REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Title of each class
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Trading Symbol
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Name of each exchange on which registered
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1 |
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Large accelerated filer ☐
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Non-accelerated filer ☐
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Emerging growth company
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U.S. GAAP ☐
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Other ☐
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by the International Accounting Standards Board
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5 | ||
6 | ||
7 | ||
Part I | ||
9 | ||
9 | ||
9 | ||
34 | ||
122 | ||
123 | ||
154 | ||
178 | ||
185 | ||
186 | ||
186 | ||
203 | ||
204 | ||
Part II |
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205 | ||
205 | ||
205 | ||
206 | ||
206 |
206 | ||
207 | ||
207 | ||
207 | ||
207 | ||
208 | ||
208 | ||
Part III |
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209 | ||
209 | ||
209 |
• |
risks related to projects that are in the development stage, among other issues due to the inability to obtain or maintain licenses
or project finance; |
• |
regulatory changes and government interventions impacting electricity prices and other changes in electricity prices, including their
impact on the fair value of financial instruments and assets; |
• |
weather conditions and various meteorological and geographic factors; |
• |
our EPC contractors’ and our other contractors’ and service providers’ technical, professional and financial ability
to construct, install, test and commission a renewable energy plant and to provide us with the required services and support; |
• |
our contractors’ technical, professional and financial ability to deliver on and comply with their operation and maintenance,
or O&M, undertakings in connection with the operation of our renewable energy plants; |
• |
dependency on the availability of financial incentives and government subsidies and on governmental regulations for our operating
renewable energy projects and projects under development and the potential reduction or elimination, including retroactive amendments,
of the government subsidies and economic incentives applicable to, or amendments to regulations governing the, renewable energy markets
in which we operate or to which we may in the future enter; |
• |
defects in the components of the renewable energy plants we operate or theft of various components; |
• |
our ability to meet our obligations, undertakings and financial covenants under various financing agreements, including to our debenture
holders, our ability to raise additional equity, debt or other types of financing in the future and the limitations imposed on us in the
deeds of trust governing our debentures; |
• |
risks due to our current debt, which has increased in recent years, and in connection with debt incurred in the future; |
• |
our inability to generate a positive cashflow from our operations; |
• |
risks relating to operations in foreign countries, including cross currency movements, payment cycles and tax issues; |
• |
our inability to locate land suitable or sufficient for the needs of the projects that we develop and potential disagreements with
landowners; |
• |
natural disasters, terrorist attacks, other catastrophic events, cyber attacks and information technology or telecommunication system
disruptions; |
• |
changes in the prices of the components or raw materials required for the production of renewable energy; |
• |
our dependency on revenues and cash flows from the Talasol PV Plant; |
• |
risks in connection with our Waste-to-Energy, or WtE, projects in the Netherlands, including shortages, insufficient quality or changes
in prices of raw materials, increase in delivery prices and environmental and other regulatory changes; |
• |
risks relating to our Israeli operations, including the centralized electricity market and exposure to damages due to hostile attacks;
|
• |
the risks we are exposed to due to our holdings in U. Dori Energy Infrastructures Ltd., or Dori Energy, and Dorad Energy Ltd. ,or
Dorad, including risk factors generally applicable to electricity manufacturers and our joint control of Dori Energy and lack of control
of Dorad, restrictions on our right to transfer our holdings in Dori Energy, regulatory changes applicable to Dorad, shortages of gas,
exposure to changes in the Israeli consumer price index and exchange rates and involvement in legal proceedings; |
• |
the market, economic and political factors in the countries in which we operate; |
• |
our ability to maintain expertise in the energy market, and to track, monitor and manage the projects which we have undertaken;
|
• |
competition and changes in the renewable energy markets; |
• |
future disagreements with our partners who own a portion of the renewable energy plants; |
• |
dependency on payments received from governmental entities; |
• |
fluctuations in the value of currency and interest rates; |
• |
risks related to our incorporation and location in Israel, including security risks and political risks; |
• |
risks related to economic uncertainty and exposure to the impact of the military conflict between Russia and Ukraine; |
• |
our plans with respect to the management of our financial and other assets and our ability to identify, evaluate and consummate additional
suitable business opportunities and strategic alternatives; |
• |
we are controlled by a small group of shareholders and, as a foreign private issuer, may rely on home country practices with respect
to certain matters; |
• |
the price, market liquidity and volatility of our ordinary shares, potential future dilutions and listing on two markets; |
• |
dependency on key management and personnel; |
• |
the effects of the Covid-19 pandemic on the development, construction and operation of projects, including in connection with actions
taken by governments and authorities, delays in construction due to quarantine and other measures, changes in regulation, changes in the
price of electricity and in the consumption of electricity; |
• |
our inability to maintain effective internal controls over financial reporting; |
• |
impact of provisions of Israeli law on our shareholders’ ability to enforce US judgements on us, on the ability to acquire
us or a controlling position in our company, on rights and obligations of shareholders; |
• |
exposure to legal and administrative proceedings and tax audits; and |
• |
we have not paid any cash dividends since 2016. |
A. |
[Reserved] |
B. |
Capitalization and Indebtedness |
C. |
Reasons for the Offer and Use of Proceeds |
D. |
Risk Factors |
• |
As the raw materials used to produce energy in the WtE market are not freely available (as is the case with wind and solar energies),
the success of a WtE plant depends, among other things, on the prices of feedstock required in order to maintain the optimal mix of feedstock
necessary to maximize performance of the plants and meet a certain of range of energy (gas, electricity or heat) production levels. In
order to ensure a continuous supply of raw materials, both in terms of the quantity and the quality and composition of the raw materials,
a WtE plant is required to enter into supply relationships with several feedstock suppliers, such as farmers, food manufacturers and other
specialized feedstock suppliers and to continuously monitor the proposed transactions to locate the most efficient and beneficial offers.
Any increase in the price of feedstock or shortage in the type or quality of feedstock required to produce the desired energy levels with
the technology used by the plant could slow down or halt operations, causing a material adverse effect on the results of operations. The
price and quality of the feedstock mix might also increase the plant’s operating costs, either due to the need to purchase a more
expensive feedstock mix to meet the desired energy production levels, or due to an increase in residues and the resulting increase of
surplus quantities that require removal. In addition to the impact of the quality of the feedstock on the production levels, maintaining
and monitoring the feedstock quality is crucial for preventing malfunctions in the process, for example due to high levels of certain
chemicals that might harm the CHP engines. Additionally, a wrong feedstock mix and/or low feedstock quality might create biology problems
such as lower bacteria population, which directly adversely impacts biogas production. Therefore, any shortage of quality feedstock and
changes in the feedstock mix available for use could have a material adverse effect on the results of operations of our WtE plants. As
a result of the Russia-Ukraine military conflict, our WtE plants experienced a shortage of raw materials and feedstock, which impacted
the composition of the materials used by the facilities and their production. |
• |
The operation of WtE facilities is highly complex and requires ongoing supervision and maintenance. Several factors may impact the
efficiency of the facilities, including the availability and cost of feedstock, the composition of feedstock, malfunctions and damages.
In addition, following a correction of malfunctions that disables the system, the facility does not generally return to maximum capacity
immediately and the startup is implemented gradually. Although we have insurance policies that cover damages and loss of revenue upon
certain events, these insurance policies may not cover all damages or be available to us in the future, on acceptable terms or at all.
|
• |
The expense level and profitability of WtE plants depends on many factors, many of which are not within our control. For example,
the recent increase in fuel prices increased transportation costs and operating expenses of our WtE plants and the increase in electricity
prices increased the costs of operations of our Gelderland biogas plant, that did not produce electricity for self-use during 2022. Any
future increase in expenses could materially impact the results of operations and financial condition of our WtE plants. |
• |
The WtE industry is subject to many laws and regulations which govern the protection of the environment, quality control standards,
health and safety requirements, and the management, transportation and disposal of different types of waste. Environmental laws and regulations
may require removal or remediation of pollutants and may impose civil and criminal penalties for violations. The costs arising from compliance
with environmental laws and regulations may increase operating costs for our WtE plants and we may be exposed to penalties for failure
to comply with such laws and regulations. In addition, existing regulation governing waste management and waste disposal provide incentives
to feedstock suppliers to use waste management solutions such as the provision of feedstock to WtE plants. Any regulatory changes that
impose additional environmental restrictions on the WtE industry or that relieve feedstock suppliers from the stringent regulation concerning
waste management and disposal could increase our operating costs, limit or change the cost of the feedstock available to us, and adversely
affect our results of operations. |
• |
Electricity tariffs, which are determined and updated solely by the Israeli Electricity Authority, have a material impact on the
results of operations of Dorad. |
• |
The operation of the Dorad Power Plant is highly complex and depends upon the continued ability: (i) to operate the various turbines,
and (ii) to turn the turbines on and shut them down quickly based on demand. The profitability of Dorad also depends on the accuracy of
the proprietary forecasting system used by Dorad. Any defects or disruptions, or inaccuracies in forecasts, may result in an inability
to provide the amount of electricity required by Dorad’s customers or in over-production, both of which could have a material adverse
effect on Dorad’s operations and profitability. |
• |
Dorad’s operations depend upon the expertise and success of its operations and maintenance contractor, who is responsible for
the day-to-day operations of the Dorad Power Plant. If the services provided by such contractor will cause delays in the production of
energy or any other damage to the Dorad Power Plant or to Dorad’s customers, Dorad may be subject to claims for damages and to additional
expenses and losses and therefore Dorad’s profitability could be adversely affected. Dorad also depends on certain sole suppliers
for services, including the IEC, which distributes the electricity manufactured by Dorad to Dorad’s customers and Israel Natural
Gas Lines Ltd., who delivers the gas required for Dorad’s operations. Any disagreement or disruption of these services could adversely
impact Dorad’s operations. |
• |
Significant equipment failures may limit Dorad’s production of energy. Although damages from equipment failures generally covered
by insurance policies, any such failures may cause disruption in the production, may not all be covered by the insurance and the correction
of such failures may involve a considerable amount of resources and investment and could therefore adversely affect Dorad’s profitability.
|
• |
Dorad’s operations depend on the availability and accurate function of its information technology, communications and data
retrieval and analysis systems. As such, Dorad is exposed to risks of cyber-attacks, either directed specifically at Dorad or at infrastructure
or Israeli sites in general. The occurrence of a cyber-attack may halt Dorad’s operations and result in damages to Dorad’s
financial results and reputation. |
• |
The construction of the Dorad Power Plant was mainly financed by a consortium of financing entities pursuant to a long-term credit
facility and such credit facility provides for pre-approval by the consortium of certain of Dorad’s actions and contracts with third
parties and further includes a list of events that may enable the lenders to demand immediate repayment of the credit facility. Changes
in the credit ratings of Dorad and its shareholders, non-compliance with financing and other covenants, delays in provision of required
pre-approvals or disagreements with the financial entities, material changes in Dorad’s licenses or a loss of license by Dorad and
additional factors may trigger certain rights granted to the lenders under the financing documents and may adversely affect Dorad’s
operations and profitability. |
• |
Dorad entered into a long-term natural gas supply agreement, or the Tamar Agreement, with the partners in the “Tamar”
license located in the Mediterranean Sea off the coast of Israel, or Tamar. This agreement includes a “take or pay” mechanism,
subject to certain restrictions and conditions that may result in Dorad paying for natural gas not actually required for its operations.
In addition, in November 2022, Dorad started purchasing natural gas from Energean Israel Ltd., or Energean. Dorad’s operations depend
on the timely, continuous and uninterrupted supply of natural gas from Tamar and Energean and on the existence of sufficient reserves
throughout the term of the agreements with Tamar and Energean. Any disruptions in the gas supply, could adversely impact Dorad’s
operations and results of operations. In addition, the price of natural gas under the supply agreements with Tamar and Energean is linked
to production tariffs determined by the Israeli Electricity Authority but cannot be lower than the “final floor price” included
in the agreements. In the event of future reductions in the production tariff, the price of gas may reach the “floor price”
and thereafter will not be further reduced. Any delays, disruptions, increases in the price of natural gas under the agreement, or shortages
in the gas supply from Tamar or Energean will adversely affect Dorad’s results of operations. |
• |
The Dorad power plant is subject to environmental regulations, aimed at increasing the protection of the environment and reducing
environmental hazards, including by way of imposing restrictions regarding noise, harmful emissions to the environment and handling of
hazardous materials. Currently the costs of compliance with the foregoing requirements are not material. Any breach or other noncompliance
with the applicable laws may cause Dorad to incur additional costs due to penalties and fines and expenses incurred in order to regain
compliance with the applicable laws, all of which may have an adverse effect on Dorad’s profitability and results of operations.
|
• |
Due to the agreements with contractors of the Dorad Power Plant and the indexation included in the gas supply agreement, Dorad is
exposed to changes in the exchange rates of the U.S. dollar against the NIS. To minimize this exposure Dorad executed forward transactions
to purchase U.S. dollars against the NIS. In addition, due to the indexing to the Israeli consumer price index under Dorad’s credit
facility, Dorad is exposed to fluctuations in the Israeli CPI, which may adversely affect its results of operations and profitability.
For example, Dorad’s financing expenses increased during 2022 due to an increase in the Israeli CPI of approximately 5.3% during
the year. Dorad entered into hedging transaction in order to minimize the risk. |
• |
Dorad is involved in several arbitration and court proceedings initiated by Dorad’s shareholders, including Dori Energy. Disagreements
and disputes among shareholders may interfere with Dorad’s operations and specifically with Dorad’s business plan and potential
growth. |
• |
The electricity production sector in Israel has expanded and evolved during recent years, with the introduction of privately held
electricity production facilities. Dorad is subject to competition from existing or new electricity producers, who will attempt to sell
electricity directly to private customers, including Dorad’s customers or potential customers. The added competition may reduce
the rates received by Dorad and therefore decrease its revenues and profitability. |
• |
Dorad is required to make payments to various third parties, including the financing consortium, the gas suppliers, the O&M contractor
and the gas transmission service provider. In the event Dorad will not have sufficient liquidity to comply with its payment obligations,
its operations and financial results may be materially adversely impacted. |
• |
The Covid-19 crisis affected Dorad’s customers (which include hotels and other industrial customers), and therefore any decrease
in electricity consumption by Dorad’s customers and in Israel generally (affecting the amount of electricity purchased by the IEC
from Dorad), may affect Dorad’s financial results. Dorad is monitoring the re-spreading of the virus and continuously examines the
options for dealing with damage to its income. |
• |
increasing our vulnerability to adverse economic, industry or business conditions and cross currency movements and limiting our flexibility
in planning for, or reacting to, changes in our industry and the economy in general; |
• |
requiring us to dedicate a substantial portion of our cash flow from operations to service our debt, thus reducing the funds available
for operations and future business development; and |
• |
limiting our ability to obtain additional financing to operate, develop and expand our business. |
A. |
History and Development of Ellomay |
PV Projects under Development |
i. |
a fixed pledge first degree on shares of Dori Energy held by Ellomay Energy LP, representing a 50% ownership of Dori Energy, which
holds 18.75% of Dorad; |
ii. |
a floating first degree pledge and an assignment by way of a pledge of, and with respect to, Ellomay Energy LP’s rights and
agreements in connection with shareholder’s loans provided by Ellomay Energy LP to Dori Energy; and |
iii. |
a fixed first degree pledge on our rights and the rights of Ellomay Energy LP in and to a trust bank account in the name of the trustee
of the Series E Secured Debentures. |
a. |
Our Adjusted Balance Sheet Equity (as such term is defined in the Series E Deed of Trust, which, among other exclusions, excludes
changes in the fair value of hedging transactions of electricity prices, such as the PPA executed in connection with the Talasol PV Plant),
on a consolidated basis, shall not be less than €75 million for two consecutive quarters for purposes of the immediate repayment
provision and shall not be less than €80 for purposes of the update of the annual interest provision; |
b. |
The ratio of (a) the short-term and long-term debt from banks, in addition to the debt to holders of debentures issued by us and
any other interest-bearing financial obligations provided by entities who are in the business of lending money (excluding financing of
projects and other exclusions as set forth in the Series E Deed of Trust), net of cash and cash equivalents, short-term investments, deposits,
financial funds and negotiable securities, to the extent that these are not restricted (with the exception of a restriction for the purpose
of securing any financial debt according to this definition), or, together, the Series E Net Financial Debt, to (b) our Adjusted Balance
Sheet Equity, on a consolidated basis, plus the Series E Net Financial Debt, or our Series E CAP, Net, to which we refer herein as the
Series E Ratio of Net Financial Debt to Series E CAP, Net, shall not exceed the rate of 65% for three consecutive quarters for purposes
of the immediate repayment provision and shall not exceed a rate of 60% for purposes of the update of the annual interest provision; and
|
c. |
The ratio of (a) our Series E Net Financial Debt, to (b) our earnings before financial expenses, net, taxes, depreciation and amortization,
where the revenues from our operations, such as the Talmei Yosef project, are calculated based on the fixed asset model and not based
on the financial asset model (IFRIC 12), and before share-based payments, when the data of assets or projects whose Commercial Operation
Date occurred in the four quarters that preceded the test date will be calculated based on Annual Gross Up (as such terms are defined
in the Series E Deed of Trust), based on the aggregate four preceding quarters, or our Series E Adjusted EBITDA, to which we refer to
herein as the Series E Ratio of Net Financial Debt to Series E Adjusted EBITDA, shall not be higher than 12 for three consecutive quarters
for purposes of the immediate repayment provision and shall not be higher than 11 for purposes of the update of the annual interest provision.
|
B. |
Business Overview |
• |
Reliability - Solar energy production does not require fossil fuels and is therefore less dependent on this limited natural resource
with volatile prices. Although there is variability in the amount and timing of sunlight over the day, season and year, a properly
sized and configured system can be designed to be highly reliable while providing long-term, fixed price electricity supply. |
• |
Convenience - Solar power systems can be installed on a wide range of sites, including small residential roofs, the ground, covered
parking structures and large industrial buildings. Most solar power systems also have few, if any, moving parts and are generally guaranteed
to operate for 20-25 years, resulting in low maintenance and operating costs and reliability compared to other forms of power generation.
|
• |
Cost-effectiveness - While solar power has historically been more expensive than fossil fuels, there are continual advancements in
solar panel technology which increase the efficiency and lower the cost of production, thus making the production of solar energy even
more cost effective. |
• |
Environmental - Solar power is one of the cleanest electric generation sources, capable of generating electricity without air or
water emissions, noise, vibration, habitat impact or waste generation. In particular, solar power does not generate greenhouse gases that
contribute to global climate change or other air pollutants, as power generation based on fossil fuel combustion does, and does not generate
radioactive or other wastes as nuclear power and coal combustion do. It is anticipated that environmental protection agencies will limit
the use of fossil fuel based electric generation and increase the attractiveness of solar power as a renewable electricity source.
|
• |
Security - Producing solar power improves energy security both on an international level (by reducing fossil energy purchases from
hostile countries) and a local level (by reducing power strains on local electrical transmission and distribution systems). |
Name |
Installed Production / Capacity1
|
Location |
Type of Plant |
Connection to Grid |
Fixed Tariff |
Revenue in the year ended December 31, 2021 (in thousands)2
|
Revenue in the year ended December 31, 2022 (in thousands)2
|
“Rinconada II” |
2,275 kWp |
Municipality of Córdoba, Andalusia, Spain |
PV – Fixed Panels |
July 2010 |
N/A |
€698 |
€946 |
“Rodríguez I” |
1,675 kWp |
Province of Murcia, Spain |
PV – Fixed Panels |
November 2011 |
N/A |
€550 |
€684 |
“Rodríguez II”
|
2,691 kWp |
Province of Murcia, Spain |
PV – Fixed Panels |
November 2011 |
N/A |
€907 |
€1,109 |
“Fuente Librilla” |
1,248 kWp |
Province of Murcia, Spain |
PV – Fixed Panels |
June 2011 |
N/A |
€432 |
€525 |
“Talmei Yosef” |
9,000 kWp |
Talmei Yosef, Israel |
PV – Fixed Panels |
November 2013 |
0.98573
(NIS/kWh) |
€1,0164
|
€1,1194
|
“Talasol”5
|
300,000 kWp |
Talaván, Cáceres, Spain |
PV – Fixed Panels |
December 2020 |
N/A |
€28,494 |
€32,740 |
“Ellomay Solar” |
28,000 kWp |
Talaván, Cáceres, Spain |
PV – Fixed Panels |
June 2022 |
N/A |
--6
|
€3,597 |
1. |
The actual capacity of a photovoltaic plant is generally subject to a degradation of approximately 0.5% per year, depending on climate
conditions and quality of the solar panels. |
2. |
These results are not indicative of future results due to various factors, including changes in the regulation and in the climate
and the degradation of the solar panels. |
3. |
The initial tariff of NIS 0.9631/kWh was fixed for a period of 20 years and is updated once a year based on changes to the Israeli
CPI of October 2011. The tariff was NIS 0.9946/kWh in 2021 and increased to NIS 1.0185/kWh in 2022. |
4. |
As a result of the accounting treatment of the Talmei Yosef PV Plant as a financial asset, out of total proceeds from the sale of
electricity of approximately €4.3 million and €4.5 million for the years ended December 31, 2021 and 2022, respectively, only
revenues related to the ongoing operation of the plant in the amount of approximately €1 million and €1.1 million for the
years ended December 31, 2021 and 2022, respectively. |
5. |
The Talasol PV Plant is 51% owned by us and the revenues included in the table reflect 100% ownership. |
6. |
As the Ellomay Solar PV Plant was connected to the Spanish national grid during June 2022, no revenues were recorded in connection
with this PV Plant for the year ended December 31, 2021 and during the year ended December 31, 2022 until connection to the national grid.
|
• |
Development Agreement with a local experienced developer for the provision of development services with respect to photovoltaic greenfield
projects from initial processing, obtaining of approvals and clearances with the aim of reaching “ready to build” status;
|
• |
an Engineering, Procurement & Construction projects Contract, or an EPC Contract, which governs the installation, testing and
commissioning of a photovoltaic plant by the respective Contractor; |
• |
an Operation and Maintenance (O&M) Agreement, which governs the operation and maintenance of the photovoltaic plant by the respective
Contractor; and |
• |
a number of ancillary agreements, including: |
o |
one or more “surface rights agreements” or “lease agreements” with the land owners, which provide the terms
and conditions for the lease of land on which the photovoltaic plants are constructed and operated; |
o |
optionally, one or more “project financing agreements” with financing entities, as were already executed with respect
to several of the PV Plants and as more fully described below, and as may be executed in the future with respect to one or more of the
remaining PV Plants; and |
o |
a stock purchase agreement in the event we acquire an existing company that owns a photovoltaic plant that is under construction
or is already constructed. |
• |
Standard “power distribution agreements” with the applicable Spanish power distribution grid company such as Endesa Distribución
Eléctrica, S.L.U., or Endesa, or Iberdrola Distribución Eléctrica, S.A.U., or Iberdrola, regarding the rights and obligations
of each party, concerning, inter alia, the evacuation of the power generated in the plant to the grid; |
• |
Standard “representation agreements” with an entity that will act as the energy sales agent of the PV Plant in the energy
market, in accordance with Spanish Royal Decree 436/2004; and |
• |
Assignment Contract (“contrato de encargo de proyecto”) and the Technical Access Contract (“Contracto técnico
de acceso a la red de transporte”) with Red Eléctrica de España (the Spanish grid operator, or REE). |
• |
A power purchase agreement with the IEC for the purchase of electricity by the IEC with a term of 20 years commencing on the date
of connection to the grid. |
• |
one or more “power purchase agreements” with GSE, specifying the power output to be purchased by GSE for resale and the
consideration in respect thereof or, alternatively, a “power purchase agreements” with a private energy broker, specifying
the power output to be purchased for resale and the consideration in respect thereof; |
• |
one or more “interconnection agreements” with the Enel Distribuzione S.p.A, or ENEL, the Italian national electricity
grid operator, which provide the terms and conditions for the connection to the Italian national grid; and |
• |
to the extent the FiT or any other incentive will be applicable – standard “incentive agreements” with GSE, Italy’s
energy regulation agency responsible, inter alia, for incentivizing and developing renewable energy sources in Italy and purchasing energy
and re-selling it on the electricity market. Under such agreements, it is anticipated that GSE will grant the applicable FiT governing
the purchase of electricity (FiTs are further detailed in “Material Effects of Government Regulations on the Italian PV Plants”).
|
(i) |
PV projects with an overall power capacity exceeding 1 MW are subject to the Environmental Impact Assessment screening procedure,
or EIA Screening, performed by the relevant region. At the end of the EIA Screening procedure, the competent authority determines whether
or not the PV project should be subject to the ordinary Environmental Impact Assessment procedure, or EIA; and |
(ii) |
PV projects with an overall power capacity exceeding 10 MW are subject to the EIA performed by the state. |
(i) |
PV projects falling within EIA procedure of the regions (i.e.,
PV projects with a power capacity between 1 MW and 10 MW) are authorized by means of Provvedimento
Autorizzatorio Unico Regionale, or PAUR, pursuant to Article 27-bis of the Legislative
Decree no. 152/2006, which includes the EIA and the Autorizzazione Unica (“Single
Authorization”), or AU, pursuant to Article 12 of Legislative Decree no. 387 of December 29, 2003, or Legislative Decree no. 387/2003,
and all other permits / nihil obstat / opinions necessary for the implementation of the PV project; and |
(ii) |
PV projects falling within EIA procedure of the state (i.e.,
PV projects with a power capacity exceeding 10 MW) are authorized by means of the AU which includes the EIA decree. |
a. |
Authorization for the construction and operation of PV Plants (Autorizzazione Unica)
|
b. |
PAUR |
c. |
PAS |
(i) |
the construction of PV plants of up to 10 MW located in so called “suitable areas” (aree
idonee) (which are to be identified on the basis of the criteria set out in Legislative Decree no. 199 of November 8, 2021, as
detailed below); and |
(ii) |
agri-photovoltaic plants located less than 3 km away from industrial, productive or commercial areas (with no power limitation).
|
d. |
DILA |
e. |
Free building activity (Attività di edilizia libera) |
(i) |
in areas for industrial, productive or commercial use; |
(ii) |
in closed and restored landfills or landfill lots; or |
(iii) |
in quarries or lots of quarries that cannot be exploited further, for which the competent authority for the issue of the authorization
has certified the completion of the recovery and environmental restoration activities envisaged in the authorization title in compliance
with the regional regulations in force; |
(i) |
provided that pending the identification of suitable areas by the regions no moratoria or suspensions of the terms of authorization
procedures may be ordered; and |
(ii) |
identified some suitable areas. |
(i) |
the sites where plants of the same source are already installed and where non-substantial modification works are carried out, as
well as, for PV plants only, the sites where, on the date of entry into force of the provision, there are photovoltaic plants on which,
without change in the occupied area or otherwise with changes in the occupied area within the limits referred to in (vi)(a) below, substantial
modification work is carried out for refurbishment, repowering or complete reconstruction, including with the addition of storage systems
with a capacity not exceeding 8 MWh for each MW of power of the photovoltaic plant; |
(ii) |
the areas of sites undergoing reclamation; |
(iii) |
quarries and mines that have ceased, not reclaimed or abandoned or are in an environmentally degraded condition; |
(iv) |
sites and facilities at the disposal of Italian State Railways Group companies and rail infrastructure managers as well as highway
concession companies; |
(v) |
sites and facilities in the availability of the airport management companies within the perimeter of relevance of the airports of
the smaller islands subject to the necessary technical verifications by the National Civil Aviation Authority; |
(vi) |
exclusively for photovoltaic plants, including those with ground-mounted modules, in the absence of constraints under Part Two of
the Legislative Decree no. 42 of January 22, 2004, or the Cultural Heritage and Landscape Code: |
a) |
areas classified as agricultural, enclosed within a perimeter whose points are not more than 500 meters from areas of industrial,
artisanal and commercial use, including sites of national interest, as well as quarries and mines; |
b) |
areas within industrial plants and establishments, as defined in Legislative Decree no. 152/2006, as well as classified agricultural
areas enclosed within a perimeter whose points are no more than 500 meters from the same plant or establishment; |
c) |
the areas adjacent to the highway network within a distance not exceeding 300 meters; and |
(vii) |
without prejudice to the provisions of points above, areas that are not included in the perimeter of property subject to protection
under the Cultural Heritage and Landscape Code, nor fall within the buffer zone of property subject to protection under Part Two or Article
136 of the same Legislative Decree. The buffer strip shall be determined by considering a distance from the perimeter of protected property
of 500 metres for photovoltaic plants. |
(i) |
in procedures for the authorization of power production facilities powered by renewable sources on suitable areas, including those
for the adoption of the environmental impact assessment resolution, the competent authority for landscape matters shall express a mandatory
non-binding opinion. After the time limit for the expression of the non-binding opinion has expired, the competent authority shall in
any case take action on the permit application; and |
(ii) |
the time limits for permit procedures for plants in suitable areas shall be reduced by one-third. |
(i) |
by way of sale on the electricity market (Italian Power Exchange - IPEX), the so called “Borsa Elettrica”; |
(ii) |
through bilateral contracts with wholesale dealers; and |
(iii) |
via the so-called “Dedicated Withdrawal” introduced by ARERA Resolution no. 280/07 and subsequent amendments. This is
the most common way of selling electricity, as it affords direct and quick negotiations with the national energy handler (GSE), which
will in turn deal with energy buyers on the market. |
a. |
FER1 Incentives |
Group A |
Includes PV plants of new construction. |
Group A-2 |
includes PV plants of new construction whose modules are installed to replace roofs
of buildings and farm buildings on which asbestos or fibre cement is completely removed. |
Plant Type |
Power level (kW) |
Reference Tariff
(€/MWh) |
A-2 plants Bonus (€/MWh) |
Bonus for self-consumption (€/MWh) |
Group A |
20 <P ≤100 |
99.75 |
- |
10 |
100 <P ≤1000 |
85.50 |
- |
- | |
P ≥1000 |
66.50 |
- |
- | |
Group A-2
|
20 <P ≤100 |
105.00 |
12 |
10 |
100 <P ≤1000 |
90.00 |
12 |
- |
(i) |
Enrolment in Registers – PV plants with a power capacity of more than 20 kW and less than 1 MW that belong to Groups A and
A-2 must be enrolled in the Registers, through which the available power quota is allocated on the basis of specific priority criteria.
With respect to plants below 1 MW, the first criterion is the installation of the plant in areas such as closed dumps or mines, or (for
A-2 plants) on public buildings such as schools or hospitals. This is aimed at giving preference to environment-friendly plants and therefore,
for the avoidance of doubt, such plants will be preferred to other plants even if the tariff reduction set out in the application is lower.
|
(ii) |
Participation to Auction Procedures – PV plants with a power capacity greater than or equal to 1 MW that belong to Groups A
must participate in the Auction Procedures, through which the available power quota is allocated, according to the highest discount offered
on the incentive level and, at equal discount, applying further priority criteria. Incentives are awarded for a period of 20 years at
the outcome of seven tenders held between September 2019 and September 2021, whereby the effective granted tariff will be equal to the
reference tariff as reduced by the percentage reduction offered by the applicant. With respect to plants above 1 MW, the first criterion
is instead the tariff percentage reduction. |
(i) |
the All-in Tariff (Tariffa Onnicomprensiva, or TO) consisting of a single tariff, corresponding
to the incumbent tariff, which also remunerates the electricity withdrawn by the GSE; and |
(ii) |
an incentive calculated as the difference between the incumbent tariff and the hourly zonal energy price, since the energy produced
remains at the operator’s disposal. |
b. |
Red II Decree Incentives |
(i) |
as to small plants with a power capacity equal to or less than 1 MW, incentives will be awarded: |
a) |
as to plants with market competitive generation costs and plants belonging to energy communities or self-consumption configuration,
through direct access to incentives; and |
b) |
as to innovative plants and plants with higher generation costs, through tender procedures.
|
(ii) |
as to big plants, with power capacity above a threshold of at least 1 MW, incentives will be awarded through downward auction procedures.
|
(i) |
the combination of renewables with storage systems is promoted, so as to enable greater programmability of sources, also in coordination
with mechanisms for the development of centralized storage capacity; |
(ii) |
priority access is established for PV plants to be built on suitable areas (aree idonee),
with the same economic offers; and |
(iii) |
participation in incentives is facilitated for those who install PV plants following asbestos removal, with bonus facilities and
the widest possible participation modalities. |
(i) |
the creation of an online information board with the aim to facilitate the alignment of demand and offer; |
(ii) |
the setting-up of a platform for the conclusion of power purchase agreements (as already provided in previous legislation);
|
(iii) |
the definition of tender schemes for the supply of renewable source energy to public administration through power purchase agreements;
and |
(iv) |
issuance of an ad hoc regulation in order to inform final customers as to power purchase
agreements, also in order to facilitate use thereof by consumers in aggregate shape. |
(i) |
PV plants with an output exceeding 20 kW that benefit from fixed feed-in tariffs under the Conto Energia scheme, which do not dependent
on market prices (i.e., First, Second, Third and Fourth Conto Energia); and |
(ii) |
plants powered by solar, hydroelectric, geothermal and wind power sources with an output exceeding 20 kW that do not benefit from
incentive mechanisms, entered into operation before January 1, 2010 (any grid parity plant commissioned before December 31 , 2009).
|
a. |
Price cap on revenues |
(i) |
renewable source plants not covered by Article 15-bis of Decree-Law No. 4 of January 27, 2022, converted, with amendments, by Law
No. 25 of March 28, 2022 (i.e., renewable source plants not subject to the “Extra-profits” Measure discussed above);
|
(ii) |
plants powered by non-renewable sources. |
b. |
Calculation method |
(i) |
a reference price equal to 180 euros per MWh or, for sources with generation costs higher than the aforementioned price, to a value
per technology established in accordance with criteria defined by ARERA, taking into account investment and operating costs and a fair
return on investment. To this end, in the case of plants incentivized with one-way mechanisms other than those substituting green certificates,
the reference price is equal to the maximum value between the amount of 180 euros per MWh and the tariff payable; |
(ii) |
a market price equal to the monthly average of the hourly zonal market price, calculated as a weighted average for non-programmable
plants, based on the production profile of the individual plant, and as an arithmetic average for programmable plants, or, for supply
contracts entered into before the date of this law that do not fall in the exclusion cases, at the price indicated in the contracts themselves.
|
c. |
Exclusions |
(i) |
to plants with a capacity of up to 20 kW; |
(ii) |
to electricity falling under the scope of Article 5-bis of Decree-Law No. 14 of February 25, 2022 (i.e., coal- and oil-fired thermoelectric
plants); |
(iii) |
to energy subject to supply contracts concluded before December 1, 2022, provided that they are not linked to the price trend of
the energy spot markets and that, in any case, they are not entered into at an average price higher than the value as calculated according
to the calculation method described above, limited to the period of duration of such contracts; |
(iv) |
to electricity subject to withdrawal contracts concluded by the GSE pursuant to Article 16-bis of Decree-Law No. 17 of March 1, 2022,
and that, in any case, are not stipulated at an average price higher than the value as calculated according to the calculation method
described above, limited to the period of duration of the aforesaid contracts; and |
(v) |
to renewable source plants with active incentive contracts that are regulated with a two-way mechanism, renewable source plants with
contracts that provide for the withdrawal at an all-inclusive fixed tariff of electricity by the GSE as well as electricity shared within
energy communities and self-consumption configurations. |
(i) |
price cap for new capacity at €75k/MW; |
(ii) |
price cap for existing capacity at €33k/MW; |
(iii) |
formula for the calculation of the strike price to be applied to the de-rated capacity production in the Ancillary Services Markets,
or ASM. |
(i) |
It introduces three principles in the activity of self-consumption: (i) the right to self-consume electricity without charges; (ii)
the right to shared self-consumption by one or more consumers to take advantage of economies of scale; and (iii) administrative and technical
simplification. |
(ii) |
Any consumer – whether or not a direct consumer of the market – may acquire energy through bilateral contracting with
a producer. |
(iii) |
Regarding access and connection permits: (i) the validity of the access and connection permissions granted prior to the entry into
force of Law 24/2013 is extended and the aforementioned permits will expire if they have not obtained the authorization of exploitation,
on the later of: (a) before March 31, 2020, or (b) five years from the obtaining of the right of access and connection; (ii) the guarantees
to be placed for the access and connection permits are increased from €10/kW to €40/kW; (iii) with regards to the actions
carried out in the transport or distribution networks by the owners of the access and connection permits which must be developed by the
grid operator or distributor, the promoter must advance 10% of the total investment value to be undertaken within a period not exceeding
12 months. Once the aforementioned amount has been paid and the administrative authorization for the generation facility has been obtained,
its holder shall, within four months, enter into an Assignment Contract with the transportation grid operator or distributor, otherwise,
the validity of the access and connection permits will expire. |
• |
Request of connection permit required in 6 months. |
• |
Valid request of Prior Administrative Authorization required in 6 months. |
• |
Obtention of environmental permit required in 31 months. |
• |
Obtention of Prior Administrative Authorization required in 34 months. |
• |
Obtention of Construction Administrative Authorization required in 37 months. |
• |
Obtention of Exploitation Authorization required in 5 years. |
E. |
Resolution of May 20, 2021, of the CNMC, which establishes the detailed specifications for the determination
of the generation access capacity to the transmission network and distribution networks |
F. |
Law 7/2021 of climate change and energy transition |
G. |
Royal Decree-Law 17/2021, of September 14 |
H. |
Royal Decree-law 6/2022 |
I. |
Royal Decree-law 11/2022 |
J. |
Royal Decree-law 17/2022 |
K. |
Royal Decree-law 18/2022 |
L. |
Royal Decree-law 20/2022 |
1. |
Royal Decree 413/2014 which regulates electricity generation activity using renewable energy sources, cogeneration and waste, or
RD 413/2014. |
2. |
Order IET/1045/2014 approving the retribution parameters for certain types of generation facilities of electricity from renewable
energy sources, cogeneration and waste facilities, or Order 1045/2014. |
3. |
Order ETU/130/2017 updating the retribution parameters for certain types of generation facilities of electricity from renewable energy
sources, cogeneration and waste facilities, for the purposes of their application to the Regulatory Semi-period beginning on January 1,
2017 and ending on December 31, 2019, or Order 130/2017. |
4. |
RDL 17/2019, adopting urgent measures for the necessary adaptation of remuneration parameters affecting the electricity system and
responding to the process of cessation of activity of thermal generation plants. |
5. |
Order TED/171/2020, updating the retribution parameters for certain types of generation facilities of electricity from renewable
energy sources, cogeneration and waste facilities, for the purposes of their application to the Regulatory Period beginning on January
1, 2020, or Order 171/2020. |
6. |
Royal Decree-Law 6/2022, of March 29, 2022, adopting urgent measures within the framework of the National Plan for the response to
the economic and social consequences of the war in Ukraine. |
7. |
Order TED/1232/2022, of December 2, 2022, which updates the remuneration parameters for its application to the year 2022. |
a) |
The Specific Remuneration is calculated by reference to a “standard facility”
during its “useful regulatory life”. Order 1045/2014 characterized the existing renewable
installations into different categories (referred to as IT-category). These categories were created taking into account the type of technology,
the date of the operating license and the geographical location of renewable installations. |
b) |
According to RD 413/2014, the calculation of the Specific Remuneration of each IT-category shall be performed taking into account
the following parameters: |
(i) |
the standard revenues for the sale of energy production, valued at the production market prices (currently set at €54.42/MWh,
€52.12/MWh and €48.82/MWh for 2020, 2021 and 2022, respectively); |
(ii) |
the standard exploitation costs; and |
(iii) |
the standard value of the initial investment. For this calculation, only those costs and investments that correspond exclusively
to the electricity production activity will be taken into account. Furthermore, costs or investments determined by administrative rules
or acts that do not apply throughout Spanish territory will not be taken into account. |
c) |
Order 1045/2014 established the relevant parameters applicable to each IT-category. Therefore, to ascertain the total amount of the
Specific Remuneration applicable to a particular installation it is necessary to (i) identify the applicable IT-category and (ii) integrate
in the Specific Remuneration formula set forth in RD 413/2014 the economic parameters established by Order 1045/2014 for the relevant
IT-category and the relevant update regulation (i.e., Order 171/2020). |
d) |
The Specific Remuneration is calculated for regulatory periods of six years, each divided into two regulatory semi-periods of three
years. The first Regulatory Period commenced July 14, 2013 and terminated on December 31, 2019. The second Regulatory Period commenced
January 1, 2020 and terminates December 31, 2025 (the corresponding first Regulatory Semi-Period ends December 31, 2022). |
e) |
The Specific Remuneration is designed to ensure a “reasonable rate of return” or profitability that during the first
regulatory period (i.e., until December 2019) shall be equivalent to a Spanish 10-year sovereign bond calculated as the average of stock
price in the stock markets during the months of April, May and June 2013, increased by 300 basis points (7.398% for plants prior to RDL
9/2013). RDL 17/2019 has fixed the reasonable rate of return for the second Regulatory Period at 7.09%. However, for plants prior to RDL
the reasonable rate of return will remain at 7.398% if the conditions set forth in RDL 17/2019 are met (mainly to withdraw from any arbitration
procedure, or to renounce any compensation, in connection with the regulatory changes in Spain that modified the remuneration regime).
