000
2.11.2. The second party will pay ILS 7,500,000
2.11.3. Third Party ILS 1,750,000
2.11.4. D. ILS 1,250,000
- The trust agreement did not specify the date for payment of the balance of the consideration to the partnership, but all parties confirmed that they had read the terms of the purchase agreement and the beneficiaries declared that "[...] They found them good and worthy in all respects, and accordingly they ask for a (The defendant - R.S.) enter into the sale agreement for them" (p. 3 of the agreement, before clause 3). The terms of the purchase agreement include, as stated above, the payment dates.
- According to the plaintiff, it was agreed that the remaining consideration could be paid by the parties with the help of financing (loan) that they would receive from a financing bank. The plaintiff refers to clause 2.12 of the instructional trust agreement:
The parties will act to provide bank financing for payment of the sale proceeds or part thereof as agreed with the financing bank, with each of the parties guaranteeing to the bank the payment of the debt and the fulfillment of its obligations in accordance with the requirements of the financing bank and its proportional share of the bank's fees and interest and any other payment or expense.
- According to Danny Kochav, the plaintiff's manager, the plaintiff sought to act in accordance with this provision and finance the purchase of the remaining shares of the company through bank financing (section 11 of the company's l/2). According to him, in order to receive the funding, the parties had to reach understandings "[...] In relation to the exact amount, payment terms, costs and additional requirements of the financing entity [...]". These agreements could only be reached after receiving the details of the financing entity's requirements.
- It turns out that in practice, no agreements were reached between the parties to raise bank financing. Haim's testimony Hollander, the plaintiff did not act to obtain bank financing for the payment of the balance of the consideration to the partnership by all parties, but rather tried, unsuccessfully, to obtain bank financing for the payment of her share only (the sum of ILS 7,500,000) (N/3, paragraph 31). Hollander testified that Shuki Hazan, who was a partner with the plaintiff at the time (p. 15), applied for a loan in order to finance the plaintiff's share in the purchase (p. 54). According to him, Shuki Hazan asked him to accompany him to the Bank Leumi Le-Israel branch in a tax appeal in order to receive a loan, for the plaintiff, in the sum of ILS 8 million (ibid., line 28).
According to him, the business manager at the branch (Branch 898) stated that she was not willing to give any loan to the Kochav family (the plaintiff's owner), and that she would agree to provide Shuki Hazan with a loan with his exclusive guarantee and on condition that he transfer his business activity to the bank (ibid.). Since these terms were not acceptable to Shuki Hazan, the loan was not accepted.
- Danny Kochav confirmed in his testimony that he personally did nothing to obtain the loan to finance the purchase (p. 16, line 21). According to him, he did not even call the bank (ibid., line 23). He also testified that Shuki Hazan contacted the Bank Leumi branch in Kryon (branch 898), since Danny Kochav conducted his business in this branch (ibid., line 8). Danny Kochav did not know whether the version according to which the bank refused to give the plaintiff a loan was correct, but emphasized that his accounts were managed in this branch, and no accounts of Shuki Hazan or the defendant (ibid.). Danny Kochav added that "Everyone can tell their story, whether they are told or not." (ibid., lines 18, 19).
- In any event, we will clarify at this point that Shuki Hazan was not summoned to testify by the plaintiff, but only by the defendant (Application No. 9). At the end of the day, the witness did not appear and the defendant waived his summons (p. 62, line 5). The bank branch manager was also not summoned to testify.
- In the absence of payment by the plaintiff or by Oshri Shlosh, the defendant approached Bank Leumi Le-Israel and asked for a loan (section 34 of N/3). The application was submitted on behalf of Nof HaMitzr Company. On February 14, 2021, the Company was granted a credit in the amount of ILS 14,000,0000 (Appendix 4.1 to N/3). In order to secure the receipt of the credit, Haim Hollander and Ofer Stern signed personal guarantees (Appendices 4.3 and 44 N/3). The defendant also signed as a guarantor for the repayment of the loan and pledged its shares in the company (Appendix 4.2; p. 57, line 4). From these funds, the defendant paid the entire balance to the partnership. The defendant also paid the full purchase tax in respect of the purchase of the shares (Appendix 3.2 to N/3).
- The repayments of the loan are paid by the defendant herself or through its controlling shareholders, Haim Hollander and Ofer Stern (N/3, section 35, N/2, paragraph 16, testimony of Haim Hollander, p. 56). According to them, they paid every year as the repayment of the loan, a total of about ILS 700,000. These are only interest payments (p. 56, line 11).
- There is no dispute that the plaintiff has not yet paid any payment for the purchase of the shares for her, did not pay her share of the purchase tax and did not pay any payment for the repayment of the loan that Nof HaMitzr received from the bank (testimony of Danny Kochav at p. 18).
- We will further state that in 2021 the plaintiff and Shuki Hazan parted ways and they are no longer partners (pp. 15, 16 and 22). Therefore, Danny Kochav and Ronen Kochav, who testified on behalf of the plaintiff, did not know how to provide precise details about Shuki Hazan's actions in raising financing for the purchase of the shares (pp. 20, lines 28, 29).
- After taking the loan and paying the balance of the consideration to the partnership, the defendant approached, it was claimed, and demanded that the plaintiff and the other beneficiaries pay their share of the purchase cost (section 43 of L/3). On May 4, 2021, Haim Hollander sent a letter addressed to the plaintiff, Linon and Oshri Chelouche, in which he referred to a number of joint projects of the parties, including the purchase of Nof HaMitzr shares (Appendix 5.1 to N/3). In paragraph 5 of the letter, he states:
Atlit Fortress Landscape Project: