Exhibit 10.19
LOAN AGREEMENT
between
BANK HAPOALIM B.M.
and
LUMENIS LTD.
dated
March 26, 2002
INDEX
Clause Headings Page
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1. Interpretation 4
2. Definitions 5
3. Availability and Disbursement of the Loan 7
4. Payment of Interest 8
5. Repayment of the Loan 8
6. Default Interest 8
7. Increased Costs 8
8. Prepayment 9
9. Time, Place and Manner of Payment 10
10. Collaterals 11
11. Conditions Precedent 11
12. Representations and Warranties 12
13. Undertakings 13
14. Events of Xxxxxxx 00
00. Unlawfulness, Substitute Basis 17
16. Set Off and Application of Payments 18
17. The Borrower's Duty to Notify 19
18. Compensation for Broken Funding 19
19. Remedies and Waivers 19
20. Assignment 20
21. Administration of the Loan 20
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Clause Headings Page
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22. Disclosure of Information 20
23. Expenses 21
24. Additional Provisions 21
25. Notices 21
26. Governing Law and Jurisdiction 22
27. Currency Indemnity 22
28. Severability 23
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This Loan Agreement is dated as of the 26th day of March, 2002 and made between:
BANK HAPOALIM B.M
("The Bank")
and
LUMENIS LTD.
a company duly established and existing under the laws of the State of Israel
("the Borrower").
Whereas the Borrower has requested the Bank to grant it the Additional Financing
as such term is defined in the Letter of Undertaking as defined below.
Whereas the Bank is prepared to accede to the Borrower's request and to provide
it with the Loan (as defined herein) upon the conditions hereinafter set forth.
Now, therefore, it is hereby agreed and declared between the parties as follows:
1. Interpretation
1.01 This Agreement forms an integral part of the Borrower's
application to open an account and the general conditions for
operating an account which have been signed by the Borrower in the
Bank ("the Application to open an account") and of the Letter of
Undertaking.
1.02 Unless otherwise agreed the Borrower's obligations in this
Agreement are in addition to those contained in the Application to
open an account and in the Letter of Undertaking and nothing in
this Agreement shall derogate from any of the Bank's rights under
the Application to open an account and\or the Letter of
Undertaking.
1.03 Capitalised terms not defined herein shall have the meaning
ascribed under the Letter of Undertaking. Definitions of
capitalized terms under Clause 2 below shall not be used in the
interpretation of the Letter of Undertaking.
1.04 The provisions of Section 1(b) and Section 5 of the Letter of
Undertaking shall not apply to the Loan hereunder.
1.05 In the case of any contradiction between this Agreement and the
Application to open an account and\or the Letter of Undertaking
the provisions of this Agreement shall govern.
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1.06 The Preamble to this Agreement constitutes an inseparable part
hereof.
1.07 Clause headings and the table of contents are inserted for
convenience of reference only and shall be ignored in the
interpretation of this Agreement.
1.08 In this Agreement, unless the context otherwise requires:
(a) reference to Clauses and Schedules are to be construed as
reference to the clauses of, and schedules to, this
Agreement and references to this Agreement include its
Schedules; and
(b) words importing the plural shall include the singular and
vice versa.
2. Definitions
In this Agreement, the following words and expressions shall bear the following
meanings unless the context otherwise requires:-
"Bank" means - Bank Hapoalim B.M and any of its branches or offices existing on
the date hereof and or to be subsequently opened, whenever they may be, its
successors, assignees, or attorneys in fact, all as specifically permitted
hereunder;
"Banking Day" means - a day on which dealings in Dollar deposits are carried on
in the London Interbank Eurodollar market and (if payment is required to be made
on such day) on which banks are open for business in London and in Israel.
"Bank's Books" - shall be construed so as to include any book, record, statement
of account, and copy of any statement of account, loan agreement, deed of
undertaking, customers' xxxx, card index, page, film, any means of storage and
retrieval of data for purpose of electronic computers and any other means of
storage and retrieval of data;
"Compensation Fee" means a sum of $4,000,000 (Four Million Dollars).
"Disbursement Date" means - a Banking Day upon which the disbursement of the
Loan will be made but not later than September 1,2002.
"Dollars and "$" mean - the lawful currency of the United States of America.
"ESH Loan Agreement" means - a certain loan agreement between the Bank and
Energy Systems Holdings Inc. (now named Lumenis Holdings Inc.) signed on April
30 2001, as amended, supplemented or otherwise modified from time to time;
"Event of Default" means - any of the events or circumstances described in
Clause 14;
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Interest means - LIBOR plus the Margin.
"Interest Period" Each Interest Period shall be of three months duration
commencing and including the Disbursement Date, Provided, however, that if any
Interest Period would otherwise end on a day which is not a Banking Day, the
termination thereof shall be postponed to the next day which is a Banking Day,
unless such Banking Day falls in the next calendar month, in which case such
Interest Period shall end on the immediately preceding day which is a Banking
Day.
"Letter of Undertaking" - means a certain agreement signed between the Bank and
the Borrower on April 30 2001.