|
f) |
Pursuant to RD 413/2014, the revenues from the Specific Remuneration are set based on the number of operating hours reached by the
installation in a given year and adjusted to electricity market price deviations. Furthermore, the economic parameters of the Specific
Remuneration might be reviewed by the Spanish government at the end of a regulatory period or semi-period, however the standard value
of the initial investment and the useful regulatory life will remain unchanged for the entire Regulatory Useful Life of the installation,
as determined by Order 1045/2014. |
a. |
Tamar has committed to supply natural gas to Dorad in an aggregate quantity of up to approximately 11.2 billion cubic meters (BCM),
or the Total Contract Quantity, in accordance with the conditions set forth in the Tamar Agreement. |
b. |
The Tamar Agreement will terminate on the earlier to occur of: (i) sixteen (16) years following the commencement of delivery of natural
gas to the Dorad power plant or (ii) the date on which Dorad will consume the Total Contract Quantity in its entirety. Each of the parties
to the Tamar Agreement has the right to extend the Tamar Agreement until the earlier of: (i) an additional year provided certain conditions
set forth in the Tamar Agreement were met, or (ii) the date upon which Dorad consumes the Total Contract Quantity in its entirety.
|
c. |
Dorad has committed to purchase or pay for (“take or pay”) a minimum annual quantity of natural gas in a scope and in
accordance with a mechanism set forth in the Tamar Agreement. The Tamar Agreement provides that if Dorad did not use the minimum quantity
of gas as committed, it shall be entitled to consume this quantity every year during the three following years and this is in addition
to the minimum quantity of gas Dorad is committed to. |
d. |
The Tamar Agreement grants Dorad the option to reduce the minimum annual quantity so that it will not exceed 50% of the average annual
gas quantity that Dorad will actually consume in the three years preceding the notice of exercise of the option, subject to adjustments
set forth in the Tamar Agreement. The reduction of the minimum annual quantity will be followed by a reduction of the other contractual
quantities set forth in the Tamar Agreement. The option described herein is exercisable during the period commencing as of the later of:
(i) the end of the fifth year after the commencement of delivery of natural gas to Dorad in accordance with the Tamar Agreement or (ii)
January 1, 2020, and ending on the later of: (i) the end of the seventh year after the commencement of delivery of natural gas to Dorad
in accordance with the Tamar Agreement or (ii) December 31, 2022. In the event Dorad exercises this option, the quantity will be reduced
at the end of a one year period from the date of the notice and until the termination of the Tamar Agreement. This option was exercised
by Dorad (see below for additional details). |
e. |
The natural gas price set forth in the Tamar Agreement is linked to the production tariff as determined from time to time by the
Israeli Electricity Authority, which includes a “final floor price.” Any delays, disruptions, increases in the price of natural
gas under the agreement, or shortages in the gas supply from Tamar will adversely affect Dorad’s results of operations. In addition,
as future reductions in the production tariff will not affect the price of natural gas under the agreement with Tamar, Dorad’s profitability
may be adversely affected. |
f. |
Dorad may be required to provide Tamar with guarantees or securities in the amounts and subject to the conditions set forth in the
Tamar Agreement. |
g. |
The Tamar Agreement includes additional provisions and undertakings as customary in agreements of this type such as compensation
mechanisms in the event of shortage in supply, the quality of the natural gas, limitation of liability, etc. |
h. |
The Tamar Agreement provides that during an “interim period” (as such term is defined in the Tamar Agreement), the supply
of the gas to Dorad will be subject to the quantities of the natural gas that will be available to Tamar at that time after supply of
natural gas to other customers of Tamar with which contracts were signed for supply of natural gas prior to the signing of the agreement
with Dorad. The Tamar Agreement further provides that the interim period will end when Tamar completes, should it ultimately complete,
a project for expansion of the supply capacity of a system for treatment and transfer of natural gas from the Tamar reserve, subject to
the fulfillment of preconditions detailed in the agreement. In April 2015, Dorad received a notification from Tamar whereby the “interim
period” will begin on May 5, 2015. In November 2016, Dorad received notification from Tamar whereby the interim period will end
on September 30, 2020. On January 22, 2020, Dorad received a notification from the partners in the Tamar license that the “interim
period” will end on March 1, 2020. According to the notification and the terms of the Tamar Agreement, Tamar considers Dorad as
a permanent customer commencing from the end of the “interim period”. |
Plant Title |
Installed/ production Capacity
|
Location |
Connection to Grid |
Revenue in the year ended December 31, 2021 (in thousands) |
Revenue in the year ended December 31, 2022 (in thousands) |
“Groen Gas Goor” |
3 million Nm3 per year |
Goor, the Netherlands |
November 2017 |
€3,394 |
€3,207 |
“Groen Gas Oude-Tonge” |
3.8 million Nm3 per year, |
Oude-Tonge, the Netherlands |
June 2018 |
€3,341 |
€3,100 |
“Groen Gas Gelderland” |
7.5 million Nm3 per year1
|
Gelderland, the Netherlands |
April 2017 |
€5,951 |
€6,333 |
1. |
This plant’s permit provides for a subsidy in connection with production of approximately 7.5 million Nm3 per year, however
the actual production capacity of the plant is approximately 9.5 million Nm3 per year. |
a. |
Purchase of availability from a licensed private producer; |
b. |
Payment for availability, start-ups and dynamic benefits; |
c. |
The plant is required to be under the full control of the system manager (currently the IEC); |
d. |
Capital and operational tariff for availability – including exchange rate linkage, indexes and interests; |
e. |
During the first twenty years of its operation, the plant shall be entitled to capital and operational tariff set out in the tariff
approval; |
f. |
Bonuses and fines mechanism, based on standard technical operational parameters. |
C. |
Organizational Structure |
D. |
Property, Plants and Equipment |
PV Plant |
Size of Property |
Location |
Owners of the PV Plants/Lands |
“Rinconada II” |
81,103 m² |
Municipality of Córdoba, Andalusia, Spain |
PV Plant owned by Ellomay Spain S.L. Land held by owners and leased to Ellomay Spain S.L. |
“Rodríguez I” |
65,600 m2
|
Lorca Municipality, Murcia Region, Spain |
PV Plant owned by Rodríguez I Parque Solar, S.L. Lease Agreement executed between the owners and Rodríguez
I Parque Solar, S.L. |
“Rodríguez II” |
50,300 m2
|
Lorca Municipality, Murcia Region, Spain |
PV Plant owned by Rodríguez II Parque Solar, S.L. Lease Agreement executed between the owners and
Rodríguez II Parque Solar, S.L. |
“Fuente Librilla” |
64,000 m2
|
Fuente Librilla Municipality, Murcia Region, Spain |
PV Plant owned by Seguisolar S.L. Lease Agreement executed between owners and Seguisolar S.L. |
“Talasol” |
6,040,000 m2
|
Talavan (Cáceres) – Extremadura Region, Spain |
PV Plant owned by Talasol. Lease Agreements executed with the Talavan Municipality, which owns the land
|
“Talmei Yosef” |
164,000 m2
|
Talmei Yosef, Israel |
Lease Agreement executed with the entity that leased the property from the ILA. |
“Ellomay Solar” |
706,400 m2
|
Talavan (Cáceres) – Extremadura Region, Spain |
PV Plant owned by Ellomay Solar S.L.U. Lease Agreement executed between owners and Ellomay Solar S.L.U.
|
A. |
Operating Results |
For the year ended December 31, |
||||||||
2022 |
2021 |
|||||||
€ in thousands (except per share data) |
||||||||
Revenues |
53,360 |
45,721 |
||||||
Operating expenses |
(24,089 |
) |
(17,590 |
) | ||||
Depreciation and amortization expenses |
(16,092 |
) |
(15,116 |
) | ||||
Gross profit |
13,179 |
13,015 |
||||||
Project development costs |
(3,784 |
) |
(2,508 |
) | ||||
General and administrative expenses |
(5,892 |
) |
(5,661 |
) | ||||
Share of profits of equity accounted investee |
1,206 |
117 |
||||||
Operating profit (loss) |
4,709 |
4,963 |
||||||
Financing income |
9,565 |
2,931 |
||||||
Financing income (expenses) in connection with derivatives, net |
605 |
(841 |
) | |||||
Financing expenses |
(12,636 |
) |
(28,974 |
) | ||||
Financing expenses, net |
(2,466 |
) |
(26,884 |
) | ||||
Profit (loss) before taxes on income |
2,243 |
(21,921 |
) | |||||
Tax benefit (taxes on income) |
(2,103 |
) |
2,281 |
|||||
Profit (loss) for the year |
140 |
(19,640 |
) | |||||
Profit (loss) attributable to: |
||||||||
Owners of the Company |
(357 |
) |
(15,090 |
) | ||||
Non-controlling interests |
497 |
(4,550 |
) | |||||
Profit (loss) for the year |
140 |
(19,640 |
) | |||||
Other comprehensive income (loss) items |
||||||||
that after initial recognition in comprehensive income (loss) were
or will be transferred to profit or loss: |
||||||||
Foreign currency translation differences for foreign operations |
(7,829 |
) |
12,284 |
|||||
Effective portion of change in fair value of cash flow hedges |
(28,283 |
) |
(13,429 |
) | ||||
Net change in fair value of cash flow hedges transferred to profit or loss |
821 |
(3,353 |
) | |||||
Total other comprehensive loss, net of tax |
(35,291 |
) |
(4,498 |
) | ||||
Total other comprehensive income (loss) attributable to:
|
||||||||
Owners of the Company |
(19,920 |
) |
3,124 |
|||||
Non-controlling interests |
(15,371 |
) |
(7,622 |
) | ||||
Total other comprehensive loss |
(35,291 |
) |
(4,498 |
) | ||||
Total comprehensive loss for the year |
(35,151 |
) |
(24,138 |
) | ||||
Total comprehensive loss
for the year attributable to: |
||||||||
Owners of the Company |
(20,277 |
) |
(11,966 |
) | ||||
Non-controlling interests |
(14,874 |
) |
(12,172 |
) | ||||
Total comprehensive loss
for the year |
(35,151 |
) |
(24,138 |
) | ||||
Loss per share |
||||||||
Basic loss per share |
(0.03 |
) |
(1.18 |
) | ||||
Diluted loss per share |
(0.03 |
) |
(1.18 |
) |
Year ended December 31, |
2022 vs. 2021 Change |
|||||||||||||||
(Euro in thousands) |
2022 |
2021 |
€ |
% |
||||||||||||
Spanish PV segment |
3,264 |
2,587 |
677 |
26.17 |
||||||||||||
Ellomay Solar PV segment |
3,597 |
- |
3,597 |
100 |
||||||||||||
Talasol PV Segment |
32,740 |
29,432 |
3,308 |
11.24 |
||||||||||||
Israeli PV segment |
1,119 |
1,016 |
103 |
10.1 |
||||||||||||
Dorad segment |
62,813 |
51,630 |
11,183 |
21.66 |
||||||||||||
Netherlands biogas segment |
12,640 |
12,686 |
(46 |
) |
(0.36 |
) |
Year ended December 31, |
2021 vs. 2020 Change |
|||||||||||||||
(Euro in thousands) |
2022 |
2021 |
€ |
% |
||||||||||||
Spanish PV segment |
322 |
472 |
(150 |
) |
(31.78 |
) | ||||||||||
Ellomay Solar segment |
1,399 |
- |
1,399 |
100 |
||||||||||||
Talasol segment |
8,764 |
6,305 |
2,459 |
39 |
||||||||||||
Israeli PV segment |
418 |
367 |
51 |
13.9 |
||||||||||||
Dorad segment |
47,442 |
39,175 |
8,267 |
21.1 |
||||||||||||
Netherlands biogas segment |
13,186 |
10,446 |
2,740 |
26.2 |
For the year ended December 31 |
||||||||
2022 |
2021 |
|||||||
€ in thousands |
||||||||
Interest income and consumer price index in Israel in connection to concession project
|
3,103 |
2,248 |
||||||
Interest income |
420 |
276 |
||||||
Consumer price index in Israel for loan |
(909 |
) |
- |
|||||
Swap interest |
- |
- |
||||||
Profit from settlement of derivatives contract |
- |
407 |
||||||
Change in fair value of derivatives, net |
605 |
(841 |
) | |||||
Debentures interest and related expenses |
(2,130 |
) |
(3,220 |
) | ||||
Interest and commissions related to projects finance |
(6,952 |
) |
(5,589 |
) | ||||
Amortization of capitalized expenses related to projects finance |
(275 |
) |
(12,211 |
) | ||||
Interest on minority shareholder loan |
(1,529 |
) |
(2,055 |
) | ||||
Bank charges and other commissions |
(471 |
) |
(137 |
) | ||||
Interest on lease liability |
(370 |
) |
(367 |
) | ||||
Gain (loss) from exchange rate differences, net |
6,042 |
(5,395 |
) | |||||
Total financing expenses, net |
(2,466 |
) |
(26,884 |
) |
• |
Income resulting from exchange rate differences
amounting to approximately €6 million in the year ended December 31, 2022, mainly in connection with NIS cash and cash equivalents
and our NIS denominated debentures, compared to expenses in the amount of approximately €5.4 million for the year ended December
31, 2021, caused by the 6.6% appreciation of the NIS against the euro during the year ended December 31, 2022, compared to the 10.8% devaluation
of the NIS against the euro during the year ended December 31, 2021; |
• |
An amount of approximately €15.5 million recorded as of December 31, 2021 in connection with the expected prepayment of Talasol’s
previous financing. Such expenses include approximately €3.3 million recorded in connection with the termination of an interest
rate swap contract and €12.2 million in connection with the amortization of the outstanding balance of expenses that were capitalized
to Talasol’s previous financing; and |
• |
Approximately €0.8 million of expenses in connection with the early repayment of our Series B Debentures, which were included
in the financing expenses for the year ended December 31, 2021. |
Year ended December 31, |
||||||||
2022 |
2021 |
|||||||
(Euro in thousands) |
||||||||
Profit (loss) for the year |
140 |
(19,640 |
) | |||||
Financing expenses, net |
2,466 |
26,884 |
||||||
Taxes on income (tax benefit)
|
2,103 |
(2,281 |
) | |||||
Depreciation and amortization expenses |
16,092 |
15,116 |
||||||
EBITDA |
20,801 |
20,079 |
For the year ended December 31, |
||||||||
2021 |
2020 |
|||||||
€ in thousands (except per share data) |
||||||||
Revenues |
45,721 |
9,645 |
||||||
Operating expenses |
(17,590 |
) |
(4,951 |
) | ||||
Depreciation and amortization expenses |
(15,116 |
) |
(2,975 |
) | ||||
Gross profit |
13,015 |
1,719 |
||||||
Project development costs |
(2,508 |
) |
(3,491 |
) | ||||
General and administrative expenses |
(5,661 |
) |
(4,512 |
) | ||||
Share of profits of equity accounted investee |
117 |
1,525 |
||||||
Other income, net |
- |
2,100 |
||||||
Operating profit (loss) |
4,963 |
(2,659 |
) | |||||
Financing income |
2,931 |
2,134 |
||||||
Financing income (expenses) in connection with derivatives, net |
(841 |
) |
1,094 |
|||||
Financing expenses |
(28,974 |
) |
(6,862 |
) | ||||
Financing expenses, net |
(26,884 |
) |
(3,634 |
) | ||||
Loss before taxes on income |
(21,921 |
) |
(6,293 |
) | ||||
Tax benefit |
2,281 |
125 |
||||||
Loss for the year |
(19,640 |
) |
(6,168 |
) | ||||
Loss attributable to: |
||||||||
Owners of the Company |
(15,090 |
) |
(4,627 |
) | ||||
Non-controlling interests |
(4,550 |
) |
(1,541 |
) | ||||
Loss for the year |
(19,640 |
) |
(6,168 |
) | ||||
Other comprehensive income (loss) items |
||||||||
that after initial recognition in comprehensive income (loss) were
or will be transferred to profit or loss: |
||||||||
Foreign currency translation differences for foreign operations |
12,284 |
(482 |
) | |||||
Effective portion of change in fair value of cash flow hedges |
(13,429 |
) |
2,210 |
|||||
Net change in fair value of cash flow hedges transferred to profit or loss |
(3,353 |
) |
555 |
|||||
Total other comprehensive income (loss), net of tax |
(4,498 |
) |
2,283 |
|||||
Total other comprehensive income (loss) attributable to:
|
||||||||
Owners of the Company |
3,124 |
881 |
||||||
Non-controlling interests |
(7,622 |
) |
1,402 |
|||||
Total other comprehensive income (loss) |
(4,498 |
) |
2,283 |
|||||
Total comprehensive loss for the year |
(24,138 |
) |
(3,885 |
) | ||||
Total comprehensive loss
for the year attributable to: |
||||||||
Owners of the Company |
(11,966 |
) |
(3,746 |
) | ||||
Non-controlling interests |
(12,172 |
) |
(139 |
) | ||||
Total comprehensive loss
for the year |
(24,138 |
) |
(3,885 |
) | ||||
Loss per share |
||||||||
Basic loss per share |
(1.18 |
) |
(0.38 |
) | ||||
Diluted loss per share |
(1.18 |
) |
(0.38 |
) |
Year ended December 31, |
2021 vs. 2020 Change |
|||||||||||||||
(Euro in thousands) |
2021 |
2020 |
€ |
% |
||||||||||||
Spanish PV segment |
2,587 |
2,577 |
10 |
0.4 |
||||||||||||
Talasol PV Segment |
29,432 |
- |
29,432 |
100 |
||||||||||||
Israeli PV segment |
1,016 |
1,066 |
(50 |
) |
4.7 |
|||||||||||
Dorad segment |
51,630 |
57,495 |
(5,865 |
) |
(10.2 |
) | ||||||||||
Netherlands biogas segment |
12,686 |
6,002 |
6,684 |
111.4 |
Year ended December 31, |
2021 vs. 2020 Change |
|||||||||||||||
(Euro in thousands) |
2021 |
2020 |
€ |
% |
||||||||||||
Spanish PV segment |
472 |
463 |
9 |
1.9 |
||||||||||||
Talasol Segment |
6,305 |
- |
6,305 |
100 |
||||||||||||
Israeli PV segment |
367 |
379 |
(12 |
) |
(3.2 |
) | ||||||||||
Dorad segment |
39,175 |
44,489 |
(5,314 |
) |
(11.9 |
) | ||||||||||
Netherlands biogas segment |
10,446 |
4,109 |
6,337 |
154.2 |
For the year ended December 31 |
||||||||
2021 |
2020 |
|||||||
€ in thousands |
||||||||
Interest income and consumer price index in Israel in connection to concession project
|
2,248 |
1,423 |
||||||
Interest income |
276 |
553 |
||||||
Consumer price index in Israel for loan |
- |
103 |
||||||
Swap interest |
- |
55 |
||||||
Profit from settlement of derivatives contract |
407 |
- |
||||||
Change in fair value of derivatives, net |
(841 |
) |
1,094 |
|||||
Debentures interest and related expenses |
(3,220 |
) |
(2,155 |
) | ||||
Interest and commissions related to projects finance |
(5,589 |
) |
(1,775 |
) | ||||
Amortization of capitalized expenses related to projects finance |
(12,211 |
) |
(48 |
) | ||||
Interest on minority shareholder loan |
(2,055 |
) |
(41 |
) | ||||
Bank charges and other commissions |
(137 |
) |
(230 |
) | ||||
Interest on lease liability |
(367 |
) |
(494 |
) | ||||
Loss from exchange rate differences, net |
(5,395 |
) |
(2,119 |
) | ||||
Total financing expenses, net |
(26,884 |
) |
(3,634 |
) |
• |
Financing expenses include expenses in connection with the Talasol PV Plant, previously capitalized to fixed assets, are recognized
in profit and loss starting from the connection to the Spanish national grid , consisting of (i) approximately €2.2 million of interest
of bank loans, (ii) approximately €0.9 million of swap related payments, (iii) approximately €0.3 million of expenses in connection
with Talasol’s project financing, and (iv) approximately €2.1 million of interest accrued on shareholder loans granted by
the minority shareholders of Talasol; |
• |
An amount of approximately €15.5 million recorded as of December 31, 2021 in connection with the expected prepayment of Talasol’s
previous financing. Such expenses include approximately €3.3 million recorded in connection with the termination of an interest
rate swap contract and €12.2 million in connection with the amortization of the outstanding balance of expenses that were capitalized
to Talasol’s previous financing; and |
• |
Approximately €0.9 million of expenses in connection with the early repayment of our Series B Debentures. |
Year ended December 31, |
||||||||
(Euro in
thousands) |
2021 |
2020 |
||||||
Loss for the year
|
(19,640 |
) |
(6,168 |
) | ||||
Financing expenses, net |
26,884 |
3,634 |
||||||
Tax benefit |
(2,281 |
) |
(125 |
) | ||||
Depreciation and amortization expenses |
15,116 |
2,975 |
||||||
EBITDA |
20,079 |
316 |
Year ended December 31, |
||||||||||||
2022 |
2021 |
2020 |
||||||||||
Appreciation (Devaluation) of the NIS against the euro
|
6.6 |
% |
(10.8 |
)% |
1.7 |
% |
B. |
Liquidity and Capital Resources |
a. |
in an amount of approximately €3.6 million, granted to Rodríguez I Parque Solar, S.L.U.; |
b. |
in an amount of approximately €6 million, granted to Rodríguez II Parque Solar, S.L.U.; |
c. |
in an amount of approximately €3 million, granted to Seguisolar, S.L.U.; |
d. |
in an amount of approximately €5 million, granted to Ellomay Spain, S.L.; and |
e. |
a revolving credit facility to attend the debt service if needed, for a maximum amount of €0.8 million granted to any of the
Spanish Subsidiaries. |
a. |
a loan in the aggregate amount of approximately NIS 80 million provided during 2013 through 2014, linked to the Israeli CPI and bearing
an average annual interest of approximately 4.65%. This loan is payable (principal and interest) every six months commencing June 30,
2014. The final maturity date is December 31, 2031; and |
b. |
a loan in the aggregate amount of approximately NIS 25 million provided during 2014, linked to the Israeli CPI and bearing an annual
interest of approximately 4.52%. This loan is payable (principal and interest) every six months commencing June 30, 2015 through June
30, 2028. |
a. |
Our Series C Adjusted Balance Sheet Equity (as such term is defined in the Series C Deed of Trust, which, among other exclusions,
excludes changes in the fair value of hedging transactions of electricity prices, such as the Talasol PPA), on a consolidated basis, shall
not be less than €50 million for purposes of the immediate repayment provision and shall not be less than €60 for purposes
of the update of the annual interest provision; |
b. |
The ratio of (a) the short-term and long-term debt from banks, in addition to the debt to holders of debentures issued by us and
any other interest-bearing financial obligations, net of cash and cash equivalents and short-term investments and net of financing of
projects, including hedging transactions in connection with such financing, of our subsidiaries, or, together, the Series C Net Financial
Debt, to (b) our Series C Adjusted Balance Sheet Equity, on a consolidated basis, plus the Net Financial Debt, or our Series C CAP, Net,
to which we refer herein as the Series C Ratio of Net Financial Debt to Series C CAP, Net, shall not exceed the rate of 67.5% for purposes
of the immediate repayment provision and shall not exceed a rate of 60% for purposes of the update of the annual interest provision; and
|
c. |
The ratio of (a) our Series C Net Financial Debt, to (b) our earnings before financial expenses, net, taxes, depreciation and amortization,
where the revenues from our operations, such as the Talmei Yosef project, are calculated based on the fixed asset model and not based
on the financial asset model (IFRIC 12), and before share-based payments, based on the aggregate four preceding quarters, or our Series
C Adjusted EBITDA, to which we refer to herein as the Series C Ratio of Net Financial Debt to Series C Adjusted EBITDA, shall not be higher
than 12 for purposes of the immediate repayment provision and shall not be higher than 10 for purposes of the update of the annual interest
provision. |
a. |
Our Adjusted Balance Sheet Equity (as such term is defined in the Series D Deed of Trust, which, among other exclusions, excludes
changes in the fair value of hedging transactions of electricity prices, such as the Talasol PPA), on a consolidated basis, shall not
be less than €70 million for two consecutive quarters for purposes of the immediate repayment provision and shall not be less than
€75 for purposes of the update of the annual interest provision; |
b. |
The ratio of (a) the short-term and long-term debt from banks, in addition to the debt to holders of debentures issued by us and
any other interest-bearing financial obligations provided by entities who are in the business of lending money (excluding financing of
projects and other exclusions as set forth in the Series D Deed of Trust), net of cash and cash equivalents, short-term investments, deposits,
financial funds and negotiable securities, to the extent that these are not restricted (with the exception of a restriction for the purpose
of securing any financial debt according to this definition), or, together, the Series D Net Financial Debt, to (b) our Adjusted Balance
Sheet Equity, on a consolidated basis, plus the Series D Net Financial Debt, or our Series D CAP, Net, to which we refer herein as the
Series D Ratio of Net Financial Debt to Series D CAP, Net, shall not exceed the rate of 68% for three consecutive quarters for purposes
of the immediate repayment provision and shall not exceed a rate of 60% for purposes of the update of the annual interest provision; and
|
c. |
The ratio of (a) our Series D Net Financial Debt, to (b) our earnings before financial expenses, net, taxes, depreciation and amortization,
where the revenues from our operations, such as the Talmei Yosef project, are calculated based on the fixed asset model and not based
on the financial asset model (IFRIC 12), and before share-based payments, when the data of assets or projects whose Commercial Operation
Date occurred in the four quarters that preceded the test date will be calculated based on Annual Gross Up (as such terms are defined
in the Series D Deed of Trust), based on the aggregate four preceding quarters, or our Series D Adjusted EBITDA, to which we refer to
herein as the Series D Ratio of Net Financial Debt to Series D Adjusted EBITDA, shall not be higher than 14 for three consecutive quarters
for purposes of the immediate repayment provision and shall not be higher than 12 for purposes of the update of the annual interest provision.
|
Year ended December 31, |
||||||||
2022 |
2021 |
|||||||
Euro in thousands |
||||||||
Net cash provided by operating activities
|
11,320 |
16,112 |
||||||
Net cash used in investing activities
|
(28,181 |
) |
(105,497 |
) | ||||
Net cash provided by financing activities
|
26,510 |
54,196 |
||||||
Effect of exchange rate fluctuations on cash and cash equivalents
|
(4,420 |
) |
9,573 |
|||||
Increase (decrease) in cash and cash equivalents
|
5,229 |
(25,616 |
) | |||||
Cash and cash equivalents at the beginning of the year
|
41,229 |
66,845 |
||||||
Cash and cash equivalents at the end of the year
|
46,458 |
41,229 |
C. |
Research and Development, Patents and Licenses, etc.
|
D. |
Trend Information |
E. |
Critical Accounting Estimates |
Recoverable amount of cash generating unit
|
A. |
Directors and Senior Management |
Name |
Age |
Position with Ellomay
|
Shlomo Nehama(1)(2)
|
68 |
Chairman of the Board of Directors |
Ran Fridrich(1)(2)
|
70 |
Director and Chief Executive Officer |
Anita Leviant(1)(3)(4)
|
68 |
Director |
Ehud Gil(1)
|
48 |
Director |
Dr. Michael J. Anghel(3)(4)(5)
|
84 |
Director |
Daniel Vaknin(3)(4)(5)
|
67 |
Director |
Kalia Rubenbach |
44 |
Chief Financial Officer |
Ori Rosenzweig |
46 |
Chief Investment Officer |
Yehuda Saban |
44 |
Director of Operations for Israel and EVP of Business Development |
(1) |
Election supported by certain of our major shareholders pursuant to the Shareholders Agreement, dated as of March 24, 2008, between
S. Nechama Investments(2008) Ltd. and Kanir Joint Investments (2005) Limited Partnership (See “Item 7.A: Major Shareholders”).
|
(2) |
Provides management services to the Company pursuant to the Management Services Agreement (See “Item 6.B: Compensation”).
|
(3) |
Independent Director pursuant to the NYSE American LLC rules. |
(4) |
Member of our Audit and Compensation Committees. |
(5) |
External Director pursuant to the Companies Law. |
B. |
Compensation |
Salary(1)
|
Management/Consulting Fees |
Bonus(4)
|
Share-Based Payment(2)
|
Total |
||||||||||||||||
Name and Position |
(euro in thousands) |
|||||||||||||||||||
Shlomo Nehama, Chairman of the Board |
- |
418 |
(3) |
- |
- |
418 |
(3) | |||||||||||||
Ran Fridrich, CEO and Director
|
- |
542 |
(3) |
- |
- |
542 |
(3) | |||||||||||||
Yehuda Saban, Director of Operations for Israel and EVP of Business Development
|
- |
249 |
- |
23 |
272 |
|||||||||||||||
Kalia Rubenbach, Chief Financial Officer |
303 |
- |
78 |
23 |
404 |
|||||||||||||||
Ori Rosenzweig, Chief Investment Officer |
298 |
- |
137 |
23 |
458 |
1. |
Salary and related benefits are paid to our executive officers in NIS. Salary as reported herein includes the recipient’s gross
salary plus payment of social and other benefits made by us to or on behalf of the recipient. Such benefits may include, to the extent
applicable, payments, contributions and/or allocations for education funds, pension funds, managers’ insurance, severance, risk
insurances (e.g., life, or work disability insurance), social security, tax gross-up payments, vacation, car, phone, convalescence pay
and other benefits and perquisites consistent with our policies. |
2. |
Represents the share-based compensation expenses recorded in our consolidated financial statements for the year ended December 31,
2022, based on the Share-based Compensation fair value, calculated in accordance with accounting guidance for share-based compensation.
For a discussion of the assumptions used in reaching this valuation, see Note 1 to our annual financial statements. |
3. |
Such amounts are paid pursuant to the terms of the Management Services Agreement. For additional information, see “Management
Services Agreement” below. |
4. |
Bonus consists of amounts paid during 2022 in connection with 2021. |
a. |
With respect to our chief executive officer, a controlling shareholder or a relative of a controlling shareholder, approval is required
by the (i) compensation committee, (ii) board of directors and (iii) company’s shareholders with the “special majority”
described above (in that order). Subject to certain conditions, the Israeli Companies Law provides an exemption from the shareholder approval
requirement in connection with the approval of the Terms of Service and Employment of a CEO candidate. |
b. |
With respect to a director, approval is required by the (i) compensation committee, (ii) board of directors and (iii) company’s
shareholders with a regular majority (in that order). |
c. |
With respect to any other office holder, approval is required by the compensation committee and the board of directors (in that order);
however, in the event of an update of existing Terms of Service and Employment, which the Compensation Committee confirms is not material,
the approval of the compensation committee is sufficient. |
C. |
Board Practices |
a. |
monetary liability imposed on the office holder in favor of a third party by a judgment, including a settlement or a decision of
an arbitrator which is given the force of a judgment by court order; |
b. |
reasonable litigation expenses, including legal fees, incurred by the office holder as a result of an investigation or proceeding
instituted against such office holder by a competent authority, which investigation or proceeding has ended without the filing of an indictment
or in the imposition of financial liability in lieu of a criminal proceeding, or has ended in the imposition of a financial obligation
in lieu of a criminal proceeding for an offence that does not require proof of criminal intent (the phrases “proceeding that has
ended without the filing of an indictment” and “financial obligation in lieu of a criminal proceeding” shall have the
meanings ascribed to such phrases in Section 260(a)(1a) of the Companies Law) or in connection with an administrative enforcement proceeding
or a financial sanction. Without derogating from the generality of the foregoing, such expenses will include a payment imposed on the
office holder in favor of an injured party as set forth in Section 52[54](a)(1)(a) of the Securities Law, and expenses that the office
holder incurred in connection with a proceeding under Chapters H’3, H’4 or I’1 of the Securities Law or in connection
with Article D of Chapter Four of Part Nine of the Companies Law, including reasonable legal expenses, which term includes attorney fees;
|
c. |
reasonable litigation expenses, including legal fees, which the office holder has incurred or is obliged to pay by the court in proceedings
commenced against him by the Company or in its name or by any other person, or pursuant to criminal charges of which he is acquitted or
criminal charges pursuant to which he is convicted of an offence which does not require proof of criminal intent; and |
d. |
Expenses, including reasonable legal fees, including attorney fees, incurred by the office holder with respect to a proceeding in
accordance with the Restrictive Trade Practices Law, 1988, as amended, or the Restrictive Trade Practices Law. |
D. |
Employees |
E. |
Share Ownership |
Name of Beneficial Owner |
Number of Shares
Beneficially Held (1) |
Percent of Class |
||||||
Shlomo Nehama(2)(4)
|
3,588,577 |
27.9 |
% | |||||
Ran Fridrich(3)(4)
|
2,605,845 |
20.3 |
% | |||||
Ehud Gil(5)
|
1,666 |
* |
||||||
Anita Leviant(5)
|
4,000 |
* |
||||||
Dr. Michael J. Anghel(5)
|
3,500 |
* |
||||||
Daniel Vaknin(5)
|
1,583 |
* |
||||||
Kalia Rubenbach |
3,000 |
* |
||||||
Ori Rosenzweig |
3,000 |
* |
||||||
Yehuda Saban |
3,000 |
* |
||||||
All directors and executive officers as a group |
6,194,422 |
48.3 |
% |
1. |
As used in this table, “beneficial ownership” means the
sole or shared power to vote or direct the voting or to dispose or direct the disposition of any security. For purposes of this table,
a person is deemed to be the beneficial owner of securities that can be acquired within 60 days from March 31, 2023 through the exercise
of any option or warrant. Ordinary shares subject to options or warrants that are currently exercisable or exercisable within 60 days
are deemed outstanding for computing the ownership percentage of the person holding such options or warrants, but are not deemed outstanding
for computing the ownership percentage of any other person. The amounts and percentages are based upon 12,852,585 ordinary shares outstanding
as of March 31, 2023. This number of outstanding ordinary shares does not include a total of 258,046 ordinary shares held at that date
as treasury shares under Israeli law, all of which were repurchased by us. For so long as such treasury shares are owned by us they have
no rights and, accordingly, are neither eligible to participate in or receive any future dividends which may be paid to our shareholders
nor are they entitled to participate in, be voted at or be counted as part of the quorum for, any meetings of our shareholders.
|
2. |
According to information provided by the holders, the 3,588,577 ordinary shares beneficially owned by Mr. Nehama consist of: (i)
3,123,604 ordinary shares held by Nechama Investments, an Israeli company, which constitute approximately 24.3% of our outstanding ordinary
shares, and (ii) 464,973 ordinary shares held directly by Mr. Nehama, which constitute approximately 3.6% of our outstanding ordinary
shares. Mr. Nehama, as the sole officer, director and shareholder of Nechama Investments, may be deemed to indirectly beneficially own
any ordinary shares beneficially owned by Nechama Investments, which constitute (together with the shares held directly by him) approximately
27.9% of our outstanding ordinary shares. |
3. |
The 2,605,845 ordinary shares beneficially owned by Mr. Fridrich consist of ordinary shares held by Kanir, which constitute approximately
20.3% of our outstanding share capital. Mr. Fridrich is one of two board members and a shareholder of Kanir Investments Ltd., or Kanir
Ltd., the general partner in Kanir, and by virtue of his position with Kanir Ltd. may be deemed to indirectly beneficially own the ordinary
shares beneficially owned by Kanir. Mr. Fridrich disclaims beneficial ownership of the shares held by Kanir, except to the extent of his
pecuniary interest therein, if any. |
4. |
By virtue of the 2008 Shareholders Agreement between Nechama Investments and Kanir (see “Item 7.A: Major Shareholders”),
Mr. Nehama, Nechama Investments, Kanir and Mr. Fridrich may be deemed to be members of a group that holds shared voting power with respect
to 5,729,449 ordinary shares, which constitute approximately 44.6% of our outstanding ordinary shares, and holds shared dispositive power
with respect to 5,232,201 ordinary shares, which constitute 40.7% of our outstanding ordinary shares. Accordingly, taking into account
the shares directly held by Mr. Nehama, he may be deemed to beneficially own approximately 48.2% of our outstanding ordinary shares. Mr.
