Exhibit 10.1.1
F O R E I G N C U R R E N C Y L O A N A G R E E M E N T
(ISRAELI LAW)
THIS FOREIGN CURRENCY LOAN AGREEMENT (hereinafter; the "Agreement") is made as
of the 1st day of June, 2004, between UNITED MIZRAHI BANK LTD., 461 Tel-Aviv
main Branch (hereinafter; the "Bank") and ORMAT TECHNOLOGIES INC. *, a Company
incorporated and existing under the laws of DELAWARE, USA having its registered
office at ▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇, ▇▇▇ (hereinafter; the "Borrower").
(* Kindly indicate whether the Borrower is an individual or a company.)
WHEREAS the Borrower has requested the Bank to grant it a loan in the total
principal sum of 20,000,000$ (Twenty million US dollar) (hereinafter; the
"Loan") with interest, in accordance with the terms and conditions set forth
below; and
WHEREAS the Bank is prepared to grant the Borrower the requested Loan upon the
terms and conditions hereinafter stipulated;
NOW, THEREFORE, IT IS HEREBY AGREED AND DECLARED BETWEEN THE PARTIES AS FOLLOWS:
1. The Preamble hereto constitutes an integral part hereof.
2. The Bank hereby agrees to grant a loan to the Borrower and the Borrower
hereby agrees to borrow from the Bank the total principal sum of
20,000,000$ (Twenty million US dollar).
3. The Borrower confirms that the Loan shall be deemed to have been granted by
the Bank and received by the Borrower upon the Bank crediting the account
of ORMAT TECHNOLOGIES INC. Account No. 101455 maintained at the ▇▇▇-▇▇▇
▇▇▇▇ main Branch of the Bank with the proceeds of the Loan.
4. The Borrower undertakes to repay to the Bank the principal amount of the
Loan in 1 payment of $20,000,000 within 18 months.
5. (a) The Borrower shall pay interest as calculated by the Bank on the
balance of the principal amount of the Loan outstanding from time to
time as from the date on which such principal amount is granted to the
Borrower (hereinafter; the "Drawdown Date") at a rate (hereinafter the
"Interest Rate") which shall be:-
(i) Commitment fee at the rate of 0.25% (zero point twenty five per
cent) per annum, which will be paid at the day of the granted
loan.
(ii) at the of the rate of 1.2% (one point two per cent) per annum in
excess of the London Interbank Offered Rate (hereinafter; the
"Floating Rate"*)
such interest to be payable in arrears commencing on the Drawdown Date
and on the last day of each successive Interest Period, as hereinafter
defined (hereinafter; the "Interest Payment Date") and at maturity.
(*Kindly indicate whether the Fixed Rate or the Floating Rate is to
prevail).
(b) In the event that the Floating Rate is to prevail, the Interest
Rate in respect of the principal amount of the Loan shall be
determined once every [deleted_text]three*[/deleted_text]/six* months
in advance, depending on availability, by reference to the London
Interbank Offered Rate, on the respective Date of Determination, as
hereinafter defined, and shall be calculated on the balance thereof
from time to time outstanding during the next period of
[deleted_text]three* [/deleted_text]/six* months (each such period,
hereinafter; an "Interest Period").
(*Kindly delete as applicable).
For the purpose of determining and calculating the Interest Rate,
"LIBOR" shall mean the annual rate of interest appearing on the
Telerate screen Page 3750 or Page 3740 (as appropriate) or any
equivalent successor to such page or other page as appropriate (as
determined by the Bank) at or about 11.00 AM (London Time), on the
Date of Determination as being the interest rate offered in the London
Interbank Market for deposits in the relevant currency for a period
equal to the Interest Period
"Date of Determination" shall mean with regard to all Interest
Periods, two Business Days prior to the commencement of any such
Interest Period.
For the purposes hereof, the term "Business Day" shall mean a day of
the year other than a Saturday or Sunday or a day on which banks in
Israel, London or the financial centre of the relevant currency of the
Loan are authorized or required to remain closed.
(c) All computations of interest hereunder shall be made by the Bank on
the basis of a year of 360 days (consisting of four 90-day quarters)
or, in the case of interest payable on an amount denominated in
Sterling or where market practice otherwise dictates 365 days, for the
actual number of days lapsed (including the first day but excluding
the last day) occurring in the period for which such interest is
payable.
(d) The Borrower hereby undertakes to pay to the Bank the following
commissions:
[deleted_text]
|_| *(i) A commission at the rate of _____ % (______ per cent) of the
total amount of the Loan to be paid on the Drawdown Date.