"LIBOR", means the rate of interest (expressed as any annual rate) determined by
the Bank to be the arithmetic meaning (rounded up, if necessary to the nearest
whole multiple of 1/8%) of the (i) rates for Dollar deposits offered to the Bank
for the respective Interest Period which appears on the LIBOR1 page of the
Reuters Screen for Dollars as of 11:00 a.m. London time, two Banking Days prior
to the commencement of the respective Interest Period, or (ii) in the absence of
such page or if the Bank ceases to use such page for the above purpose, such
other page of Reuters as shall be determined by the Bank or in the event that
Reuters services ceases to be available, the Bank shall select a relevant page
of another recognised service displaying the applicable rate or if Clause (i)
above is inapplicable, the rates of interest communicated to, and at the request
of, the Bank, by or on behalf of the principal London offices of the Reference
Banks or any two of them, as being the rates at which they would offer to the
Bank deposits in Dollars in the London Interbank Eurodollar Market, for the
respective Interest Period as of 11:00 a.m London time two Banking Days prior to
the commencement of that respective Interest Period, or (iii) if Clauses (i) and
(ii) are inapplicable the rates of interest communicated to and at the request
of, the Bank, by at least two other banks in London Interbank Eurodollar Market,
at the rates at which such banks would offer the Bank a deposit in Dollars for
the respective Interest Period as of 11:00 a.m. London time, two Banking Days
prior to the commencement of that respective Interest Period.
"Loan" means - a loan in the sum of $ 70,667,000 (Seventy Million Six Hundred
and Sixty Seven Thousand Dollars)
"Margin" means - 1) until the end of the first anniversary from disbursement
of the Loan - 6.555% per annum.
2) from the end of the first anniversary from disbursement
of the Loan until the end of the second anniversary from
disbursement of the Loan - 7.055% per annum.
3) from the end of the second anniversary from disbursement
of the Loan until the end of the fourth anniversary from
disbursement of the Loan - 7.805% per annum.
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"Notes" means Convertible Subordinated Notes issued by the Borrower on September
10 1997.
"Payment Date" means - the last day of each Interest Period.
Quarter" means each period commencing on the day after a Quarter Day and ending
on the next following Quarter Day; "Quarter Day" means March 31, June 30,
September 30 and December 31 in any year and Quarter Day means any of them.
"Reference Bank" means Barclays Bank PLC, National Westminster Bank PLC and
Bankers Trust Company (in its name or as Duetsche Bank)
"Security Documents" means - the Collateral referred to in Section 10 of this
Agreement, and any other documents as may have been executed or shall from time
to time after the date of this Agreement be executed to secure all or any part
of the Loan, interest thereon and other moneys from time to time owing by the
Borrower pursuant to this Agreement;
"Taxes" includes all present and future income and other taxes, levies, imposts,
deductions, charges and withholdings whatsoever, together with interest thereon
and penalties with respect thereto, if any, and any payment of principal,
interest, charges, fees or other amounts made on or in respect thereof and
"Tax", "Taxation" and similar words shall be construed accordingly.
3. Availability and disbursement of the Loan
3.01 Provided the obligations and conditions set forth in Clause 11
have been fulfilled, the Bank shall make the Loan available to the
Borrower on the Disbursement Date in one tranche provided, always,
that the Borrower shall have given the Bank a request for
disbursement in the form of Schedule "A" attached hereto, (the "
Disbursement Request") not later than 2 (two) Banking Days prior
to the Disbursement Date. The Loan shall be made available to the
Borrower by crediting the Borrower's account with the Haifa
Central Branch (700) of the Bank with the amount mentioned in the
preamble. In case the Borrower has given the Bank the Disbursement
Request but the Loan was not disbursed because the Borrower has
cancelled it and\ or the Borrower has not complied with the
conditions set forth in Clause 11 hereunder then the Borrower
shall pay the Bank the actual loss and\or expenses of the Bank
incurred as a consequence that the Bank has complied with the
Disbursement Request;
3.02 The Borrower declares and warrants that the proceeds of the Loan
will be utilised solely for financing the acquisition and/or
repayment of the Notes.
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4. Repayment of the Loan
The Borrower shall repay the Loan to the Bank in one instalment on
the fourth anniversary from the Disbursement Date.
5. Payment of Interest
5.01 The Borrower shall pay Interest on the outstanding balance of the
principal amount of the Loan starting on the Disbursement Date at
a rate equal to the aggregate of the Margin plus the LIBOR
applicable for each Interest Period. Interest shall be paid by the
Borrower to the Bank on each Payment Date.
Interest shall accrue from day to day and be calculated on the
basis of the actual number of days elapsed, divided by 360.
6. Default Interest
6.01 The Borrower shall pay default interest ("Default Interest") on
sums not paid on the due date under this Agreement or the Security
Documents from the due date and up to the date of actual payment (
as well after as before judgement ) at a rate equal to two (2) per
cent per annum above the Interest applicable at such date.
6.02 Unless otherwise stipulated in any of the Security Documents the
Borrower shall pay Default Interest on sums payable hereunder or
under the Security Documents on demand if not paid within seven
(7) Banking Days of the date of demand, from the date of demand up
to the date of actual payment (as well after as before judgement)
at the rate equal to two (2) per cent per annum above the Interest
applicable at such date.