Nehama and Nechama Investments both disclaim beneficial ownership of the ordinary shares beneficially owned by Kanir and Kanir Ltd., Kanir
and Mr. Fridrich disclaim beneficial ownership of the shares held by Nechama Investments. |
5. |
(i) Ehud Gil holds currently exercisable options to purchase 1,666 ordinary shares with expiration dates ranging from December 17,
2030 to August 1, 2031 and exercise prices per share ranging between $28.5 - $34.44, (ii) Anita Leviant holds currently exercisable options
to purchase 4,000 ordinary shares with expiration dates ranging from August 1, 2028 to August 1, 2031 and exercise prices per share ranging
between $8.95 - $28.5, (iii) Dr. Michael J. Anghel holds currently exercisable options to purchase 3,500 ordinary shares with an expiration
dates ranging from January 24, 2029 to August 1, 2031 and exercise prices per share ranging between $8.41 - $28.5, and (iv) Daniel Vaknin
holds currently exercisable options to purchase 1,583 ordinary shares with expiration dates ranging between December 30, 2030 and August
1, 2031 and exercise prices per share ranging between $28.5 - and $34.3. |
A. |
Major Shareholders |
Ordinary Shares
Beneficially Owned(1) |
Percentage of Ordinary Shares Beneficially Owned |
|||||||
Shlomo Nehama (2)(4)(5)
|
3,588,577 |
27.9 |
% | |||||
Kanir Joint Investments (2005) Limited Partnership (3)(4)(5)
|
2,605,845 |
20.3 |
% | |||||
Yelin Lapidot Holdings Management Ltd.(6)
|
1,741,299 |
13.5 |
% | |||||
Clal Insurance Enterprises Holdings Ltd.(7)
|
1,422,498 |
11 |
% |
(1) |
As used in this table, “beneficial ownership” means the sole or shared power
to vote or direct the voting or to dispose or direct the disposition of any security as determined pursuant to Rule 13d-3 promulgated
under the U.S. Securities Exchange Act of 1934, as amended. For purposes of this table, a person is deemed to be the beneficial owner
of securities that can be acquired within 60 days from March 31, 2023 through the exercise of any option or warrant. Ordinary shares subject
to options or warrants that are currently exercisable or exercisable within 60 days are deemed outstanding for computing the ownership
percentage of the person holding such options or warrants, but are not deemed outstanding for computing the ownership percentage of any
other person. The amounts and percentages are based on a total of 12,852,585 ordinary shares outstanding as of March 31, 2023. This number
of outstanding ordinary shares does not include a total of 258,046 ordinary shares held at that date as treasury shares under Israeli
law, all of which were repurchased by us. For so long as such treasury shares are owned by us they have no rights and, accordingly, are
neither eligible to participate in or receive any future dividends which may be paid to our shareholders nor are they entitled to participate
in, be voted at or be counted as part of the quorum for, any meetings of our shareholders. |
(2) |
The 3,588,577 ordinary shares beneficially owned by Mr. Nehama consist of: (i) 3,123,604 ordinary shares held by Nechama Investments,
which constitute approximately 24.3% of our outstanding ordinary shares and (ii) 464,973 ordinary shares and held directly by Mr. Nehama,
which constitute approximately 3.6% of our outstanding ordinary shares. Mr. Nehama, as the sole officer, director and shareholder of Nechama
Investments, may be deemed to indirectly beneficially own any ordinary shares owned by Nechama Investments, which constitute (together
with his shares) approximately 27.9% of our outstanding ordinary shares. |
(3) |
Kanir is an Israeli limited partnership. Kanir Ltd., in its capacity as the general partner of Kanir, has the voting and dispositive
power over the ordinary shares directly beneficially owned by Kanir. As a result, Kanir Ltd. may be deemed to indirectly beneficially
own the ordinary shares beneficially owned by Kanir. Mr. Ran Fridrich, who is a member of our Board of Directors and our Chief Executive
Officer and Ms. Anat Raphael, the sister of Mr. Ehud Gil, who is a member of our Board of Directors, are the sole directors of Kanir Ltd.
As a result, Mr. Fridrich and Ms. Raphael may be deemed to indirectly beneficially own the ordinary shares beneficially owned by Kanir.
In addition, the estate of Mr. Raphael, who passed away in December 2020, is the majority shareholder of Kanir Ltd. and beneficially owns
254,524 ordinary shares, which constitute approximately 2% of our outstanding shares and which constitute, together with Kanir’s
holdings, approximately 22.3% of our outstanding ordinary shares. Each of Kanir Ltd., Mr. Fridrich and Ms. Raphael disclaims beneficial
ownership of such ordinary shares except to the extent of their respective pecuniary interest therein, if any. |
(4) |
By virtue of the 2008 Shareholders Agreement, Mr. Nehama, Nechama Investments, Kanir, Kanir Ltd., and Messrs. Fridrich and Gil may
be deemed to be members of a group that holds shared voting power with respect to 5,729,449 ordinary shares, which constitute approximately
44.6% of our outstanding ordinary shares, and holds shared dispositive power with respect to 5,232,201 ordinary shares, which constitute
40.7% of our outstanding ordinary shares. Accordingly, taking into account the shares directly held by Mr. Nehama, he may be deemed to
beneficially own approximately 48.2% of our outstanding ordinary shares and taking into account the shares directly held by the estate
of Mr. Raphael, the estate may be deemed to own approximately 46.6% of our outstanding ordinary shares. Each of Mr. Nehama and Nechama
Investments disclaims beneficial ownership of the ordinary shares beneficially owned by Kanir. Each of Kanir, Kanir Ltd., Mr. Fridrich,
Ms. Raphael and the estate of Mr. Raphael disclaims beneficial ownership of the ordinary shares beneficially owned by Nechama Investments.
A copy of the 2008 Shareholders Agreement was filed with the Securities and Exchange Commission, or the SEC, on March 31, 2008 as Exhibit
14 to an amendment to a Schedule 13D and is not incorporated by reference herein. |
(5) |
The information included in this table concerning the beneficial ownership of Nechama Investments, Kanir, Kanir Ltd., Messrs. Nehama
and Fridrich, Ms. Raphael and the estate of Mr. Raphael is based on a Schedule 13D/A submitted on October 13, 2020 and on information
provided by the shareholders. |
(6) |
Based on a Schedule 13G/A submitted on February 9, 2023 by Mr. Dov Yelin, Mr. Yair Lapidot, Yelin Lapidot Holdings Management Ltd.,
or Yelin Lapidot, and Yelin Lapidot Mutual Funds Management Ltd., or Yelin Lapidot Mutual. According to the Schedule 13G/A: (i) the securities
reported therein are beneficially owned as follows: (a) 1,166,865 ordinary shares, which constitute approximately 9.1% of our outstanding
ordinary shares, by mutual funds managed by Yelin Lapidot Mutual and (b) 574,434 ordinary shares, which constitute approximately 4.5%
of our outstanding ordinary shares, by provident funds managed by Yelin Lapidot Provident Fund Management Ltd., or Yelin Lapidot Provident,
(ii) both Yelin Lapidot Mutual and Yelin Lapidot Provident are wholly-owned subsidiaries of Yelin Lapidot and operate under independent
management and make their own independent voting and investment decisions, and (iii) Messrs. Yelin and Lapidot each own 24.38% of the
share capital and 25.004% of the voting rights of Yelin Lapidot, and are responsible for the day-to-day management of Yelin Lapidot. Pursuant
to the Schedule 13G/A, any economic interest or beneficial ownership in any of the securities covered by the Schedule 13G/A is held for
the benefit of the members of the provident funds or mutual funds, as the case may be, and each of Messrs. Yelin and Lapidot, Yelin Lapidot
and wholly-owned subsidiaries of Yelin Lapidot, disclaims beneficial ownership of any such securities. |
(7) |
Based on a Schedule 13G/A submitted on February 13, 2023 by Clal Insurance Enterprises Holdings Ltd., or Clal. Based on the Schedule
13G/A, the 1,422,498 ordinary shares reported as beneficially owned by Call consist of: (i) 56,115 ordinary shares issuable upon the exercise
of warrants to purchase ordinary shares that are exercisable within 60 days that are beneficially held for Clal’s own account and
(ii) 1,366,383 ordinary shares that are held for members of the public through, among others, provident funds and/or pension funds and/or
insurance policies, which are managed by subsidiaries of Clal, which subsidiaries operate under independent management and make independent
voting and investment decisions. Consequently, Clal notes in the Schedule 13G/A that the Schedule 13G/A will not constitute an admission
that it is the beneficial owner of more than 56,115 ordinary shares. |
B. |
Related Party Transactions |
• |
Meisaf, Kanir and Keystone, through their employees, officers and directors, will assist us in all aspects of the management of our
company and advise as required from time to time by us; |
• |
The position of the CEO, held by Mr. Fridrich, is set at a full-time position and the position of the Chairman of the Board, held
by Mr. Nehama, is set at no less than a 77% position; |
• |
The CEO services will be provided by Mr. Fridrich through Kanir and Keystone, and the Chairman services will be provided by Mr. Nehama
through Meisaf; |
• |
Meisaf, Kanir and Keystone are entitled to receive reimbursement for reasonable out-of-pocket business expenses borne by them or
any of their employees, directors or officers in connection with the provision of the services; |
• |
The management fees are as follows: (i) to Meisaf, an annual amount of NIS 1,386,000 (NIS 115,500 on a monthly basis) plus applicable
VAT and (ii) to Kanir and Keystone, an aggregate annual amount of NIS 1,800,000 (NIS 150,000 on a monthly basis) plus applicable VAT,
in an initial division of NIS 660,000 to Kanir and NIS 1,140,000 to Keystone or such other division as notified in writing to the Company
by Kanir and Keystone. The management fee is the full and final compensation for the provision of the services and shall be in lieu of
any and all payments that are due to the Service Providers as Board members, including the right to receive the options to purchase ordinary
shares of the Company in accordance with the Company’s 1998 Share Option Plan for Non-Employee Directors; |
• |
The Management Services Agreement be in effect until the earlier of: (i) June 30, 2024, (ii) the termination of service of Messrs.
Nehama and Fridrich on our Board of Directors, (iii) a date that is six (6) months following the delivery of a written termination
notice by Meisaf, Kanir and Keystone to the Company or by the Company to Meisaf, Kanir and Keystone, or (iv) the cessation of provision
of Chairman and CEO services. In the event only Meisaf ceases to provide services or only Keystone and Kanir cease to provide services,
the Management Services Agreement will continue in full force and effect with respect to the other parties, mutatis mutandis; and
|
• |
Kanir, Meisaf and Keystone serve as independent contractors of the Company and each of them is solely responsible to any payment
it is required to pay its employees and representatives and undertake to indemnify the Company in the event the Company suffers any damage
due to a determination that any of them or their affiliates are employees of the Company. |
• |
Monthly Salary – Mr. Asaf Nehama will receive a gross monthly salary of NIS 7,000 and
a monthly lump sum payment for overtime in the amount of NIS 5,000 (the monthly gross salary together with the monthly lump sum for overtime
(i.e. NIS 12,000, or currently approximately $3,490), the Salary). |
• |
Social and Ancillary Benefits – Mr. Asaf Nehama will be entitled to all social benefits
and rights as required under applicable law (pension, severance pay, convalescence pay, etc.) and as customary in the Company, all based
on his Salary. Mr. Asaf Nehama will be subject to the provisions of Section 14 of the Severance Pay Law, 5723-1963. Mr. Asaf Nehama will
be entitled to sick leave under law and will be able to use the sick days as customary in the Company. The Company will deposit an amount
equal to 7.5% of the Salary to an advanced study fund per Mr. Asaf Nehama’s selection and shall deduct from his Salary an amount
equal to 2.5% of the Salary that shall be deposited in said advanced study fund as the employee’s share, as customary in the Company.
|
• |
Vacation – Mr. Asaf Nehama will be entitled to paid vacation days as determined under
the Israeli Annual Vacation Law, 1951 plus two (2) days per year (pro rata) and will be entitled to transfer from year to year up to 15
vacation days. |
• |
Reimbursement of Expenses – Mr. Asaf Nehama shall be entitled to reimbursement of expenses,
travel expenses and meal expenses based on the policies and amounts as customary in the Company, currently travel expenses in the amount
of NIS 300 per month and meal expenses in the amount of NIS 900 per month. |
• |
Termination of Employment – the notice period during the first six months of employment
will be pursuant to the Israeli Prior Notice of Termination Law, 2001 and thereafter 30 days, as customary in the Company. |
C. |
Interests of Experts and Counsel |
A. |
Consolidated Statements and Other Financial Information.
|
B. |
Significant Changes |
A. |
Offer and Listing Details |
B. |
Plan of Distribution |
C. |
Markets |
D. |
Selling Shareholders |
E. |
Dilution |
F. |
Expenses of the Issue |
A. |
Share Capital |
B. |
Memorandum of Association and Second Amended and Restated
Articles |
a. |
any amendment to the articles; |
b. |
an increase in the company’s authorized share capital; |
c. |
a merger; or |
d. |
approval of related party transactions that require shareholder approval. |
C. |
Material Contracts |
D. |
Exchange Controls |
E. |
Taxation |
a. |
tax-exempt entities or any individual retirement account or Roth IRA; |
b. |
banks and other financial institutions; |
c. |
insurance companies; |
d. |
real estate investment trusts and regulated investment companies; |
e. |
broker-dealers; |
f. |
traders in securities that elect to use a mark-to-market method of accounting for their securities holdings; |
g. |
persons liable for alternative minimum tax; |
h. |
“U.S. shareholders” (as defined in Code Section 951(b), generally persons owning directly, indirectly or constructively
at least 10% of our shares by vote or value); |
i. |
persons that hold ordinary shares as part of a straddle, hedge, conversion transaction or other integrated transaction; |
j. |
U.S. expatriates; |
k. |
persons whose functional currency is not the U.S. dollar; |
l. |
persons that are residents of or have a permanent establishment in a jurisdiction outside the United States or persons who are not
U.S. Holders; |
m. |
persons who acquired the shares pursuant to the exercise of any employee share option or otherwise as compensation; and |
n. |
partnerships or a partner in a partnership. |
(1) |
an individual citizen or resident of the United States; |
(2) |
a corporation or other entity taxable as a corporation for U.S. federal income tax purposes created or organized in or under the
laws of the United States or any political subdivision thereof; |
(3) |
an estate the income of which is subject to U.S. federal income tax without regard to its source; or |
(4) |
a trust, if such trust was in existence on August 20, 1996 and has validly elected to be treated as a U.S. person for U.S. federal
income tax purposes, or if (a) a court within the U.S. can exercise primary supervision over its administration and (b) one or more U.S.
persons have the authority to control all of the substantial decisions of such trust. |
(1) |
the excess distribution or gain will be allocated ratably over each U.S. Holder’s holding period for the ordinary shares;
|
(2) |
the amount allocated to the current taxable year, and any taxable year prior to the first taxable year in which we were a PFIC, will
be treated as ordinary income; and |
(3) |
the amount allocated to each other year will be subject to tax at the highest tax rate in effect for that year and the interest charge
generally applicable to underpayments of tax will be imposed on the resulting tax attributable to each such year. |
F. |
Dividends and Paying Agents |
G. |
Statement by Experts |
H. |
Documents on Display |
I. |
Subsidiary Information |
2022 |
2021 |
|||||||
(Euro in thousands) |
||||||||
Audit Fees(1)
|
460 |
443 |
||||||
Audit-Related Fees(2)
|
- |
21 |
||||||
Tax Fees(3)
|
70 |
59 |
||||||
Total |
530 |
523 |
a. |
Professional services rendered by our independent registered public accounting firm for the audit of our annual financial statements
or services that are normally provided by the accountants in connection with statutory and regulatory filings or engagements. |
b. |
Including professional services related to due diligence investigations. |
c. |
Professional services rendered by our independent registered public accounting firm for international and local tax compliance, tax
advice services and tax planning performed during the fiscal year. |
Number |
Description |
Number |
Description |
101.INS** |
XBRL Instance Document |
101.SCH** |
XBRL Taxonomy Extension Schema Document |
101.CAL** |
XBRL Taxonomy Calculation Linkbase Document |
101.DEF** |
XBRL Taxonomy Extension Definition Linkbase Document |
101.LAB** |
XBRL Taxonomy Label Linkbase Document |
101.PRE** |
XBRL Taxonomy Presentation Linkbase Document |
104 |
Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit
101) |
* |
The original language version is on file with the Registrant and is available upon request. |
** |
Pursuant to Rule 406T of Regulation S-T, these interactive data files are deemed not filed or part of a registration statement or
prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for the purposes of Section
18 of the Securities and Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections. |
(1) |
Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2012 and incorporated by reference herein.
|
(2) |
Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2018 and incorporated by reference herein.
|
(3) |
Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2011 and incorporated by reference herein.
|
(4) |
Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2019 and incorporated by reference herein.
|
(5) |
Included in the Registrant’s Form 6-K dated May 17, 2018 and incorporated by reference herein. |
(6) |
Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2021 and incorporated by reference herein.
|
(7) |
Included in the Registrant’s Form 6-K dated October 14, 2005 and incorporated by reference herein. |
(8) |
Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2010 and incorporated by reference herein.
|
(9) |
Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2013 and incorporated by reference herein.
|
(10) |
Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2014 and incorporated by reference herein.
|
(11) |
Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2017 and incorporated by reference herein.
|
(12) |
Included in the Registrant’s Form 6-K dated June 8, 2022 and incorporated by reference herein. |
(13) |
Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2020 and incorporated by reference herein.
|
(14) |
Included in the Registrant’s Form 6-K dated July 1, 2021 and incorporated by reference herein. |
Ellomay Capital Ltd.
|
|||
By: |
/s/ Ran Fridrich |
||
Ran Fridrich |
|||
Chief Executive Officer and Director |
Ellomay Capital Ltd. and its Subsidiaries
Ellomay Capital Ltd. and its Subsidiaries
Consolidated Financial Statements
As at December 31, 2022
|
Report of Independent Registered Public Accounting Firm (PCAOB ID No.
|
F-2 - F-4
|
F-5
|
|
F-6
|
|
F-7 - F-9
|
|
F-10 - F-11
|
|
F-12 - F-106
|
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2022 and 2021, and the results of its operations and its cash flows for each of the years in the three‑year period ended December 31, 2022, in conformity with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2022, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.
F - 2
Basis for Opinions
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects.
F - 3
Critical Audit Matter
F - 4 |
December 31,
|
||||||||||||||||
2022
|
2021
|
2022
|
||||||||||||||
Note
|
€ in thousands
|
Convenience translation into US$in thousands (Note 3B)
|
||||||||||||||
Assets
|
||||||||||||||||
Current assets:
|
||||||||||||||||
Cash and cash equivalents
|
4
|
|
|
|
||||||||||||
Marketable securities
|
5
|
|
|
|
||||||||||||
Short term deposits
|
5
|
|
|
|
||||||||||||
Restricted cash
|
5
|
|
|
|
||||||||||||
Receivable from concession project
|
6D3
|
|
|
|
||||||||||||
Trade and other receivables
|
7
|
|
|
|
||||||||||||
|
|
|
||||||||||||||
Non-current assets
|
||||||||||||||||
Investment in equity accounted investee
|
6A
|
|
|
|
|
|||||||||||
Advances on account of investments
|
6C
|
|
|
|
|
|||||||||||
Receivable from concession project
|
6D3
|
|
|
|
||||||||||||
Fixed assets
|
8
|
|
*
|
|
||||||||||||
Right-of-use asset
|
14
|
|
|
|
||||||||||||
Intangible asset
|
6D3 |
|
|
|
||||||||||||
Restricted cash and deposits
|
5
|
|
|
|
||||||||||||
Deferred tax
|
19
|
|
|
|
||||||||||||
Long term receivables
|
7
|
|
|
|
||||||||||||
Derivatives
|
21
|
|
|
|
||||||||||||
|
|
|
||||||||||||||
Total assets
|
|
|
|
|||||||||||||
Liabilities and Equity
|
||||||||||||||||
Current liabilities
|
||||||||||||||||
Current maturities of long term bank loans
|
10
|
|
|
|
||||||||||||
Current maturities of long term loans
|
10
|
|
|
|
||||||||||||
Current maturities of debentures
|
12
|
|
|
|
||||||||||||
Trade payables
|
|
|
|
|||||||||||||
Other payables
|
9
|
|
|
|
||||||||||||
Current maturities of derivatives
|
21
|
|
|
|
||||||||||||
Current maturities of lease liabilities
|
14
|
|
|
|
||||||||||||
|
|
|
||||||||||||||
Non-current liabilities
|
||||||||||||||||
Long-term lease liabilities
|
14
|
|
|
|
||||||||||||
Long-term loans
|
11
|
|
|
|
||||||||||||
Other long-term bank loans
|
11
|
|
|
|
||||||||||||
Debentures
|
12
|
|
|
|
||||||||||||
Deferred tax
|
19
|
|
*
|
|
||||||||||||
Other long-term liabilities
|
13
|
|
|
|
||||||||||||
Derivatives
|
21
|
|
|
|
||||||||||||
|
|
|
||||||||||||||
Total liabilities
|
|
|
|
|||||||||||||
Equity
|
||||||||||||||||
Share capital
|
16
|
|
|
|
||||||||||||
Share premium
|
|
|
|
|||||||||||||
Treasury shares
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||
Transaction reserve with non-controlling Interests
|
|
|
|
|||||||||||||
Reserves
|
(
|
)
|
|
(
|
)
|
|||||||||||
Accumulated deficit
|
(
|
)
|
*(
|
)
|
(
|
)
|
||||||||||
Total equity attributed to shareholders of the Company
|
|
|
|
|||||||||||||
Non-Controlling Interest
|
(
|
)
|
*(
|
)
|
(
|
)
|
||||||||||
Total equity
|
|
|
|
|||||||||||||
Total liabilities and equity
|
|
|
|
F - 5 |
For the year ended December 31,
|
||||||||||||||||||||
2022
|
2021
|
2020
|
2022
|
|||||||||||||||||
Note
|
€ in thousands (except per share data)
|
Convenience translation into US$in thousands (Note 3B)
|
||||||||||||||||||
Revenues
|
18A
|
|
|
*
|
|
|
||||||||||||||
Operating expenses
|
18B
|
|
(
|
)
|
*(
|
)
|
(
|
)
|
(
|
)
|
||||||||||
Depreciation and amortization expenses
|
18B
|
|
(
|
)
|
*(
|
)
|
(
|
)
|
(
|
)
|
||||||||||
Gross profit
|
|
|
|
|
||||||||||||||||
Project development costs
|
6C
|
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||
General and administrative expenses
|
18C
|
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||
Share of profits of equity accounted investee
|
6A
|
|
|
|
|
|
||||||||||||||
Other income (expenses), net
|
|
|
|
|
|
|
||||||||||||||
Operating profit (loss)
|
|
|
(
|
)
|
|
|||||||||||||||
Financing income
|
18D
|
|
|
|
|
|
||||||||||||||
Financing income (expenses) in connection with derivatives, net
|
18D
|
|
|
(
|
)
|
|
|
|||||||||||||
Financing expenses
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||
Financing expenses, net
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||
Profit (loss) before taxes on income
|
|
(
|
)
|
(
|
)
|
|
||||||||||||||
Tax benefit (taxes on income)
|
19
|
(
|
)
|
*
|
|
(
|
)
|
|||||||||||||
Profit (loss) for the year
|
|
(
|
)
|
(
|
)
|
|
||||||||||||||
Profit (loss) attributable to:
|
||||||||||||||||||||
Owners of the Company
|
(
|
)
|
*(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||
Non-controlling interests
|
|
*(
|
)
|
(
|
)
|
|
||||||||||||||
Profit (loss) for the year
|
|
(
|
)
|
(
|
)
|
|
||||||||||||||
Other comprehensive income (loss) items
|
||||||||||||||||||||
that after initial recognition in comprehensive income (loss) were or will be transferred to profit or loss:
|
||||||||||||||||||||
Foreign currency translation differences for foreign operations
|
(
|
)
|
|
(
|
)
|
(
|
)
|
|||||||||||||
Effective portion of change in fair value of cash flow hedges, net of tax
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|||||||||||||
Net change in fair value of cash flow hedges transferred to profit or loss
|
|
(
|
)
|
|
|
|||||||||||||||
Total other comprehensive income (loss), net of tax
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|||||||||||||
Total other comprehensive income (loss) attributable to:
|
||||||||||||||||||||
Owners of the Company
|
(
|
)
|
|
|
(
|
)
|
||||||||||||||
Non-controlling interests
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|||||||||||||
Total other comprehensive income (loss)
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|||||||||||||
Total comprehensive loss for the year
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||
Total comprehensive income (loss) for the year attributable to:
|
||||||||||||||||||||
Owners of the Company
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||
Non-controlling interests
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||
Total comprehensive income (loss) for the year
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||
Earnings (loss) per share
|
||||||||||||||||||||
Basic earnings (loss) per share
|
20
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||||
Diluted earnings (loss) per share
|
20
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
F - 6 |
Attributable to shareholders of the Company
|
Non- controlling
interests
|
Total
Equity
|
||||||||||||||||||||||||||||||||||||||
Share
capital
|
Share
premium
|
Accumulated
deficit
|
Treasury
shares
|
Translation
reserve from
foreign
operations
|
Hedging
reserve
|
Transaction
reserve with
non-controlling
interests
|
Total
|
|||||||||||||||||||||||||||||||||
€ in thousands
|
||||||||||||||||||||||||||||||||||||||||
Balance as at January 1, 2022
|
|
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|
|
(
|
)
|
|
||||||||||||||||||||||||||
Profit (loss) for the year
|
|
|
(
|
)
|
|
|
|
|
(
|
)
|
|
|
||||||||||||||||||||||||||||
Other comprehensive loss for the year
|
|
|
|
|
(
|
)
|
(
|
)
|
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||||||||||||||||||
Total comprehensive loss for the year
|
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||||||||||||||
Transactions with owners of the Company, recognized directly in equity:
|
||||||||||||||||||||||||||||||||||||||||
Issuance of Capital note to non-controlling interest
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||||||||
Options exercise
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||||||||
Share-based payments
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||||||||
Balance as at December 31, 2022
|
|
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|
|
(
|
)
|
|
F - 7 |
Consolidated Statements of Changes in Equity (cont’d)
Attributable to shareholders of the Company
|
Non- controlling
interests
|
Total
Equity
|
||||||||||||||||||||||||||||||||||||||
Share
capital
|
Share
premium
|
Retained
earnings
(accumulated deficit)
|
Treasury shares
|
Translation
reserve
from foreign operations
|
Hedging reserve
|
Transaction
reserve with
non-
controlling interests
|
Total
|
|||||||||||||||||||||||||||||||||
€ in thousands
|
||||||||||||||||||||||||||||||||||||||||
Balance as at January 1, 2021
|
|
|
|
(
|
)
|
|
|
|
|
|
|
|||||||||||||||||||||||||||||
Loss for the year
|
|
|
*(
|
)
|
|
|
|
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||||||||||||||||
Other comprehensive profit (loss) for the year
|
|
|
|
|
|
(
|
)
|
|
|
(
|
)
|
(
|
)
|
|||||||||||||||||||||||||||
Total comprehensive income (loss) for the year
|
|
|
(
|
)
|
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||||||||||||||||||
Transactions with owners of the Company, recognized directly in equity:
|
||||||||||||||||||||||||||||||||||||||||
Issuance of ordinary shares
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||||||||
Acquisition of shares in subsidiaries from non-controlling interests
|
|
|
|
|
|
|
(
|
)
|
(
|
)
|
|
|
||||||||||||||||||||||||||||
Warrants exercise
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||||||||
Options exercise
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||||||||
Share-based payments
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||||||||
Balance as at December 31, 2021
|
|
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|
|
(
|
)
|
|
||||||||||||||||||||||||||
Balance as at January 1, 2020
|
|
|
|
(
|
)
|
|
(
|
)
|
|
|
|
|
||||||||||||||||||||||||||||
Loss for the year
|
|
|
(
|
)
|
|
|
|
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||||||||||||||||
Other comprehensive profit (loss) for the year
|
|
|
|
|
(
|
)
|
|
|
|
|
|
|||||||||||||||||||||||||||||
Total comprehensive income (loss) for the year
|
|
|
(
|
)
|
|
(
|
)
|
|
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||||||||||||||||||
Transactions with owners of the Company, recognized directly in equity:
|
||||||||||||||||||||||||||||||||||||||||
Issuance of Capital note to non-controlling interest
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||||||||
Options exercise
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||||||||
Share-based payments
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||||||||
Balance as at December 31, 2020
|
|
|
|
(
|
)
|
|
|
|
|
|
|
F - 8 |
Consolidated Statements of Changes in Equity (cont’d)
Attributable to shareholders of the Company
|
Non- controlling
interests
|
Total
Equity
|
||||||||||||||||||||||||||||||||||||||
Share
capital
|
Share
premium
|
Accumulated
deficit
|
Treasury
shares
|
Translation
reserve from
Foreign operations
|
Hedging
reserve
|
Transaction
reserve with
non-controlling interests
|
Total
|
|||||||||||||||||||||||||||||||||
US$ in thousands
|
||||||||||||||||||||||||||||||||||||||||
Convenience translation into US$ (exchange rate as at December 31, 2022: euro 1 = US$ 1.066)
|
||||||||||||||||||||||||||||||||||||||||
Balance as at January 1, 2022
|
|
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|
|
(
|
)
|
|
||||||||||||||||||||||||||
Profit (loss) for the year
|
|
|
(
|
)
|
|
|
|
|
(
|
)
|
|
|
||||||||||||||||||||||||||||
Other comprehensive loss for the year
|
|
|
|
|
(
|
)
|
(
|
)
|
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||||||||||||||||||
Total comprehensive loss for the year
|
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||||||||||||||
Transactions with owners of the Company, recognized directly in equity:
|
||||||||||||||||||||||||||||||||||||||||
Issuance of ordinary shares
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||||||||
Options exercise
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||||||||
Share-based payments
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||||||||
Balance as at December 31, 2022
|
|
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|
|
(
|
)
|
|
F - 9 |
For the year ended December 31
|
||||||||||||||||
2022
|
2021
|
2020
|
2022
|
|||||||||||||
€ in thousands
|
Convenience translation into US$in thousands (Note 3B)
|
|||||||||||||||
Cash flows from operating activities
|
||||||||||||||||
Profit (loss) for the year
|
|
*(
|
)
|
(
|
)
|
|
||||||||||
Adjustments for:
|
||||||||||||||||
Financing expenses, net
|
|
|
|
|
||||||||||||
Profit from settlement of derivatives contract
|
|
(
|
)
|
|
|
|||||||||||
Depreciation and amortization
|
|
*
|
|
|
||||||||||||
Share-based payment transactions
|
|
|
|
|
||||||||||||
Share of profits of equity accounted investees
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
Payment of interest on loan from an equity accounted investee
|
|
|
|
|
||||||||||||
Change in trade receivables and other receivables
|
|
(
|
)
|
(
|
)
|
|
||||||||||
Change in other assets
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|||||||||
Change in receivables from concessions project
|
(
|
)
|
|
|
(
|
)
|
||||||||||
Change in trade payables
|
|
|
|
|
||||||||||||
Change in other payables
|
|
|
(
|
)
|
|
|||||||||||
Income tax expense (tax benefit)
|
|
*(
|
)
|
(
|
)
|
|
||||||||||
Income taxes paid
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
Interest received
|
|
|
|
|
||||||||||||
Interest paid
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
|
|
|
|
|||||||||||||
Net cash provided by (used in) operating activities
|
|
|
(
|
)
|
|
F - 10 |
For the year ended December 31,
|
||||||||||||||||
2022
|
2021
|
2020
|
2022
|
|||||||||||||
€ in thousands
|
Convenience translation into US$in thousands (Note 3B)
|
|||||||||||||||
Cash flows from investing activities:
|
||||||||||||||||
Acquisition of fixed assets
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
Acquisition of subsidiary, net of cash acquired
|
|
|
(
|
)
|
|
|||||||||||
Repayment of loan to an equity accounted investee
|
|
|
|
|
||||||||||||
Loan to an equity accounted investee
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
Advances on account of investments
|
(
|
)
|
|
(
|
)
|
(
|
)
|
|||||||||
Proceeds from marketable securities
|
|
|
|
|
||||||||||||
Acquisition of marketable securities
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
Investment in settlement of derivatives, net
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|||||||||
Proceed from (investment in) restricted cash, net
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|||||||||
Proceeds from (investment in) short term deposit
|
|
(
|
)
|
(
|
)
|
|
||||||||||
Compensation as per agreement with A.R.Z. Electricity Ltd.
|
|
|
|
|
||||||||||||
Net cash used in investing activities
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
Cash flows from financing activities:
|
||||||||||||||||
Sale of shares in subsidiaries to non-controlling interests
|
|
|
|
|
||||||||||||
Proceeds from options
|
|
|
|
|
||||||||||||
Cost associated with long term loans
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
Payment of principal of lease liabilities
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|||||||||
Proceeds from long-term loans
|
|
|
|
|
||||||||||||
Repayment of long-term loans
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
Repayment of Debentures
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||
Repayment of SWAP instrument associated with long term loans
|
(
|
)
|
|
|
(
|
)
|
||||||||||
Proceed from settlement of derivatives, net
|
|
|
||||||||||||||
Issue of ordinary shares
|
|
|
|
|
||||||||||||
Proceeds from issue of convertible debentures
|
|
|
|
|
||||||||||||
Proceeds from issuance of Debentures, net
|
|
|
|
|
||||||||||||
Proceeds from issuance / exercise of warrants
|
|
|
|
|
||||||||||||
Net cash provided by financing activities
|
|
|
|
|
||||||||||||
Effect of exchange rate fluctuations on cash and
|
||||||||||||||||
cash equivalents
|
(
|
)
|
|
(
|
)
|
(
|
)
|
|||||||||
Increase (decrease) in cash and cash equivalents
|
|
(
|
)
|
|
|
|||||||||||
Cash and cash equivalents at the beginning of year
|
|
|
|
|
||||||||||||
Cash and cash equivalents at the end of the year
|
|
|
|
|
F - 11 |
A. |
Ellomay Capital Ltd. (hereinafter - the “Company”), is an Israeli Company operating in the business of renewable energy and a power generator and developer of renewable energy and power projects in Europe and Israel. As of December 31, 2022, the Company owns seven photovoltaic plants (each, a “PV Plant” and, together, the “PV Plants”) connected to their respective national grids and operating as follows: (i) five photovoltaic plants in Spain with an aggregate installed capacity of approximately 35.9 Mega Watt (“MW”), (ii)
|
B. |
Definitions:
|
F - 12 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 1 - General (cont’d)
C. |
Effects of the military conflict between Russia and Ukraine:
|
A.
|
Basis of preparation of the financial statements
|
1. |
The consolidated financial statements of the Company have been prepared in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board.
|
2.
|
Consistent accounting policies
|
3. |
These consolidated financial statements are presented in euro, which is the Company’s functional currency, and have been rounded to the nearest thousand, except when otherwise indicated. The euro is the currency that represents the principal economic environment in which the Company operates.
|
F - 13 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 2 - Basis of Preparation (cont’d)
A.
|
Basis of preparation of the financial statements (cont’d)
|
4.
|
Basis of measurement - The consolidated financial statements have been prepared on the historical cost basis, except for the following:
|
(i) |
Investment in investee accounted for using the equity method;
|
(ii) |
Marketable securities;
|
(iii) |
Deferred tax assets and liabilities;
|
(iv) |
Financial instruments measured at fair value through other comprehensive income;
|
(v) |
Derivative financial instruments and other receivables measured at fair value through profit or loss; and
|
(vi) |
Provisions.
|
B. |
Significant accounting judgments, estimates and assumptions used in the preparation of the financial statements
|
F - 14 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 2 - Basis of Preparation (cont’d)
B. |
Significant accounting judgments, estimates and assumptions used in the preparation of the financial statements (cont’d)
|
Business combination:
• |
Note 15, on share-based payments; and
|
• |
Note 21, on financial instruments.
|
•
|
Level 1: quoted prices (unadjusted) in active markets for identical assets or liabilities.
|
• |
Level 2: inputs other than quoted prices included within Level 1 that are observable, either directly or indirectly.
|
•
|
Level 3: inputs that are not based on observable market data (unobservable inputs).
|
C.
|
Adjustment in connection with the retrospective application
|
F - 15 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 2 - Basis of Preparation (cont’d)
C.
|
Classification following the application for the first time (cont’d)
|
December 31, 2021 |
||||||||||||
€ in thousands |
||||||||||||
As previously
reported
|
Application effect
IAS16- Amendment
|
As reported in these financial statements
|
||||||||||
Fixed assets
|
|
|
|
|||||||||
Deferred tax
|
|
|
|
|||||||||
Accumulated deficit
|
(
|
)
|
|
(
|
)
|
|||||||
Non-controlling interest
|
(
|
)
|
|
(
|
)
|
|||||||
Revenues
|
|
|
|
|||||||||
Operating expenses
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Depreciation and amortization expenses
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Tax benefit (Taxes on income)
|
|
(
|
)
|
|
||||||||
Profit (loss) attributable to:
|
||||||||||||
Owners of the Company
|
(
|
)
|
|
(
|
)
|
|||||||
Non-controlling interests
|
(
|
)
|
|
(
|
)
|
|||||||
Basic loss per share
|
(
|
)
|
|
(
|
)
|
|||||||
Diluted loss per share
|
(
|
)
|
|
(
|
)
|
D.
|
Initial application of new standards, amendments to standards and interpretations
|
1. |
Amendment to IAS 37, Provisions, Contingent Liabilities and Contingent Assets - Costs of Fulfilling a Contract (“the Amendment”)
|
-
|
Incremental costs; and
|
- |
An allocation of other costs that relate directly to fulfilling a contract (such as depreciation expenses for fixed assets used in fulfilling that contract and other contracts).
|
F - 16 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 2 - Basis of Preparation (cont’d)
D.
|
Initial application of new standards, amendments to standards and interpretations (cont’d)
|
2. |
Amendment to IFRS 3, Business Combinations (“the Amendment”)
|
A. |
Basis of consolidation and equity method accounting
|
1.
|
Subsidiaries
|
2.
|
Transactions eliminated upon consolidation
|
3.
|
Investment in associates and joint ventures (equity accounted investees)
|
F - 17 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 3 - Significant Accounting Policies (cont’d)
A. |
Basis of consolidation and equity method accounting (cont’d)
|
4.
|
Business combinations
|
F - 18 |
Notes to the Consolidated Financial Statements as at December 31, 2022
A. |
Basis of consolidation and equity method accounting (cont’d)
|
5.
|
Non-controlling interests
|
B. |
Functional and presentation currency
|
Transactions in foreign currencies are translated to the respective functional currencies of the Company at exchange rates at the dates of the transactions.