[/deleted_text]
|_| *(ii) A commission charged for the opening of the loan file
[deleted_text] 2500$ at the rate of _____ %( ______ per cent) of the
total amount of the Loan (being an amount of not less than _________
and not more than __________) to be paid on the Drawdown Date.
[/deleted_text]
(*Kindly indicate as applicable).
(e) Whenever any payment to be made hereunder shall be stated to be due,
or whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, such payments shall be made, and
the last day of such Interest Period shall occur, on the next
succeeding Business Day. Any such change in time of payment shall be
taken into account in the computation of payment of interest.
6. (a) On giving not less than 14 (fourteen) Business Days' prior written
notice, the Borrower may prepay on any Interest Payment Date all or
any part of the Loan, principal and interest, provided that any amount
so prepaid shall be in a minimum sum of not less than __2,000,0000$__
and provided that the Bank shall receive [deleted_text] full
compensation from the Borrower for costs incurred by the Bank in
reemploying such prepaid funds.[/deleted_text] Compensation as
stipulated in clause 31.2.3 in the "General condition for credit
activity". Each prepayment made pursuant to this Agreement may not be
reborrowed hereunder and any notice of prepayment given by the
Borrower shall be irrevocable and the Borrower shall be bound to
prepay in accordance with such notice.
(b) Whenever the Borrower is overdue in repaying any of the payments due
and payable by it under this Agreement, the Bank shall charge the
Borrower with respect to any such overdue payment with arrears of
interest at a rate equal to L+6% (Libor + six _ per centum) per annum.
[deleted_text] in excess of the Interest Rate determined pursuant to
Clause 5 herein. [/deleted_text] Arrears of interest may be
capitalized by the Bank periodically once every three or six months,
as determined by the Bank at its sole discretion.
7. (a) The Borrower's obligation to repay the principal, any amount of
interest on and/or other amounts in connection with the Loan shall be
absolute and unconditional, regardless of any law, regulation or
decree now or hereafter in effect in any country or other jurisdiction
(including, without limitation, restrictions on payments in any
currency) which might render
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invalid or unenforceable, or otherwise alter or affect in any manner,
any of the terms and conditions of the Loan of this Agreement or any
rights or obligations hereunder, and all payments by the Borrower
shall be made in full without set-off or counterclaim.
(b) All payments required to be made under this Agreement shall be made to
the Bank free of any taxes, deductions or charges and without set-off
or counterclaim, in lawful and freely transferable currency and in
funds available to the Bank or at any other place nominated by the
Bank and not prohibited for that purpose by any applicable law,
provided that 5 (five) days' prior notice thereof shall have been
given to the Borrower by the Bank, except for any taxes withheld by
any relevant authorities at source, in which case the Borrower hereby
undertakes to furnish to the Bank a certificate setting forth and
confirming the amount so deducted in accordance thereto, which
certificate shall be prima facie evidence of the amount set forth
therein.
(c) If the Borrower is prevented by operation of law from effecting
payment, free of any deduction, taxes, duties, fees, costs or other
charges,or from paying, causing to be paid or remitting the same, the
payment of interest under this Agreement shall be increased to such
amount as is necessary to yield and remit to the Bank interest at the
rate specified in this Agreement after provision for payment of such
deduction, taxes, duties, fees, costs or other charges. The Borrower
shall at the request of the Bank executed and deliver to the Bank such
instruments as may be necessary or desirable to give full force and
effect to such increase in the Interest Rate.
(d) In the event that any law or regulation shall be interpreted by any
governmental authority charged with the administration thereof to:
(i) Subject the Bank to any form of tax payable in respect of this
Agreement or to any tax with respect to payments of principal of
or interest on the Loan or to change the basis of taxation of
payments to the Bank of principal of or interest on the Loan
(except for taxes on the overall income of the Bank); or
(ii) Impose, modify or deem applicable any reserve requirements
against assets held by, or deposits on or for the account of, or
loans received by the Bank; or
(iii)Impose, modify or deem applicable any withholding tax against
interest payable by the Bank on deposits or loans received by the
Bank; or
(iv) Impose on the Bank any other condition with respect to this
Agreement,
and the result of any of the foregoing shall in the opinion of the
Bank be to increase the cost to the Bank of making or funding the Loan
by an amount which the Bank deems to be material then, upon demand
being made to the Borrower by the Bank, the Borrower shall pay to the
Bank that amount which shall compensate the Bank for such additional
cost in respect of the Loan. The Bank shall use its best efforts
promptly to notify the Borrower of any event which may entitle the
Bank to payment pursuant to the preceding sentence but failure by the
Bank to give any such notification shall in no way prejudice its
rights hereunder. A certificate by a duly authorised officer of the
Bank, setting forth the amount of such payment and the basis therefor
shall be sent by the Bank to the Borrower and shall except in the case
of manifest error be conclusive evidence of such amount. All mentioned
above is subject to clause 45.6 in "General conditions for credit
activity".
