EXHIBIT 10.1.8
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is entered into as of October 1st
2003 by and between Ormat Technologies Inc. Delaware Corporation ("OTI" or
"Borrower") and Ormat Industries Ltd., an Israeli Corporation, ("Ormat" or
Lender") in effect from January 1st, 2003.
RECITALS
A. At Borrower's request, Ormat is willing to make a loan to Borrower.
B. The parties desire or set forth their mutual understanding with respect to
the loan.
The parties therefore agree as follows:
1. LOAN
(a) Lender hereby agrees to make a loan to Borrower in one or more
advances up to a total aggregate amount of up to $150,000,000 USD (One
Hundred & Fifty Million United States Dollars) (the "Loan"), pursuant
to the terms and conditions set forth in this Agreement.
(b) If Borrower elects to borrow any funds from Lender, then within 5
(five) business days of a written request from Borrower for an
advance, Lender shall consider making such advance in accordance with
the terms hereof. Lender shall note on Schedule A attached hereto the
date and amount of each advance and the total of all unpaid advances
shall be the outstanding balance of the Loan.
2. USE OF PROCEEDS
Borrower may use the proceeds of the Loan in connection with its
general corporate activities and investments.
3. PAYMENT
(a) Schedule B defines the repayment schedule by combining the
advances made to an aggregate principle amount to be repaid on each
due date ("Aggregate Amount") Borrower shall repay the Loan and
accrued interest in accordance with Section 5 below in full in
accordance with specific schedules agreed upon payment dates according
to schedule B attached ("Minimum Repayment Dates") and in any event on
or before June 5th, 2010.
(b) Upon repayment of the Loan and accrued interest, amounts repaid
shall be applied first against costs, damages and expenses due Lender,
then against amounts due for accrued interest and, thereafter, against
overdue principle and then against the first principle Loan amounts
becoming due, after the date of the prepayment, in accordance with
Schedule B. A partial repayment of an Aggregate Amount shall be
allocated in a pari passu manner between the Advances constituting
that Aggregate Amount.
(c) Borrower may at any time, upon prior written notice of 2 (two)
business days, prepay the Loan and accrued interest in whole or in
part.
(d) All amounts payable hereunder shall be payable at the Lender's
address listed below or other place of payment as directed by Lender.
4. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender as follows:
(a) Borrower is a company duly organized and validly existing under
the laws of Delaware and is in good standing under the laws of that
nation. Borrower has all requisite power and authority to own and
lease its property, to conduct its business as presently conducted and
to enter into and perform its obligations under this Agreement.
(b) This Agreement has been duly executed and delivered by Lender and
constitutes valid and binding obligations of Borrower, enforceable in
accordance with its terms, except as enforcement may be limited by
applicable bankruptcy laws or other similar laws affecting creditors'
rights generally.
(c) Borrower is not in violation or default of any provision of its
organizational documents, of any indenture, agreement, instrument,
judgment, order, writ, decree or contract to which it is a party or by
which it or any of its properties, assets or rights is bound or
affected or of any statute, rule or regulation applicable to Borrower
which violation or default would have a material adverse effect on
Borrower's business or property. The execution, delivery and
performance of this Agreement by Borrower and the consummation of the
transactions contemplated thereby will not result in any such
violation by Borrower of, require any consent to be obtained by
Borrower under, be in conflict with, or constitute, with or without
the passage of time and giving of notice, either a default by Borrower
under any such provision, instrument, judgment, order, writ, decree or
contract or an event which results in the creation of any material
lien, charge or encumbrance.
(d) There are no actions, suits, investigations or proceedings
pending or, to the knowledge of Borrower, threatened against Borrower
before or by any governmental department, commission board, bureau,
agency or instrumentality, or before any arbitrator or arbitration
board which may have a material adverse effect on the assets or
financial condition of the Borrower.
5. NATURE OF THE LOAN
(a) The loan and accrued interest shall be repaid in full on or
before the Minimum Repayment Date, or as specifically stated in
Schedule B per advance.
(b) Interest on the Loan shall be calculated on the balance from the
date of the receipt of each advance until the date of payment at a
rate per annum of Lender's average effective interest rate plus 0.3%
percent in United States Dollars, which represents a rate of 7.5% for
the advances made during year 2003. All computations of interest shall
be made by the Lender on the year basis of 360 days.
(c) Borrower shall pay or cause to be paid all present and future
taxes, duties and other charges of whatsoever nature levied or imposed
by the government of Israel or any jurisdiction through or out of
which a payment is made on or in connection with any and all amounts
due under this Agreement,
All payments of principal and interest due under this Agreement
shall be made without deduction for or on account, and free and clear,
of any such taxes, duties or other charges other than withholding
income tax pertaining to the Lender, if applicable in the Borrower's
country and provided that Borrower will provide a certificate
indicating such a transaction.
(d) Nothing contained in this Agreement shall impair the validity of
the Loan or in any way impair the rights of Lender to exercise all
remedies available to it under law.