F - 19 |
Notes to the Consolidated Financial Statements as at December 31, 2022
B. |
Functional and presentation currency (cont’d)
|
- |
A financial liability designated as a hedge of the net investment in a foreign operation to the extent that the hedge is effective;
|
-
|
Qualifying cash flow hedges to the extent the hedge is effective.
|
F - 20 |
Notes to the Consolidated Financial Statements as at December 31, 2022
B. |
Functional and presentation currency (cont’d)
|
C.
|
Financial instruments
|
(1)
|
Non-derivative financial assets
|
- |
It is held within a business model whose objective is to hold assets so as to collect contractual cash flows; and
|
F - 21 |
Notes to the Consolidated Financial Statements as at December 31, 2022
C.
|
Financial instruments (cont’d)
|
(1)
|
Non-derivative financial assets (cont’d)
|
- |
The contractual terms of the financial asset give rise to cash flows representing solely payments of principal and interest on the principal amount outstanding on specified dates.
|
- |
It is held within a business model whose objective is achieved by both collecting contractual cash flows and selling financial assets; and
|
- |
The contractual terms of the debt instrument give rise to cash flows representing solely payments of principal and interest on the principal amount outstanding on specified dates.
|
-
|
Contingent events that would change the timing or amount of the cash flows;
|
-
|
Terms that may change the stated interest rate, including variable interest;
|
-
|
Extension or prepayment features; and
|
- |
Terms that limit the Company’s claim to cash flows from specified assets (for example a non-recourse financial asset).
|
F - 22 |
Notes to the Consolidated Financial Statements as at December 31, 2022
C.
|
Financial instruments (cont’d)
|
(1)
|
Non-derivative financial assets (cont’d)
|
(2)
|
Non-derivative financial liabilities
|
F - 23 |
Notes to the Consolidated Financial Statements as at December 31, 2022
C.
|
Financial instruments (cont’d)
|
(2)
|
Non-derivative financial liabilities (cont’d)
|
F - 24 |
Notes to the Consolidated Financial Statements as at December 31, 2022
C.
|
Financial instruments (cont’d)
|
(3)
|
Derivative financial instruments, including hedge accounting
|
F - 25 |
Notes to the Consolidated Financial Statements as at December 31, 2022
C.
|
Financial instruments (cont’d)
|
(3)
|
Derivative financial instruments, including hedge accounting (cont’d)
|
(4)
|
Interest Rate Benchmark Reform
|
(5)
|
CPI-linked assets and liabilities that are not measured at fair value
|
(6)
|
Share capital
|
F - 26 |
Notes to the Consolidated Financial Statements as at December 31, 2022
C.
|
Financial instruments (cont’d)
|
(6)
|
Share capital (cont’d)
|
D.
|
Fixed assets
|
1.
|
Recognition and measurement
|
2.
|
Depreciation
|
% per
annum
|
Mainly %
per annum
|
|||||||
Office furniture and equipment
|
|
|
||||||
Photovoltaic plants in Spain
|
|
|
||||||
Photovoltaic plants in Italy
|
|
|
||||||
Anaerobic digestion plants in the Netherlands
|
|
|
||||||
Leasehold improvements
|
|
|
F - 27 |
Notes to the Consolidated Financial Statements as at December 31, 2022
D.
|
Fixed assets (cont’d)
|
2.
|
Depreciation (cont’d)
|
E.
|
Capitalization of borrowing costs
|
F.
|
Impairment
|
F - 28 |
Notes to the Consolidated Financial Statements as at December 31, 2022
F.
|
Impairment (cont’d)
|
G.
|
Share-based payment transactions
|
H.
|
Employee benefits
|
1.
|
Short-term employee benefits:
Short-term employee benefits include salaries, paid annual leave, paid sick leave, recreation and social security contributions. Short-term employee benefits are measured on an undiscounted basis and are expensed as the related services are rendered or upon the actual absence of the employee when the benefit is not accumulated (such as maternity leave). A liability in respect of a cash bonus is recognized when the Company has a legal or constructive obligation to make such payment as a result of past service rendered by an employee and the obligation can be estimated reliably.
|
F - 29 |
Notes to the Consolidated Financial Statements as at December 31, 2022
H.
|
Employee benefits (cont’d)
|
2.
|
Post-employment benefits:
The post-employment plans are usually financed by deposits with insurance companies and classified as a defined contribution plan or as a defined benefit plan.
|
I.
|
Provisions
|
J.
|
Leases
|
(a) |
The right to obtain substantially all the economic benefits from use of the identified asset;
|
(b)
|
The right to direct the identified asset’s use.
|
F - 30 |
Notes to the Consolidated Financial Statements as at December 31, 2022
J.
|
Leases (cont’d)
|
•
|
Lands
|
|
|
• | Machinery equipment |
F - 31 |
Notes to the Consolidated Financial Statements as at December 31, 2022
K.
|
Revenue recognition
|
(a) |
The parties to the contract have approved the contract (in writing, orally or according to other customary business practices) and they are committed to satisfying the obligations attributable to them;
|
(b) |
The Company can identify the rights of each party in relation to the services that will be transferred;
|
(c) |
The Company can identify the payment terms for the services that will be transferred;
|
(d) |
The contract has a commercial substance (i.e., the risk, timing and amount of the entity’s future cash flows are expected to change as a result of the contract);
|
(e) |
It is probable that the consideration, to which the Company is entitled to in exchange for the services transferred to the customer, will be collected.
|
F - 32 |
Notes to the Consolidated Financial Statements as at December 31, 2022
K.
|
Revenue recognition (cont’d)
|
F - 33 |
Notes to the Consolidated Financial Statements as at December 31, 2022
L.
|
Income tax
|
-
|
The initial recognition of goodwill,
|
- |
The initial recognition of assets and liabilities in a transaction that is not a business combination and that affects neither accounting nor taxable profit or loss, and
|
- |
Differences relating to investments in subsidiaries, joint arrangements and associates, to the extent that the Company is able to control the timing of the reversal of the temporary difference and it is probable that they will not reverse in the foreseeable future, either by way of selling the investment or by way of distributing dividends in respect of the investment.
|
F - 34 |
Notes to the Consolidated Financial Statements as at December 31, 2022
M.
|
Earnings (loss) per share
|
N.
|
Financing income and expenses
|
O.
|
Service concession arrangements
|
F - 35 |
Notes to the Consolidated Financial Statements as at December 31, 2022
P.
|
New standards, amendments to standards and interpretations not yet adopted
|
(1) |
Amendment to IAS 1, Presentation of Financial Statements: Classification of Liabilities as Current or Non-Current and subsequent amendment: Non-Current Liabilities with Covenants (“the Amendment”)
|
(2) |
Amendment to IAS 1, Presentation of Financial Statements: Disclosure of Accounting Policies. (“the Amendment”)
|
(3) |
Amendment to IAS 12, Income Taxes: Deferred Tax related to Assets and Liabilities arising from a Single Transaction (“the Amendment”)
|
P.
|
New standards, amendments to standards and interpretations not yet adopted (cont'd)
|
(3) |
Amendment to IAS 12, Income Taxes: Deferred Tax related to Assets and Liabilities arising from a Single Transaction (“the Amendment”) (cont’d)
|
F - 36 |
Notes to the Consolidated Financial Statements as at December 31, 2022
December 31
|
||||||||
2022
|
2021
|
|||||||
€ in thousands
|
||||||||
Cash
|
|
|
||||||
On call deposits
|
|
|
||||||
Cash and cash equivalents
|
|
|
||||||
Cash and cash equivalents in the statement of cash flows
|
|
|
December 31
|
||||||||
|
2022
|
2021
|
||||||
€ in thousands
|
||||||||
Marketable securities (1)
|
|
|
||||||
Short-term deposits
|
|
|
||||||
Short-term restricted cash
|
|
|
||||||
Restricted cash and bank deposits, long-term (2)
|
|
|
(1) |
|
(2) |
|
F - 37 |
Notes to the Consolidated Financial Statements as at December 31, 2022
A. |
Equity accounted investees
|
F - 38 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont'd)
A. |
Equity accounted investees (cont'd) |
|
U. Dori Energy Infrastructures Ltd. (“Dori Energy”) (cont’d)– |
F - 39 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont'd)
A. |
Equity accounted investees (cont'd) |
|
U. Dori Energy Infrastructures Ltd. (“Dori Energy”) (cont’d)– |
F - 40 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont'd)
A. |
Equity accounted investees (cont'd) |
||
U. Dori Energy Infrastructures Ltd. (“Dori Energy”) (cont’d)– |
Petition to Approve a Derivative Claim filed by Dori Energy (cont’d)
F - 41 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont'd)
A. |
Equity accounted investees (cont'd) |
||
U. Dori Energy Infrastructures Ltd. (“Dori Energy”) (cont’d)– |
Petition to Approve a Derivative Claim filed by Dori Energy (cont’d)
F - 42 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont'd)
A. |
Equity accounted investees (cont'd) |
|
U. Dori Energy Infrastructures Ltd. (“Dori Energy”) (cont’d)– |
||
Opening Motion filed by Zorlu (cont’d) |
F - 43 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont'd)
A. |
Equity accounted investees (cont'd) |
|
U. Dori Energy Infrastructures Ltd. (“Dori Energy”) (cont’d)– |
Composition of the investments
December 31
|
||||||||
2022
|
2021
|
|||||||
€ in thousands
|
||||||||
Investment in shares
|
|
|
||||||
Long-term loans
|
|
|
||||||
Deferred interest
|
(
|
)
|
(
|
)
|
||||
|
|
|||||||
Current maturities
|
(
|
) | ||||||
Investment in equity accounted investee
|
|
|
2022
|
2021
|
|||||||
|
€ in thousands
|
|||||||
Changes in equity and loans:
|
||||||||
Balance as at January 1
|
|
|
||||||
Long term loans extended
|
|
|
||||||
Repayment of long term loans
|
(
|
)
|
(
|
)
|
||||
Reevaluation in connection with long term loans
|
(
|
)
|
(
|
)
|
||||
The Company’s share of income
|
|
|
||||||
Foreign currency translation adjustments
|
(
|
)
|
|
|||||
Conversion to short term loan
|
(
|
)
|
||||||
Balance as at December 31
|
|
|
F - 44 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont'd)
A. |
Equity accounted investees (cont'd) |
(a) |
Summary information on financial position
|
Equity
|
||||||||||||||||||||||||||||||||||||||||||||||||
Rate of
|
Current
|
Non-current
|
Total
|
Current
|
Non-current
|
Total
|
attributable to
the owners of the
|
Company’s
|
Surplus
costs and
|
Other
|
Carrying
amount of
|
|||||||||||||||||||||||||||||||||||||
ownership
|
assets
|
assets
|
assets
|
liabilities
|
liabilities
|
liabilities
|
Company
|
share
|
goodwill
|
adjustments
|
investment
|
|||||||||||||||||||||||||||||||||||||
%
|
€ in thousands
|
|||||||||||||||||||||||||||||||||||||||||||||||
2022
|
||||||||||||||||||||||||||||||||||||||||||||||||
Dori Energy
|
|
|
|
|
(
|
)
|
|
|
(
|
)
|
|
|
|
(
|
)
|
|
||||||||||||||||||||||||||||||||
2021
|
||||||||||||||||||||||||||||||||||||||||||||||||
Dori Energy
|
|
|
|
|
(
|
)
|
(
|
)
|
(
|
)
|
|
|
|
(
|
)
|
|
(b) |
Summary information on operating results
|
Rate of ownership
as of December
|
Income
for the year
|
Company’s
share
|
Elimination of interest on loan from related party
|
Other
adjustments
|
Company’s share
of income of investee
|
|||||||||||||||||||
%
|
€ in thousands
|
|||||||||||||||||||||||
2022
|
||||||||||||||||||||||||
Dori Energy
|
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|
|||||||||||||||
2021
|
||||||||||||||||||||||||
Dori Energy
|
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|
F - 45 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont'd)
B. |
Pumped Storage Projects
|
F - 46 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont’d)
B. |
Pumped Storage Projects (cont’d) |
F - 47 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont’d)
B. |
Pumped Storage Projects (cont’d) |
Manara PSP Project Finance (cont’d)
F - 48 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont’d)
B. |
Pumped Storage Projects (cont’d) |
C. |
Development of PV Projects in Italy
|
F - 49 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont’d)
C. |
Development of PV Projects in Italy (cont’d)
|
December 31
|
||||||||
2022
|
2021
|
|||||||
€ in thousands
|
||||||||
On account of development of PV projects in Italy
|
|
|
F - 50 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont’d)
D.
|
Subsidiaries -
|
1. |
Biogas Plants in the Netherlands
|
F - 51 |
Notes to the Consolidated Financial Statements as at December 31, 2022
D.
|
Subsidiaries - (cont’d)
|
2. |
PV Projects in Spain
|
F - 52 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont’d)
D. |
Subsidiaries - (cont’d)
|
2. |
PV Projects in Spain (cont’d)
|
As the Company directs the operations of Talasol and the rights granted to the Talasol Partners are minority protective rights, these changes in the Company’s ownership interest in Talasol did not result in loss of control and were accounted for as equity transactions. The Company therefore recognized in equity an amount of approximately €
F - 53 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 6 - Investee Companies and other investments (cont’d)
D. |
Subsidiaries - (cont’d)
|
3. |
PV Projects in Spain (cont’d)
|
3. |
Israeli Service Concession project
|
Asset from concession project
|
||||
€ in thousands
|
||||
Balance as at December 31, 2022
|
|
|||
Less current maturities
|
|
|||
Non current asset from concession project
|
|
F - 54 |
Notes to the Consolidated Financial Statements as at December 31, 2022
December 31
|
||||||||
2022
|
2021
|
|||||||
€ in thousands
|
||||||||
Current Assets - Trade and Other receivables:
|
||||||||
Government authorities
|
|
|
||||||
Income receivable
|
|
|
||||||
Interest receivable
|
|
|
||||||
Advance tax payment
|
|
|
||||||
Trade receivable
|
|
|
||||||
Inventory
|
|
|
||||||
Intangible asset from green certificates
|
|
|
||||||
Derivatives (see Note 21)
|
|
|
||||||
Prepaid expenses and other
|
|
|
||||||
Current Maturities of loans given to an equity accounted investee |
|
|||||||
|
|
|||||||
Non-current Assets - Long term receivables:
|
||||||||
Prepaid expenses associated with long term loans
|
|
|
||||||
Annual rent deposits
|
|
|
||||||
Loans to others
|
|
|
||||||
Other
|
|
|
||||||
|
|
F - 55 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Office |
||||||||||||||||||||
Photovoltaic
|
Pumped
|
Biogas
|
furniture and
|
|||||||||||||||||
plants
|
storage
|
plants
|
equipment
|
Total
|
||||||||||||||||
€ in thousands
|
||||||||||||||||||||
Cost
|
||||||||||||||||||||
Balance as at January 1, 2022
|
|
|
|
|
|
|||||||||||||||
Additions
|
|
|
|
|
|
|||||||||||||||
Effect of changes in exchange rates
|
(
|
)
|
(
|
)
|
|
|
(
|
)
|
||||||||||||
Balance as at December 31, 2022
|
|
|
|
|
|
|||||||||||||||
Balance as at January 1, 2021
|
|
|
|
|
|
|||||||||||||||
Additions
|
|
(*)
|
|
|
|
|
||||||||||||||
Effect of changes in exchange rates
|
|
(*)
|
|
|
|
|
||||||||||||||
Balance as at December 31, 2021
|
|
|
|
|
|
|||||||||||||||
Depreciation
|
||||||||||||||||||||
Balance as at January 1, 2022
|
|
|
|
|
|
|||||||||||||||
Depreciation for the year
|
|
|
|
|
|
|||||||||||||||
Effect of changes in exchange rates
|
|
|
|
(
|
) |
(
|
) | |||||||||||||
Balance as at December 31, 2022
|
|
|
|
|
|
|||||||||||||||
Balance as at January 1, 2021
|
|
|
|
|
|
|||||||||||||||
Depreciation for the year
|
|
|
|
|
|
|||||||||||||||
Effect of changes in exchange rates
|
|
|
|
|
|
|||||||||||||||
Balance as at December 31, 2021
|
|
|
|
|
|
|||||||||||||||
Carrying amounts
|
||||||||||||||||||||
As at January 1, 2021
|
|
|
|
|
|
|||||||||||||||
As at December 31, 2021
|
|
|
|
|
|
|||||||||||||||
As at December 31, 2022
|
|
|
|
|
|
F - 56 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 8 - Fixed assets (cont’d)
PV Plant Title
|
Original nominal capacity
|
Connection to grid/Other status
|
Cost included in the book value as at
December 31, 2022
|
|||
€ in thousands
|
||||||
“Ellomay Spain – Rinconada II”
|
|
|
|
|||
“Rodríguez I”
|
|
|
|
|||
“Rodríguez II”
|
|
|
|
|||
“Fuente Librilla”
|
|
|
|
|||
“Talasol”
|
|
|
|
|||
“Ellomay Solar”
|
|
|
|
|||
“Solar Italy One”
|
|
|
|
|||
“Solar Italy Two”
|
|
|
|
|||
“Solar Italy Four”
|
|
|
|
|||
“Solar Italy Five”
|
|
|
|
|||
“Solar Italy Ten”
|
|
|
|
In addition, the Company indirectly owns five PV Plants projects in Italy that are in Ready to Build status or constructing. As it is probable that the Company will enjoy future economic benefits in connection with: (i) the Ellomay Solar Italy One SRL and Ellomay Solar Italy Two SRL projects since May 2022, (ii) the Ellomay Solar Italy Four SRL and Ellomay Solar Italy Five SRL projects since July 2022 and (iii) the Ellomay Solar Italy Ten SRL project since December 2022, expenses in connection with these projects are capitalized as assets (see Note 6C) commencing these dates.
F - 57 |
Notes to the Consolidated Financial Statements as at December 31, 2022
December 31
|
||||||||
2022
|
2021
|
|||||||
€ in thousands
|
||||||||
Employees and payroll accruals
|
|
|
||||||
Government authorities
|
|
|
||||||
Forward contracts closed
|
|
|
||||||
Deferred revenues
|
|
|
||||||
Accrued expenses connected to Manara PSP
|
|
|
||||||
Other accrued expenses
|
|
|
||||||
Taxes on income
|
|
|
||||||
|
|
|
Interest rate
|
|
|
|||||||||||||
Linkage
terms
|
2021 and
2022
|
December 31
2022
|
December 31
2021
|
|||||||||||||
%
|
€ in thousands
|
|||||||||||||||
Current maturities of long term bank loans (refer to Note 11)
|
|
|
|
|
||||||||||||
|
|
|
|
|||||||||||||
|
|
|
|
|||||||||||||
|
|
|
Interest rate
|
|
|
|||||||||||||
Linkage
terms
|
2021 and
2022
|
December 31
2022
|
December 31
2021
|
|||||||||||||
%
|
€ in thousands
|
|||||||||||||||
Current maturities of other long term loans
|
|
|
|
|
||||||||||||
|
|
F - 58 |
Notes to the Consolidated Financial Statements as at December 31, 2022
A. |
Loans details
|
|
Interest rate
|
|
|
|||||||||||||
Linkage
terms
|
2021 and
2022
|
December 31
2022
|
December 31
2021
|
|||||||||||||
%
|
€ in thousands
|
|||||||||||||||
Bank loans
|
|
|
|
|
||||||||||||
-
|
|
|
-
|
|||||||||||||
|
|
|
|
|||||||||||||
|
|
|
|
|||||||||||||
|
|
|||||||||||||||
Current maturities
|
|
|
||||||||||||||
Long-term loans
|
|
|
|
Interest rate
|
|
|
|||||||||||||
Linkage
terms
|
2021 and
2022
|
December 31
2022
|
December 31
2021
|
|||||||||||||
%
|
€ in thousands
|
|||||||||||||||
Other long term loans
|
|
|
|
|
||||||||||||
|
|
|
||||||||||||||
|
|
|||||||||||||||
Current maturities
|
|
|
||||||||||||||
Other long-term loans
|
|
1.
|
The Company’s
|
F - 59 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 11 - Loans (cont’d)
A. |
Loans details (cont’d)
|
2.
|
On February 11, 2021, the Manara PSP Project Finance achieved financial closing. The Manara PSP Project Finance facilities are provided by a consortium of Israeli banks and institutional investors, arranged, and led by Mizrahi-Tefahot Bank Ltd. The Manara PSP Project Finance long term facilities were in the aggregate amount of approximately NIS
|
F - 60 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 11 - Loans (cont’d)
A. |
Loans details (cont’d)
|
F - 61 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 11 - Loans (cont’d)
A. |
Loans details (cont’d)
|
F - 62 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 11 - Loans (cont’d)
A. |
Loans details (cont’d)
|
1.
|
Groen Goor and Ellomay Luxembourg entered into a senior project finance agreement in 2017 (the “Goor Loan Agreement”), with Coöperatieve Rabobank U.A. (“Rabobank”), that includes the following tranches: (i) two loans with principal amounts of €
|
2. |
Groen Gas Oude-Tonge and Ellomay Luxembourg entered into a senior project finance agreement (the “Oude Tonge Loan Agreement”), with Rabobank, that includes the following tranches: (i) three loans with principal amounts of €
|
F - 63 |
Notes to the Consolidated Financial Statements as at December 31, 2022
A. |
Loans details (cont’d)
|
3. |
GG Gelderland entered into a senior project finance agreement (the “Gelderland Loan Agreement”), with Rabobank, that includes the following tranches: (i) four loans with principal amounts of (a) €
|
4. |
GG Gelderland, entered into a loan agreement in the end of November 2020, with Ontwikkelingsnaatscgappij Oost-Nederland N.V. (“Oost”), as a benefit created in connection with the Covid-19 pandemic. The loan is with a principal amount of €
|
F - 64 |
Notes to the Consolidated Financial Statements as at December 31, 2022
A. |
Loans details (cont’d)
|
1.
|
On March 12, 2019, four of the Company’s Spanish subsidiaries (together, hereinafter – the “Subsidiaries”) entered into a €
|
F - 65 |
Notes to the Consolidated Financial Statements as at December 31, 2022
A. |
Loans details (cont’d)
|
1. |
On April 30, 2019, the Talasol PV Plant reached financial closing in the aggregate amount of approximately €
|
(a) |
a term loan in the amount of €
|
(b) |
a term loan in the amount of €
|
F - 66 |
Notes to the Consolidated Financial Statements as at December 31, 2022
A. |
Loans details (cont’d)
|
2. |
On April 30, 2019, following the closing of Talasol PV Plant and sale of
|
B.
|
The aggregate annual maturities are as follows:
|
December 31
|
December 31
|
|||||||
2022
|
2021
|
|||||||
€ in thousands
|
||||||||
Second year
|
|
|
||||||
Third year
|
|
|
||||||
Fourth year
|
|
|
||||||
Fifth year
|
|
|
||||||
Sixth year and thereafter
|
|
|
||||||
Long-term loans
|
|
|
||||||
Current maturities
|
|
|
||||||
|
|
C. |
In order to minimize the interest-rate risk resulting from liabilities to banks and financing institutions linked to the Euribor, the Company executed swap transactions. For more information, see Note 21.
|
F - 67 |
Notes to the Consolidated Financial Statements as at December 31, 2022
D.
|
Movement in liabilities deriving from financing activities
|
Liabilities
|
||||||||||||||||
Loans and
|
||||||||||||||||
Note
|
borrowings
|
Debentures
|
Total
|
|||||||||||||
€ in thousands
|
||||||||||||||||
Balance as at January 1, 2022
|
|
|
|
|||||||||||||
Changes from financing activities
|
||||||||||||||||
Repayment of debentures
|
12
|
|
(
|
)
|
(
|
)
|
||||||||||
Receipt of loans
|
11
|
|
|
|
||||||||||||
Repayment of loans
|
11
|
(
|
)
|
|
(
|
)
|
||||||||||
Accrued interest
|
11
|
|
|
|
||||||||||||
Linkage
|
11
|
|
|
|
||||||||||||
Transaction costs related to borrowings
|
(
|
)
|
|
(
|
)
|
|||||||||||
Issuance of capital note to non-controlling interest
|
(
|
)
|
|
(
|
)
|
|||||||||||
Total net financing liabilities
|
|
|
|
|||||||||||||
Effect of changes in foreign exchange rates
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||
Balance as at December 31, 2022
|
|
|
|
Liabilities
|
||||||||||||||||
Loans and
|
||||||||||||||||
Note
|
borrowings
|
Debentures
|
Total
|
|||||||||||||
€ in thousands
|
||||||||||||||||
Balance as at January 1, 2021
|
|
|
|
|||||||||||||
Changes from financing activities
|
||||||||||||||||
Proceeds from issue of debentures
|
12
|
|
|
|
||||||||||||
Repayment of Debentures
|
12
|
|
(
|
)
|
(
|
)
|
||||||||||
Receipt of loans
|
11
|
|
|
|
||||||||||||
Repayment of loans
|
11
|
(
|
)
|
|
(
|
)
|
||||||||||
Accrued interest
|
11
|
|
|
|
||||||||||||
Transaction costs related to borrowings
|
|
|
|
|||||||||||||
Total net financing liabilities
|
|
|
|
|||||||||||||
Effect of changes in foreign exchange rates
|
|
|
|
|||||||||||||
Balance as at December 31, 2021
|
|
|
|
F - 68 |
Notes to the Consolidated Financial Statements as at December 31, 2022
A.
|
Composed as follows:
|
December 31, 2022
|
December 31, 2021
|
|||||||||||||||
Face value
|
Carrying amount
|
Face value
|
Carrying amount
|
|||||||||||||
€ in thousands
|
€ in thousands
|
|||||||||||||||
Debentures
|
|
|
|
|
||||||||||||
Less current maturities
|
|
|
|
|
||||||||||||
Total long-term debentures
|
|
|
|
|
B.
|
Debentures - Details
|
F - 69 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 12 - Debentures (cont’d)
B. |
Debentures - Details (cont'd)
|
1. |
the Company’s Adjusted Balance Sheet Equity (as such term is defined in the Series C Deet of Trust, which, among other exclusions, excludes changes in the fair value of hedging transactions of electricity prices, such as the Talasol PPA), on a consolidated basis, shall not be less than €
|
2. |
The ratio of (a) the short-term and long-term debt from banks, in addition to the debt to holders of debentures issued by us and any other interest-bearing financial obligations, net of cash and cash equivalents and short-term investments and net of financing of projects, including hedging transactions in connection with such financing, of the Company’s subsidiaries (together, the “Series C Net Financial Debt”), to (b) the Company’s Series C Adjusted Balance Sheet Equity, on a consolidated basis, plus the Net Financial Debt (the “Series C CAP, Net” and the “Series C Ratio of Net Financial Debt to Series C CAP, Net,” respectively), shall not exceed the rate of
|
F - 70 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 12 - Debentures (cont’d)
B. |
Debentures - Details (cont'd)
|
3. |
The ratio of (a) the Series C Net Financial Debt, to (b) the Company’s earnings before financial expenses, net, taxes, depreciation and amortization, where the revenues from the Company’s operations, such as the Talmei Yosef project, are calculated based on the fixed asset model and not based on the financial asset model (IFRIC 12), and before share-based payments, based on the aggregate four preceding quarters (the “Series C Adjusted EBITDA” and the “Series C Ratio of Net Financial Debt to Series C Adjusted EBITDA,” respectively), shall not be higher than 12 for purposes of the immediate repayment provision and shall not be higher than 10 for purposes of the update of the annual interest provision.
|
F - 71 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 12 - Debentures (cont’d)
B. |
Debentures - Details (cont'd)
|
1. |
The Company Adjusted Balance Sheet Equity (as such term is defined in the Series D Deed of Trust, which, among other exclusions, excludes changes in the fair value of hedging transactions of electricity prices, such as the Talasol PPA), on a consolidated basis, shall not be less than €
|
2. |
The ratio of (a) the short-term and long-term debt from banks, in addition to the debt to holders of debentures issued by us and any other interest-bearing financial obligations provided by entities who are in the business of lending money (excluding financing of projects and other exclusions as set forth in the Series D Deed of Trust), net of cash and cash equivalents, short-term investments, deposits, financial funds and negotiable securities, to the extent that these are not restricted (with the exception of a restriction for the purpose of securing any financial debt according to this definition) (together, the “Series D Net Financial Debt”), to (b) The Series D Adjusted Balance Sheet Equity, on a consolidated basis, plus the Series D Net Financial Debt (the “Series D CAP, Net” and the “Series D Ratio of Net Financial Debt to Series D CAP, Net,” respectively), shall not exceed the rate of
|
3. |
The ratio of (a) the Series D Net Financial Debt, to (b) the Company earnings before financial expenses, net, taxes, depreciation and amortization, where the revenues from its operations, such as the Talmei Yosef project, are calculated based on the fixed asset model and not based on the financial asset model (IFRIC 12), and before share-based payments, when the data of assets or projects whose Commercial Operation Date occurred in the four quarters that preceded the test date will be calculated based on Annual Gross Up (as such terms are defined in the Series D Deed of Trust), based on the aggregate four preceding quarters (the “Series D Adjusted EBITDA” and the “Series D Ratio of Net Financial Debt to Series D Adjusted EBITDA,” respectively), shall not be higher than 14 for purposes of the immediate repayment provision and shall not be higher than 12 for purposes of the update of the annual interest provision.
|
F - 72 |
Notes to the Consolidated Financial Statements as at December 31, 2022
B. |
Debentures - Details (cont'd)
|
C.
|
The aggregate annual maturities are as follows:
|
December 31
|
December 31
|
|||||||
2022
|
2021
|
|||||||
€ in thousands
|
||||||||
Second year
|
|
|
||||||
Third year
|
|
|
||||||
Fourth year
|
|
|
||||||
Fifth year
|
|
|
||||||
Long-term debentures
|
|
|
||||||
Current maturities
|
|
|
||||||
|
|
December 31
|
December 31
|
|||||||
2022
|
2021
|
|||||||
€ in thousands
|
||||||||
Warrants Liability (refer to Note 16)
|
|
|
||||||
Other liabilities (see note 6B)
|
|
|
||||||
Liabilities for employees benefits
|
|
|
||||||
|
|
F - 73 |
Notes to the Consolidated Financial Statements as at December 31, 2022
1. |
Lands; and
|
2. |
Machinery equipment.
|
1. |
Information regarding material lease agreements
|
2. |
Information regarding material lease agreements entered into during the period
|
3. |
Right-of-use assets
|
Gelderland
|
Italy
|
Spain
|
Talasol
|
Talmei
Yosef
|
Pumped storage
|
Total
|
||||||||||||||||||||||
€ in thousands
|
||||||||||||||||||||||||||||
Balance as at January 1, 2022
|
|
|
|
|
|
|
|
|||||||||||||||||||||
lease agreements entered into during the period
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Depreciation for the year
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||||
Other
|
|
|
(
|
)
|
|
|
|
(
|
)
|
|||||||||||||||||||
Effect of changes in exchange rates
|
|
|
|
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||||||||
Balance as at December 31, 2022
|
|
|
|
|
|
|
|
F - 74 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 14 - Leases (cont’d)
3. |
Right-of-use assets (cont’d)
|
Gelderland
|
Spain
|
Talasol
|
Talmei
Yosef
|
Pumped storage
|
Total
|
|||||||||||||||||||
€ in thousands
|
||||||||||||||||||||||||
Balance as at January 1, 2021
|
|
|
|
|
|
|
||||||||||||||||||
Lease agreements entered into during the period
|
|
|
|
|
|
|
||||||||||||||||||
Depreciation for the year
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||||||||
Other
|
|
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|||||||||||||||
Effect of changes in exchange rates
|
|
|
|
|
|
|
||||||||||||||||||
Balance as at December 31, 2021
|
|
|
|
|
|
|
4. |
Lease liability
|
December 31, 2022
|
||||
€ in thousands
|
||||
Less than one year
|
|
|||
One to five years
|
|
|||
More than five years
|
|
|||
Total
|
|
|||
Current maturities of lease liability
|
|
|||
Long-term lease liability
|
|
5. |
Additional information on leases
|
(a)
|
Amounts recognized in profit or loss
|
2022
|
2021
|
2020
|
||||||||||
€ in thousands
|
||||||||||||
Depreciation on right-of-use asset
|
*
|
|
|
|||||||||
Interest expenses on lease liability
|
|
|
|
*
(b)
|
Short-term leases
|
F - 75 |
Notes to the Consolidated Financial Statements as at December 31, 2022
A. |
On December 30, 2008, the Company’s shareholders approved the terms of a management services agreement entered into among the Company, Kanir Joint Investments (2005) Limited Partnership (“Kanir”), the one of the Company’s controlling shareholders, and Meisaf Blue & White Holdings Ltd. (“Meisaf”), a company controlled by the Company’s chairman of the board and controlling shareholder, effective as of March 31, 2008 (the “Previous Management Agreement”). The updated aggregate annual management fee under the Previous Management Agreement was $
|
B. |
Compensation to key management personnel and interested parties (including directors)
|
Year ended December 31
|
||||||||||||||||||||||||
2022
|
2021
|
2020
|
||||||||||||||||||||||
Number of
|
Number of
|
Number of
|
||||||||||||||||||||||
People
|
Amount
|
People
|
Amount
|
People
|
Amount
|
|||||||||||||||||||
€ thousands
|
€ thousands
|
€ thousands
|
||||||||||||||||||||||
Short-term employee
|
||||||||||||||||||||||||
Benefits
|
|
|
|
|
|
|
||||||||||||||||||
Post-employment
|
||||||||||||||||||||||||
Benefits
|
|
|
|
|
|
|
||||||||||||||||||
Share-based payments
|
|
|
|
|
|
|
F - 76 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 15 - Transactions and Balances with Related Parties (cont’d)
B. |
Compensation to key management personnel and interested parties (including directors) (cont’d)
|
Year ended December 31
|
||||||||||||||||||||||||
2022
|
2021
|
2020
|
||||||||||||||||||||||
Number of
|
Number of
|
Number of
|
||||||||||||||||||||||
people
|
Amount
|
people
|
Amount
|
People
|
Amount
|
|||||||||||||||||||
€ thousands
|
€ thousands
|
€ thousands
|
||||||||||||||||||||||
Total compensation to directors not employed by the Company
|
|
|
|
|
|
|
||||||||||||||||||
Share-based payments
|
|
|
|
|
|
|
C.
|
Debts and loans to related and interested parties
|
Interest income recognized
in statement of
|
|||||||||||||||||||||||||
The terms of the loan
|
Balance as at
December 31
|
income for the year ended
December 31
|
|||||||||||||||||||||||
Interest
|
Linkage
|
||||||||||||||||||||||||
rate
|
base
|
2022
|
2021
|
2022
|
2021
|
2020
|
|||||||||||||||||||
%
|
€ thousands
|
||||||||||||||||||||||||
Dori Energy
|
|
|
NIS+ Israeli CPI
|
|
|
|
|
|
(*)
|
See Note 6A regarding the conversion of approximately NIS
|
A.
|
Composition of share capital
|
December 31, 2022
|
December 31, 2021
|
December 31, 2020
|
||||||||||||||||||||||
Issued
and
|
Issued
and
|
Issued
and
|
||||||||||||||||||||||
Authorized
|
Outstanding(1)
|
Authorized
|
outstanding(1)
|
Authorized
|
Outstanding
|
|||||||||||||||||||
Number of shares
|
||||||||||||||||||||||||
Ordinary shares
|
||||||||||||||||||||||||
of NIS 10.00 par value each
|
|
|
(1)
|
|
|
(1)
|
|
|
(1)
|
(1) |
Net of
|
F - 77 |
Notes to the Consolidated Financial Statements as at December 31, 2022
A. |
Composition of share capital (cont'd)
|
B. |
Rights attached to shares: |
1. |
Voting rights at the general meeting, right to dividend and rights upon liquidation of the Company.
|
2. |
Commencing August 22, 2011, the Company’s ordinary shares have been listed on the NYSE American (formerly the NYSE MKT and the NYSE Amex). On October 27, 2013, the Company's ordinary shares were also listed for trading on the Tel Aviv Stock Exchange in Israel.
|
C. |
Translation reserve from foreign operation |
D. |
Capital management in the Company |
1. |
To preserve the Company’s ability to ensure business continuity thereby creating a return for the shareholders, investors and other interested parties.
|
2. |
To ensure adequate return for the shareholders by making reasonable investment decisions based on the level of internal rate of return that is in line with the Company’s business activity.
|
3. |
To maintain healthy capital ratios in order to support business activity and maximize shareholders value.
|
A. |
Expenses recognized in the financial statements |
Year ended December 31
|
||||||||||||
2022
|
2021
|
2020
|
||||||||||
€ thousand
|
||||||||||||
Expenses arising from share-based payment transactions
|
|
|
|
F - 78 |
Notes to the Consolidated Financial Statements as at December 31, 2022
A. |
Expenses recognized in the financial statements (cont'd) |
Year ended December 31
|
||||||||||||
2022
|
2021
|
2020
|
||||||||||
Dividend yield
|
|
%
|
|
%
|
|
%
|
||||||
Expected volatility
|
|
|
|
|||||||||
Risk-free interest
|
|
%
|
|
%
|
|
%
|
||||||
Expected life (in years)
|
|
|
|
Equal market price
|
||||||||
2022
|
2021
|
|||||||
US$
|
||||||||
Weighted average exercise prices
|
|
|
||||||
Weighted average fair value on grant date
|
|
|
B. |
Stock Option Plans |
F - 79 |
Notes to the Consolidated Financial Statements as at December 31, 2022
2022
|
2021
|
2020
|
||||||||||||||||||||||
Weighted
|
Weighted
|
Weighted
|
||||||||||||||||||||||
Average
|
average
|
Average
|
||||||||||||||||||||||
Number of
|
Exercise
|
Number of
|
exercise
|
Number of
|
Exercise
|
|||||||||||||||||||
options
|
Price
|
options
|
price
|
options
|
Price
|
|||||||||||||||||||
US$
|
US$
|
US$
|
||||||||||||||||||||||
Outstanding at
|
||||||||||||||||||||||||
beginning of year
|
|
|
|
|
|
|
||||||||||||||||||
Granted during
|
||||||||||||||||||||||||
the year
|
|
|
|
|
|
|
||||||||||||||||||
Exercised during
|
||||||||||||||||||||||||
the year
|
(
|
)
|
|
(
|
)
|
|
(
|
)
|
|
|||||||||||||||
Expired during
|
||||||||||||||||||||||||
the year
|
(
|
)
|
|
(
|
)
|
|
|
|
||||||||||||||||
Outstanding at
|
||||||||||||||||||||||||
end of year
|
|
|
|
|
|
|
||||||||||||||||||
Exercisable at
|
||||||||||||||||||||||||
end of year
|
|
|
|
|
|
|
F - 80 |
Notes to the Consolidated Financial Statements as at December 31, 2022
A. |
Revenues |
For the year ended December 31
|
||||||||||||
2022
|
2021
|
2020
|
||||||||||
€ in thousands
|
||||||||||||
Revenues from the sale of solar electricity
|
|
|
|
|||||||||
Revenues from the sale of gas and power produced by anaerobic digestion plants
|
|
|
|
|||||||||
Revenues from concessions project
|
|
|
|
|||||||||
Total revenues
|
|
|
|
B. |
Operating Costs, Depreciation and Amortization |
For the year ended December 31
|
||||||||||||
2022
|
2021
|
2020
|
||||||||||
€ in thousands
|
||||||||||||
Depreciation from fixed assets
|
|
|
|
|||||||||
Depreciation from right-of-use assets
|
|
|
|
|||||||||
Amortization of intangible asset
|
|
|
|
|||||||||
Professional services
|
|
|
|
|||||||||
Operating and maintenance services
|
|
|
|
|||||||||
System operator charges
|
|
|
|
|||||||||
Insurance
|
|
|
|
|||||||||
Other
|
|
|
|
|||||||||
Total operating costs
|
|
|
|
C. |
General and administrative expenses |
For the year ended December 31
|
||||||||||||
2022
|
2021
|
2020
|
||||||||||
€ in thousands
|
||||||||||||
Salaries and related compensation
|
|
|
|
|||||||||
Professional services
|
|
|
|
|||||||||
Other
|
|
|
|
|||||||||
Total general and administrative expenses
|
|
|
|
F - 81 |
Notes to the Consolidated Financial Statements as at December 31, 2022
D. |
Financing income and expenses: |
1. |
Financing income |
For the year ended December 31
|
||||||||||||
2022
|
2021
|
2020
|
||||||||||
€ in thousands
|
||||||||||||
Interest income and consumer price index in Israel in connection to concession project
|
|
|
|
|||||||||
Interest income
|
|
|
|
|||||||||
Change in fair value of derivatives, net
|
|
|
|
|||||||||
Consumer price index in Israel for loan
|
|
|
|
|||||||||
Swap interest
|
|
|
|
|||||||||
Profit from settlement of derivatives contract
|
|
|
|
|||||||||
Gain from exchange rate differences, net
|
|
|
|
|||||||||
Total financing income
|
|
|
|
2. |
Financing expenses |
For the year ended December 31
|
||||||||||||
2022
|
2021
|
2020
|
||||||||||
€ in thousands
|
||||||||||||
Change in fair value of derivatives, net
|
|
|
|
|||||||||
Consumer price index in Israel for loan
|
|
|
|
|||||||||
Debentures interest and related expenses
|
|
|
|
|||||||||
Interest and commissions related to projects finance
|
|
|
|
|||||||||
Amortization of capitalized expenses related to projects finance
|
|
|
|
|||||||||
Interest on minority shareholder loan
|
|
|
|
|||||||||
Bank charges and other commissions
|
|
|
|
|||||||||
Interest on lease liability
|
|
|
|
|||||||||
Loss from exchange rate differences, net
|
|
|
|
|||||||||
Total financing expenses
|
|
|
|
F - 82 |
Notes to the Consolidated Financial Statements as at December 31, 2022
- |
The real NWT is calculated by the difference between the entity’s total assets and entity’s total liabilities (exemption can be applied) multiplied by
|
- |
The minimum NWT is from €
|
For the year ended December 31
|
||||||||||||
2022
|
2021
|
2020
|
||||||||||
€ in thousands
|
||||||||||||
Current tax expense
|
||||||||||||
Current year
|
(
|
)
|
*(
|
)
|
(
|
)
|
||||||
Adjustments for prior years, net
|
(
|
)
|
|
(
|
)
|
|||||||
(
|
)
|
(
|
)
|
(
|
)
|
|||||||
Deferred tax income
|
||||||||||||
Creation and reversal of temporary differences
|
|
*
|
|
|||||||||
Adjustments for prior years, net
|
||||||||||||
|
*
|
|
||||||||||
Tax benefit (taxes in income)
|
(
|
)
|
|
|
F - 83 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 19 - Taxes on Income (cont’d)
2022
|
2021
|
2020
|
||||||||||
€ in thousands
|
||||||||||||
Profit (loss) before taxes on income
|
|
(
|
)
|
(
|
)
|
|||||||
Primary tax rate of the Company
|
|
%
|
|
%
|
|
%
|
||||||
Tax benefit (tax expenses) calculated according to the Company’s primary tax rate
|
(
|
)
|
|
|
||||||||
Additional tax saving in respect of:
|
||||||||||||
Different tax rate of foreign subsidiaries
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Neutralization of tax calculated in respect of the Company’s share in profits of equity accounted investees
|
|
|
|
|||||||||
Difference between measurement basis of income (expenses) for tax purposes and measurement basis of income (expenses) for financial reporting purposes |
( |
) | ||||||||||
Changes in deferred taxes for tax losses and benefits from previous years for which deferred taxes were not created in the past
|
|
|
|
|
||||||||
Utilization of tax losses and benefits from prior years for which deferred taxes were not created
|
|
|
|
|||||||||
Change in temporary differences for which deferred tax were not recognized
|
|
|
|
|
||||||||
Current year tax losses and benefits for which deferred taxes were not created
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Tax benefit (tax expenses) in respect to previous years and others
|
(
|
)
|
(
|
)
|
|
|||||||
Actual tax benefit (taxes on income)
|
(
|
)
|
|
|
F - 84 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 19 - Taxes on Income (cont’d)
Deferred taxes are recognized by operating subsidiaries for unused tax losses, tax benefits and deductible temporary differences, to the extent that it is probable that future taxable profits will be available against which they can be utilized.