8. If as a result of the introduction of or any change in or in the
interpretation of any law or regulation, whether by any court, central
bank, other governmental authority or otherwise, it shall become (or be
claimed to be) unlawful for the Bank to continue to fund or maintain the
Loan or to perform any of its obligations in connection therewith, the Bank
and the Borrower undertake to cooperate in good faith in pursuing any
reasonable possibility to restructure the Loan so that it will be valid and
binding. However, if all attempts fail to accomplish such a restructuring
within a reasonable period of time, upon demand by the Bank, the Borrower
shall forthwith (and in any event not later than the next Interest Payment
Date) prepay in full the unpaid principal amount of
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the Loan together with accrued interest thereon and all other amounts
payable by the Borrower hereunder, all without penalty or premium.
9. (a) On or before the advancement of the Loan and/or as security for the
full and punctual payment of all sums now or hereafter to become due
to the Bank by the Borrower, the Borrower hereby undertakes to furnish
to the Bank the following securities:
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Full Guarantee of ORMAT INDUSTRIES LTD (mother company)_____________
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(b) The full and punctual payment of all sums now or hereafter to become
due to the Bank from the Borrower hereunder shall be secured by any
and all securities given or to be given to the Bank from time to time
by the Borrower and/or for the Borrower.
10. On the happening of any one of the events specified in section 24 in
"General conditions for credit activity", the Bank will be entitled to
demand the immediate repayment of any amount owing to the Bank from the
Borrower on account of the Loan or in accordance with this Agreement and
such amount shall thenceforth become immediately due and repayable to the
Bank until the repayment thereof in full:
[deleted_text]
(a) If any sum due from the Borrower to the Bank under this Agreement is
not paid when and as the same shall become due and payable and such
sum is not paid within a period of 15 (fifteen) days; or
(b) If an order shall be made or a resolution passed for the winding up of
the Borrower or if the Borrower be otherwise in liquidation; or
(c) If a receiver, trustee or similar officer is appointed over any of the
assets of the Borrower and such appointment is not cancelled within 30
(thirty) days; or
(d) If the Borrower commits an act of bankruptcy, enters into a scheme or
arrangement with its creditors, or convenes a meeting for the purpose
of entering into a scheme or arrangement with its creditors, or
applies to a court for the purpose of approving a scheme or
arrangement with its creditors, or admits its inability to pay its
debts when due and shall continue for a period of 30 (thirty) days; or
(e) If any representation or warranty or obligation made by the Borrower
in Clause 11 is or proves to have been incorrect when made or the
Borrower is in breach of any obligation under Clause 14; or
(f) If the Borrower ceases or threatens to cease all or a substantial part
of its operations or transfers or disposes of (otherwise than in the
ordinary course of business) all or a substantial part of its assets
whether by one or a series of transactions related or not.
[/deleted_text]
11. In the event that the Borrower is a company, the Borrower represents and
warrants as follows:
(a) The Borrower is a corporation duly incorporated, validly existing and
in good standing under the laws of the jurisdiction indicated at the
beginning of this Agreement.
(b) The execution, delivery and performance by the Borrower of this
Agreement are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene
(i) the Borrower's Memorandum and Articles of Association or
equivalent constitutional documents (ii) any law or any contractual
restriction binding on or affecting the Borrower.
(c) The Agreement is a legal, valid and binding obligation of the Borrower
enforceable against the Borrower according to its terms, and such
obligation ranks and will rank at least parri passu in all respects
with all other unsecured obligations of the Borrower.
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[deleted_text]
(d) No charges, pledges or encumbrances, floating or fixed, exist over all
or any of the present or future revenues or assets of the Borrower.
[/deleted_text]
(e) There is no pending or threatened action or proceeding affecting the
Borrower before any court, governmental agency or arbitrator, which
may materially adversely affect the financial condition or operations
of the Borrower.