6.03 Default Interest shall be due and payable on demand and calculated
on the basis of actual number of days elapsed divided by 360 days.
7. Increased Costs
If by reason of any change in law or in its interpretation by any
official authority of the State of Israel charged with the
interpretation thereof , and/or by reason of compliance with any
request from or requirement of the Bank of Israel, any
governmental authority or other fiscal or monetary authority,
after the date hereof and directed to Israeli commercial banks in
general:
(i) the Bank incurs a cost as a result of its having entered
into and/or performing its obligations under this Agreement
and/or maintaining the outstanding balance of the Loan; or
(ii) there is any increase in the cost to the Bank of funding or
maintaining all or any of the outstanding balance of the
Loan; or
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(iii) the Bank becomes liable to make any payment on account of
Tax or otherwise ( not being a tax imposed on the net
income of the Bank) on or calculated by reference to the
amount of the outstanding balance of the Loan and/ or by
reference to any sum received or receivable by it
hereunder.
then the Borrower shall, from time to time, within 30 days from
demand of the Bank, promptly pay to the Bank such additional
amounts sufficient to indemnify the Bank against, as the case may
be, (i) such cost, (ii) such increased cost and (iii) such
liability, all as actually incurred;
The Bank shall as soon as reasonably practicable deliver to the
Borrower a certificate specifying in reasonable detail the event
by reason of which it is entitled to make a claim pursuant to this
Clause. The Bank shall however exercise its best endeavors to
mitigate such cost, increased cost and liability.
The Bank represents that it is not aware of any such circumstances
or threats on the date hereof, which might give rise to a claim
for increased cost pursuant to sub-clauses (i) through (iii)
hereunder. Without derogating from the provisions of Clause 8
hereof, the Borrower may, after receipt of the demand referred to
in this clause, notify the Bank that it will prepay, on the last
day of the Interest Period the whole (but not part only of the
outstanding balance of the Loan); whereupon the Borrower shall
prepay to the Bank the outstanding balance of the Loan together
with accrued interest thereon and all other amounts owing to the
Bank hereunder.
8. Prepayment
8.01 The Borrower may, on the last day of any Interest Period upon
giving in each case at least 14 (fourteen) days' prior written
notice to the Bank (which shall be irrevocable and shall
constitute the Borrower's undertaking to prepay accordingly),
prepay in whole or from time to time in part, (being in each
instance not less than $1,000,000 One Million Dollars or a whole
multiple thereof) of the principal amount of the Loan provided
that together with such prepayment amount the Borrower will pay a
sum (the "Fee") which is the result of multiplying the prepaid
principal amount by 4.305 % and multiplied by the remaining number
of days until the repayment of the Loan as specified in Section 4
above, divided by 360, and discounted at LIBOR plus 3.05 %
according to projected payments schedule.
8.02 If the Borrower notifies the Bank of its intention to prepay any
amount under the provisions of this Agreement but in fact does not
pay in accordance with such notification then the Borrower shall
indemnify the Bank against and on demand pay to the Bank the full
amount of any loss or expenses which the Bank shall certify as
actually sustained or incurred by it as a consequence of not
having been prepaid in accordance with such notification.
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8.03 The Borrower may not prepay the Loan or any part thereof save as
expressly provided in this Agreement.
9. Time, Place and Manner of Payment
9.01 All payments to be paid by the Borrower hereunder shall be made to
the Bank free of any Taxes and without set-off or counterclaim, in
funds available to the Bank at its Haifa Central Branch or at any
other place in Israel nominated by the Bank and not prohibited for
that purpose by any applicable law, provided that 15 (fifteen)
days prior notice thereof shall have been given to the Borrower by
the Bank.
9.02 Notwithstanding the foregoing in the event that the Borrower is
required under the laws of the State of Israel to deduct or
withhold any amount in respect of income-tax on payments of
interest payable hereunder, then the Borrower shall be entitled to
make such deduction or withholding; provided always that in any
such case the Borrower shall furnish to the Bank forthwith
adequate tax receipts in respect of any such deduction or
withholding, in form and substance acceptable to the income tax
authorities, duly completed and signed as required by said
authorities, for the purpose of treating same as a payment on
account of income tax payable by the Bank.
In the event that the Borrower shall not furnish to the Bank tax
receipt as aforementioned and/or that the income tax authorities
will not treat any such deduction or withholding as a payment on
account of the Bank's income tax by reason of any defect in such
receipt, then the payment of interest under this Agreement shall
be increased to such amount as is necessary to yield and remit to
the Bank the principal amount of the Loan and interest at the rate
specified in this Agreement after provision for payment of such
Tax. The Borrower shall at the request of the Bank execute and
deliver to the Bank such instruments as may be necessary or
desirable to give full force and effect to such increase in the
rate of Interest.
9.03 All payments to be paid by the Borrower to the Bank hereunder
shall be made only on a Banking Day, as defined herein. If any
payment is due on a day which is not a Banking Day, such payment
shall be made on the next succeeding Banking Day unless it would
thereby be made in the next calendar month, in which case such
payment will be made on the immediately preceding Banking Day.