As of December 31, 2022, the Company’s Dutch subsidiaries had carry forward tax losses and deductions aggregating to approximately €
Financial
|
Fixed
|
Swap
|
Carry-
forward tax
|
|||||||||||||||||
assets
|
assets and leases
|
contract
|
losses
|
Total
|
||||||||||||||||
€ in thousands
|
||||||||||||||||||||
Balance of deferred tax asset (liability)
|
||||||||||||||||||||
as at January 1, 2022
|
(
|
)
|
* (
|
)
|
|
|
*
|
|||||||||||||
Changes recognized in profit or loss
|
|
(
|
)
|
|
|
|
||||||||||||||
Changes recognized in other comprehensive income
|
|
|
(
|
)
|
|
|||||||||||||||
Balance of deferred tax asset (liability) as at
|
||||||||||||||||||||
December 31, 2022
|
(
|
)
|
(
|
)
|
|
|
|
Financial
|
Fixed
|
Swap
|
Carry-
forward tax
|
|||||||||||||||||
assets
|
assets and leases
|
contract
|
losses
|
Total
|
||||||||||||||||
€ in thousands
|
||||||||||||||||||||
Balance of deferred tax asset (liability)
|
||||||||||||||||||||
as at January 1, 2021
|
(
|
)
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|||||||||||
Changes recognized in profit or loss
|
|
*(
|
)
|
|
|
|
||||||||||||||
Changes recognized in other comprehensive income
|
(
|
)
|
|
|
|
|
||||||||||||||
Balance of deferred tax asset (liability) as at
|
||||||||||||||||||||
December 31, 2021
|
(
|
)
|
* (
|
)
|
|
|
|
F - 85 |
Notes to the Consolidated Financial Statements as at December 31, 2022
For the year ended December 31
|
||||||||||||
2022
|
2021
|
2020
|
||||||||||
€ in thousands (other than share and per share data)
|
||||||||||||
Net loss attributed to owners of the Company
|
(
|
)
|
*(
|
)
|
(
|
)
|
||||||
Weighted average ordinary shares outstanding (1)
|
|
|
|
|||||||||
Dilutive effect:
|
||||||||||||
Stock options and warrants
|
|
|
|
|||||||||
Diluted weighted average ordinary shares outstanding
|
|
(2)
|
|
(2)
|
|
(2)
|
||||||
Basic loss per share from continuing operations
|
(
|
)
|
*(
|
)
|
(
|
)
|
||||||
Diluted loss per share from continuing operations
|
(
|
)
|
*(
|
)
|
(
|
)
|
* Restated following application of an amendment to IAS 16 - see Note 2C.
(1) |
Net of treasury shares.
|
(2) |
In 2022, 2021 and 2020 share options and warrants did not have a dilutive effect.
|
F - 86 |
Notes to the Consolidated Financial Statements as at December 31, 2022
A. |
Overview
|
● |
Credit risk
|
● |
Liquidity risk
|
● |
Market risk
|
For the year ended December
|
||||||||
2022
|
2021
|
|||||||
€ in thousands
|
||||||||
Derivatives presented under current assets
|
||||||||
Currency swap
|
|
|
||||||
Swap contracts
|
|
|
||||||
|
|
|||||||
Derivatives presented under non-current assets
|
||||||||
Swap contracts
|
|
|
||||||
Currency swap
|
|
|
||||||
|
|
|||||||
Derivatives presented under current liabilities
|
||||||||
Swap contracts
|
|
(
|
)
|
|||||
Financial power swap
|
(
|
)
|
(
|
)
|
||||
(
|
)
|
(
|
)
|
|||||
Derivatives presented under non-current liabilities
|
||||||||
Financial power swap
|
(
|
)
|
(
|
)
|
||||
Swap contracts
|
|
(
|
)
|
|||||
(
|
)
|
(
|
)
|
F - 87 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 21 - Financial Instruments (cont’d)
December 31, 2022
|
||||||||||
Currency/
|
Currency/
|
Fair value - € |
||||||||
linkage/interest rate
|
linkage/interest rate
|
|
in
|
|||||||
receivable
|
Payable
|
Date of expiration
|
thousand
|
|||||||
Euro
|
|
|
|
|
||||||
Financial power swap- electricity price swap fixed for float
|
|
|
|
(
|
)
|
B. |
Risk management framework
|
F - 88 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 21 - Financial Instruments (cont’d)
C. |
Credit Risk
|
F - 89 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 21 - Financial Instruments (cont’d)
C. |
Credit Risk (cont’d)
|
D. |
Liquidity risk
|
F - 90 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 21 - Financial Instruments (cont’d)
D. |
Liquidity risk (cont’d)
|
December 31, 2022
|
||||||||||||||||||||||||
Carrying
|
Contractual
|
Less than
|
More than
|
|||||||||||||||||||||
amount
|
cash flows
|
1 year
|
2 years
|
3-5 years
|
5 years
|
|||||||||||||||||||
€ in thousands
|
||||||||||||||||||||||||
Non-derivative financial liabilities
|
||||||||||||||||||||||||
Long term loans, including current maturities
|
|
|
|
|
|
|
||||||||||||||||||
Debentures
|
|
|
|
|
|
|
||||||||||||||||||
Lease liabilities
|
|
|
|
|
|
|
||||||||||||||||||
Trade payables and other accounts payable
|
|
|
|
|
|
|
||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||
Derivative finance liabilities
|
||||||||||||||||||||||||
Financial power swap
|
|
|
|
|
(
|
)
|
|
|||||||||||||||||
|
|
|
|
(
|
)
|
|
December 31, 2021
|
||||||||||||||||||||||||
Carrying
|
Contractual
|
Less than
|
More than
|
|||||||||||||||||||||
amount
|
cash flows
|
1 year
|
2 years
|
3-5 years
|
5 years
|
|||||||||||||||||||
€ in thousands
|
||||||||||||||||||||||||
Non-derivative financial liabilities
|
||||||||||||||||||||||||
Long term loans, including current maturities
|
|
|
|
|
|
|
||||||||||||||||||
Debentures
|
|
|
|
|
|
|
||||||||||||||||||
Lease liabilities
|
|
|
|
|
|
|
||||||||||||||||||
Trade payables and other accounts payable
|
|
|
|
|
|
|
||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||
Derivative finance liabilities
|
||||||||||||||||||||||||
Financial power swap
|
|
|
|
|
|
(
|
)
|
|||||||||||||||||
Swap contracts
|
|
|
|
|
|
|
||||||||||||||||||
|
|
|
|
|
(
|
)
|
F - 91 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 21 - Financial Instruments (cont’d)
E. |
Market risk
|
(1) |
Foreign currency risk
|
F - 92 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 21 - Financial Instruments (cont’d)
E. |
Market risk (cont’d)
|
(1) |
Foreign currency risk (cont’d)
|
(a) |
The exposure to linkage and foreign currency risk
|
December 31, 2022
|
||||||||||||||||||||
Non-monetary/ Non finance
|
NIS(*)
|
Unlinked
|
EURO
|
Total
|
||||||||||||||||
€ in thousands
|
||||||||||||||||||||
Current assets:
|
||||||||||||||||||||
Cash and cash equivalents
|
|
|
|
|
|
|||||||||||||||
Marketable securities
|
|
|
|
|
|
|||||||||||||||
Restricted cash
|
|
|
|
|
|
|||||||||||||||
Receivable from concession project
|
|
|
|
|
|
|||||||||||||||
Trade and other receivables
|
|
|
|
|
|
|||||||||||||||
Non-current assets:
|
||||||||||||||||||||
Investments in equity accounted investees
|
|
|
|
|
|
|||||||||||||||
Advances on account of investments
|
|
|
|
|
|
|||||||||||||||
Receivable from concession project
|
|
|
|
|
|
|||||||||||||||
Fixed assets
|
|
|
|
|
|
|||||||||||||||
Right-of-use asset
|
|
|
|
|
|
|||||||||||||||
Intangible asset
|
|
|
|
|
|
|||||||||||||||
Restricted cash and deposits
|
|
|
|
|
|
|||||||||||||||
Deferred tax
|
|
|
|
|
|
|||||||||||||||
Long term receivables
|
|
|
|
|
|
|||||||||||||||
Derivatives
|
|
|
|
|
|
|||||||||||||||
Current liabilities:
|
||||||||||||||||||||
Current maturities of long term bank loans
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
||||||||||||
Current maturities of long term loans
|
|
|
|
(
|
)
|
(
|
)
|
|||||||||||||
Current maturities of debentures
|
|
(
|
)
|
|
|
(
|
)
|
|||||||||||||
Trade payables
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
||||||||||||
Other payables
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
||||||||||||
Current maturities of derivatives
|
|
|
|
(
|
)
|
(
|
)
|
|||||||||||||
Current maturities of lease liabilities
|
(
|
)
|
|
(
|
)
|
(
|
)
|
|||||||||||||
Non-current liabilities:
|
||||||||||||||||||||
Long-term lease liabilities
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
||||||||||||
Long-term loans
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
||||||||||||
Other long-term bank loans
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
||||||||||||
Debentures
|
|
(
|
)
|
|
|
(
|
)
|
|||||||||||||
Deferred tax
|
(
|
)
|
|
|
|
(
|
)
|
|||||||||||||
Derivatives
|
|
|
|
(
|
)
|
(
|
)
|
|||||||||||||
Other long-term liabilities
|
|
(
|
)
|
|
|
(
|
)
|
|||||||||||||
Total exposure in statement
|
||||||||||||||||||||
of financial position in
|
||||||||||||||||||||
respect of financial assets
|
||||||||||||||||||||
and financial liabilities
|
|
(
|
)
|
|
(
|
)
|
|
F - 93 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 21 - Financial Instruments (cont’d)
E. |
Market risk (cont’d)
|
(1) |
Foreign currency risk (cont’d)
|
(a) |
The exposure to linkage and foreign currency risk (cont’d)
|
December 31, 2021
|
||||||||||||||||||||
Non-monetary/ Non finance
|
NIS(**)
|
Unlinked
|
EURO
|
Total
|
||||||||||||||||
€ in thousands
|
||||||||||||||||||||
Current assets:
|
||||||||||||||||||||
Cash and cash equivalents
|
|
|
|
|
|
|||||||||||||||
Marketable securities
|
|
|
|
|
|
|||||||||||||||
Short term deposits
|
|
|
|
|
|
|||||||||||||||
Restricted cash
|
|
|
|
|
|
|||||||||||||||
Receivable from concession project
|
|
|
|
|
|
|||||||||||||||
Trade and other receivables
|
|
|
|
|
|
|||||||||||||||
Non-current assets:
|
||||||||||||||||||||
Investments in equity accounted investees
|
|
|
|
|
|
|||||||||||||||
Advances on account of investments
|
|
|
|
|
|
|||||||||||||||
Receivable from concession project
|
|
|
|
|
|
|||||||||||||||
Fixed assets
|
*
|
|
|
|
|
|||||||||||||||
Right-of-use asset
|
|
|
|
|
|
|||||||||||||||
Intangible asset
|
|
|
|
|
|
|||||||||||||||
Restricted cash and deposits
|
|
|
|
|
|
|||||||||||||||
Deferred tax
|
|
|
|
|
|
|||||||||||||||
Long term receivables
|
|
|
|
|
|
|||||||||||||||
Derivatives
|
|
|
|
|
|
|||||||||||||||
Current liabilities:
|
||||||||||||||||||||
Current maturities of long term bank loans
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
||||||||||||
Current maturities of long term loans
|
|
|
|
(
|
)
|
(
|
)
|
|||||||||||||
Current maturities of debentures
|
|
(
|
)
|
|
|
(
|
)
|
|||||||||||||
Trade payables
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
||||||||||||
Other payables
|
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
|||||||||||
Current maturities of derivatives
|
|
|
|
(
|
)
|
(
|
)
|
|||||||||||||
Current maturities of lease liabilities
|
(
|
)
|
|
(
|
)
|
(
|
)
|
|||||||||||||
Non-current liabilities:
|
||||||||||||||||||||
Long-term lease liabilities
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
||||||||||||
Long-term loans
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
||||||||||||
Other long-term bank loans
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
||||||||||||
Debentures
|
|
(
|
)
|
|
|
(
|
)
|
|||||||||||||
Deferred tax
|
*(
|
)
|
|
|
|
(
|
)
|
|||||||||||||
Derivatives
|
|
|
|
(
|
)
|
(
|
)
|
|||||||||||||
Other long-term liabilities
|
|
(
|
)
|
|
|
(
|
)
|
|||||||||||||
Total exposure in statement
|
||||||||||||||||||||
of financial position in
|
||||||||||||||||||||
respect of financial assets
|
||||||||||||||||||||
and financial liabilities
|
|
(
|
)
|
|
(
|
)
|
|
F - 94 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 21 - Financial Instruments (cont’d)
E. |
Market risk (cont’d)
|
(1) |
Foreign currency risk (cont’d)
|
(a) |
The exposure to linkage and foreign currency risk (cont’d)
|
For the year ended December 31
|
||||||||||||||||
Rate of
|
Rate of
|
|||||||||||||||
Change
|
Change
|
|||||||||||||||
%
|
Dollar
|
%
|
NIS
|
|||||||||||||
1 Euro in 2022
|
(
|
)
|
|
|
|
|||||||||||
1 Euro in 2021
|
(
|
)
|
|
(
|
)
|
|
(b) |
Sensitivity analysis
|
December 31, 2022
|
||||||||
Increase
|
Decrease
|
|||||||
Equity
|
Equity
|
|||||||
€ thousands
|
||||||||
Change in the exchange rate of:
|
||||||||
5% in the USD
|
|
(
|
)
|
|||||
5% in NIS
|
(
|
)
|
|
December 31, 2021
|
||||||||
Increase
|
Increase
|
|||||||
Equity
|
Equity
|
|||||||
€ thousands
|
||||||||
Change in the exchange rate of:
|
||||||||
5% in the USD
|
|
(
|
)
|
|||||
5% in NIS
|
(
|
)
|
|
F - 95 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 21 - Financial Instruments (cont’d)
E. |
Market risk (cont’d)
|
(2) |
Interest rate risk
|
December 31,
|
||||||||
2022
|
2021
|
|||||||
Profit or loss
|
Profit or loss
|
|||||||
€ in thousands
|
||||||||
Increase of 1%
|
|
|
||||||
Increase of 3%
|
|
|
||||||
Decrease of 1%
|
(
|
)
|
(
|
)
|
||||
Decrease of 3%
|
(
|
)
|
(
|
)
|
(3) |
Electricity market prices risk
|
F - 96 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 21 - Financial Instruments (cont’d)
F. |
Fair value
|
(1) |
Fair values versus carrying amounts
|
December 31, 2022
|
Fair value
|
|||||||||||||||||||
Carrying
|
Valuation techniques for
|
Inputs used to
|
|||||||||||||||||
amount
|
Level 1
|
Level 2
|
Level 3
|
determining fair value
|
determine fair value
|
||||||||||||||
€ in thousands
|
|||||||||||||||||||
Non-current liabilities:
|
|||||||||||||||||||
Debentures
|
|
|
|
|
|||||||||||||||
Loans from banks and others (including current maturities)
|
|
|
|
|
|
|
|||||||||||||
|
|
|
|
December 31, 2021
|
Fair value
|
|||||||||||||||||||
Carrying
|
Valuation techniques for
|
Inputs used to
|
|||||||||||||||||
amount
|
Level 1
|
Level 2
|
Level 3
|
determining fair value
|
determine fair value
|
||||||||||||||
€ in thousands
|
|||||||||||||||||||
Non-current liabilities:
|
|||||||||||||||||||
Debentures
|
|
|
|
|
|||||||||||||||
Loans from banks and others (including current maturities)
|
|
|
|
|
|
|
|||||||||||||
|
|
|
|
F - 97 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 21 - Financial Instruments (cont’d)
F. |
Fair value (cont’d)
|
(2) |
Interest rates used for determining fair value
|
December 31, |
|||
2022 |
2021 |
||
% |
|||
Non-current liabilities:
|
|||
Loans from banks
|
|
|
|
Loans from banks |
|
||
Loans from banks
|
|
|
|
Loans from banks
|
|
|
|
Loans from others
|
|
|
|
Loans from others
|
|
|
(3) |
Fair values hierarchy
|
Level 1
|
-
|
Quoted prices (unadjusted) in active markets for identical assets or liabilities.
|
Level 2
|
-
|
Inputs other than quoted prices included within Level 1 that are observable either directly or indirectly.
|
Level 3
|
-
|
Inputs that are not based on observable market data (unobservable inputs).
|
F - 98 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 21 - Financial Instruments (cont’d)
F. |
Fair value (cont’d)
|
(3) |
Fair values hierarchy (Cont’d)
|
December 31, 2022
|
|||||||||||||||||
Level 1
|
Level 2
|
Level 3
|
Total
|
Valuation techniques for
|
|||||||||||||
€ in thousands
|
determining fair value
|
||||||||||||||||
Marketable securities
|
|
||||||||||||||||
Swap contracts
|
|
|
|
||||||||||||||
Financial power swap
|
( |
)
|
( |
)
|
|
December 31, 2021
|
|||||||||||||||||
Level 1
|
Level 2
|
Level 3
|
Total
|
Valuation techniques for
|
|||||||||||||
€ in thousands
|
determining fair value
|
||||||||||||||||
Marketable securities
|
|
|
|
|
|
||||||||||||
Swap contracts
|
|
(
|
)
|
|
(
|
)
|
|
||||||||||
Currency swap
|
|
|
|
|
|
||||||||||||
Dori Energy loan
|
|
|
|
|
|
||||||||||||
Financial power swap
|
|
|
(
|
) |
(
|
) |
|
F - 99 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 21 - Financial Instruments (cont’d)
F. |
Fair value (cont'd) |
(4)
|
Level 3 financial instruments carried at fair value
|
Financial assets
|
||||
Dori Energy loan
|
||||
€ in thousands
|
||||
Balance as at December 31, 2020
|
|
|||
Total income recognized in profit or loss
|
|
|||
Grant of loan
|
|
|||
Repayment
|
(
|
)
|
||
Foreign Currency translation adjustments
|
|
|||
Balance as at December 31, 2021
|
|
|||
Total income recognized in profit or loss
|
|
|||
Grant of loan
|
|
|||
Repayment
|
(
|
)
|
||
Conversion to capital notes
|
(
|
)
|
||
(2,665
|
)
|
|||
Current maturities
|
(
|
)
|
||
Balance as at December 31, 2022
|
Financial liability
|
||||
Financial power swap
|
||||
€ in thousands
|
||||
Balance as at December 31, 2020
|
|
|||
Total income recognized in other comprehensive income
|
(
|
) | ||
Balance as at December 31, 2021
|
(
|
)
|
||
Total income is recognized in other comprehensive income
|
(
|
) | ||
Balance as at December 31, 2022
|
(
|
)
|
F - 100 |
Notes to the Consolidated Financial Statements as at December 31, 2022
● |
Photovoltaic power plants (“PV Plants”) – Operation of installations that convert the energy in sunlight into electrical energy as follows:
|
● |
|
● |
Dorad Energy Ltd. (Dorad) –
|
● |
Pumped storage hydro power plant (Manara) –
|
F - 101 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 22 - Operating Segments (cont’d)
PV
|
Total
|
|||||||||||||||||||||||||||||||||||||||||||
Ellomay
|
Bio
|
reportable
|
Total
|
|||||||||||||||||||||||||||||||||||||||||
Italy
|
Spain
|
Solar
|
Talasol
|
Israel
|
Gas
|
Dorad
|
Manara
|
segments
|
Reconciliations
|
consolidated
|
||||||||||||||||||||||||||||||||||
For the year ended December 31, 2022
|
||||||||||||||||||||||||||||||||||||||||||||
€ in thousands
|
||||||||||||||||||||||||||||||||||||||||||||
Revenues
|
|
|
|
|
|
|
|
|
|
(
|
)
|
|
||||||||||||||||||||||||||||||||
Operating expenses
|
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|
(
|
)
|
|||||||||||||||||||||||||
Depreciation expenses
|
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|
(
|
)
|
|||||||||||||||||||||||||
Gross profit (loss)
|
|
|
|
|
|
(
|
)
|
|
|
|
(
|
)
|
|
|||||||||||||||||||||||||||||||
Adjusted gross profit (loss)
|
|
|
|
|
|
1
|
(
|
)
|
|
|
|
(
|
)
|
|
||||||||||||||||||||||||||||||
Project development costs
|
(
|
)
|
||||||||||||||||||||||||||||||||||||||||||
General and administrative expenses
|
(
|
)
|
||||||||||||||||||||||||||||||||||||||||||
Share of loss of equity accounted investee
|
|
|||||||||||||||||||||||||||||||||||||||||||
Operating profit
|
|
|||||||||||||||||||||||||||||||||||||||||||
Financing income
|
|
|||||||||||||||||||||||||||||||||||||||||||
Financing expenses in connection
|
||||||||||||||||||||||||||||||||||||||||||||
with derivatives and warrants, net
|
|
|||||||||||||||||||||||||||||||||||||||||||
Financing expenses, net
|
(
|
)
|
||||||||||||||||||||||||||||||||||||||||||
Loss before taxes on income
|
|
|||||||||||||||||||||||||||||||||||||||||||
Segment assets as at December 31, 2022
|
|
|
|
|
|
|
|
|
|
(
|
)
|
|
F - 102 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 22 - Operating Segments (cont’d)
PV
|
Total
|
|||||||||||||||||||||||||||||||||||||||||||
Ellomay
|
Bio
|
reportable
|
Total
|
|||||||||||||||||||||||||||||||||||||||||
Italy
|
Spain
|
Solar
|
Talasol
|
Israel
|
Gas
|
Dorad
|
Manara
|
segments
|
Reconciliations
|
consolidated
|
||||||||||||||||||||||||||||||||||
For the year ended December 31, 2021
|
||||||||||||||||||||||||||||||||||||||||||||
€ in thousands
|
||||||||||||||||||||||||||||||||||||||||||||
Revenues
|
|
|
|
|
*
|
|
|
|
|
(
|
)
|
|
||||||||||||||||||||||||||||||||
Operating expenses
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|
(
|
)
|
||||||||||||||||||||||||||
Depreciation expenses
|
|
(
|
)
|
|
(
|
)
|
(
|
)
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|
(
|
)
|
||||||||||||||||||||||||||
Gross profit (loss)
|
|
|
|
|
*
|
(
|
)
|
|
|
|
(
|
)
|
|
|||||||||||||||||||||||||||||||
Adjusted gross profit (loss)
|
|
|
|
|
|
2
|
(
|
)
|
|
|
|
(
|
)
|
|
||||||||||||||||||||||||||||||
Project development costs
|
(
|
)
|
||||||||||||||||||||||||||||||||||||||||||
General and administrative expenses
|
(
|
)
|
||||||||||||||||||||||||||||||||||||||||||
Share of loss of equity accounted investee
|
|
|||||||||||||||||||||||||||||||||||||||||||
Operating profit
|
|
|||||||||||||||||||||||||||||||||||||||||||
Financing income
|
|
|||||||||||||||||||||||||||||||||||||||||||
Financing expenses in connection
|
||||||||||||||||||||||||||||||||||||||||||||
with derivatives and warrants, net
|
(
|
)
|
||||||||||||||||||||||||||||||||||||||||||
Financing expenses, net
|
(
|
)
|
||||||||||||||||||||||||||||||||||||||||||
Loss before taxes on income
|
(
|
)
|
||||||||||||||||||||||||||||||||||||||||||
Segment assets as at December 31, 2021
|
|
|
|
|
|
|
|
|
|
(
|
)
|
|
* Segment presentation for prior periods was adjusted to reflect revenues and operating expenses for the Talmei Yosef PV Plant under IFRIC 12 and not under the fixed asset model and to include the adjusted gross profit of such segment, to align the presentation with the presentation of the segments for the year ended December 31, 2022.
F - 103 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 22 - Operating Segments (cont’d)
PV
|
Total
|
|||||||||||||||||||||||||||||||||||||||||||
Ellomay
|
Bio
|
reportable
|
Total
|
|||||||||||||||||||||||||||||||||||||||||
Italy
|
Spain
|
Solar
|
Talasol
|
Israel
|
Gas
|
Dorad
|
Manara
|
segments
|
Reconciliations
|
consolidated
|
||||||||||||||||||||||||||||||||||
For the year ended December 31, 2020
|
||||||||||||||||||||||||||||||||||||||||||||
€ in thousands
|
||||||||||||||||||||||||||||||||||||||||||||
Revenues
|
|
|
|
|
*
|
|
|
|
|
(
|
)
|
|
||||||||||||||||||||||||||||||||
Operating expenses
|
|
(
|
)
|
|
|
(
|
)
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|
(
|
)
|
|||||||||||||||||||||||||||
Depreciation expenses
|
|
(
|
)
|
|
|
(
|
)
|
(
|
)
|
(
|
)
|
|
(
|
)
|
|
(
|
)
|
|||||||||||||||||||||||||||
Gross profit (loss)
|
|
|
|
|
|
|
|
|
|
(
|
)
|
|
||||||||||||||||||||||||||||||||
Adjusted gross profit (loss)
|
|
|
|
|
|
3
|
|
|
|
|
(
|
)
|
|
|||||||||||||||||||||||||||||||
Project development costs
|
(
|
)
|
||||||||||||||||||||||||||||||||||||||||||
General and administrative expenses
|
(
|
)
|
||||||||||||||||||||||||||||||||||||||||||
Share of loss of equity accounted investee
|
|
|||||||||||||||||||||||||||||||||||||||||||
Other income, net
|
|
|||||||||||||||||||||||||||||||||||||||||||
Operating profit
|
(
|
)
|
||||||||||||||||||||||||||||||||||||||||||
Financing income
|
|
|||||||||||||||||||||||||||||||||||||||||||
Financing expenses in connection
|
||||||||||||||||||||||||||||||||||||||||||||
with derivatives and warrants, net
|
|
|||||||||||||||||||||||||||||||||||||||||||
Financing expenses, net
|
(
|
)
|
||||||||||||||||||||||||||||||||||||||||||
Loss before taxes on income
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(
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)
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||||||||||||||||||||||||||||||||||||||||||
Segment assets as at December 31, 2020
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* Segment presentation for prior periods was adjusted to reflect revenues and operating expenses for the Talmei Yosef PV Plant under IFRIC 12 and not under the fixed asset model and to include the adjusted gross profit of such segment, to align the presentation with the presentation of the segments for the year ended December 31, 2022.
F - 104 |
Notes to the Consolidated Financial Statements as at December 31, 2022
Note 22 - Operating Segments (cont’d)
For the year ended December 31
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||||||||||||
2022
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2021
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2020
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€ in thousands
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||||||||||||
Israel
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|||||||||
Italy
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|||||||||
The Netherlands
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Spain (including Talasol PV Plant)
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|||||||||
Total revenues
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As at December 31
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||||||||
2022
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2021
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|||||||
€ in thousands
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||||||||
Israel
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||||||
Italy
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|
||||||
Spain (including Talasol PV Plant)
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||||||
The Netherlands
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||||||
Total fixed assets, net
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F - 105 |
Notes to the Consolidated Financial Statements as at December 31, 2022
(1) |
On February 1, 2023, the Company issued NIS
|
(2) |
On March 14, 2023, the Company entered into a Joint Development Agreement (the “JDA”) for the development of solar photovoltaic projects in the State of Texas. The JDA was executed with a project development company experienced in the development of energy projects, site acquisition, capital markets and commercial management. The JDA provides for the initial development, design, construction and finance of two solar PV projects with aggregate projected DC capacity of 23 MW (the “First Projects”). The First Projects are in advanced stages of development and the estimated capital costs of the First Projects are in the range of $
|
F - 106
UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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Topic
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Clause in the Deed
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1
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2
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3
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4
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5
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6
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7
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8
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9
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10
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11
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12
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13
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14
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15
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16
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17
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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18
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19
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20
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21
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22
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23
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24
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25
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26
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27
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28
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29
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30
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31
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32
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33
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34
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35
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36
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Clause 3 of the First Addendum
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Clause 4 of the First Addendum
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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Clause 5 of the First Addendum
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Clause 6 of the First Addendum
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Clause 7 of the First Addendum
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Clause 8 of the First Addendum
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Clause 9 of the First Addendum
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Clause 10 of the First Addendum
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Clause 11 of the First Addendum
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Clause 12 of the First Addendum
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Clause 13 of the First Addendum
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Clause 14 of the First Addendum
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Clause 15 of the First Addendum
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Clause 16 of the First Addendum
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Clause 17 of the First Addendum
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Clause 18 of the First Addendum
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Clause 19 of the First Addendum
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Appendix 3
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Appendix 5.2
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Appendix 6.2
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Appendix 7
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Appendix 20.2
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Appendix 23
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Second Addendum
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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Between: |
Ellomay Capital Ltd.
52-003986-8
of 18 Rothschild Blvd., Tel Aviv
(hereinafter: the “Company”)
|
And between: |
Hermetic Trust (1975) Ltd.
51-070519-7
of 30 Sheshet HaYamim St., Bnei Brak
(hereinafter: the “Trustee”)
|
Whereas: |
In January 2023 the Board of Directors of the Company resolved to approve in principle the issue of debentures (Series E) whose conditions are as stated in this Deed of Trust and that will be offered to the public according to a shelf
offering report, by virtue of the Shelf Prospectus (as hereinafter defined);
|
And whereas: |
the Trustee is a company limited by shares that was incorporated in Israel in 1975 in accordance with the Companies Ordinance, whose main purpose is to engage in trusts, and it meets the eligibility requirements established by law, and
in particular the requirements of the Securities Law (as hereinafter defined) to serve as a trustee of the debentures which are the subject of this deed;
|
And whereas: |
the Trustee declared that there is no hindrance in accordance with the Securities Law or any other law barring it from entering into this Deed of Trust with the Company, including pertaining to conflicts of interests preventing him from
engaging with the Company as stated, and that it meets all of the demands and eligibility requirements set forth in the Securities Law to serve as Trustee for the issuance of the Debenture subject matter of this Deed;
|
And whereas: |
the Trustee has no material interest in the Company, and the Company has no personal interest in the Trustee, except for the fact that the Trustee is trustee for additional debentures of the Company;
|
And whereas: |
the Company requested the Trustee, subject to the issuance of the Debentures (Series E), the Trustee will serve as a Trustee for the Holders of the Debentures (Series E) and the Trustee agreed to
the said and all subject to and in accordance with the provisions set forth in this Deed of Trust;
|
And whereas: |
the Trustee has agreed to sign this Deed of Trust and to act as Trustee for the Debenture Holders ;
|
And whereas: |
the Company obtained or will obtain until the execution of the issuance subject matter of this Deed all approvals and/or consents that are required for the purpose of performing the issuance, and that subject to receipt of the consents
and approvals as aforementioned there is no hindrance by law and/or agreement to perform the issuance of the Debentures (Series E) and/or to engage with the Trustee in accordance with the Deed of Trust;
|
And whereas: |
the parties wish to arrange the terms of the Debentures (Series E) in this Deed of Trust, in light of the Company’s intention to make a first public offering of the Debentures (Series E) in accordance with the Shelf Offering Report by
virtue of the Shelf Prospectus, in a way that the Deed of Trust will apply solely to the Debentures (Series E);
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
1. |
1.1. |
The preamble of this Deed of Trust and the appendixes attached thereto constitute a material and inseparable part hereof.
|
1.2. |
The division of this Deed of Trust into clauses and providing titles to the clauses was made for convenience and as reference only and they should not be used for the purpose of interpretation.
|
1.3. |
Anything mentioned in this Deed of Trust in plural shall also refer to singular and vice versa, anything mentioned in the masculine shall also refer to the feminine and vice versa, and anything mentioned regarding a person shall also
refer to a body corporate, provided that this Deed does not contain any express provision otherwise.
|
1.4. |
In the event of discrepancy between the Deed of Trust and the accompanying documents thereto and the said in the Shelf Offering Report, the provisions set forth in the Deed of Trust shall take precedence, subject to the Stock Exchange
regulations and guidelines. As of the signing date of the Deed of Trust, there is no contradiction between the provisions relating to the Debentures (Series E) in the Shelf Offering Report and the provisions set forth in this Deed. This
Deed including all provisions hereof shall enter into force together with and subject to the issuance of the Debentures (Series E). It is clarified that in the event the Debentures (Series E) are not issued for any reason, this Deed shall
automatically expire and the trust contemplated hereunder shall not enter into force.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
1.5 |
Anywhere in this Deed that uses the phrase “subject to any law” (or any other similar expression) the meaning is subject to any law that cannot be conditioned. On the date of making this Deed of Trust, the Company is a reporting company
in accordance with, and subject to, the provisions of chapter E’3 of the Law.
|
2. |
2.1. |
The Company shall issue a series of Debentures (Series E) under the terms set out on the back of the page of the first addendum.