12. [deleted_text] The Bank shall have a lien and/or a first ranking
pledge and/or charge on all monies and/or securities and/or claims
and/or goods, and other property, assets and/or rights of the
Borrower, that shall be held by the Bank, whether the same shall be
held directly or indirectly by the Borrower or in any company of which
the Borrower is a shareholder, until payment in full of all amounts
due from the Borrower to the Bank hereunder. All mentioned in this
clause is subject to clause 11 in "General conditions for credit
activity".[/deleted_text]
[deleted_text]
13. The Bank shall be entitled to appropriate and/or to discharge any amount
owed by the Borrower pursuant to this Agreement, any amount had or received
by the Bank for or on account of the Borrower, notwithstanding that any
amount so had or received was intended by the Borrower or any third party
to be appropriated for or on account of any other amount.
[/deleted_text]
14. (a) [deleted_text] The Borrower hereby undertakes, at the request of the
Bank, to execute and deliver to the Bank such instruments which in the
sole opinion of the Bank shall be necessary or desirable to give full
force and effect to any clause in this Agreement.[/deleted_text]
(b) [deleted_text] The Borrower undertakes not to create or have
outstanding any charge, pledge or encumbrance, fixed or floating, or
over any of its present or future reserves or assets[/deleted_text]
15. Should any undertaking of the Borrower contained in this Agreement be
contrary to any applicable law, such undertaking shall be severable from
all remaining parts of this Agreement and the validity of the remainder
shall not be affected.
16. [deleted_text] All the costs and expenses (including[/deleted_text]
stamp duties shall be paid by the Borrower.
17. Any waiver on the part of either party hereto in favour of the other party
in respect of a previous breach or non-compliance of one or more of such
other party's obligations hereunder shall not be deemed to be a
justification or excuse for an additional breach or noncompliance of any
provision or obligation of the Agreement. The invalidity or
unenforceability of any provisions hereof shall not affect or impair the
validity or enforceability of any other provisions hereof. The remedies
herein provided are cumulative and not exclusive of any remedies provided
by law.
18. (a) For the purpose of this Agreement, the expression "written" or "in
writing" shall mean "by letter, facsimile, SWIFT, cable or telex.
(b) Any demand for payment of any amounts due and payable under this
Agreement and any notice in writing required or permitted to be made
hereunder shall, if made by letter, be deemed to be sufficiently made
if addressed as follows:
(i) In the case of a demand or notice to the Borrower at the address
set forth above; and _P.O.B ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.,
Yavne__________________________
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(ii) In the case of a demand or notice to the Bank, at: __▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇ 65134__________________
------------------------------------
and posted to them or served on them personally there or left for them
there and in proving such service in case of postage it shall be
sufficient to show that the letter containing such demand or notice
was properly addressed, stamped and posted by registered airmail for
service to be deemed to have been effected within 7 (seven) days after
the date of posting.
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(c) Any demand for payment of any amount due and payable under the
Agreement and any notice in writing required or permitted to be made
hereunder shall, if made by cable, facsimile, SWIFT or telex, be
deemed to be sufficiently made if addressed as follows:
(i) In the case of a demand or notice to the Borrower -
Telex Number:____▇▇▇-▇▇▇-▇▇▇-▇▇▇▇_______________________
Facsimile Number:__▇▇▇-▇▇▇-▇▇▇-▇▇▇▇______________________
(ii) In the case of a demand or notice to the Bank -
Telex Number: 33625, 341225-6 MIZBK IL
Facsimile Number: 972-3-7557916-1630 or
▇▇▇-▇-▇▇▇▇▇▇▇
and any such facsimile, cable, SWIFT or telex properly addressed and
sent shall be deemed to have been received within 12 (twelve) hours
after the time of sending.
(d) Each of the parties hereto shall be entitled at any time and from time
to time to give the other party notice in writing of any change in any
of the addresses relating to the party giving such notice, and
paragraphs (b) and (c) of this Clause shall be deemed modified by and
in accordance with every such notice of change.
19. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Israel.
20. The parties agree that the Courts of the City of Tel Aviv shall have
non-exclusive jurisdiction over any dispute arising from or in connection
with the existence, the interpretation, the performance, enforcement or the
termination of this Agreement, but nothing herein contained shall derogate
from the right of the Bank to institute, at its sole choice and discretion,
proceedings against the Borrower in any other competent courts wheresoever
situated.
21. This Agreement shall enter into force as of the day and year first above
written after having been signed by both parties.
IN WITNESS WHEREOF, the Bank and the Borrower have caused this Agreement to be
duly executed at the respective places and on the respective dates below
written.
UNITED MIZRAHI BANK LIMITED ORMAT TECHONOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------- -------------------------------
At: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ At: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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This 1st day of June, 2004. This 1st day of June, 2004.