9.04 If any sum to be paid hereunder shall be paid by the Borrower on a
day other than a Banking Day it shall be considered as having been
paid on the next succeeding Banking Day.
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10. Collaterals
All Collateral as such term is defined in ESH Loan Agreement shall serve
also to secure the full and punctual payments of all sums now or hereafter to
become due and payable to the Bank from the Borrower under this Agreement.
Promptly after the Borrower shall have repaid the Loan in full and shall
have paid and repaid to the Bank any and all of the sums due to the Bank
hereunder and under all other Loan Documents (as defined in ESH Loan Agreement),
and provided any and all of the sums due to the Bank under documents signed
between the Borrower and the Bank shall have been paid to the Bank in full, the
Bank shall release the Liens over the Collateral. Notwithstanding the above, the
Bank will release the Liens over the Collateral before any and all amounts were
so paid immediately at the request of the Borrower, provided the Borrower have
deposited and/or caused to be deposited with the Bank and charged and pledged in
favor of the Bank sums equal to the outstanding balance of any and all amount
due to the Bank together with all sums accrued and/or to be accrued thereon
until applied to the payment or prepayment, as requested by the Borrower, of the
said sums, according to documents signed between the Borrower and the Bank
11. Conditions Precedent
The obligation of the Bank to make the Loan available to the Borrower
shall be subject to the condition that no Event of Default and/or any
event which but for the giving of notice or the lapse of time would
constitute such an event has occurred or be continuing and that on or
before the Disbursement Date, the Borrower shall have delivered to the
Bank the documents , and shall have completed all the actions listed
hereunder to the full satisfaction of the Bank:
(a) Certified true copies of the resolutions of the Board of
Directors of the Borrower authorising the borrowing under
this Agreement, and providing for the persons authorised to
sign this Agreement and any document or instrument
hereunder in the name and on behalf of the Borrower, as per
the enclosed form.
(b) payment of the Compensation Fee.
(c) Execution and delivery by Lumenis Holdings Inc. of the
Subsidiary Guarantee, in form and substance satisfactory to
the Bank.
(d) Execution and delivery by Lumenis Holdings Inc. of the
Grantor Acknowledgment and Consent, in form and substance
satisfactory to the Bank.
(e) Execution and delivery by Lumenis Inc. of the Guarantor
Acknowledgment and Consent, in form and substance
satisfactory to the Bank.
(f) Execution and delivery of legal opinion of local counsel to
Lumenis Holdings Inc. and Lumenis Inc., in form and
substance satisfactory to the Bank.
12. Representations and Warranties
12.01 In addition to the representations of the Borrower under the
Letter of Undertaking, the Borrower represents and warrants to the
Bank in relation to the Borrower that:
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(a) the Borrower is a public company duly incorporated and
validly existing under the laws of the State of Israel and
has the corporate power and authority to own its assets and
conduct its business as it is now being conducted.
(b) the Borrower has the full power, corporate authority and
legal right to enter into, exercise its rights and perform
its obligations under this Agreement;
(c) all necessary consents and authorities for the Borrower to
enter into and perform its obligations under this Agreement
have been obtained and no further consents or authorities
are necessary;
(d) the obligations of the Borrower under this Agreement, and
the obligations of the Borrower under all of the other
Security Documents executed by the Borrower are legal,
valid, binding and enforceable against the Borrower in
accordance with their terms, except as enforceability may
be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights.
(e) the execution, delivery and performance by the Borrower of
its obligations assumed by it under this Agreement, and the
use of the proceeds of the Loan for the purposes set forth
herein, will not (i) violate any existing law, regulation
or authorisation to which the Borrower is subject (or, if
any action is required under any such law, regulation or
authorization, it will not have a material adverse effect
on the Borrower or result in the creation of Lien upon any
of the properties or assets of the Borrower or any of the
Subsidiaries), (ii) result in any breach of or default
under any material agreement or other instrument to which
the Borrower is a party or is subject, or if such breach or
default has occurred under such agreement or instrument, it
will not have a material adverse effect on the Borrower, or
(iii) violate any provision of the Borrower's Memorandum
and Articles of Association or other constituent documents;
(f) No action, litigation, arbitration or administrative
proceeding is currently pending, or, to the knowledge of
the Borrower threatened in writing against the Borrower
which could have a material adverse effect on its ability
to perform its obligations under this Agreement, except as
disclosed with Borrower's filings with the Securities and
Exchange Commission;
(g) no event has occurred, and is continuing that constitutes,
or that after the giving of notice or the lapse of time or
both, would constitute an Event of Default.
(h) Borrower has not granted any Lien over all or any part of
the present or future assets or revenues of the Borrower,
except for Liens permitted
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hereunder or under the documents signed between the
Borrower and the Bank.
13. Undertakings
13.01 In addition to the undertakings of the Borrower under the Letter
of Undertaking, the Borrower undertakes with the Bank that so long
as any moneys are owing under this Agreement it will
(i) not to purchase any assets unless such purchase is made in
the ordinary course of the business of the Borrower or
against allotment of shares in the Borrower.