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2.2. |
If after the date of the first issuance of the Debentures (Series E) this same series of Debentures shall be expanded by the Company, the Holders of the Debenture (Series E) that shall be issued in the framework of the expansion of that
series shall not be entitled to receive payment on account of the Principal and/or interest for these Debentures that the record date for payment thereof shall be before the date of their issuance as mentioned.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
2.3. |
The Company shall be entitled, or obligated, as the case may be, to perform an early redemption of the Debentures in the event the terms set forth in clause 8 of the Deed of Trust have been fulfilled.
|
2.4. |
The Debentures shall all be set at an equal security ranking pari passu between them with respect with the Company’s undertakings according to this Deed of Trust, and without a preferred right or right of priority over one another.
|
2.5. |
The provisions of this Deed shall apply to the Debentures issued in accordance therewith, and which shall be held, from time to time, to each Debenture Holder, including the public, unless expressly stated otherwise.
|
2.6. |
This Deed of Trust shall enter into effect upon the Company’s issuance of the Debentures. It is agreed that in case the issuance of Debentures is revoked for any reason whatsoever, this Deed of Trust shall be null and void.
|
3. |
3.1. |
The Company hereby appoints the Trustee as the First Trustee for the Debenture Holders (Series E) pursuant to the provisions of Chapter E.1 of the Securities Law including for those entitled to payments pursuant to the Debentures that
were not paid after the date for their payment arrived.
|
3.2. |
If the Trustee shall be replaced by another Trustee, the other Trustee shall be Trustee for the Debenture Holders pursuant to Chapter E.1 of the Securities Law including for those entitled to payments pursuant to the Debentures which
were not paid after the date for their payment arrived.
|
3.3. |
The Trust for the Debenture Holders and the duties of the Trustee according to this Deed of Trust shall come into force upon the issuance of the Debentures pursuant to the Deed by the Company.
|
3.4. |
The First Trustee shall serve commencing on the date mentioned in clause 3.3 above and his office shall end at the time on which the Debenture Holders Meeting is convened (the “First Appointment Meeting”),
that the Trustee shall convene no later than 14 days after submitting the annual report regarding Trusteeship matters in accordance with Section 35H1(a) of the Law. Insofar as the First Appointment Meeting (by ordinary majority) approved
the continuation of the term of office of the First Trustee, it shall continue to serve as Trustee until the end of the additional appointment period that was determined in a resolution of the First Appointment Meeting (which could be until
the final repayment date of the Debentures). Insofar as the First Appointment Meeting and/or any later Meeting determined the term of office of the Trustee, its term of office shall end with the adoption of a resolution of the Debenture
Holders regarding the termination of his term of office and the appointment of another Trustee in his place.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
3.5. |
Notwithstanding the provisions of this clause 3, the provisions of the Law shall apply to the appointment of the Trustee, his replacement, term of office, expiration, resignation and dismissal.
|
3.6. |
The duties of the Trustee shall be those mentioned expressly in this Deed of Trust, including in Appendix 3 thereof, and according to the law.
|
3.7. |
The Trustee shall represent the Holders of the certificates of undertaking in any matter that arises from the undertakings of the Company towards them, and it shall be entitled for this purpose to act in order to realize the rights given
to the Debenture Holders according to the Law or according to this Deed. The Trustee is entitled to take any proceeding for the purpose of protecting the Holders’ rights in accordance with any law and in accordance with the provisions set
forth in this Deed of Trust.
|
3.8. |
The actions of the Trustee are valid notwithstanding a flaw discovered in its appointment or qualifications.
|
3.9. |
The Trustee shall use the trust, powers, permissions and authorities that were conferred upon him according to this Deed of Trust, at its discretion or in accordance with the resolutions of a Meeting.
|
3.10. |
The Trustee shall be entitled to deposit all of the deeds and the documents that indicate, represent and/or stipulate its rights with respect to the trust pertaining to this Deed of Trust, including with respect to any asset that is in
its possession at that time, in a safe and/or in another place that shall be chosen and/or at any bank and/or any banking auxiliary corporation and/or lawyer and/or accountant.
|
3.11. |
The Trustee is permitted in the framework of performing the Trusteeship matters according to this Deed of Trust, to order an opinion and/or the advice of any lawyer, accountant, appraiser, assessor, surveyor, broker or any other expert
(the “Consultants”), whether such opinion and/or advice was prepared at the Trustee’s request and/or at the Company’s request, and to act in accordance with its conclusion, and the Trustee shall not
be responsible for any loss or damage that shall occur as a result of any action and/or omission that were made by it based on such advice or opinion as aforesaid, unless it was determined in a final judgment that the Trustee acted
negligently (apart from negligence which is exempt by law a shall be from time to time) and/or in bad faith and/or maliciously. The Trustee shall provide a copy of the opinion or advice as mentioned for the viewing of Debenture Holders and
the Company, at their request (it is clarified that the opinion shall not be made available to the Company to the extent that the Debenture Holders adopt a resolution for the purpose of this matter). The Company shall bear the full fee and
reasonable expenses of hiring the Consultants appointed as stated. The Trustee and the Company shall reach an agreement over a list of no more than three consulting firms with relevant reputation and expertise, which the Trustee shall
approach for receiving fee quotes as stated. The Company shall select one of the offers submitted, and shall be entitled to negotiate with the firms regarding their quote for a period of up to 5 Business Days, provided that the delay due to
the negotiation shall not risk, at the Trustee’s opinion, the rights of the Holders of Debentures.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
3.12. |
The Trustee shall be entitled to give its consent or approval to any motion to the court as per the demand of a Debenture Holder, and the Company shall compensate the Trustee for all reasonable costs that were incurred by such motion and
from actions performed as a result of it or with respect to it provided that before making such expense as abovementioned the Trustee will update the Company regarding its intention to make such expenses and will receive the Company’s
approval for this, unless in the opinion of the Trustee such prior update as aforementioned could harm the rights of the Debenture Holders, and in such circumstances the Trustee shall not provide any update and no approval from the Company
with respect to the said request shall be required.
|
3.13. |
The Trustee is entitled to institute any proceeding for protecting the rights of the Debenture Holders in accordance with the provisions set forth in any law and as stated in the Deed of Trust.
|
3.14. |
The Trustee is entitled to appoint agents as set forth in clause 25 of this Deed.
|
4. |
4.1. |
Subject to any law, and without prejudice to the right of the Company to redeem the Debentures in early payment as stated in this Deed, the Company reserves the right to purchase at any time, whether on the Stock Exchange or outside of
the Sock Exchange, Debentures which shall be in circulation from time to time from other sellers apart from the Company (which shall be selected at its discretion and without the duty of approaching and/or notifying all Holders), at any
price and quantity that it shall see fit, all without harming the duty of repayment imposed on it pertaining to the remaining Debentures (Series E) in circulation. In the event of such purchase by the Company, the Company shall notify this
in an Immediate Report, inasmuch as it is required by law.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
4.2. |
Subject to any law, the holders of controlling interests in the Company (directly or indirectly) and/or their relative ( according to the definition of the term “relative” in the Law) and/or a subsidiary of the Company and/or an
affiliated company of the Company and/or an included company of the Company and/or a corporation in the control of the Company or of any of them (directly or indirectly) (apart from the Company itself, regarding which the stated in clause
4.1 of the Deed shall apply) (“Affiliated Holder”), shall be entitled to purchase and/or sell at any time and from time to time, at the Stock Exchange or outside of it (including by way of an issuance
by the Company), Debentures (Series E) at their discretion. The Debentures that are held by an Affiliated Holder shall be considered as the asset of the Affiliated Holder, shall not be delisted from trade on the Stock Exchange and they
shall be transferable as the other Debentures of the Company (subject to the provisions of the Deed of Trust and the Debenture).
|
4.3. |
The Debentures (Series E) held by an Affiliated Holder shall not grant him voting rights in the Meetings of Holders of Debentures (Series E) and shall not be counted for the purpose of determining a legal quorum for opening these
Meetings. Inasmuch as an Affiliated Holder shall report to the Company regarding the purchase of Debentures (Series E), the Company shall deliver to the Trustee, at its request, the list of Affiliated Holders and the amounts held by them.
|
4.4. |
The stated in clauses 4.1 to 4.3 above does not derogate from the provisions of any law (including the instructions of the Israeli Securities Authority) applying to the Company, including pertaining to approvals required for performing
transactions with a holder of controlling interest (or in which the holder of controlling interest has a personal interest) and/or pertaining to the sale of securities to a Company subsidiary and distributing them to the public.
|
4.5. |
The stated in this clause 4, in and of itself, does not bind the Company, an Affiliated Holder or the Debenture Holders to purchase Debentures or to sell the Debentures they hold.
|
5. |
5.1. |
The Company reserves the right to issue, subject to the provisions of the law, at any time and from time to time (whether by a private offering or an offering to the public), at its sole discretion, to any factor whatsoever,
including to an Affiliated Holder, and without needing the consent of the Trustee and/or the Debenture Holders, debentures of another series or additional series of Debentures, whether or not conferring a right of conversion into the shares
of the Company (hereinafter: the “Other Series”) or other securities, under terms of redemption, interest, linkage, priority of payment in the event of liquidation and other terms, including securing
them in collaterals, as the Company shall see fit, and whether they are preferable over the terms of the Debentures, equal to them or inferior to them, and this without derogating from the duty of repayment imposed on it in accordance with
this Deed, and subject to the provisions of Appendix 7 of this Deed Despite the foregoing, inasmuch as the Company shall issue an additional series of debentures, or another series of securities that constitute a debt (hereinafter
collectively: the “Other Securities”) and the Other Securities are not secured with collaterals (and as long as they are not secured with collaterals) the rights of the Other Securities in liquidation
shall not have preference in the creditors hierarchy of the Debentures (Series E). In addition, to the extent the Company issues Debentures of another series or series that are secured with collaterals or Other Securities that will be
secured with collaterals, the rights of the said other series or Other Security as said (as the case may be) in liquidation shall have priority over the rights of the Debentures (Series E) solely with respect to the collaterals that will be
provided. The Company shall provide the Trustee with a written confirmation, no later than 7 days prior to the issuance of Other Securities as stated, regarding its meeting the conditions set forth in this clause, signed by the Company CEO
or the senior financial officer in the Company. The Trustee shall be entitled to rely on such approval and shall not be required to conduct additional inspections. Without derogation from the foregoing, the Company’s stated rights shall not
detract from the rights of the Trustee and/or Debenture Holders in accordance with this Deed, including their right to make the Debentures (Series E) immediately repayable in accordance with the provisions of the Deed of Trust.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
5.2. |
The Company shall be entitled, from time to time, without the need for obtaining the approval of the Trustee and/or the current Holders at that time, to issue additional Debentures (Series E) (whether by private offering, whether in the
framework of a prospectus, whether by shelf offering report or any other way), including to an Affiliated Holder (as the term is defined in clause 4.2 of this Deed), for any price and at any manner as it shall see fit, provided that it
notifies the Trustee in this regard. The Company shall approach the Stock Exchange in a request to register the additional Debentures (Series E) for trade as stated.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
5.3. |
Without derogating from the foregoing, the Company reserves the right to issue additional Debentures of Series E, by way of series expansion at a different discount rate from that of the Debentures (Series E) which shall be in
circulation at that time (inasmuch as there shall be any). If the discount rate which shall be determined for the Debentures (Series E) due to the series expansion shall be different from the discount rate of the Debentures (Series E) in
Circulation at that time (inasmuch as there shall be any), the Company shall approach the tax authority, prior to expanding the series, in order to obtain its approval that with regards to withholding tax from the discount fees for the
Debentures, the Debentures shall be set a uniform discount rate in accordance with a formula weighting the various discount rates in the Debentures (Series E), inasmuch as there shall be any. In the event of receiving an approval as stated,
the Company shall calculate the weighted discount rate for all the Debentures from the series after expanding the series, it shall publish in an Immediate Report the uniform weighted discount rate for the entire series of Debentures and the
members of the Stock Exchange shall deduct tax at the payment dates of the Debentures according to the weighted discount rate as mentioned an in accordance with the provisions of the law. If an approval of the tax authorities regarding such
discount rates shall not be received, the Company shall notify in an Immediate Report, prior to issuing the Debentures as a result of expanding the series, of not receiving the approval as stated and that the uniform discount rate will be
the highest discount rate that was created for the series. The members of the Stock Exchange shall deduct withholding tax at the time of repayment of the Debentures in Circulation, in accordance with the discount rate that shall be reported
as aforementioned. Therefore, there may be cases where the Company shall deduct withholding tax for discount fees, at a higher rate than the discount fees determined to whoever held Debentures before the series was expanded. In this case,
it is the responsibility of the Debenture Holder (and the Debenture Holder only) who held the Debentures before the series was expanded and until their repayment and who is entitled, in light of their payment, to a refund of withholding
tax, for the over-discount, to submit a report to the tax authority on this matter insofar as he shall wish to receive a tax refund as stated and inasmuch as he is entitled to a tax refund by law.
|
5.4. |
The Company shall notify in an Immediate Report regarding the issuance of debentures as mentioned in this clause above.
|
6. |
6.1. |
To pay, at the times scheduled for this purpose, the sums of the Principal, and the interest (including interest in arrears, if and inasmuch as it shall apply, and additional interest for breaching financial covenants, inasmuch as they
shall apply) which shall be paid according to the terms of the Debentures and the provisions of this Deed (including with respect to the issue proceeds that will be deposited in the Trust Account until it is released to the Company), and to
fulfill all the other terms and undertakings that are imposed on it according to the terms of the Debentures and according to this Deed of Trust. In any case where the date of payment on account of a Principal and/or interest shall be on a
day which is not a Business Day, the payment date shall be deferred to the next Business Day, without any additional payment, interest or linkage, and the record date for the purpose of making the payment will not change as a result of such
circumstances.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
6.2. |
To fulfill all of the financial covenants and undertakings set forth in Appendix 6.2 to this Deed including its entire undertakings in connection with the distribution, as such term in
defined in the Companies Law and as stated in the said Appendix.
|
6.3. |
To persist and manage the business of the Company and companies in its control in a regular and proper manner.
|
6.4. |
To notify the Trustee in writing as soon as possible, and no later than 2 Business Days regarding the occurrence of any of the events set forth in clause 9.1 of the Deed, including its sub-clauses, or regarding a real knowledge of the
Company that an event as stated is about to take place, without taking into account the cure periods set forth in clause 9.1 of the Deed, inasmuch as any exist in the stated clauses and to take, at its expense, all reasonable means required
for the purpose of eliminating the Disturbing Event (as defined in Appendix 7 of the Deed), the foreclosure action, the action for the purpose of exercising the pledges or revoking the receivership, the liquidation or the administration,
insofar as it is relevant and as the case may be.
|
6.5. |
To deliver to the Trustee as soon as possible and no later than the end of 30 days from the day of the first issuance of the Debentures (Series E) or from the time of performing a series expansion in any way, an amortization schedule for
paying the Debentures (Principal and interest) in an Excel file.
|
6.6. |
To notify the Trustee in a written notice signed by the senior financial officer in the Company, within 4 Business Days from the date of payment, of any payment to the Debenture Holders and of the balance of the sums that the Company
owes at that time to the Debenture Holders after making the aforementioned payment.
|
6.7. |
To deliver to the Trustee annual financial statements and quarterly financial results, as the case may be, and in accordance with the requirements of the Israeli law that apply to the Company in its capacity as a dual listed Company, at
the time of their publication and in any event no later than from the time scheduled for their publication in the Israeli law applying to companies reporting in accordance with the provisions of chapter E’3 of the Securities Law. In the
event the Company is no longer a public company or a reporting company, the Company shall report in accordance with the provisions of clause 6.22 of this Deed). Notwithstanding the foregoing, it is clarified that the quarterly financial
results shall be published by the end of the following quarter in a framework which shall be no less that the framework of the Press Release in which the Company has published its financial results for the third quarter of 2022. The Company
will publish data and information regarding the pledged assets according to position no. 103-29 of the Securities Authority staff (as amended from time to time, and in any event in a scope that will not be less than the scope set out in the
position as of the date of this Deed) no later than the last date for the publication of the quarterly financial results as stated above.
|
6.8. |
Deleted.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
6.9. |
To deliver to the Trustee in writing, notices regarding the purchase of Debentures by the Company or an Affiliated Holder, immediately upon the Company becoming informed of this.
|
6.10. |
On December 31st of each year, and for as long as this Deed is in effect, the Company shall furnish to the Trustee a confirmation of the Company signed by the Company CEO or the senior financial officer in the Company, that in
the period starting from the date of the Deed and/or from the date of the prior confirmation that was given to the Trustee, whichever is later, and until the date of the confirmation, the Company has not breached this Deed, including a
breach of the terms of the Debenture, unless expressly mentioned otherwise.
|
6.11. |
To deliver to the Trustee copies of the notices and invitations which the Company shall give to the Debenture Holders, as mentioned in clause 27 hereinafter.
|
6.12. |
To cause that a senior financial officer in the Company shall give, no later than fourteen (14) Business Days from the time of the Trustee’s request, to the Trustee and/or to the people who the Trustee shall order, any explanation,
document, calculation or information regarding the Company, its business and/or assets that shall be required in a reasonable manner, at the Trustee’s discretion, for fulfilling the Trustee’s duties and for protecting the rights of the
Debenture Holders.
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6.13. |
To manage regular accounting books in accordance with generally acceptable accounting principles. To keep the books and documents that serve as reference to them (including deeds of pledge and mortgage, bills and receipts), and to enable
the Trustee and/or any authorized representative of the Trustee to view, at a time pre-coordinated with the Company, within ten (10) Business Days, any book as stated and/or document as stated, which the Trustee shall request to view. For
this matter, an authorized representative of the Trustee is any person appointed by the Trustee for the purpose of viewing as stated, in a written notice by the Trustee which shall be given to the Company prior to viewing as stated, subject
to an undertaking of confidentiality in accordance with the provisions of 20 of this Deed.
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6.14. |
Deleted.
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6.15. |
To summon the Trustee to all of its general meetings (whether to annual general meetings or extraordinary general meetings) of the Company shareholders, and enable the Trustee to attend such meetings, without granting the Trustee the
right to vote in these meetings.
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6.16. |
To deliver to the Trustee on the 15th of each January starting from 2023, a written approval signed by the senior financial officer, that all of the payments to the Debenture Holders were fully paid on time, and the balance of
the par value of the Debentures in Circulation. In addition, on the said date, the Company shall provide the Trustee with an approval and/or opinion which the Trustee shall require in connection with the provisions of Section 35H(b)(2) of
the Law, to its satisfaction.
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6.17. |
In addition to the statements or notices which the Company is required to give according to Section 35J(a) of the Law, to give the Trustee or to its authorized representative (a notice regarding his appointment shall be given by the
Trustee to the Company upon his appointment), no later than fourteen (14) Business Days from the time of the Trustee’s request, additional information regarding the Company (including explanations, documents and calculations pertaining to
the Company, its business or assets, and information which the Trustee, at its reasonable discretion, is required for the purpose of protecting the rights of the Debenture Holders, and to instruct its accountant and legal advisors to do so,
as per the Trustee’s reasonable request, inasmuch as at the Trustee’s reasonable opinion the information is required for the purpose of applying and exercising the authorities, powers and authorizations of the Trustee and his proxies in
accordance with this Deed, and subject to an undertaking of confidentiality as stated in this Deed. Based on the Trustee’s request, the Company shall notify it in writing whether the given information is considered as inside information, as
this term is defined in the Securities Law.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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6.18. |
To perform all of the actions required and/or reasonably needed and in accordance with the provisions of this Deed and any law for validating the exercise of powers, authorities and authorizations of the Trustee and/or of its proxies in
accordance with the provisions of this Deed of Trust.
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6.19. |
To list the Debentures for trade in the Stock Exchange and to act so that the Debentures shall continue to be listed for trade on the Stock Exchange until the date of their final repayment.
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6.20. |
To notify the Trustee in writing regarding any change to its name or address no later than five Business Days from the day of the change.
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6.21. |
To assist the Trustee in any reasonable manner to fulfill its duties according to law and/or according to this Deed including examining the performance of the Company’s undertakings in full and on time, examining actions and/or
transactions that the Company performed, insofar as this is reasonably required in order to protect the rights of the Debenture Holders.
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6.22. |
Inasmuch as the Company shall cease being a reporting corporation, as this term is defined in the Securities Law, or a corporation traded at a stock exchange outside of Israel, as set forth in the Second or Third Addition to the
Securities Law, or becomes a non-reporting corporation (as defined in the Regulation Codex) the Company shall provide the Trustee with the reports required by the Regulation Codex1 or any other circular and/or another document
which shall replace it ((hereinabove and hereinafter: the “Regulation Codex”). The aforesaid reports will be signed in accordance with the provisions set forth in the Regulation Codex.
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6.23. |
The Debentures (Series E) are not rated, and the Company does not undertake to rate the Debentures (Series E) in the future, including in case the Company shall issue a new series of rated debentures or shall expand an existing series of
rated debentures of the Company. Insofar as the Debentures (Series E) shall be rated by a rating company or by a number of rating companies, then the Company shall be entitled to cease their rating by any of the rating companies or all of
them, at its sole discretion, and without the Trustee and/or the holders of the Debentures having any claim in this regard. In case of replacing the rating company or terminating its activity, even in case when the Debentures shall be rated
by a number of rating companies, the Company shall publish, within one Business Day from the day of the change, an Immediate Report regarding the changing of the rating company or stopping its work as stated, as well as the reasons for
changing the rating company or stopping its work. If the rating shall be ceased altogether, the Company shall also transfer to the Trustee, a written approval, legally executed, specifying the reasons for the stop as stated.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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6.24. |
To deliver to the Trustee a copy of any document or any information which the Company has delivered to the Debenture Holders.
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Any report or information that shall be published by the Company in the Magna system shall be considered as a report or information or summons, as the case may be, which was given to the Trustee in accordance
with the provisions of this clause. Notwithstanding the aforesaid, at the request of the Trustee, the Company shall transfer a printed copy of the report or information as mentioned.
It shall be clarified, that the confidentiality provisions in clause 20 hereinafter shall also apply to information given to the Trustee and/or his authorized representative and/or his agents, in accordance
with the provisions of this clause 6.
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7. |
7.1. |
The undertakings of the Company towards the Holders of the Debentures (Series E) shall be secured with the collaterals as stated in Appendix 7 of the Deed of Trust.
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7.2. |
The transfer to the Company of the issue proceeds shall be performed in accordance with the provisions set forth in clause 2.2 in Appendix 7 of the Deed of Trust.
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7.3. |
The Debentures (Series E) shall be in equal rank (pari-passu) inter se, without preference rights or priority over each other.
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7.4. |
Save as provided with respect to the collaterals that will be registered in accordance with the provisions of Appendix 7, and subject to the undertakings of the Company not to create a floating charge on the entire assets and rights of
the Company from time to time (negative pledge) as stated in Appendix 7 of the Deed of Trust, and without derogating from the provisions of clause 9 of this Deed, the Company shall be entitled to sell, pledge, lease, assign, deliver or
transfer in any other manner its assets, in whole or in part, in any manner, in favor of any third party, without obtaining any approval of the Trustee and/or the Debenture Holders.
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7.5. |
Save as provided in this Deed including Appendixes thereof, including Appendix 7, no limitations shall apply to the Company when imposing different pledges on its assets.
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8. |
8.1. |
Early Redemption Initiated by the Stock Exchange
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
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8.1.1 |
Within 45 days after the decision of the board of directors of the Stock Exchange regarding delisting as aforementioned, the Company shall notify of an early redemption date in which the Holders of Debentures may redeem them. The notice
of early redemption shall be published in an Immediate Report that shall be sent to the securities authority and to the Stock Exchange and in two daily and prevalent newspapers in Israel in the Hebrew language and it shall be given in
writing to all the registered Debenture Holders.
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8.1.2 |
The early redemption date shall occur not before 17 days of the date of publishing the notice and no later than 45 days after this date, however not in a period between the record date for the payment of interest and its actual payment.
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8.1.3 |
At the early redemption day, the Company shall redeem the Debentures that the Debenture Holders requested to redeem. The redemption consideration shall be determined in accordance with the provisions of clause 8.2.7 of this Deed.
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8.1.4 |
The determination of an early redemption date as mentioned above cannot harm the redemption rights stipulated in the Debentures, of any of the Debenture Holders that shall not redeem them at the early redemption date as mentioned above,
however the Debentures shall be delisted from trade on the Stock Exchange and will be subject, inter alia, to the tax implications arising from this.
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8.1.5 |
The early redemption of Debentures as mentioned above shall not confer upon any of the Holders of Debentures that shall be redeemed as mentioned the right to the payment of interest for the period after their redemption.
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8.2. |
Early Redemption Initiated by the Company
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8.2.1 |
The frequency of the early redemptions shall not exceed one redemption per quarter.
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8.2.2 |
Any amount paid by early redemption by the Company, shall be paid with regards to all Holders of Debentures, pro-rata according to the nominal value of the held Debentures.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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8.2.3 |
The Company shall deliver to the Trustee, within five (5) Business Days from the day on which a decision was made by the Company’s board of directors regarding the performance of early redemption as stated above, an approval signed by
the senior financial officer in the Company, attaching a calculation, worded to the Trustee’s satisfaction, regarding the amount to be paid by early redemption, as well as the interest accumulated for the stated Principal amount until the
performance of the early redemption. In addition, upon adoption of the resolution of the board of directors of the Company regarding the performance of an early redemption as mentioned above, the Company shall publish an Immediate Report
which shall include, among others, a calculation of the amount to be paid by early redemption, no less than seventeen (17) days and no more than forty five (45) days before the early redemption date, and shall give the Trustee a copy
thereof.
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8.2.4 |
Early redemption shall not be made to part of the series of Debentures if the last redemption sum shall be less than NIS 3.2 million.
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8.2.5 |
At the date of a partial early redemption, insofar as shall exist, the Company shall notify in an Immediate Report of: (1) The rate of the partial redemption in terms the unpaid balance; (2) The rate of the partial redemption in terms of
the original series; (3) The interest rate in partial redemption of the redeemed part; (4) The interest rate that shall be paid in partial redemption calculated regarding the unpaid balance; (5) Update of the rate of the partial redemptions
remaining, in terms of the original series; (6) The record date for entitlement to receive early redemption of the Principal of a Debentures that shall be six (6) days before the date scheduled for early redemption (it is clarified that if
the record date for entitlement to receive partial redemption shall occur in a quarter during which there is the payment of interest, the record date for entitlement to receive partial redemptions shall occur on the record date for
receiving the payment of interest that shall be paid during that quarter).
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8.2.6 |
Prior to making an early redemption as stated in this clause, the Company shall give the Trustee an approval signed by a senior officer in the Company, confirming its meeting (or its failure to meet) the financial standards set forth in
Appendix 6.2 of this Deed.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
8.2.7 |
The sum that shall be paid to the Debenture Holders in the event of early redemption shall be the highest sum out of the following: (1) the market value of the balance of the Debentures in Circulation, which shall be determined according
to the average close price of the Debentures in the thirty (30) Trading Days prior to the date the resolution of the board of directors was adopted regarding the performance of early redemption; (2) the undertaking value of the Debentures
in Circulation that are subject to early redemption, in other words Principal plus interest (including interest in arrears inasmuch as there shall be any), up to the date of the actual early redemption; (3) the balance of cash flow of the
Debentures (Series E) that are subject to early redemption (Principal plus interest and interest in arrears inasmuch as there shall be any) capitalized according to the Government Debentures Yield (as defined below) plus an annual interest
rate of 1.25%. Capitalization of the Debentures (Series E) that are subject to early redemption shall be calculated commencing from the early redemption date up to the last redemption date that was determined with respect to the Debentures
(Series E) that are subject to early redemption.
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8.2.8 |
The early redemption of the Debentures as mentioned above shall not confer upon a Holder of Debentures that shall be redeemed as mentioned, the right to receive interest for the period after the redemption date.
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8.2.9 |
In the event of payment of additional interest as a result of the early redemption, the additional interest will be paid only on the par value that was redeemed in the early redemption.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
9. |
9.1. |
Upon the occurrence of one or more of the causes set forth hereinafter and so long as either of them is occurring, the Trustee and the Holders of Debentures shall be entitled to put the balance of the amount
due to the Holders in accordance with the Debentures for immediate repayment, or to realize collaterals for guaranteeing the Company’s undertakings to the Holders of Debentures, and the provisions of clause 9.2 of this Deed hereafter shall
apply, as the case may be:
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9.1.1 |
If a material worsening has occurred in the Company’s business as compared to its state at the issuance date, and there is a real concern that the Company will not be able to repay the Debentures on time.
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9.1.2 |
If the Company has not repaid by of the payments it owes in accordance with The Debentures or in accordance with this Deed, however it shall be possible to declare the Debentures (Series E) immediately repayable due to this, only if the
breach was not amended by the end of a period of five (5) Business Days after the date of breach.
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9.1.3 |
If the Company did not publish a financial statement which it is required to publish according to any law or according to the provisions of this Deed, within 30 days after the last date on which it is obligated publish it or at such time
when the extension for publishing financial statements provided to the Company by a competent authority, whichever is later.
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9.1.4 |
If the Debentures (Series E) have been delisted from trade on the Stock Exchange.
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9.1.5 |
If a motion was filed for receivership or to appoint a receiver (temporary or permanent) or any other motion with a similar or identical consequence in accordance with the provisions of the Insolvency Law, on the Company’s assets, all or
most, or if an order shall be given to appoint a temporary receiver, or any other office holder appointed in accordance with the provisions of the Insolvency Law, for the Company’s assets, all or most of them – which was not dismissed or
cancelled within forty five (45) days after they were filed or granted, respectively; or if an order was given to appoint a permanent receiver on the Company’s assets, all or most.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
9.1.6 |
Upon the occurrence of one of the following events:
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9.1.6.1 |
In the event the Company files an application for an order to commence proceedings, as defined in the Insolvency Law, or any other similar proceeding in accordance with the provisions set forth in the Insolvency Law, or in the event the
Company files an application for a settlement or an arrangement with the creditors of the Company, pursuant to the provisions of Section 350 of the Companies Law, or in accordance with the provisions set forth in the Insolvency Law (with
the exception of: (1) for the purpose of merging with another company, and these are not prohibited in accordance with the terms set forth in this Deed and provided that the Trustee received the approval of the Board of Directors of the
Company, no less than ten Business Days prior to the merger date, stating that the surviving entity assumed the entire undertakings towards the Debenture Holders and there is no reasonable concern that as a result of the merger the
surviving company will not be capable of fulfilling its entire undertakings towards the Debenture Holders in accordance with the Debentures and this Deed on time, and the Trustee will not be required to verify the content of the said
confirmation and/or a change in the structure of the Company (including split) that are not prohibited in accordance with the provisions set forth in this Deed and (2) making arrangements between the Company and its shareholders that are
not prohibited under the terms set forth in this Deed and that do not have an effect on the ability of the Company to repay the Debentures), or in the event such an order as said is issued against the Company or in the event the Company
offers to its creditors a settlement or an arrangement in another manner as said, as a result of the inability of the Company to fulfill its undertakings timely, or in the event the Company commenced a similar proceeding or a similar
proceeding commence against the Company in accordance with the relevant law applicable to the Company. For the purpose of this clause, such applications as said that were filed by any third-party with the approval of the Company shall be
deemed as applications that were filed by the Company.
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9.1.6.2 |
In the event an application pursuant to the Insolvency Law or an application pursuant to Section 350 of the Companies Law is filed against the Company (without obtaining its approval) or in the event the Company commenced a similar
proceeding or a similar proceeding commenced against the Company in accordance with the relevant law applicable to the Company, and that were not dismissed or canceled within forty-five (45) days as of the date of their filing.
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9.1.6.3 |
It is clarified that the purchase of the Debentures (Series E) by the Company during the trading in the Stock Exchange or outside the Stock Exchange shall not be deemed as an arrangement with creditors for the purpose of this clause.
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9.1.7 |
If a foreclosure shall be imposed on a Material Asset, or if any action shall be performed of execution against any such Material Asset, or in the event a charge against a Material Asset is realized; and the foreclosure was note removed,
or the action or the realization was not cancelled, as the case may be, within 45 days after they were imposed or performed, as the case may be.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
9.1.8 |
If the Company’s main activity, by itself or via corporations in its control or via held corporations, shall cease to be in the field of energy and energy infrastructure (the “Area of Activity”).
It is clarified, that the Company’s activity in other areas of activity in addition to the Area of Activity shall not be considered as stopping the activity as stated in this clause, insofar as the Company’s assets, which are not current
assets, which belong or are related to the Area of Activity (as it is defined above), shall constitute at least 70% of the Company’s assets other than its current assets, all based on the last financial statements of the Company that were
published.
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9.1.9 |
If the Company shall adopt a decision to liquidate (except for liquidation as a result of a merger with another company as mentioned in clause 9.1.18 of this Deed) or if a final permanent liquidation order shall be given with respect to
the Company by court or any other order with a similar or identical effect in accordance with the Insolvency Law, or a permanent liquidator shall be appointed to it or any other competent official with similar or identical authorities in
accordance with the Insolvency Law with respect to the Company will be appointed by the court, or in the event a trustee, within the meaning of this term in the Insolvency Law, was appointed.
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9.1.10 |
If a temporary liquidation order shall be given by the court, or any other order with a similar or identical effect in accordance with the provisions of the Insolvency Law, or a temporary liquidator shall be appointed for the Company, or
any other authorized official with similar or identical authorities in accordance with the Insolvency Law, or any other office holder is appointed in accordance with the law, or if any judicial decision of a similar nature shall be granted,
or in the event a temporary trustee is appointed, within the meaning of this term in the Insolvency Law, and the appointment, the order or the decision as mentioned were not dismissed or cancelled within forty five (45) days after the day
on which they were given or from the date the decision was granted, respectively.
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9.1.11 |
If the Company ceased or notified of its intention to cease conducting its business as this shall be from time to time, or if the Company stopped or notified of its intention to stop its payments.
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9.1.12 |
If the Company is requested to pay by immediate repayment a Material Debt, or a Material Series of Debentures, and the demand for immediate repayment as said was not removed and/or the Company did not repay the Material Debt or the said
series of debentures that the Company was required to repay, as the case may be, within 30 days of the date these were called for immediate repayment, or in the event the Company is required to pay in immediate repayment a series of
debentures of the Company that are traded in any stock exchange, including in the TACT-Institutional system.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
9.1.13 |
Not fulfilling one or more of the financial covenants in Appendix 6.2 of this Deed of Trust at the end of the Review Period (as defined in Appendix 6.2 of the Deed of Trust), provided that the Company was not given an extension to cure
as mentioned in clause 28 of the Deed of Trust or in clause 19.2 of the Deed of Trust or, a waiver was not given to the Company for the breach as mentioned in clause 28 of the Deed of Trust. It is clarified that the right or the exercise of
such a right shall be without prejudice to the duty of the Company to pay the additional interest for the breach as stated in clause 4.3 of the terms set out on the back of the page.
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9.1.14 |
If the Company shall perform a distribution (as it is defined in the Companies Law), which does not meet any of the provisions pertaining to a distribution as stated in Appendix 6.2 of this Deed.
|
9.1.15 |
There is a real concern that the Company shall not meet its material undertakings towards the Debenture Holders.
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9.1.16 |
If the Company shall breach the terms of the Debentures or the Deed of Trust by a fundamental breach or if it will not perform any of its material undertakings within their framework, and the breach was not cured within 14 days after
receiving a notice regarding the breach, during which the Company shall act to cure it.
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9.1.17 |
If a material representation of the representations of the Company in the Debentures or in the Deed of Trust is discovered to be incorrect or not complete, and in the event that this is a breach that can be cured – the breach was not
cured within 14 days after receiving a notice regarding the breach, during which the Company shall act to cure it.
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9.1.18 |
If a Merger was performed without receiving a prior approval of the Holders of the Debentures (Series E) by Ordinary Resolution, unless the surviving entity declared, towards the Holders of the Debenture (Series E), including via the
Trustee, at least ten (10) Business Days before the merger date that the surviving entity, to the extent that it is not the Company, has taken upon itself all of the undertakings towards Holders of Debentures and that there is no reasonable
concern that as a result of such merger the surviving entity would not be able to fulfill its undertakings towards the Holders of the Debentures (Series E). It is clarified that a merger between the consolidated companies in the financial
statements of the Company or between such companies and the Company (in the event the Company is the surviving company) shall not be deemed as a “merger” for the purpose of this Deed, and in such circumstances as said no declaration of the
Company or the surviving company or a prior approval of the Debenture Holders shall be required as stated above. It is clarified that a merger, to the extent performed, shall not derogate from the undertakings of the Company in accordance
with the provisions of Appendix 7 of this Deed not to take a floating charge on its entire assets and rights, including following the merger.
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9.1.19 |
If the Company breached its undertaking not to create floating charges as set forth in Appendix 7 of this Deed.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
9.1.20 |
If a Sale of the Majority of the Company’s Assets was made, and the prior approval of the Debenture Holders (Series E) in an Ordinary Resolution was not granted. If a sale was made of most of the Company’s assets as set forth in this
clause, the Company shall submit an Immediate Report of this.
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9.1.21 |
If the Stock Exchange suspended the trade of the Debentures (Series E), except for a suspension due to a cause of the creation of vagueness, as this cause is defined in the fourth part of the Stock Exchange bylaws, and the suspension was
not cancelled within 60 days, and except for a general suspension that is not directed specifically at the Company.
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9.1.22 |
In the event the Company shall perform an expansion of the Debenture series (Series E) in a manner which does not meet the Company’s undertakings with regards to a series expansion in accordance with clause 5.2 and Appendix 5.2 of this
Deed.
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9.1.23 |
For the avoidance of doubt, a transaction as stated which is the result of a change in legislation and/or regulatory requirement and/or inheritance (including a will), when for the matter of changes in legislation and regulation –
provided that the Company acts to the best of its efforts to avoid a result as stated shall not be deemed as Transfer of Control. If the conditions set forth above in this clause are fulfilled in the aggregate, the Company shall submit an
Immediate Report of this.
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9.1.24 |
If the Company shall stop being a reporting corporation, as this term is defined in the Securities Law, or a corporation traded in a stock exchange outside of Israel, as set forth in the Second or Third Addition to the Securities Law.
|
9.1.25 |
If a “going concern note” is registered in the Company’s financial statements for two consecutive quarters.
|
9.1.26 |
If one or more Disturbing Event (as such term is defined in Appendix 7 of the Deed of Trust) in connection with the Pledgor (as such term is defined in Appendix 7 of the Deed of Trust) occurred, and was not cured in accordance with the
provisions of clause 2.6 in Appendix 7.
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9.1.27 |
If a material undertaking that was made in Appendix 7 of this Deed in favor of the Debenture Holders was not performed and the Company failed to cure the breach within 7 days.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
9.1.28 |
If Dori Energy ceases to hold the Dorad shares and the Company did not act in accordance with the provisions of clause 2.8 in Appendix 7 of the Deed of Trust within 40 Business Days from the date Dori Energy ceased to hold the Dorad
shares.
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9.1.29 |
If the Company breaches its undertakings in connection with controlling shareholders transactions, as stated in Appendix 6.2 of this Deed, and the breach was not cured within 14 days from the date of receiving notice regarding the
breach, during which the Company acts for the purpose of curing the breach.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
9.2. |
Upon the occurrence of any of the events set forth in clause 9.1 of this Deed and in accordance with the provisions included therein and its sub-clauses:
|
9.2.1 |
The Trustee and any of the Debenture Holders (Series E) shall be entitled to call for immediate repayment the entire outstanding balance of the Debentures and/or realize collaterals; it shall be clarified that a decision as stated by a
Holder of the Debenture is subject to adopting a resolution in the Meeting of Holders, as set forth in clause 9.2.4 hereinafter.
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9.2.2 |
Upon the occurrence of any of the events in clause 9.1 above the Trustee, before he uses his authority to declare immediate repayment or to realize the Collaterals, , shall be obligated to convene a Meeting of the Debenture Holders, on
the agenda of which shall be a resolution regarding the declaration of immediate repayment of all unpaid balance of the Debentures (Series E) and/or realizing collaterals, due to the occurrence of any of the events set forth in clause 9.1
of this Deed, and receive its instructions.
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9.2.3 |
If a reasonable period was determined in clause 9.1 above or in a resolution of a Holders’ meeting, as the case may be, with respect to a certain clause, in which the Company is entitled to perform an action or to adopt a decision which
as a result the cause for declaring immediate repayment or realization of the Collaterals, is dropped, the Trustees or the Debenture Holders are entitled to declare the Debentures immediately payable and/or to realize collaterals according
to these clauses only if the period that was determined as mentioned has passed and the cause was not dropped; however, the Trustee is entitled to shorten the period that was determined as mentioned if it thought that it will materially
harm the rights of the Debenture Holders.
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9.2.4 |
The resolution of the Debenture Holders to declare the Debenture immediately payable and/or to realize the Collaterals, shall be adopted in a Meeting of the Debenture Holders in which Holders of at least fifty percent (50%) of the
balance of the nominal value of the Debentures (Series E) were present, by a majority of the Debenture Holders of the balance of the nominal value of the Debentures that is represented or by such a majority in a deferred Debenture Holders
Meeting in which the Holders of at least twenty percent (20%) of the aforementioned balance were present.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
9.2.5 |
In case, until the time of convening the Meeting, any of the events set forth in clause 9.1 of this Deed has not been revoked or removed, and a resolution in the Debenture Holders’ Meeting was adopted as stated in clause 9.2.4 of the
Deed, the Trustee shall be obligated, as soon as possible, to declare immediately repayable all unpaid balance of the Debentures (Series E) and/or to realize collaterals.
|
9.2.6 |
Despite the stated in this clause 9.2, the Trustee or the Holders shall not declare the Debentures immediately repayable and shall not realize collaterals, unless it is after they have given the Company a written notice, 15 days in
advance before declaring the Debentures (Series E) for immediate repayment or realizing collaterals (hereinafter: “the Notice Period”), regarding their intention to do so; the Trustee is entitled, at
its discretion, to shorten the 21 day period stated in clause 9.2.2 of this Deed and/or to not give any notice as stated in this clause 9.2.6, in case the Trustee is of the opinion that deferring the convening of the Meeting jeopardizes
the rights of the Debenture Holders or if there is reasonable concern that giving the notice shall damage the possibility of declaring the Debentures for immediate repayment and/or realizing collaterals.
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9.2.7 |
The sending of a notice to the Company of the declaration of immediate repayment of the Debentures and/or realizing collaterals, as stated in clause 9.2.6 can be done also by way of publishing a notice of the decision of the Meeting or
the decision of the Trustee in accordance with the provisions of clause 27 hereafter and it shall constitute a declaration of the Debentures immediately payable.