6. DEFAULT
The occurrence of one or more of the following events shall
constitute a default under this Agreement ("Event of Default").
(a) Borrower's failure to pay the Loan and accrued interest in full
or in part as it becomes due and payable, and such failure shall not
be cured within 10 (ten) business days after Lender gives written
notice thereof to Borrower;
(b) Borrower's failure to comply with any of its obligations an
undertakings under this Agreement;
(c) Any representation, warranty or covenant made herein shall prove
to have been false or misleading in any material respect when made;
(d) Borrower's application for, consent to or acquiescence in the
appointment of a trustee, receiver, liquidator, assignee, or other
similar official Borrower or
Borrower's property, or the making of a general assignment for
the benefit of creditors, or the filing of a petition or an answer
seeking reorganization in proceeding under any bankruptcy or other
insolvency law, or the making of an agreement, composition, extension
or adjustment with its creditors; or
(e) Any bankruptcy, reorganization, debt arrangement or other
proceeding under any bankruptcy or other insolvency law being
instituted by or Borrower and not dismissed within 60 (sixty) days
thereafter.
7. REMEDIES
Upon the occurrence of an Event of Default hereunder, all amounts
outstanding under the Loan and accrued interest shall, at the option
of Lender, become immediately due and payable upon Lender's written
notice to Borrower. If Lender elects to declare all amounts
immediately due and payable, then Lender shall be entitled to exercise
all rights and remedies available to it under law. In addition, upon
the occurrence of an Event of Default and so long as such Event of
Default is continuing, Lender shall be under no obligation to make
additional advances pursuant to Subsection 2(b) above.
8. NOTICE
Any notice, request, instruction or other document to be given
hereunder by a party hereto shall be in writing, delivered in person,
or mailed by certified or
registered mail, return receipt requested, or transmitted by facsimile
transmission with electronic confirmation of receipt to the
addressee's address or facsimile number set forth below (or such other
address of facsimile number as the party changing its address
specifies in a notice to the other parties):
If to Ormat Technologies Inc.
000 Xxxx Xxxxxx
Xxxxxx, XX 00000-0000, XXX
Attention: President
Telephone: 0-000-000-0000
Facsimile: 0-000-000-0000
If to Ormat Industries Ltd.
X.X. Xxx 00
Xxxxx 00000 Xxxxxx
Attention: President
Telephone: 000-0-0000000
Facsimile: 000-0-0000000
Notice shall be deemed given the earlier of when actually received and
three days after Notice is sent in accordance with the above.
9. MODIFICATION; ENTIRE AGREEMENT; TERMINATION OF PRIOR AGREEMENT
No change or modification of this Agreement shall be valid unless
it is in writing and signed by both Lender and Borrower. This
Agreement sets forth the entire agreement and understanding among the
parties as to the subject matter treated herein and merges and
supersedes all prior discussions, agreements and understandings.
10. INVALID PROVISION
The invalidity or unenforceability of any provision of this
Agreement shall not affect
the other provisions, hereof, and this Agreement shall be construed in
all respects as if such invalid or unenforceable provisions were
omitted.
11. INTERPRETATION
This Agreement and each of the terms and provisions hereof are
deemed to have been explicitly negotiated among the parties and the
language in all parts of this Agreement shall in all cases be
construed according to its fair meaning and not strictly for or
against any party.
12. COUNTERPARTS
This Agreement May be signed in two or more counterparts, each of
which shall be deemed an original, and all of which, taken together
shall be deemed one and the same document.
13. APPLICABLE LAW
This Agreement shall be governed by, and interpreted and
construed under the laws of Israel.
14. EXPENSES AND ATTORNEY'S FEES
In the event that any party to this Agreement brings an action or
proceeding for the declaration of rights of the parties hereunder, for
injunctive relief, for an alleged breach or default of or any other
action arising out of this Agreement, the non-prevailing party in any
action pursued in courts of competent jurisdiction (the finality of
which is not legally contested) shall pay to the prevailing party all
reasonable costs, damages, and expenses including attorney's fees
expended or incurred in connection therewith.
15. SURVIVAL
The representations, warranties, covenants and agreement made by
the parties hereto in this Agreement shall survive the closing of the
transactions contemplated by this Agreement.
16. SUCCESSORS AND ASSIGNS
Except as otherwise expressly provided in this Agreement, the
provisions of this Agreement shall insure to the benefit of, and be
binding upon, the successors an designs of the parties to this
Agreement; provided that Lender shall not be obligated to make
advances under Section 1 of this Agreement to any successor or assign
of Borrower, but may do so pursuant to the terms of this Agreement as
Lender's sole discretion.
17. TITLES
The titles of the Sections of this Agreement are for convenience
of reference only and are not to be considered in construing this
Agreement.
IN WITNESS WHEREOF, the parties hereto make this Agreement as of
the date first set forth above.
ORMAT TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Its: Vice President
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ORMAT INDUSTRIES LTD.
By: /s/ Indecipherable
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Its: Managing Director
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