(ii) furnish the Bank with periodic financial statements, books
of account and other authorities and materials in relation
to the state of its affairs, as stated in Section 4 (j) of
the Letter of Undertaking.
13.02 The Borrower undertakes with the Bank that, from the date of this
Agreement and so long as any moneys are owing under this
Agreement, without the prior written consent of the Bank:-
(a) it will retain in its consolidated financial statements the
financial ratios as stated herein:
1) The ratio between the total debt to the Bank of the
Borrower and\or any of its Subsidiaries including
debt arising of this Loan Agreement divided by the
EBITDA will not be more than 3 (three).
For the purpose hereof, "EBITDA' shall mean, for any
calendar year, the net income, less interest income
and profits of an extraordinary , unusual or
nonrecurring nature, plus the sum of interest
expenses, taxes, depreciation, charges or losses of
any extraordinary, unusual or nonrecurring nature,
amortisation and all other non-cash charges as
evidenced by the audited financial statement of the
Borrower for the last four Quarters.
All the terms used in this section shall be interpreted
according to generally accepted accounting principles in
the United States of America from time to time.
14. Events of Default
In the case of the occurrence of, and during the continuance of, any of
the following events for any reason whatsoever, and whether such occurrence
shall be voluntary or involuntary or come about or be effected by operation of
law or pursuant to or in compliance with any judgement, decree or order of any
court or any order, rule or regulation of any governmental body or otherwise
(each herein sometimes called an "Event of Default"):
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14.0114.01.1 Any representation or warranty made herein or in any certificate
hereafter delivered to the Bank pursuant to this Agreement, or any
other document signed by the Borrower in favor of the Bank shall
prove to have been false or misleading in any material respect
when made; provided, however, that with respect to circumstances
that do not affect the validity, legality or enforceability of
this Agreement, the circumstances to which such representation or
warranty relates, if capable of being corrected so that such
representation or warranty shall become correct again, shall not
have been corrected until the earlier of 7 (seven) days from
receipt of the Bank's notice or 7 (seven) days from the date upon
the Borrower has become aware thereof; or
14.01.2 Any default shall occur in the payment of principal of or
interest under this Agreement, as and when the same shall become
due and payable, whether at the due date thereof, by acceleration,
or otherwise, and such default is not remedied until the later of
30 (thirty) days from the due date of the respective sum or 7
(seven) days from the date of Borrower's receipt of the Bank's
notice to that effect; or
14.01.3 Any default shall occur in the due observance or performance by
the Borrower or any Material Subsidiary of any other covenant,
agreement or condition contained herein or in other document
signed by the Borrower and\or any Material Subsidiary in favor of
the Bank, and such default, if capable of being cured, is not
remedied until the later of 45 (forty five) days from the due date
of the respective default or 14 (fourteen) days from the date of
Borrower's receipt of the Bank's notice to that effect; or
14.01.4 The Borrower, or any Material Subsidiary shall suspend or
discontinue its business other than pursuant to a Permitted
Restructure, or (ii) the Borrower or any Material Subsidiary shall
call a meeting of its creditors for the purpose of postponing or
adjusting its liabilities or seeking an arrangement with its
creditors, shall make an assignment for the benefit of creditors
or a composition with creditors, shall be unable or admit in
writing its inability to pay its debts generally as they mature,
shall generally not pay its debts when they are due, shall file a
petition in bankruptcy, shall become insolvent (howsoever such
insolvency may be evidenced), shall suffer an order for relief to
be entered against it under any bankruptcy law which shall remain
undismissed or unstayed for a period of 60 (sixty) days or more,
shall petition or apply to any tribunal for the appointment of any
receiver, custodian, liquidator or trustee of or for it or any
substantial part of its property or other assets or shall commence
any proceeding relating to it under any bankruptcy,
reorganization, arrangement, readjustment of debt, receivership,
dissolution or liquidation law or statute of any jurisdiction,
whether now or hereafter in effect; or there shall be commenced
against the Borrower or any Material Subsidiary any such
proceeding which shall remain undismissed or unstayed for a period
of 60 (sixty) days or more; or the Borrower or any of its
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Subsidiaries shall take any action for the purpose of effecting
any of the foregoing; or
14.01.5 Any order, judgment or decree shall be entered in any ex parte
proceeding against the Borrower or any Material Subsidiary
decreeing the dissolution of the Borrower or any of its
Subsidiaries and such order, judgment or decree shall remain
undischarged or unstayed for a period in excess of 60 (sixty)
days; or
14.01.6 Any Loan Document as such term is defined in the ESH Loan
Agreement, shall become invalid or unenforceable, in whole or in
part, and such unenforceability persists for a period of 30
(thirty) days, or any default or event of default shall have
occurred thereunder and such default persists for more than the
period of grace, if any, specified therefor; or (A) any of the
collaterals specified in Section 10 above shall cease for any
reason to be in full force and effect, or the Borrower or any
Material Subsidiary shall so assert, (B) any of the collaterals
specified in Section 10 to this Agreement shall cease to be
enforceable and of the same effect and priority purported to be
created thereby;
14.01.7 Any default (unless duly waived in writing by the obligee) shall
occur with respect to any permitted Indebtedness of the Borrower