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9.2.8 |
In the event that the Debentures (Series E) were declared immediately payable according to the provisions of clause 9, the Company undertakes:
|
9.2.8.1 |
To pay the Debenture Holders and the Trustee any sums due to them and/or that shall be due to them according to the terms of the Deed of Trust, whether the date of the obligation has arrived or not (‘acceleration’), and this is within 7
days after the notice date as mentioned in clause 9.2.6 above; and
|
9.2.8.2 |
To deliver to the Trustee, as per its reasonable request, any affidavit or declarations and/or to sign any document and/or to perform and/or to cause the performance of the actions necessary and/or required in accordance with any law for
giving effect to the exercise of authorities, the powers and the permissions of the Trustee and/or his attorneys that are required in order to enforce upon the Company its undertaking as mentioned in the Deed of Trust and for realizing the
collaterals, inasmuch as any have been given.
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9.2.9 |
For the purposes of this clause 9 – a written notice to the Company signed by the Trustee that confirms that the action required by it in the framework of its powers, is a reasonable action, shall constitute prima facie evidence of this.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
9.2.10 |
The Trustee shall notify the Debenture Holders regarding the occurrence of an event which constitutes a cause for immediate repayment, immediately after actually becoming informed of it. A notice as stated shall be published in
accordance with the provisions of clause 27 hereinafter.
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9.2.11 |
The stated in this clause does not harm or condition the rights of the Trustee or the Holders of Debentures (Series E) in accordance with the provisions of Article 35I1 of the Securities Law or in accordance with the provisions of the
law.
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9.2.12 |
Notwithstanding the provisions of this clause 9.2, in case the Company requests the Trustee in writing to appoint an urgent representing body, for the relevant causes for immediate repayment as stated in clause 19 hereunder, it is
mandatory to act in accordance with the provisions set forth in clause 19 of the Deed of Trust, and these shall take precedence over all of the other provisions set forth in this Deed.
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9.3. |
After declaring the Debentures immediately payable in accordance with the provisions of clause 9.1 of the Deed, the Trustee and/or the Debenture Holders shall be entitled to immediately take all steps that they shall see fit. Inter alia,
the Trustee and/or the Debenture Holders shall be entitled to enforce and to realize the Collaterals (in whole or in part) that were given to secure the Company’s undertakings to the Debenture Holders and to the Trustee according to this
Deed. The Trustee shall be entitled to act in any manner that it shall see fit and effective, including in accordance with the relevant law in the relevant territory for each Collateral and within such actions it shall be entitled to
appoint by itself and/or by the court, a trustee, receiver or manager on assets that were provided as Collateral, in whole or in part.
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10. |
10.1. |
In addition to any provision in this Deed and as a right and independent authority (however except for the calling for immediate repayment, and in such circumstances the provisions of clause 9 above shall apply), the Trustee is entitled,
at its discretion, and will be obligated to do so by an Ordinary Resolution, and without giving notice to the Company, to take all of those proceedings, including legal proceedings and motions to receive instructions as it shall see fit and
subject to the provisions of any law, for enforcing the Company’s undertakings according to this Deed of Trust, realizing Collaterals, and/or rights of Debenture Holders and protecting their rights according to this Deed of Trust. The
Trustee shall be entitled to initiate legal proceedings and/or others even if the Debentures were not declared immediately payable and all for realizing Collaterals, and/or for protecting rights of Debenture Holders and the Trustee and
subject to any law. The Trustee is entitled, at its sole discretion and without the need for giving notice, to approach the competent court and submit a motion to receive instructions in any matter pursuant to and/or connected to this Deed
of Trust also before the Debentures shall be declared immediately payable, including for giving any order regarding the trust matters. It shall be clarified, that the right to declare immediate repayment and/or realizing the collaterals,
shall only arise in accordance with the provisions of clause 9 of this Deed and not this clause 10.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
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10.2. |
The Trustee shall be obligated to act as stated in clause 10.1 above if required to do so by an Ordinary Resolution, unless it has seen that under the circumstances it shall not be just and/or reasonable to do so, and it has approached
the appropriate court in a request to receive instructions on the matter at the first possible opportunity.
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10.3. |
The Trustee is entitled, prior to taking any legal proceedings whatsoever, to convene a Debenture Holders’ Meeting so that it decides, in an Ordinary Resolution, which proceedings to take in order to realize their rights in accordance
with this Deed. The Company waives any claim towards the Trustee and/or Debenture Holders, regarding damage which might be caused and/or which was caused to it due to summoning the Holders’ Meeting. In addition, the Trustee shall be
entitled to re-convene Debenture Holders’ Meetings for the purpose of receiving instructions pertaining to conducting the proceedings as stated. The Trustee’s action shall be performed in such cases without delay and at the first
opportunity. For the avoidance of doubt, it shall be clarified that the Trustee is not entitled to delay the performance of declaring for immediate repayment and/or realizing collaterals, which the Meeting of the Holders has decided in
accordance with clause 9 of this Deed, unless the event for which the resolution was adopted to declare immediate repayment was revoked or removed. It is clarified that notwithstanding the provisions of this clause 10, the Trustee shall
file a request for the liquidation of the Company only after an Extraordinary Resolution was adopted.
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10.4. |
Subject to the provisions of this Deed of Trust, the Trustee is entitled but not required to convene a Meeting at any time, in order to discuss and/or to receive its instructions in any matter regarding this Deed by way of an Ordinary
Resolution. For the avoidance of doubt, it shall be clarified, that the Trustee is not entitled to delay the performance of declaring for immediate repayment which the Debenture Holders’ Meeting has decided in accordance with clause 9.1 of
this Deed, other than if the event for which the resolution was made to declare immediate repayment was revoked or removed.
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10.5. |
Subject to the provisions of this Deed of Trust, at any time the Trustee shall be required, in accordance with the terms of this Deed, to perform any action whatsoever, including initiating proceedings or filing claims at the request of
the Debenture Holders as stated in this clause, by adopting an Ordinary Resolution, the Trustee is entitled to avoid taking any action as stated until instructions are received from the Debenture Holders Meeting and/or instructions from the
court which the Trustee has approached, at its discretion, in a request for instructions in case it believed that instructions as stated are required. For the avoidance of doubt it shall be clarified, that the Trustee is not entitled to
delay declaring the Debentures immediately payable or realizing collaterals which have been given which the Meeting of the Holders decided according to clause 9 of this Deed, unless the event for which the resolution for immediate repayment
was made has been revoked or removed.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
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11. |
12. |
12.1. |
The Company shall transfer to the Trustee the Finance Sum at the time determined in this Deed for paying the Principal or the interest as mentioned above.
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12.2. |
The amount of the certain payment as mentioned above (interest followed by principal) shall be reduced by deducting the Finance Sum, and in the event of an interest payment, the rate of the specific payment shall also be reduced
respectively.
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12.3. |
Insofar as the Company has a duty according to law or according to the Deed of Trust to pay the costs and fees for which the Finance Sum was deposited, the Finance Sum (in addition to interest that applies to the Debentures according to
this Deed of Trust, from the record date for the specific payment as mentioned above and until its actual payment) shall be paid at the next date scheduled in this Deed of Trust for payment on account of the Principal and/or the interest
(or at another time as shall be determined in a resolution of the Meeting as mentioned above) and it shall be added to the next payment as mentioned as an integral part of it.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
12.4. |
The transfer of the Finance Sum to the Trustee cannot constitute an admission of the Company regarding its liability in financing the costs and fees for which the Finance Sum was deposited.
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12.5. |
An Immediate Report that will specify the financing amount, its purpose, and the updated amounts and interest rates that will be paid to the holders as part of the relevant payment will be published by no later than 4 trading days before
the record date for making the relevant payment from which the financing amount will be subtracted. In addition, the Company will state in the Immediate Report as said that the financing amount that will be transferred to the Trustee shall
be deemed as payment to the Debenture Holders for all intents and purposes.
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12.6. |
Notwithstanding the aforesaid, the Trustee shall be entitled to order the Company to transfer to the Trustee the financing amount as stated in this clause above, even before the Holders adopted a resolution for the purpose of this matter
(including a resolution regarding the commencement of proceedings and/or the performance of the actions for which the financing amount is required), provided that the financing amount in accordance with this clause shall not exceed an
amount of NIS 0.5 million (in addition to VAT) and will be transferred from the interest payment (only).
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13. |
13.1. |
Notwithstanding the provisions in clause 11 above, and until the earliest of the dates set forth hereafter, if the sum which shall be received as a result of instituting such proceedings mentioned above and which shall be available at
any time for distribution to the Debenture Holders as mentioned in that clause, shall be less than 1 million NIS at the record date for distribution the Trustee shall not be required to distribute it and it shall be entitled to invest this
sum, in whole or in part, in accordance with the provisions of clause 18 hereafter.
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13.2. |
When these investments mentioned above reach, if they shall reach, with their profits, together with other funds that shall reach the Trustee for the purpose of paying them to the Debenture Holders, a sum that will be sufficient in order
to pay at least 1 million ILS, the Trustee shall be required to use the mentioned sums according to the order of priorities in clause 11 above and to distribute this sum at the earliest time of the payment of the Principal or the interest.
In case, until the earlier of: the closest time for paying the interest and/or Principal, or a reasonable time after receiving the aforementioned funds, the Trustee shall not have a sufficient amount to pay at least 1 million ILS, the
Trustee shall distribute the funds in his possession to the Debenture Holders, and in any case no later than once every three months. Despite the foregoing, Debenture Holders could, in an Ordinary Resolution, bind the Trustee to pay them
the amounts accumulated by it, even if they have not reached a total of 1 million ILS. Notwithstanding the aforesaid, the fees to the Trustee and its expenses shall be paid out of these funds immediately upon their arrival to the Trustee
and even if they are lower than the sum set forth in clause 13.1 of this Deed.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
14. |
14.1. |
The Trustee shall notify the Debenture Holders of the date and place on which any payment shall be made out of the payments mentioned in clauses 11 and 12 of the Deed, and this is by advance notice of 14 days that shall be given in the
manner set forth in clause 27 hereafter.
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14.2. |
After the record date for entitlement for payment that was determined in the Trustee’s notice as mentioned, the Debenture Holders shall be entitled to interest for them according to the interest rate set forth in the Debentures, only on
the unpaid balance of the Principal sum (if such shall exist) after deducting the sum that was paid or that was offered to them for payment in accordance with the provisions of clause 15 as mentioned in this notice.
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14.3. |
The funds distributed as stated in this clause 14 shall be considered as payment on account of the repayment.
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15. |
15.1. |
Any sum that is due to a Debenture Holder and that was not actually paid on the record date for its payment, for a reason that is not dependent on the Company, while the Company was willing and able to pay it fully and on time, shall
cease to bear interest from the time that was determined, for its payment and the Debenture Holder shall be entitled, only to those amounts to which he was entitled at the time set for repayment or payment on account of the Principal and
the interest.
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15.2. |
The Company shall deposit with the Trustee, no later than 7 Business Days after the time that was scheduled for that payment, the payment sum which was not paid on time as stated in clause 15.1 of this Deed and shall notify the
Debenture Holders in an Immediate Report regarding a deposit as mentioned, and the aforementioned deposit shall be considered as paying that payment, and in the event of payment of everything due for that Debenture, also as the redemption
of the Debenture.
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15.3. |
The Trustee shall deposit in bank accounts in its name and to its order in trust for the Debenture Holders, the funds that shall be transferred to it as mentioned in sub- clause 15.2 of this Deed, and shall invest them in investments in
accordance with the provisions of clause 18 of this Deed. If the Trustee did so, it shall not owe to those entitled to those sums, other than the consideration received from realizing the investments, after deducting its fees and expenses,
reasonable expenses related to that investment and to managing the trust accounts, reasonable commissions and mandatory payments applying to the trust account. Out of the funds as stated, the Trustee shall transfer amounts to the Debenture
Holders entitled thereto, as soon as possible after the Trustee is provided with reasonable proof and approvals regarding their right to such amounts, and with the deduction of its reasonable expenses, commissions, mandatory payments and
its fees.
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15.4. |
Deleted.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
15.5. |
The Trustee shall hold the funds that shall be deposited as mentioned in clause 15.3 above and shall invest them in the aforementioned manner, until the end of two years after the final payment of the Debentures or by the date of payment
of the funds to the Debenture Holders, whichever is earlier. After this time, the Trustee shall transfer to the Company the sums out of these funds, which have remained with him (including profits that have accrued from their investment)
after deducting its fees, expenses and other costs that were expended in accordance with the provisions of this Deed (such as fees of service providers etc.).
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15.6. |
Upon the transfer of the funds from the Trustee to the Company, to the Trustee’s satisfaction, the Trustee shall be exempt from payment of such amounts to the eligible Debenture Holders.
|
15.7. |
The Company shall confirm to the Trustee in writing the fact that these funds have been received in trust for these Debenture Holders, and it shall indemnify the Trustee for any claim and/or cost and/or damage of any type and kind that
shall be incurred by it as a result and for transferring the sums as mentioned, unless the Trustee has acted negligently (apart from negligence which is exempt by law as shall be from time to time), in bad faith or deceivingly.
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15.8. |
The Company shall hold these funds in a trust account for the Debenture Holders that are entitled to these sums for three additional years after they are transferred to the Company from the Trustee. Funds that have not been demanded by
the Debenture Holders from the Company at the end of the said period shall serve the Company for any purpose. The aforesaid shall not derogate from the Company’s duty towards the Debenture Holders to pay the funds to which they are entitled
as mentioned.
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16. |
Receipt from the Debenture Holders and the Trustee
|
16.1 |
A receipt from the Trustee regarding the depositing of the Principal funds and the interest with it in favor of the Debenture Holders shall release the Company completely with regards to the very making of the payment of the amounts
stated in the receipt.
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16.2 |
A receipt from a Debenture Holder regarding the Principal funds and the interest paid to him by the Trustee or the Company for the Debenture shall release the Trustee and/or the Company (respectively) completely with regards to the very
making of the payment of the amounts stated in the receipt.
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16.3 |
Funds distributed as stated in clause 15 above shall be considered as payment on account of the repayment of the Debentures.
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17. |
17.1 |
The Trustee shall be entitled to request a Debenture Holder to present to the Trustee, upon paying any interest whatsoever or a partial payment of the amount of the Principal and the interest, should there be any, in accordance with the
provisions of clauses 13-16 above, the Debenture certificates for which the payments are made, and the Debenture Holder shall be required to present the Debenture certificate as stated, provided that it does not bind the Debenture Holders
to any payment and/or expense and/or impose on the Debenture Holders any responsibility and/or liability.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
17.2 |
The Trustee shall be entitled to register a comment on the Debenture certificates regarding the amounts paid as stated above, as well as their payment date.
|
17.3 |
The Trustee shall be entitled, in any special case, at its discretion, to waive the presentation of the Debenture certificates after the Debenture Holder has given it a letter of indemnification and/or sufficient guarantee to its
satisfaction for damages which might be caused due to failure to register the comment as stated, all as it shall see fit.
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17.4 |
Despite the foregoing, the Trustee shall be entitled, at its discretion, to hold records in another manner regarding partial payments as stated.
|
18. |
19. |
19.1. |
Appointment; term of office.
|
19.1.1 |
The Trustee shall be entitled, or as per the Company’s written request it shall be obligated, to appoint and convene an urgent representing body amongst the Debenture Holders, as shall be set forth hereinafter (hereinafter: the “Urgent Representing Body”).
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19.1.2 |
The Trustee shall appoint to the Urgent Representing the three (3) Debenture Holders, who, to the best of the Trustee’s knowledge, hold the highest nominal value out of all Debenture Holders, and who shall declare that with regards to
them, all conditions set forth hereinafter are fulfilled (hereinafter: “the Urgent Representing Body Members”). In case any of those could not hold office as an Urgent Representing Body Member as
stated, the Trustee shall appoint in his place, the Debenture Holder who holds the next highest nominal value, regarding whom all conditions set forth hereinafter are fulfilled. The conditions are as follows:
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
19.1.2.1 |
The Debenture Holder is not in any material conflict of interests due to the existence of any additional material matter that contradicts a matter that arises from serving on the Urgent Representing Body and from holding the Debentures.
For the avoidance of doubt, it is clarified, that a Holder who is an Affiliated Holder, as such term is defined in clause 4.2 above, shall be considered to have a material conflict of interests as stated and shall not serve on the Urgent
Representing Body.
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19.1.2.2 |
During that calendar year, the Debenture Holder does not hold office in similar representing bodies of other debentures, which aggregate book value exceeds the rate out of the asset portfolio managed by him, which was set as the maximal
rate enabling to hold office in an Urgent Representing Body in accordance with the instructions of the Competition Authority pertaining to the establishment of an Urgent Representing Body.
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19.1.3 |
If, during the office of the Urgent Representing Body, one of the circumstances listed in clauses 19.1.2.1 to 19.1.2.2 above has ceased occurring, his office shall expire, and the Trustee shall appoint another member in his place out of
the Debenture Holders as stated in sub-clause 19.1.2 above.
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19.1.4 |
Prior to appointment the Urgent Representing Body Members, the Trustee shall receive from the candidates to hold office as Members of the Urgent Representing Body, a declaration regarding the existence or absence of material conflicts of
interest as stated in clause 19.1.2.1 above and with regards to holding office in additional representing bodies as stated in clause 19.1.2.2 above. In addition, the Trustee shall be entitled to request a declaration as stated by Members of
the Urgent Representing Body at any time during the office of the Urgent Representing Body. A Holder who shall fail to provide a declaration as stated shall be considered as having a material conflict of interests or a hindrance from
holding office, pursuant to the instructions of the Competition Authority as stated above, as the case may be. With regards to a declaration regarding a conflict of interests, the Trustee shall inspect the existence of the conflicting
matters, and if necessary shall decide whether the conflict of interests disqualifies that Holder from holding office in the Urgent Representing Body. It is clarified, that the Trustee shall rely on the declarations as stated and shall not
be required to hold an additional inspection or independent investigation. The Trustee’s decision on these matters shall be final.
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19.1.5 |
The Urgent Representing Body’s term shall end when the Company publishes the decisions of the Urgent Representing Body pertaining to giving an extension to the Company for the purpose of its meeting the terms of the Deed of Trust as set
forth in clause 19.2 hereinafter.
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19.2. |
Authority
|
19.2.1. |
The Urgent Representing Body shall have the authority to grant a one-time extension to the Company regarding the dates for meeting either of the financial covenants set forth in Appendix 6.2 of this Deed, in such manner that the
expected breach is eliminated or that the grounds for calling for immediate repayment set out in clause 9.1.13 of this Deed does not apply, as the case may be, for the extension period, to the extent granted, for the earlier of a period
which shall not exceed 90 additional days for meeting the financial covenants as stated or up to the time of publishing the closest consolidated financial statements or the closest consolidated financial results (as the case may be) made
after the publication date of the financial statements and from which it is likely to arise that the Company failed to fulfill any of the financial covenants during the Review Period, as defined in clause [5] in Appendix 6.2 hereunder,
whichever is earlier. It shall be clarified, that the period of time until appointing the Urgent Representing Body shall be taken into account in the framework of the aforementioned extensions, and it shall not constitute a cause for
granting the Company any additional extension beyond the stated above. It shall be further clarified, that the actions of the Urgent Representing Body and the cooperation between its Members, shall be limited to discussing the option of
granting an extension as stated, and no other information shall be passed between the Members of the Representing Body, which does not pertain to granting an extension as stated.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
19.2.2. |
If an Urgent Representing Body has not been appointed in accordance with the provisions of this clause 19, or if the Representing Body has decided not to grant the Company an extension as stated in clause 19.2.1 above, the Trustee shall
act in accordance with the provisions of clause 9 of the Deed of Trust.
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19.3. |
The Company’s undertakings with regards to the Representing Body
|
19.3.1. |
The Company undertakes to provide the Trustee with all of the information in its possession or which it is able to obtain pertaining to the identity of the Debenture Holders and the scope of their holdings. In addition, the Trustee shall
act to receive the stated information in accordance with the authorities granted to it by law.
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19.3.2. |
In addition, the Company undertakes to act in full cooperation with the Urgent Representing Body and the Trustee inasmuch as it is required for the purpose of performing the examinations required by them and forming the decision of the
Urgent Representing Body, and to provide the Urgent Representing Body with all data and documents which it shall require with regards to the Company, subject to the limitations of the law. Without derogation from the generality of the
foregoing, the Company shall provide the Urgent Representing Body with the relevant information for the purpose of forming its decision, which shall not include any misleading detail and shall not be lacking.
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19.3.3. |
The Company shall bear the costs of the Urgent Representing Body, including costs of hiring consultants and experts by the Urgent Representing Body or on its behalf, and the provisions of clause 26 of the Deed of Trust shall apply to
this matter.
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19.4. |
Liability
|
19.4.1. |
The Urgent Representing Body shall act and decide on matters given to it, at its absolute discretion and shall not be responsible, whether itself or any of its Members, their officers, employees or consultants, and the Company and the
Debenture Holders hereby exempt them with regards to any arguments, demands and claims against them for using or avoiding to use powers, authorities or discretion granted to them in accordance with the Deed of Trust and with regards
thereto, or any other action which they have performed in accordance therewith, unless they have acted that way maliciously and/or in bad faith.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
19.4.2. |
The indemnification provisions set forth in clause 26 of this Deed shall apply to the actions of the Members of the Urgent Representing Body, as if they were the Trustee.
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19.5. |
The Company shall publish an Immediate Report regarding the appointment of the Urgent Representing Body, the identity of its members and its authorities and shall publish an additional Immediate Report regarding the decisions of the
Urgent Representing Body as stated.
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20. |
Confidentiality
|
20.1. |
Subject to the provisions of any law and the stated in this Deed of Trust, the Trustee undertakes, by signing this Deed, to keep confidential any information that was given to it from the Company and/or an affiliated company and/or
anyone on their behalf (“the Information”), not to disclose it to another and not to make any use of it, unless its disclosure or the use of it is required for fulfilling its duties according to the
Law, according to the Deed of Trust, or according to a court order or according to the instructions of a legally authorized authority or for the purpose of protecting the rights of the Debenture Holders, provided that disclosing information
as stated shall be limited to the minimal extent and scope required in order to meet the requirements of the law and that the Trustee pre-coordinates with the Company, inasmuch as it is possible and permitted and to the extent this will not
harm the rights of the Debenture Holders, the content and timing of the disclosure, in order to give the Company reasonable leave to approach the courts in order to prevent the transfer of information as stated.
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20.2. |
Transferring information to the Debenture Holders, including by publishing it publicly, for the purpose of adopting a resolution regarding their rights according to the Debenture or for providing a report of the Company’s state does not
constitute a breach of the confidentiality undertaking as mentioned above, and in any case only the necessary information for adopting such resolution will be provided, to the extent provided. The transfer of information a stated to the
Trustee’s authorized representatives and/or professional consultants and/or agents shall be done subject to their signing of a confidentiality undertaking and lack of conflict of interests in the form attached as Appendix 20.2 to this Deed.
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20.3. |
This confidentiality undertaking shall not apply to any part of the information, that is in the public domain (except for information that became public domain due to a breach of this confidentiality undertaking) or that was received by
the Trustee not from the Company – starting from the date its receipt.
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20.4. |
All the conversations and discussions in the parts of the Meetings that are conducted without the Company or in the Meetings conducted without the Company, insofar as the absence of the Company is required by the Trustee, are
confidential, and the Company and/or anyone on its behalf including any Office Holder in it shall not require the disclosure of this information.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
21. |
22. |
22.1. |
The Trustee shall make each year, at the time determined for this in the Law and in absence of a scheduled time until the end of the second quarter in each calendar year, an annual report of the trust matters (the “Annual Report”) and it shall submit it to the Securities Authority and to the Stock Exchange.
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22.2. |
The Annual Report shall include details that shall be determined from time to time in the Law. Submitting the Annual Report to the Securities Authority and to the Stock Exchange, is as furnishing the Annual Report to the Company and to
the Debenture Holders.
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22.3. |
The Trustee must submit a report regarding the actions that it performed according to the provisions of chapter E.1 of the Law, according to a reasonable demand of the Debenture Holders that hold at least ten percent (10%) of the balance
of the nominal value of the Debentures of that series, within a reasonable time of the demand, all subject to the confidentiality obligation of the Trustee towards the Company as set forth in Section 35J(d) of the Law.
|
22.4. |
The Trustee shall update the Company before a report according to Section 35H1 of the Law, to the extent that this is without prejudice to the rights of the Debenture Holders.
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22.5. |
As of the day of signing this Deed, the Trustee declares that it is insured with professional liability insurance at a total of ten million dollars per term (the “Coverage Amount”). Insofar as
prior to the full repayment of the Debentures, the Coverage Amount shall be reduced to less than a total of eight million dollars for any reason whatsoever, then the Trustee shall update the Company no later than 7 Business Days from the
day on which it has found out about the stated reduction from the insurer, in order to publish an Immediate Report on the subject. The provisions of this clause shall apply until such time as securities regulations shall enter into effect,
which shall regulate the duty of the Trustee’s insurance coverage. After such regulations enter into effect as stated, the Trustee shall be required to update the Company only in case the Trustee shall fail to uphold the requirements of the
regulations.
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22.6. |
Until the date of the full repayment of the Debentures, if the Trustee shall receive an inquiry by the Holders who have 5% or more of the undertaking value of the Debentures (Series E) for receiving information about the examinations
performed by the Trustee regarding the Debenture series, including with regards to the test of the Company’s upholding of its undertakings towards the Debenture Holders in accordance with the Deed of Trust, the Trustee shall cooperate with
the Holder with regards to receiving the aforementioned information, all subject to signing a letter of confidentiality and subject to the provisions of any law (for the removal of doubt, it shall be clarified that receiving the stated
information shall be beyond the annual report published by the Trustee in accordance with the provisions of the Securities Law).
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
23. |
22.1. |
The Trustee shall be entitled to payments of its fees and expenses in connection with fulfilling its duties, in accordance with the provisions in Appendix 23 which is attached to this Deed
of Trust. If a Trustee has been appointed in place of the Trustee whose term of service has ended according to Section 35B(a1) or Section 35N(d) of the Securities Law, the Holders of certificates of undertaking (Series E) shall pay the
difference by which the Trustee’s fees who was appointed as mentioned exceed the fee that was paid to the Trustee in place of whom it was appointed if such difference is unreasonable and the provisions of the relevant law at the date of
replacement shall apply.
|
22.2. |
The Debenture Holders (Series E) shall participate in financing the Trustee’s fees and the refund of its expenses in accordance with the provisions of the indemnification clause in clause 26 of the Deed of Trust.
|
22.3. |
At the request of those who hold more than 5% (five percent) of the remaining nominal value of the Debentures, the Trustee shall provide the Holders with data and details regarding his expenses pertaining to the trust which is the
subject of this Deed of Trust.
|
24. |
Liability
|
24.1. |
The liability of the Trustee shall be according to law and the said in this Deed shall be without prejudice to the protections the Trustee is entitled to in accordance with the law.
|
24.2. |
For the avoidance of doubt, it is hereby clarified that:
|
24.2.1. |
The Trustee has no duty to examine, and in actuality the Trustee has not examined, the financial state of the Company and this is not included among its duties.
|
24.2.2. |
The Trustee did not make any financial, accounting or legal due diligence examination of the Company’s business state or of the companies held by the Company or by a person that holds the Company’s shares and this is not among its
duties.
|
24.2.3. |
The Trustee has not given its opinion expressly or impliedly regarding the Company’s ability to meet its undertakings towards the Debenture Holders, nor by the fact that it entered into this Deed of Trust, nor by its consent to serve as
Trustee of the Debenture Holders.
|
24.2.4. |
The Trustee’s signature on this Deed of Trust is not an opinion of it regarding the nature of the offered Debentures or that it is worthwhile investing in them.
|
24.3. |
The Trustee shall not be required to notify any party of the signature of this Deed. The Trustee shall not get involved in any manner in the management of the Company’s business or its affairs and this is not included in its duties.
|
24.4. |
Subject to the provisions of any law, the Trustee is not required to act in a manner that is not expressly set forth in this Deed of Trust, so that any information, including with respect to the Company and/or with respect to the
Company’s ability to meet its undertakings to the Debenture Holders will be brought to its knowledge and this is not one of its duties.
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24.5. |
The Trustee is entitled to rely on the presumption as mentioned in clause 30 hereafter, and to rely on the correctness of the identity of an unregistered Debenture Holder of the Debentures as this shall be given to the Trustee by a
person whose name is registered as authorized by power of attorney, that a Nominee Company issued, insofar as the identity of the Debenture Holder was not registered in the power of attorney.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
24.6. |
The Trustee is entitled to rely within the framework of its trusteeship on any written document including, written instruction, notice, request, consent or approval, which appears to be signed or issued by any person or body, which the
Trustee believes in good faith that it was signed or issued by him.
|
24.7. |
It is clarified that the termination of the Trustee’s office does not detract from rights, claims or arguments which the Company and/or the Holders of Debentures (Series E) shall have towards the Trustee, inasmuch as there shall be any,
which cause precedes the termination date of the Trustee’s office, and it does not release the Trustee of any liability by law.
|
25. |
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
26. |
Indemnification
|
26.1. |
The Company and the Debenture Holders (at the relevant record date as mentioned in clause 26.5 of this Deed, each for its undertaking as mentioned in clause 26.3 of this Deed) hereby undertake to indemnify the Trustee, each Office
Holder in it, its employees, agents and experts that the Trustee shall appoint in accordance with the provisions of the Deed of Trust or according to a resolution adopted by an Ordinary Resolution (“Persons
Entitled to Indemnification”), provided there is no double indemnification or compensation, as follows:
|
26.1.1. |
For any liability and/or lawsuit and/or a threat to commence legal action and/or a reasonable expense and/or loss and/or tort liability and/or in respect of a financial obligation, including according to a judgment or arbitration
judgment (in respect to which a stay of execution was not granted) or according to a settlement which has ended (and to the extent that the settlement concerns the Company, the Company granted its prior approval to the settlement) the
causes of which are connected to actions that the Persons Entitled to Indemnification performed or which they must perform pursuant to the provisions of this Deed, and/or according to the law and/or an instruction by an authorized
authority and/or according to the demand of Debenture Holders and/or according to the Company’s demand and/or their position by virtue of this Deed; and
|
26.1.2. |
In respect of remuneration due to the Persons Entitled to Indemnification and reasonable expenses that they paid and/or are about to pay following the performance of the trust deeds or in connection with such actions as said whose
performance, in their opinion, was necessary and/or in connection with the use of authorities and permissions granted under this Deed and including in connection with different legal proceedings, opinions by attorneys and other experts,
negotiations, contacts, and requirements in connection with insolvency proceedings, collection proceedings, debt arrangement schemes, debt estimate, valuations, threat to commence legal action, claims and demands with respect to any matter
and/or action that were performed and/or that were not performed with respect to the aforesaid and/or their position by virtue of this Deed.
|
(a) |
The Persons Entitled to Indemnification shall not demand indemnification in advance in a matter that cannot be delayed without damaging their right to request indemnification retroactively, if and inasmuch as they shall have a right as
stated;
|
(b) |
A peremptory judicial decision has not determined that the Persons Entitled to Indemnification have acted not within the framework of their position and/or in contravention of the provisions of the Deed of Trust and/or the provisions of
the law;
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
|
(c) |
A peremptory judicial decision has not determined that the Persons Entitled to Indemnification were negligent (in a negligence not exempt under the law as amended from time to time);
|
(d) |
A peremptory judicial decision has not determined that the Persons Entitled to Indemnification acted not in good faith or maliciously;
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26.2. |
Without derogating from the validity of the “Indemnification Undertaking” in clause 26.1 of this Deed and subject to the provisions of the Securities Law, as long as the Trustee shall be required according to the terms of the Deed of
Trust and/or according to Law and/or instruction of an authorized authority and/or any law and/or according to the demand of Debenture Holders and/or the Company’s demand and/or for the purpose of protecting the rights of the Debenture
Holders, to perform any action, including but not limited to, instituting proceedings or submitting claims according to the demand of Debenture Holders, as mentioned in this Deed, the Trustee shall be entitled to refrain from taking any
such action, until the Trustee receives, to its satisfaction, a finance cushion for the purpose of covering the Indemnification Undertaking (the “Finance Cushion”) for an amount that will be
reasonably set by the Trustee as the projected amount of the expenses in connection with the performance of such an action as said, in first priority from the Company, and in the event the Company fails to deposit the Finance Cushion on the
date the Company was required to act in the said manner by the Trustee, the Trustee will approach the Debenture Holders who held on the record date (as stated in clause 26.5 of this Deed) with a request to deposit with the Trustee the
amount of the Finance Cushion, each in proportion to its Relative Share (as such term is defined below). In the event the Debenture Holders do not actually deposit the entire amount of the Finance Cushion, the Trustee shall not be obligated
to perform any relevant action or commence proceedings. The aforesaid shall not release the Trustee from taking urgent action that is required for the purpose of preventing a material adverse effect to the rights of the Debenture Holders.
The payments by the Holders in accordance with this clause shall not release the Company from its liability to make such payment as said.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
26.3. |
The Indemnification Undertaking:
|
26.3.1 |
Shall apply to the Company due to the following cases: (1) Actions that were performed in accordance with any law and/or required to be performed
according to the terms of the Deed of Trust including for protection the rights of the Debenture Holders (including pursuant to a request by one Debenture Holder which is required for the purpose of defense as stated); and (2) Actions that were performed and/or required to be performed according to the Company’s demand.
|
26.3.2 |
Shall apply to the Debenture Holders that held at the record date (as mentioned in clause 26.5 hereafter) in the following cases: (1). an event
that is not within the scope of clause 26.3.1; and (2). the non-payment by the Company of the indemnification sum that applies to it according to clause 26.3.1 of this Deed (without derogating from
the provisions of clause 26.6 of this Deed).
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26.4. |
In any event that: (a) the Company does not pay the sums required for covering the Indemnification Undertaking and/or shall not deposit the sum of the Finance Cushion as the case
may be; and/or (b) the indemnification duty applies to the Debenture Holders by virtue of the provisions of clause 26.3.2 above and/or the Debenture Holders were called to deposit the sum of the Finance Cushion according to clause 26.2 of
this Deed, the provisions hereinafter shall apply and the monies shall be collected in the following manner:
|
26.4.1 |
First – out of the money (first interest and thereafter Principal) which the Company must pay to the Debenture Holders after the date of the required action, and the provisions of clause 11 of this Deed
shall apply;
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26.4.2 |
Second – insofar as according to the Trustee’s opinion the sums deposited in the Finance Cushion shall not be enough to cover the Indemnification Undertaking, the Debenture Holders that shall hold Debentures at the record date (as
mentioned in clause 26.5 of this Deed) shall deposit the missing sum, each one in accordance with their Relative Share (as such term is defined) with the Trustee. The sum that each Debenture Holder shall deposit shall bear annual interest
at a rate equal to the interest determined for the Debentures and it shall be paid with preference as mentioned in clause 26.7 of this Deed.
|
26.5. |
The record date for determining the Debenture Holder’s obligation in the Indemnification Undertaking and/or in the payment of the Finance Cushion is as follows:
|
26.5.1 |
In any event that the Indemnification Undertaking and/or payment of the Finance Cushion are required due to a resolution or urgent action required for preventing adverse material harm to the rights of the Debenture Holders and this is
without an advance resolution of the Debenture Holders Meeting – the record date of the obligation shall be the end of the Trading Day of the date the action was taken or the resolution was made, and if this day is not a Trading Day, the
Trading Day prior to it.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
26.5.2 |
In any event that the Indemnification Undertaking and/or payment of the Finance Cushion is required according to a resolution of the Meeting of Holders – the record date for the obligation shall be the record date for participating in
the Meeting (as this date was determined in the summons notice) and it shall also apply to a Debenture Holder that was not present or that did not participate in the Meeting.
|
26.5.3 |
In any other case or in the case of disputes regarding the record date – the record date shall be as determined by the Trustee at its absolute discretion.
|
26.6. |
To the extent that that sums paid to the Trustee should have been paid by the Company, the receipt of the payments from the Holders shall be without prejudice to the obligation of the Company pursuant to the provisions of this clause 26
shall not release the Company from its liability to make the said payments and the Trustee shall act reasonably for the purpose of obtaining the said sums from the Company. It is clarified that the Trustee shall not be bound by any
obligation to commence any legal action for the purpose of collecting the said indemnification amounts.
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26.7. |
The refund to the Debenture Holders who made payments according to this clause shall be made according to the order of preference set forth in clause 11 above.
|
27. |
Notices
|
27.1. |
Any notice on behalf of the Company and/or the Trustee to the Debenture Holders (including Debenture Holders registered in the Registry managed by the Company) shall be given as follows:
|
27.1.1 |
In cases in which the provisions of the law require this or according to a decision of the Trustee by reporting to the Magna system of the Securities Authority;
|
27.1.2 |
In the event that the circumstances require such action in accordance with the law, also by way of publishing a notice that shall be published in two daily newspapers that are widely distributed, that are published in Israel in the
Hebrew language.
|
27.1.3 |
Any notice that shall be published or sent as mentioned above, shall be considered as if it was delivered to the Debenture Holder on the date of its publication as mentioned (in the Magna system or in the press, respectively).
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27.1.4 |
The Trustee is entitled to instruct the Company, and the Company shall be obligated to immediately report on the Magna on behalf of the Trustee, any report to the Debenture Holders in its wording as it shall be given in writing by the
Trustee to the Company. The Company shall be entitled to add its reference and/or response to the stated report, in a separate report. Any notice published as stated shall be considered to have been delivered to the Debenture Holder on the
day of its publication on the Magna as stated.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
27.1.5 |
In the event that the Company shall cease to report in accordance with the law, in cases in which there are provisions of the law that require this, or according to the decision of the Trustee, by sending a notice by registered mail to
each registered Debenture Holder according to his last address registered in the Debenture Holders registry (in the event of joint Holders – to the joint Debenture Holder whose name appears first in the registry). Any notice that shall be
sent as mentioned shall be considered as if it was delivered to the Debenture Holders 10 Business Days after it was delivered in the mail and the version of such notice as said will be delivered simultaneously to the Trustee via email.
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27.1.6 |
Copies of the notices and invitations given by the Company to Debenture Holders shall also be sent by it to the Trustee. It shall be clarified, that notices and invitations as stated do not include the Company’s ongoing reports to the
public. Copies of the notices and invitations given by the Trustee to the Debenture Holders shall also be sent by him to the Company, to the extent that such action is without prejudice to the rights of the Debenture Holders. The
publication of notices as stated on the Magna shall be instead of delivering them to the Trustee or the Company, as stated above in this clause, as the case may be.
|
27.1.7 |
Any notice or demand on behalf of the Trustee or Debenture Holder to the Company may be given by a letter that shall be sent by registered mail to their address, or by transmitting it by fax or in writing by a courier or by email and any
notice or demand such as this shall be considered as if it was received by the Company or other addressee:
|
27.1.7.1 |
In the event of sending by registered mail – 3 Business Days after it was delivered in the mail.
|
27.1.7.2 |
In the event of transmitting it by facsimile (with additional telephone confirmation that it was received) – at the time of the telephone confirmation.
|
27.1.7.3 |
In the event of transmitting it by email – at the time of receiving confirmation by email that it was read or at the time that it was confirmed by telephone that it was received (if confirmation was performed), whichever is earlier of
the two.
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27.1.7.4 |
In the event that it was sent by a courier – on the first Business Day after its delivery by courier to the addressee or in the event that the addressee refrained from accepting it, on the first Business Day after the courier’s offer to
the addressee to accept it.