or any Material Subsidiary for or relating to borrowed money
(including, without limitation, for the deferred purchase price of
property or for the payment of rent under any lease), or under any
agreement under which any evidence of Indebtedness may be issued
by the Borrower and such default shall continue for more than the
period of grace, if any, specified therein, if the effect of such
default is to accelerate the maturity of such Indebtedness or to
permit the holder thereof, or any trustee, to cause the same to
become due prior to its stated maturity or if any such
Indebtedness shall not be paid when due (after giving effect to
any grace period and other than Indebtedness contested in good
faith), and as long as such default is continuing and involves
liability in excess of US$500,000; or
14.01.8 Final judgment for the payment of money in excess of $500,000 (to
the extent not covered by insurance or bond) shall be rendered by
a court of record against the Borrower or any Material Subsidiary,
and the Borrower or the Material Subsidiary shall not discharge
the same or provide for its discharge in accordance with its
terms, or procure a stay of execution thereof within 30 (thirty)
days from the date of entry thereof and within such period of 30
(thirty) days, or such longer period during which execution of
such judgment shall have been stayed, appeal therefrom and cause
the execution thereof to be stayed during such appeal; or
14.01.9 The Borrower or any of its Subsidiaries shall be in default under
any other obligation to Bank Hapoalim B.M., including its New York
Branches, and such default persists for more than the period of
grace, if any, specified therefor, and as long as such default is
continuing; or
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14.01.10 the Bank in its sole discretion considers that a material adverse
change in the financial or business condition of the Borrower
shall have occurred;
14.01.11 Any of the documents for the Banking Services shall become invalid
or unenforceable, in whole or in part, and such unenforceability
persists for a period of 30 (thirty) days, or any default or event
of default shall have occurred thereunder, and such default
persists for more than the period of grace, if any, specified
therefor;
14.01.12 any default occurs under the Letter of Undertaking and such
default persists for more than the period of grace, if any,
specified therefor, and as long as such default is continuing;
14.02 The Bank may, without prejudice to any of its other rights, at any
time after the happening of an Event of Default, so long as the
same is continuing, by notice to the Borrower declare that:
(a) the Loan and all interest accrued and all other sums
payable under this Agreement have become due and payable
whereupon the same shall, immediately or in accordance with
such notice, become due and payable; and/or
(b) the Loan and all other sums payable under this Agreement
shall bear interest at the rate specified in Clause 6 as if
such sums had not been paid on due date, whereupon interest
shall, immediately or in accordance with the terms of such
notice, become due and payable.
14.03 Without prejudice to any of its other rights upon the happening of
an Event of Default, after an Event of Default shall have occurred
and as long as the same is continuing, the Bank shall have a lien
on all monies, securities, claims, goods and other property,
assets or rights of the Borrower held by the Bank, until payment
in full of the Loan and all other amounts owing to the Bank
hereunder provided such right does not contravene with any of the
terms specified in the Security Documents or other documents
signed between the Borrower and the Bank. The Bank shall notify
the Borrower forthwith upon the exercise or purported exercise of
any right of lien giving full details in relation thereto.
14.04 Notwithstanding Section 6 of the Companies Law 5759-1999 ,the Bank
hereby agrees that in any Event of Default (as such term is
defined under this Agreement) it shall have no claim , demand or
any recourse to the assets and rights of any of the shareholders
of the Borrower.
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15. Unlawfulness, Substitute Basis
15.01 This Agreement has been made in accordance with legal, regulatory,
fiscal and monetary measures currently in force and in accordance
with current market conditions. If the making or the continuation
of the Loan by the Bank has become unlawful and the Bank is
required to reduce the volume of its loans due to any change,
after the date of this Agreement, in any applicable law or
governmental regulation or order or in any requirement of any
monetary authority directed to Israeli commercial banks in general
, or in the interpretation made by any governmental or other
fiscal or monetary authority charged with such interpretation
after the date hereof and directed to Israeli banks in general of
any of the same, then and in any such event the Bank may give
notice to the Borrower and the Borrower agrees to prepay the full
amount then outstanding as well as interest accrued thereon within
90 (ninety) days or at the expire of the then current Interest
Period whichever comes first but not less than within 30 ( thirty)
days.
15.02 (a) If at any time subsequent to the date hereof by reason of
changes affecting the Eurodollar Interbank Market, the Bank
is unable, due to circumstances beyond its control, to
determine the LIBOR, or there shall be no objective
possibility for the Bank to refinance itself in United
States Dollars in respect of the then outstanding balance
of the principal amount of the Loan, then and in any such
event the Bank shall give notice to the Borrower to that
effect.
(b) The Bank shall then offer the Borrower an alternative basis
(the "Substitute Basis") for the continuation of the Loan.
The Substitute Basis may include alternative interest
periods, alternative currencies or alternative rates of
interest taking into account the outstanding balance of the
principal amount of the Loan. The Substitute Basis shall be
binding upon the Borrower and shall take effect in
accordance with its terms from the date specified in the
Bank's notice.
(c) If the Borrower determines that it does not wish to
continue to borrow the Loan or under the Substitute Basis
it shall so notify the Bank within 10 days of receipt of
the Bank's notice specifying such Substitute Basis
whereupon the outstanding balance of the principal amount
of the Loan coupled with interest accrued and accruing
thereon at a rate prevailing during the last Interest
Period in respect of which the LIBOR and the rate of the
Interest has been determined shall thereupon become
immediately due owing and payable.
(d) The Bank represents that it is not aware of any
circumstances or threats at the date hereof which might
cause the making or the continuation of the Loan by the
Bank to become impracticable or unlawful or which makes the
Bank unable to determine the LIBOR or to refinance itself
in Dollars.
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16. Set-Off and Application of Payments
16.01 The Borrower hereby irrevocably authorises the Bank to apply any
moneys standing to the credit of any account of the Borrower with
the Bank at any of its branches (including such accounts held by
the Borrower jointly or severally with other parties) in or
towards satisfaction of any sum not paid on its due date by the
Borrower to the Bank under this Agreement provided such sum is due
to the Bank.
For this purpose the Bank is authorised to purchase with the
moneys standing to the credit of such account such other
currencies as may be necessary to effect such application. The
Bank shall not be obliged to exercise any right given to it by
this Clause. The Bank shall notify the Borrower forthwith upon the
exercise or purported exercise of any right of set-off giving full
details in relation thereto.
16.02 All moneys held or received by the Bank for or on account of the
Borrower, whether hereunder, pursuant to any of the Security
Documents or otherwise, notwithstanding that such monies may have
been intended by the Borrower or any third party to be
appropriated for or on account of any other amount, may be applied
by the Bank to any amount owed by the Borrower under this
Agreement and not paid on its due date , and if so applied, shall
be applied in the following manner:
(i) first, in payment to the Bank of all costs, charges or
expenses, inter alia, those incurred by the Bank in
enforcing its rights hereunder or under any of the Security
Documents;
(ii) secondly, in or towards Interest/Default Interest owing in
respect of the Loan;
(iii) thirdly, to prepayment of instalments of principal on
account of the Loan in the inverse order of their maturity;
The Bank shall notify the Borrower forthwith upon the exercise or
purported exercise of any right given to it by this Clause, giving
full details in relation thereto
17. The Borrower's Duty to Notify
The Borrower hereby undertakes to notify the Bank immediately:
(a) of any dispute of right to any security given or which may
be given to the Bank pursuant hereto or in connection
herewith
(b) of any of the events enumerated in Clause 14 above.
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(c) of any change of address.
18. Compensation for Broken Funding
If the Loan or any part thereof or any interest thereon is for any
reason whatsoever repaid, paid or recovered by the Bank under any
security or otherwise, on any day other than the agreed date of
payment, the Borrower shall upon demand pay to the Bank such
amount or amounts as may be necessary to compensate the Bank for
any actual loss incurred by it on account of funds borrowed in
order to make, fund or maintain the Loan with respect to which
repayment, payment or recovery is made and or any loss of profit
caused thereby. The Bank shall however exercise its best
endeavours to mitigate any such losses.
For the avoidance of doubt if the Borrower effects payments or
prepayments in full compliance with the provisions of Clauses
4,,7,8 or 15 hereunder, the Borrower shall not be required to pay
any amount under this Clause.
19. Remedies and Waivers
19.01 No delay or omission of the Bank in exercising any right, power,
privilege or remedy pursuant to this Agreement or any Security
Document shall impair such right, power, privilege or remedy or be
construed as a waiver thereof nor shall any single or partial
exercise of any such right, power, privilege or remedy preclude
any other or further exercise thereof or the exercise of any other
power, right or remedy.
19.02 Unless otherwise agreed, the rights and remedies of the Bank
provided in the Agreement and each Security Document are
cumulative and not exclusive of any other rights or remedies
provided by law.
20. Assignment
The Bank may at any time at its own discretion and without the Borrower's
consent being required, assign all of its rights in relation to the Loan
and arising from this Agreement, including the securities given or to be
given, to any company in the Bank's Group, which is a banking institution
registered according to the laws of the State of Israel and any such
assignee may also reassign the said right as aforesaid within the Bank's
Group without any further consent being required from the Borrower. Such
assignment may be effected in any way which the Bank or any subsequent
assignor deems fit provided however that at any time only one entity will
be an assignee and provided that the Borrower's rights under this
Agreement will not be prejudiced as a consequence of such an assignment.
The Bank shall notify the Borrower of such an assignment promptly upon
the execution of the assignment and the assignee shall assure the
Borrower that it has assumed all rights and obligations under this
Agreement.
-19-
The "Bank's Group "means any company which the Bank possesses 51% or more
of its outstanding share capital.
The Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Bank which
will not be unreasonably withheld.
21. Administration of the Loan
The Bank may administer the Loan or any part thereof by booking same with
any of its branches, whether in Israel or abroad without prejudice to the
Borrower and as long as such administration does not affect the Borrower.
The Bank may at any time and from time to time at its own discretion and
without any consent being required from the Borrower, transfer the
administration of the Loan or any part thereof from one branch of the
Bank to another, whether in Israel or abroad without prejudice to the
Borrower and as long as such administration does not affect the Borrower.
22. Disclosure of Information
Any branch of the Bank administering the Loan may disclose to the Head
Office of the Bank, ,or to any assignee according to Clause 20 above , or
to the Bank of Israel, the Examiner of Bank, the Controller of Foreign
Exchange or any person acting under their authority or to any other
regulatory authority having jurisdiction over the Bank or over the Head
Office of the Bank or to the Head Office of the Bank for delivery by the
latter to any such regulatory authorities, such information about the
Borrower, or the Loan as may be required by such regulatory authorities
or as the branch or the Head Office of the Bank may deem appropriate,
provided that upon the disclosure of information to any person who/which
is not a regulatory authority such person will confirm to the Bank that
such information will be treated in confidence.
23. Expenses
All of the expenses in stamping this Agreement, (including any interest
and/or fines for late stamping), the registration of the Security
Documents and all and any expenses involved in the enforcement thereof or
in the realisation of the collaterals for the enforcement thereof, if
interference by court is needed, including fees of the Bank's advocates,
shall be paid by the Borrower to the Bank upon the Bank's first
demand.and if not paid accordingly such sum shall bear Default Interest
at the rate prescribed in Section 6 to this Agreement..
24. Additional Provisions
24.01 The Borrower hereby confirms that the Bank's books, accounts and
entries shall be prima facie evidence against the Borrower in all
their particulars.
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24.02 The Borrower hereby confirms receipt of the Bank's notification
that according to the Protection of Privacy Law, 5741-1981:
(i) All the particulars furnished or which may be furnished by
the Borrower to the Bank may be used by the Bank in the
normal course of its operations at its own discretion
provided however that the Bank shall not disclose such
information except as provided in this Agreement.
(ii) All the particulars furnished or which may be furnished by
the Borrower to the Bank shall be stored in keeping with
the Bank's requirements from time to time in data bases of
the Bank and/or of suppliers to the Bank from time to time
of computer and data processing and warehousing services;
and the Borrower hereby confirms its agreement thereto.
25 Notices
25.01 Each communication to be made under this agreement shall be made
in writing and, unless otherwise stated, may be made also by telex
or facsimile transmission.
25.02 Each communication or document to be made or delivered by one
person to another pursuant to this Agreement shall (unless that
other party has by fifteen (15) days' written notice specified
another address) be made or delivered to that party, addressed as
follows:
(i) if to the Borrower at:-
Yokneam Industrial Park
P.O.B. 240
Yokneam 00000
Xxxxxx
Fax No: 00-0000000
Att: Chief Executive Officer
(ii) if to the Bank at:-
Bank Hapoalim X.X
Xxxx Xxxxxx
00 Xxxxxxxxxx Xxxxxxxxx
Xxx-Xxxx 00000
Fax no. 00-000-0000
Att: Corporate Division, Industrial Sector, Xx. Xxx Xxxxxx
and shall be deemed to have been made or delivered the next Banking Day
after dispatch (in the case of any communication made by telex or any
form of facsimile transmission) or (in the case of any communication made
by letter) the next Banking Day after being physically left at that
address.
-21-
26. Governing Law and Jurisdiction
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Israel.
(b) For the purpose of this Agreement the exclusive place of
jurisdiction shall be the competent courts of law in Tel
Aviv-Jaffa. The Borrower hereby irrevocably submits to the
jurisdiction of these courts.
27. Currency Indemnity
The Borrower agrees to indemnify the Bank against any loss incurred by it
as a result of any judgement or order being given or made for the payment
of any amount due under this Agreement and of such judgement or order
being expressed in a currency other than the currency in which such
amount is payable and as a result of any variation having occurred in the
rates of exchange between the date on which any such amount becomes due
under this Agreement and the date of actual payment thereof. The
foregoing indemnity shall constitute a separate and independent
obligation of the Borrower and shall apply irrespective of any indulgence
granted to the Borrower from time to time and shall continue in full
force and effect notwithstanding any such judgement or order.
-22-
28. Severability
If at any time any provision of this Agreement is or becomes invalid,
illegal or unenforceable in any respect under the laws of the State of
Israel neither the legality, validity or the enforceability of the
remaining provisions hereof shall in any way be affected or impaired
thereby.
In Witness Whereof the Borrower and the Bank have caused this Agreement to be
duly executed and delivered as of March 26, 2002
/s/ Xxxxx Xxxxxx /s/ Xxx Xxxxxx /s/ Xxxxx Xxx-Xxx
------------------------- ---------------------------------
Lumenis Ltd. Bank Hapoalim B.M.
By: Xxxxx Xxxxxx By: Xxx Xxxxxx
Liora Xxx-Xxx
-23-
Schedule "A"
DISBURSEMENT REQUEST
Date: _____________
To: Bank Hapoalim B.M
Tel Aviv
Dear Sirs,
-24-