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27.2. |
Any notice or demand to the Trustee shall be given in one of the ways set forth in clause 27.1 above.
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28. |
28.1. |
Subject to the provisions of any law, the Trustee shall be entitled from time to time and at any time, to waive any breach or the default of the terms of the Debentures or this Deed by the Company if it was convinced that this is for the
benefit of the Debenture Holders or where this does not harm the Debenture Holders. The provisions of this clause shall not apply with regards to the following subjects: provisions related to the pledges (except for technical matters), the
terms of Debenture repayment, including dates and payments according to the Debentures, reducing the interest rate listed in the Debenture terms; limitations on issuance of other securities, as stated in clause 5.1 of this Deed and
limitations on the expansion of a series as stated in clause 5.2 and Appendix 5.2 of this Deed; causes for declaring Debentures immediately payable in accordance with clause 9.1 of this Deed; provisions regarding negative pledge in
accordance with clause 2.1.4 of Appendix 7 of this Deed; limitations on distribution as stated in Appendix 6.2 of this Deed; the Company’s undertaking to meet financial covenants in accordance with Appendix 6.2 of this Deed; with respect
to increasing the interest in the event of failure to meet financial covenants as set forth in the terms set out on the back of the page; waiver regarding the making of payments; with regards to reports which the Company must give the
Trustee; or with respect to limitations on transactions of controlling shareholders, as stated in Appendix 6.2 of this Deed.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
28.2. |
Subject to the provisions of the law, and with the pre-approval in a Special Resolution, the Trustee shall be entitled, whether before or after the Debenture Principal is available for repayment, to settle with the Company with regards
to any right or claim of the Debenture Holders or any of them, and to agree with the Company on any arrangement of their rights, including waiving any right or claim by it and/or the Debenture Holders or any of them, towards the Company. In
the event the Trustee settled with the Company after the Trustee obtained prior approval as said, the Trustee shall be released from liability in respect of this action, as approved by the meeting of the Debenture Holders (Series E),
provided that the Trustee did not breach its duty of trust and did not act in bad faith or maliciously or under gross negligence (that is not exempt in accordance with the law) in the application of the resolution of the meeting of the
Debenture Holders (Series E).
|
28.3. |
Subject to the provisions of the law and the regulations promulgated or which shall be promulgated pursuant thereto, the Company and the Trustee are entitled, whether before or after the Debenture Principal is available for repayment, to
change the Deed of Trust and/or the terms of the Debentures in one of the following cases:
|
28.3.1 |
Apart from the subject set forth in clause 28.1 above, and apart from a change in the identity of the Trustee or its, or for appointing a Trustee in place of the Trustee whose term has ended, if the Trustee was convinced that the change
does not harm the Debenture holders; and
|
28.3.2 |
The suggested change was approved by a Special Resolution.
|
28.4. |
The Company shall deliver to the Debenture Holders a written notice regarding any change or waiver as stated in this clause above, as soon as possible after performing it.
|
28.5. |
In any case of exercising the Trustee’s right in accordance with this clause, the Trustee shall be entitled to request the Debenture Holders to deliver to it or to the Company, the Debenture certificates for the purpose of registering a
comment therein regarding any settlement, waiver, change or amendment as stated, and as per the Trustee’s request, the Company shall register a comment as stated in the certificates delivered to it. In any case of exercising the Trustee’s
right in accordance with this clause, it shall notify the Debenture Holders in this regard without delay and as soon as possible.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
28.6. |
Without derogation to the foregoing, the Debenture terms could also be changed in the framework of an arrangement or settlement, which was approved by the court, in accordance with Section 350 of the Companies Law or the provisions of
the Insolvency Law.
|
29. |
Proxies
|
29.1. |
The Company hereby appoints the Trustee for the Debentures (Series E) as its proxy, to execute and perform in its name and in its place those actions which it shall be required to perform in accordance with the terms set forth in this
Deed, and to act in its name with regards to those actions which the Company is required to perform in accordance with this Deed and which it has not performed, or to perform the authorities granted to it, and to appoint any other person as
the Trustee shall see fit, to perform its roles in accordance with this Deed, subject to the Company failing to perform the actions it is required to perform in accordance with the terms of this Deed within a reasonable period of time as
determined by the Trustee, from the day of the Trustee’s written request, and provided that the Trustee has acted reasonably.
|
29.2. |
An appointment in accordance with this clause 29 does not obligate the Trustee to perform any action, and the Company hereby exempts the Trustee and its agents in advance, in case they shall fail to perform any action whatsoever, and the
Company waives in advance any claim towards the Trustee and its agents for any damage which was caused or which might be caused to the Company, directly or indirectly, due to this, based on an action which was not performed by the Trustee
and its agents as stated above.
|
30. |
30.1. |
The Company shall hold and manage a registry of Debenture Holders with regards to any relevant series separately, that shall be open for viewing by any person in accordance with the provisions of the Law.
|
30.2. |
The registry of the Debenture Holders shall constitute prima facie proof of its content.
|
30.3. |
The Company shall not be obligated to register in the Debenture Holders’ registry, any notice regarding trust, expressed, implied or assumed, or any lien or pledge of any sort and type whatsoever
or any right in equity, claim or offset or any other right pertaining to the Debentures. The Company shall only acknowledge the ownership of the person in whose name the Debentures were registered. The legal successors, estate managers or
executors of the will of the registered Holder, and any person who shall be entitled to Debentures due to the bankruptcy of any registered Holder (and if the Holder is a corporation – due to its liquidation), shall be entitled to be
registered as Holders thereof after giving proof which the Company finds sufficient to show their right to be registered as their Holders.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
31. |
Meetings of the Debenture Holders
|
32. |
32.1. |
On any matter not mentioned in this Deed, as well as in any case of contradiction between the provisions of the law and its regulations (which cannot be conditioned) and this Deed, the parties shall act in accordance with the provisions
of the law and its regulations (which cannot be conditioned).
|
32.2. |
The Deed of Trust and its appendixes, including the Debentures certificate, are subject to the provisions of the Israeli law alone.
|
33. |
34. |
General
|
35. |
Addresses
|
36. |
Authorization to Magna
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
/s/ Shlomo Nehama, /s/ Ran Fridrich
|
/s/ Merav Ofer
|
|
Ellomay Capital Ltd.
|
Hermetic Trusts (1975) Ltd.
|
/s/ Odeya Brick-Zarsky
|
||
Odeya Brick-Zarsky, Adv.
|
/s/ Haim Briks
|
||
Haim Briks, Adv.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
1. |
This Debenture hereby witnesseth that Ellomay Capital Ltd. (the “Company”) will pay on the payment dates set out in clauses 3 and 4.1 of the terms set out on the back of the page, to whoever is
the holder of the Debenture on the record date, principal and interest payments, and all subject to the terms set forth on the back of the page and in the Deed of Trust dated January 30, 2023, made between the Company and Hermetic Trust
(1975) Ltd. and/or whoever serves from time to time as a trustee of the debentures in accordance with the Deed of Trust (respectively: the “Trustee” and the “Deed of
Trust”).
|
2. |
This Debenture carries interest according to the annual interest rate set out above that will be paid on the dates stated in the terms set out on the back of the page, and all as stated in the terms set out on the back of the page.
|
3. |
This Debenture is not linked (principal and interest) to any linkage basis, and all as stated in the terms set out on the back of the page.
|
4. |
This Debenture is issued as part of Series E of debentures in conditions that are identical to this Debenture (the “Debentures Series”) subject to the terms set out on the back of the page and in
accordance with the provisions set forth in the Deed of Trust, constituting an integral part of the Debenture. It is clarified that the provisions set forth in the Deed of Trust shall constitute an integral part of this Debenture and shall
bind the Company and the Debenture Holders included in the said series. Each of the debentures in the said series shall be of equal rank inter se (pari-passu) and no right shall have priority over another right.
|
5. |
The terms set forth in this certificate shall change without the need for issuing a new certificate at any time when the Deed of Trust and/or its versions shall be lawfully modified.
|
Signed by the Company on ____________
|
|
|
|
______________
|
|||
|
|
Ellomay Capital Ltd.
|
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
1. |
General
|
2. |
Securing the Debentures
|
3. |
4. |
4.1. |
The unpaid balance of the Principal of the Debentures (Series E) shall bear interest at a fixed annual rate to be determined in a tender (the “Base Interest”), without linkage to any linkage
basis. It is emphasized that the Base Interest is subject to additions of interest, to the extent that there are any, in respect of failure to meet financial covenants in the manner set out in clause 4.3.1 hereunder and interest in arrears
in the manner set out in clause 8 hereunder.
|
4.2. |
Withholding tax that must be deducted shall be deducted from any payment.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
4.3. |
Adjustment mechanism of the interest rate:
|
4.3.1. |
Changing the interest rate due to failure to meet certain financial covenants
|
a. |
In case the Company fails to meet any of the financial covenants set forth in clauses 2(b), 3(b) and 4(b) of Appendix 6.2 of the Deed of Trust (hereinafter in this clause 4.3.1: “the Covenants”),
the annual interest rate which the unpaid balance of the Debenture Principal shall bear, shall increase by an annual rate of 0.25% beyond the annual interest rate as it shall be at that time, for breaching each of the Covenants (hereinafter
in this clause 4.3.1: “the Additional Interest”) in such manner that the total addition of maximal Additional Interest is at a rate of 0.75%, for the period of time beginning upon publishing the
financial statements or the financial results, as the case may be, according to which the Company has failed to meet any of the Covenants, and until the full repayment date of the unpaid balance of the Debentures Principal or until the
Company meets the covenant, the deviation from which has led to the Additional Interest (as stated in sub-clause (d) hereinafter), the earlier of these dates. It is clarified, that increasing the interest rate as stated above shall be done
only once for breaching each of the Covenants, inasmuch as it shall occur, and that the interest rate shall not increase once more in case the deviation from that Covenant continues, inasmuch as it shall continue.
|
b. |
No later than five (5) Business Days from the day of publishing the financial statements or the financial results, as the case may be, according to which the Company has failed to meet any of the Covenants, the Company shall publish an
Immediate Report, in which it shall state: (a) the fact that it has failed to meet the Covenant, while specifying the calculation of the Covenant which the Company has failed to meet, and the date on which the failure to meet the Covenant
has begun; (b) the exact interest rate which the balance of the Principal of the Debentures (Series E) shall bear for the period of time beginning on the current Interest Term and until publishing the financial statements or the financial
results, as the case may be (the interest rate shall be calculated according to 365 days a year) (hereinafter in this clause 4.3.1: the “Original Interest” and the “Original
Interest Term” respectively); (c) the interest rate which the balance of the Principal of the Debentures (Series E) shall bear as of the day of publishing the financial statements or the financial results, as the case may be, and
until the actual nearest interest payment day, namely: the Original Interest plus the Additional Interest annual rate (the interest rate shall be calculated according to 365 days a year) as a result of failure to fulfill the Covenants
(hereinafter in this clause 4.3.1: “the Updated Interest”); (d) the weighted interest rate which the Company shall pay the Holders of Debentures (Series E) upon the nearest interest payment day,
pursuant to the stated in sub-clauses (b) and (c) above; (e) the annual interest rate reflected from the weighted interest rate; (f) the annual interest rate and the semi-annual interest rate for the coming periods.
|
c. |
If the day of publishing the financial statements or the financial results, as the case may be, according to which the Company is required to pay Additional Interest in accordance with this clause 4.3.1, shall occur during the days
beginning four days prior to the record date for paying any interest whatsoever and ending upon the interest payment day closest to the aforementioned record date (hereinafter in this clause 4.3.1: “the
Deferral Period”), the Company shall pay the Holders of Debentures (Series E), upon the nearest interest payment day, the Original Interest, prior to the change, alone (subject to previous changes which have occurred, if any have
occurred, to the interest rate in light of the stated in this clause), when the interest rate pursuant to the Additional Interest during the Deferral Period, shall be paid upon the next interest payment day. The Company shall notify, in an
Immediate Report, the accurate Semi-Annual and Annual interest rate for payment upon the next interest payment day.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
|
d. |
It shall be clarified, that in case of deviation in one or more Covenants, in a way which has affected the interest rate which the Debentures (Series E) shall bear, following which a Covenant shall be corrected in a way that the
deviation ceases to exist (thus, the Debenture Holders shall cease to be entitled to Additional Interest for the deviation from that Covenant), there shall be a decrease in the interest rate which shall be paid by the Company to the
Debenture Holders, provided that it shall not fall below the Base Interest, applying as of the day of publishing the financial statements or the financial results, which show that the deviation was corrected, so that in case the stated
Covenant was corrected, the interest rate which the unpaid balance of the Principal of the Debentures (Series E) shall bear, shall be, inasmuch as the interest rate was not previously increased due to a deviation from another Covenant,
equal to the Base Interest rate. In this case, the Company shall act in accordance with the stated in sub-clauses (a) to (d) above, mutatis mutandis.
|
e. |
In any case, the Additional Interest shall not increase, as a result of failure to meet the Covenants, over 0.75%. Interest in arrears, to the extent applicable in accordance with the provisions of clause 8 hereunder, shall be added to
the said interest and shall not constitute a part thereof.
|
5. |
6. |
7. |
7.1. |
The payments on account of the principal and/or the interest of the Debentures (Series E) shall be paid to the persons whose names are listed in the Debentures Registry as the holders of the Debentures (Series E) 6 days prior to the
payment date, as follows: March 25 (with respect to payment dated March 31) and September 24 (with respect to payment dated September 30) (hereinafter: the “Record Date”) except for the last payment
of the principal and the interest that will be paid to the persons whose names are registered in the Debentures Registry on the payment date (March 31, 2029) and that will be made against provision of the Debenture certificates (Series E)
to the Company on the payment date, in the registered office of the Company or in any other place as announced by the Company. The Company’s notification as mentioned shall be published no later than five (5) Business Days before the last
date of payment.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
|
7.2. |
Payment to those entitled shall be made in checks or by bank transfer to the bank account of the people whose names shall be registered in the Registry (as mentioned in clause 7.1 above) and who shall be mentioned in the details given in
writing to the Company on time, in accordance with the provisions of clause 7.4 hereafter. If the Company shall not be able, for any reason which is not dependent on it, to pay any sum to those entitled, while the Company could have paid it
fully and timely, it shall deposit this sum with the Trustee as mentioned in clause 15 of the Deed of Trust. In the event the clearing shall be made through the Stock Exchange clearing house – through the clearing house.
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7.3. |
A Debenture Holder who shall wish to notify the Company the details of the bank account to credit with payments according to the Debentures as mentioned above, or change the payment instructions, as the case may be, can do so in a
registered letter to the Company. The Company shall fulfill the instruction if it shall reach its registered office at least 30 days before the record date for paying any payment according to the Debentures.
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7.4. |
In the event that the notice shall be received by the Company late, the Company shall act according to it only with respect to payments scheduled after the payment date that is in proximity to the date the notice was received.
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7.5. |
If the Debenture Holder entitled to such payment did not deliver details to the Company regarding his bank account, any payment on account of the Principal and interest shall be made by check which shall be sent by registered mail to his
last address written in the registry of Debenture Holders or by bank transfer crediting the bank account of the Debenture Holder, according to the Company’s choice. Sending a check to a person entitled by registered mail as aforementioned
shall be considered for all intents and purposes as payment of the sum stipulated in it at the date of sending it by mail provided that it was paid upon lawfully presenting it for payment.
|
7.6. |
Any mandatory payment insofar as required according to law shall be deducted from any payment for the Debentures (Series E).
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8. |
UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
|
9. |
10. |
Registry of Debenture Holders
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11. |
11.1. |
The Debentures can be transferred regarding any nominal value sum provided that it will be in whole New Shekels. Any transfer of Debentures (by a registered Holder) shall be done according to a transfer document which is made out in the
version acceptable for transferring shares, properly signed by the registered owner or his legal representatives, and by the recipient of the transfer or his legal representatives, that shall be delivered to the Company at its registered
office with the Debenture certificates transferred according to it, and any other reasonable proof that shall be required by the Company for proving the right of the transferor to transfer them.
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11.2. |
Subject to the aforesaid, the procedural provisions included in the Company’s articles of association with respect to the manner of transferring shares shall apply, mutatis mutandis respectively, with respect to the manner of
transferring Debentures and their assignment.
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11.3. |
If any obligatory payment shall apply to the transfer document of the Debentures, reasonable proof shall be given to the Company of their payment by the person requesting transfer.
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11.4. |
In the event of a transfer of only part of the sum of the Principal of the Debentures set forth in this certificate, the certificate shall be split first to a number of Debenture certificates as required from this, in a manner that the
total sums of the Principal set forth in them shall be equal to the Principal sum set forth in this Debenture certificate.
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11.5. |
After fulfilling all of these terms the transfer shall be registered in the Registry and all of the terms set forth in the Deed of Trust and in this Debenture shall apply to the transferee.
|
11.6. |
All costs and fees involved in the transfer shall apply to the transfer applicant.
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11.7. |
Each Debenture certificate may be split to a number of Debenture certificates that their total Principal sum is equal to the Principal sum of the certificate the split of which is requested, and provided that such certificates shall not
be issued unless this is by a reasonable quantity at the discretion of the Company’s board of directors. The split shall be made against the delivery of that Debenture certificate to the Company at its registered office for the purpose of
performing the split together with a split request lawfully signed by the applicant. Any costs involved in the split, including taxes and levies, if such shall exist, shall apply to the split applicant.
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12. |
UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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13. |
Early Redemption
|
14. |
15. |
16. |
17. |
18. |
19. |
Notices
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
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1. |
Conducting a review based on the reports of the Company that were published in MAGNA (the “Public Reports of the Company”) and based on the approvals and the documents that the Company will provide
to the Trustee in accordance with the provisions set forth in this Deed:
|
1.1. |
That the payments of the interest and the principal by the Company were made on time.
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1.2. |
The uses that the Company makes with the issue proceeds meet the That the use made by the Company of the proceeds of the offering meet the objectives set out for these uses in the Deed of Trust and/or in the chapter concerning the
offering proceeds in the Shelf Offering Report, to the extent that such objectives were set.
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1.3. |
That the Company complies with the milestones that were set out in the Deed of Trust for its activities, to the extent that there are any.
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1.4. |
If any of the causes for calling for immediate repayment arose, based on the Public Reports of the Company.
|
2. |
Convening meetings of Debenture Holders in accordance with the provisions set forth in the Second Addendum of the Deed of Trust.
|
3. |
Attendance (including in electronic means) in the meetings of the shareholders of the Company.
|
4. |
Preparing an annual report regarding the affairs of the Trust, as stated in clause 21.1 of this Deed and making the said report available for the inspection of the Debenture Holders, and preparing all reports that are required in
accordance with the law.
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5. |
Notifying the Debenture Holders regarding a material breach of this Deed by the Company shortly after becoming aware of the breach and notifying of the steps that the Trustee took to prevent it or for the performance of the Company’s
undertakings, as the case may be.
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6. |
A review, from time to time and no less than once a year, of the validity of the collaterals (to the extent that there are any) as stated in clause 12 hereunder. It is clarified that the Trustee shall be entitled, if it is of the opinion
that this is necessary for the purpose of conducting such a review, to inspect the assets of the Company that are pledged in favor of the Debenture Holders.
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7. |
A review, based on the Public Reports of the Company, and according to the approvals and the documents that the Company will provide to the Trustee, in accordance with the provisions set forth in the Deed of Trust, of the following:
|
7.1. |
That the Company fulfills its undertakings towards the Debenture Holders.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
|
7.2. |
That the Company fulfills its entire undertakings as set out in the Deed of Trust.
|
7.3. |
That the Company satisfies the financial covenants that were set out, to the extent that there are any, in the Deed of Trust.
|
7.4. |
Whether there was a change in the registration of pledges that were registered in accordance with the provisions of the Deed of Trust, to the extent that there are any.
|
7.5. |
Whether there was a change in the rating of the Company or the rating of the Debentures, to the extent that the Debentures were rated.
|
8. |
To pay to the Debenture Holders sums out of the Financing Deposit, as defined in clause 25 of the Deed, that were deposited with the Trustee for the purpose of this matter in accordance with the provisions set forth in the Deed of Trust,
to the extent that such sums were deposited.
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9. |
To allow the replacement of collaterals, to the extent that the Deed of Trust permits expressly such an action, according to the mechanism defined in the Deed of Trust, to the extent that such a mechanism was defined, or in accordance
with the provisions set forth in any law.
|
10. |
To release collaterals, to the extent that the Deed of Trust permits expressly such an action, according to the mechanism set out in the Deed of Trust, to the extent that such a mechanism was defined.
|
11. |
The performance of any action that is required by law, including in accordance with the provisions set forth in amendments 50 and 51 of the Securities Law.
|
12. |
Performing all actions that are required for the purpose of ensuring the fulfillment of the undertakings of the Company towards the Debenture Holders that are not stated in clauses 1-11 above, including taking all actions that are
required for the purpose of ensuring, prior to paying to the Company any sums on account the Debentures, the validity of collaterals that the Company provided, to the extent that such collaterals were provided, or that a third party
provided, to the extent provided, in favor of the Debenture Holders; the Trustee shall be held liable towards the Debenture Holders for ensuring that the prospectus according to which the Debentures were offered will provide a full and
accurate description of the said collaterals.
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13. |
Extraordinary reviews following the occurrence of extraordinary events according to the Public Reports of the Company (as defined in clause 1 above):
|
13.1. |
That the Company satisfies its undertakings towards the Debenture Holders, including the existence of causes for calling for immediate repayment.
|
13.2. |
That the Company performs its entire obligations set out in the Deed of Trust.
|
13.3. |
That the Company complies with the financial covenants that were set out, to the extent that there are any, in the Deed of Trust.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
|
13.4. |
If any change occurred in the registration of pledges that were registered in accordance with the provisions of the Deed of Trust.
|
14. |
To attend Debenture Holders Meetings, including by virtue of the Securities Law. To apply the resolutions adopted by the Debenture Holders Meeting, including resolutions that impose on the Trustee any obligations and perform all actions
and proceedings that are required for the purpose of protecting the rights of the Debenture Holders, on the condition that the Trustee received the proper financing for the purpose of implementing and performing such actions, to the extent
required.
|
15. |
To perform urgent actions that are required for the purpose of preventing a material adverse change in the rights of the Debenture Holders, in circumstances in which it is not possible to wait for the convening of a Meeting.
|
16. |
To start negotiations with the Company, whether following the request of the Company and whether following the request of the Debenture Holders, regarding requests or proposals made in connection with the provisions of the Deed of Trust.
|
17. |
In circumstances in which the Trustee is of the opinion that there is a reasonable concern that the Company cannot pay the Debentures on time, to conduct extraordinary reviews in connection with the said circumstances and act for the
purpose of protecting the Holders in any manner that the Trustee will see fit; the Trustee shall be entitled to perform the following actions, inter alia:
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17.1. |
To examine whether the said circumstances stem from actions or transactions that the Company performed, including a distribution, as such term is defined in the Companies Law, that were committed in violation of the law; however, the
Trustee shall not conduct such a review as said if an expert, as such term is defined in Section 350R of the said law, whose duties are to conduct such a review, was appointed for the holders of certificates of indebtedness.
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17.2. |
To conduct, in the name of the Debenture Holders, negotiations with the issuer, for the purpose of changing the terms of the certificates of indebtedness.
|
17.3. |
For the purpose of this matter, the convening of a meeting of holders of certificates of indebtedness by the Trustee for purposes of receipt of instructions how to act, will not be deemed as breach of its duties, provided that the mere
convening of the Meeting shall not cause material infringement of the rights of the Holders.
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17.4. |
If a Meeting of Holders of certificates of indebtedness was convened as stated in sub-clause 17.3, and a resolution was adopted in accordance with the law in the said Meeting, the Trustee shall act according to the said resolution; if
the Trustee acted in such manner as said, the action of the Trustee in accordance with the said resolution shall be deemed as compliance with the provisions set forth in this clause related to the resolution.
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17.5. |
To distribute to the Debenture Holders, in accordance with the provisions set forth in the Deed of Trust, sums that the Debenture Holders are entitled to receive that reached the Trustee.
|
17.6. |
To supervise the process of realization of the rights of the Debenture Holders if a functionary was appointed for the Company or its assets.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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1. |
Inasmuch as the Debentures shall be rated upon the performance of the expansion - the very expansion shall not harm the rating of the Debentures of Series E that are in circulation (that is, Debentures (Series E) that are in circulation
before the expansion of the series), in a way that for purposes of expanding the series of the Debentures (Series E) an advance approval of the rating company for rating the additional Debentures (Series E) will be received, in which the
additional Debentures (Series E) were taken into account, by a rating that does not fall from the rating of the Debentures (Series E) prior to the issuance of the additional Debentures and also the approval of the rating company that
issuing the additional Debentures (Series E) does not harm the rating of the existing Debentures (Series E). Such approval shall be transferred to the Trustee before holding the tender for classified investors (to the extent that the
Company holds an institutional tender as said), holding a tender to the public (to the extent that the Company does not hold an institutional tender) or performing the expansion of a series (to the extent that such an expansion is performed
by way of a private placement), and it shall be published by the Company in an Immediate Report (an Immediate Report which includes the approval/rating report attesting to meeting the stated condition shall be considered for the purpose of
this clause as delivery to the Trustee). The Trustee shall rely on the rating company’s notice and it shall not be required to an additional examination.
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2. |
Upon expanding the series of Debentures (Series E), the Company is not in breach of any of the causes for immediate repayment set forth in clause 9 of the Deed of Trust, including as a result of the expansion of the series as said, and
it is not in breach of any of its material undertakings to the Holders of Debentures (Series E) in accordance with this Deed and will not breach these undertakings as a result of the expansion of these undertakings, and in addition, the
expansion of the series shall not damage the Company’s compliance with the financial covenants as set forth in clause 9.1.13 of the Deed of Trust, without taking into account the periods for remedying and of waiting with regards to those
financial covenants, all in accordance with the Company’s last financial statements (as they are defined in clause 9 of the Deed of Trust) which were published prior to the time of the additional issuance, and taking into consideration the
additional Debentures that will be issued as a result of the expansion of the series.
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3. |
The par value of the Debentures (Series E) will not exceed NIS 220 million after the performance of the expansion.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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[1] |
Definitions
|
UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
|
[2] |
Minimal Adjusted Balance Sheet Equity
|
a. |
For the purpose of the cause for immediate repayment in clause 9.1.13 of the Deed: the Adjusted Balance Sheet Equity of the Company, as defined above, according to the consolidated financial statements or the consolidated quarterly
financial results last published, shall not be less than 75 million Euros over a period of two consecutive quarters.
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b. |
For the purpose of adjusting the interest as set forth in clause 4.3.1 in the Terms on the Other Side of the Page: the Adjusted Balance Sheet Equity of the Company, as defined above, according to the consolidated financial statements or
the consolidated quarterly financial results last published, shall be not less than 80 million Euros.
|
[3] |
The Ratio of Net Financial Debt to Net Cap:
|
a. |
For the purpose of the cause for immediate repayment in clause 9.1.13 of the Deed: the ratio of Net Financial Debt to Net CAP shall not exceed 65% over a period of three consecutive quarters.
|
b. |
For the purpose of adjusting the interest, as set forth in clause 4.3.1 of the Terms on the Other Side of the Page: the ratio of Net Financial Debt to Net Cap shall not exceed 60%.
|
[4] |
The Ratio of Net Financial Debt to Adjusted EBITDA:
|
a. |
For the purpose of the cause for immediate repayment in clause 9.1.13 of the Deed: the ratio of Net Financial Debt to Adjusted EBITDA shall not exceed 12 over a period of three consecutive quarters.
|
b. |
For the purpose of adjusting the interest, as set forth in clause 4.3.1 of the Terms on the Other Side of the Page: the ratio of Net Financial Debt to Adjusted EBITDA shall not exceed 11.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
[5] |
General
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
1. |
Preamble; interpretation; definitions; coming into force
|
1.1. |
As used in this Appendix 7, the following terms shall have the respective meanings set forth beside them below and to the extent no meanings were ascribed in the Appendix below, the meanings specifically ascribed to them in the Deed of
Trust:
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
2. |
Securing the Debentures
|
2.1. |
For the purpose of ensuring the full and accurate performance of the entire undertakings of the Company in accordance with the terms of the Debentures (Series E), and for the purpose of ensuring the full and accurate payment of the
entire amounts that are due to the Debenture Holders (Series E) from the Company in accordance with the Deed of Trust, including the payments of principal and interest and interest in arrears, to the extent applicable, and for the purpose
of securing additional amounts that the Company will owe in accordance with the Deed of Trust, including the expenses for the realization of the collaterals, and in particular the legal expenses in connection therewith (hereinafter: the “Secured Amounts”), the Company hereby undertakes that the collaterals as stated hereunder shall be created and registered in favor of the Trustee:
|
2.1.1. |
Pledge on the shares of Dori Energy
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
2.1.2. |
Pledge of the Trust Account
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
2.1.3. |
Pledge of rights in connection with the Existing Shareholders’ Loans to Dori Energy
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
2.1.4. |
An undertaking to avoid the creation of a floating charge on the entire assets of the Company (negative pledge)
|
(1) |
A receipt in advance of the consent of the Debenture Holders (Series E), which shall be adopted in a Special Resolution; or
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
(2) |
The Company shall create, in favor of Holders of Debentures (Series E) together with creating the floating charge on all of its assets and rights, current and future, in favor of the third party, a floating charge on all of its assets
and rights, current and future, also in favor of the Holders of Debentures (Series E) of the same priority, pari passu, which shall remain in force up to the removal of the charge which shall be registered in favor of the third party, and
this is as long as outstanding Debentures (Series E) shall exist (namely, as long as they were not fully paid or removed in any manner, including by way of a self-purchase and/or early redemption); or
|
(3) |
The Company shall make available in favor of the Holders of Debentures (Series E), by the Trustee, together with the creation of the floating charge on its entire assets and rights, current and future, in favor of the third party, an
irrevocable autonomous bank guarantee which shall be issued by bank/s or financial institution/s in Israel, rated at no less than ilAa2 of Midroog or an equivalent rating, at a total equaling the amount guaranteed by the floating charge
created in favor of the third party, or a total constituting the non-paid balance of the debt to Holders of Debentures (Series E), taking into account the amount of the interest until the date of the final repayment of the Debentures,
according to the lower of them at the time of creating the pledge.
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UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
(a) |
The existence of a cause to declare the Debentures immediately payable and/or the realization of Collaterals is a preliminary condition to realizing a floating charge as mentioned.
|
(b) |
The Trustee shall be entitled to enforce a floating charge before immediate repayment has been declared for the Debentures, in accordance with Section 35J1 of the Law or subject to adopting a decision of performing realizations in a
resolution that shall be adopted by the Meeting of the Debenture Holders in accordance with the provisions of clause 9.2.4 of the Deed of Trust.
|
(c) |
Enforcing the floating charge shall be performed in a manner that is expected according to the Trustee’s reasonable assessment to maximize the realization consideration from the floating charge and for this purpose the Trustee shall be
entitled, subject to law, to determine the manner of enforcing this floating charge and the time when the floating charge should be enforced (hereinafter: the “Manner of Enforcing the Collaterals”).
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
|
(1) |
A charge document in favor of the Trustee, in form to the satisfaction of the Trustee, bearing an original signature by the Company with an electronic approval of the Registrar of Companies, confirming receipt of the document that will
bear a date which is not later than twenty one (21) days after the signature date on the charge document;
|
(2) |
A notice of details of mortgages and pledges (Form 10), in form to the satisfaction of the Trustee, signed with an original “received” stamp from the office of the Registrar of Companies, which bears a date that is not later than twenty
one (21) days after creating the notice;
|
(3) |
An original pledge registration certificate from the Registrar of Companies;
|
(4) |
An extract of the pledges from the Registrar of Companies or any other office or registrar as shall be required by any law, according to which this charge was registered;
|
(5) |
An affidavit by the Company CEO or a senior financial officer in the Company that the charge does not contradict or it is not in contradiction to the Company’s undertakings to third parties, and that all approvals have been received by
the Company pertaining to the creation of the pledge as stated, all according to the wording that shall be to the satisfaction of the Trustee at its reasonable discretion, which shall be delivered to the Trustee each year according to his
demand;
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(6) |
An opinion of an external lawyer on behalf of the Company, originally signed, inter alia, with respect to the nature of the rights of the pledging party in the pledged asset, the manner of the pledge registration, its creditor priority,
it being legal, valid and it being exercisable and enforceable against the pledging party according to the applicable law in Israel, in the wording that shall be to the satisfaction of the Trustee at its reasonable discretion, which shall
be given to the Trustee each year according to its demand;
|
(7) |
Any additional document required for the purpose of creating and/or registering the pledge by any law, in any relevant Registry;
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
2.1.5. |
Save as provided in clause 2.1.4 of this Appendix, and the limitations pertaining to the Pledged Assets included in this Appendix, no limitations regarding the imposition of different charges on their property shall apply to the Company
or the Pledgor.
|
2.1.6. |
The charges and the pledges that will be registered in favor of the Debenture Holders as stated in clauses2.1.1 to 2.1.3 will be registered in the registries of the Company and in the registries of the Pledgor that are managed by the
Registrar of Companies and the Registrar of Pledges, as the case may be. To the extent that another registry is required during the time the Debentures are in effect for the purpose of registering any of the said charges, the Company and
the Pledgor shall perform such registration immediately and shall provide all documents and proof that are required for the purpose of registering such a charge as said, and all in a form to the satisfaction of the Trustee.
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2.1.7. |
The Company and the Pledgor undertake that each shall cooperate and shall sign all documents and shall perform all actions that will be required for the purpose of creating and registering the charges and the pledges as stated in
sub-clause 2.1 with respect to the relevant Pledged Assets, for each of them and on the dates it is required to pledge such assets.
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2.1.8. |
Immediately after the payment of the last payment in respect of the principal and the interest in respect of the Debentures (Series E), or the full settlement of the outstanding balance of the Debentures (Series E) in any manner
(including by way of buyback and/or early redemption), the pledges that were created in connection with the Debentures shall expire and shall be deemed as void, without performing additional actions, and the Trustee will sign any document
that is required for the purpose of canceling such charges as said, will deliver to the Company the share certificate and the share transfer deed the Trustee holds, and will deliver at the same time to the Company the sums deposited in the
Trust Account including their returns (to the extent that there are such sums as said) with deduction of the required fees for the purpose of managing the account and with deduction of the fees and expenses of the Trustee, including in
connection with the Trust Account.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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2.1.9. |
It is further clarified as follows, notwithstanding anything to the contrary in the terms of this Deed of Trust:
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2.1.9.1. |
The charge of the Pledged Assets by the Pledgor will be created solely for the purpose of ensuring the obligations of the Company towards the Debenture Holders and/or anyone acting on their behalf in accordance with the Deed of Trust and
that the signature of the Pledgor and/or Ellomay Energy Ltd. on irrevocable undertakings towards the Trustee to act in accordance with the provisions set forth in this Deed of Trust shall not impose on any of them any liability for the
debts and/or the undertakings of any kind of the Company towards the Debenture Holders and/or anyone acting on their behalf, except for the provision of the Pledged Assets as a collateral for the payment of the debts and undertakings of the
Company towards the Debenture Holders and/or anyone acting on their behalf, and an undertaking to act in accordance with the irrevocable undertaking, and except for undertakings that are included expressly in the irrevocable undertaking
attached as Appendix 1 hereunder, and beyond to the sums that the Trustee and/or anyone acting on its behalf will receive from the Pledged Assets and/or beyond the consideration that the Trustee and/or anyone acting on its behalf will
receive in respect of the realization of the Pledged Assets, the Pledgor and Ellomay Energy Ltd. shall not incur any cost and/or expense and/or payment including taxes and/or fees and/or levies (except for those applicable as a result of
the realization of the relevant Pledged Asset and that are deducted from the consideration that will be obtained in respect of the realization) for any reason and of any kind towards the Debenture Holders and/or anyone acting on their
behalf.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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2.1.9.2. |
For the avoidance of doubt it is hereby clarified that only the amount that the Debenture Holders will receive from the realization of the Pledged Assets that were pledged by the Pledgor will be used for the purpose of performing the
entire obligations of the Company in accordance with the Deed of Trust, and the Debenture Holders and/or anyone acting on their behalf waive in advance and may not present any additional demands towards the Pledgor or towards Ellomay Energy
Ltd. by virtue of the Deed of Trust including Appendixes thereof.
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2.1.9.3. |
Therefore, in the event of breach of the undertakings of the Company towards the Debenture Holders and/or anyone acting on their behalf, the realization of the Pledged Assets that were pledged by the Pledgor, shall constitute the sole
relief and/or remedy that the Debenture Holders and/or anyone acting on their behalf shall be entitled to towards the Pledgor or towards Ellomay Energy Ltd. (non-recourse) and if the proceeds obtained from the realization of the Pledged
Assets is insufficient for the purpose of paying the entire debts and undertakings of the Company – the Debenture Holders and/or anyone acting on their behalf will not claim and/or demand from the Pledgor and/or from the partners of the
Pledgor (other than the Company) including Ellomay Energy Ltd., to the extent that there are any, to pay them any amount, except for the amount of the guarantee set out in Appendix 1, to the extent that the guarantee enters into force, and
they shall have no claims and/or demands, whether financial or other, including in anything related to the expenses and payments pertaining to the realization of the charges on the Pledged Asset as said.
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2.1.9.4. |
It is clarified that despite the fact that the right to receive dividends and payment of the Pledged Shareholders’ Loan is pledged to the Debenture Holders (Series E), it is possible that no actual dividends will be paid and that the
shareholders’ loans will not be returned and that no consideration by virtue of the said charges will be received.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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2.1.9.5. |
It is clarified that the provisions of clause 2.1.9 above shall be without prejudice to the undertakings of the Company in accordance with the Deed of Trust, including its undertaking to make full and timely payment of the Debentures.
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2.2. |
Transfer of the Offering Proceeds to the Company
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2.2.1. |
The offering proceeds that the offering manager will receive in respect of the issuance of the Debentures (Series E), in net values, after payment of the issuance expenses (including early commitment fees) shall be transferred by the
offering manager fully, including all returns in respect whereof, to the Trust Account in which the rights of the Company, to the extent that there are any, will be charged as said in favor of the holders of a single, senior, fixed charge
for an unlimited amount even before the sums are transferred in accordance with the provisions of clause 2.1.2 above.
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2.2.2. |
Solely with respect to the proceeds of the offering, the Company shall deliver to the Trustee written instructions regarding the manner of investment of the sums that are deposited in the Trust Account, and the Trustee will act solely in
accordance with these instructions, provided that the sums are invested in the manner set out in clause 18 of the Deed of Trust. The Trustee shall not be held liable for examining the nature of investments of the sums in the Trust Account,
and shall not be held liable for the results of the investment. The Company shall incur the expenses and fees in connection with the opening, management and closing of the Trust Account.
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2.2.3. |
The Trustee shall transfer the net offering proceeds that were received in the Trust Account to a bank account in the name of the Company or to another bank account as ordered by the Company in writing, within two Business Days after the
Trustee received all of the following documents to its satisfaction:
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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2.2.3.1. |
A copy of the pledge documents (charge agreements and pledge agreements signed by the relevant parties in connection with the Pledged Assets and forms containing information about mortgages and charges (Form 10) or a pledge notice (Form
1) as the case may be, in respect of the entire Pledged Assets), in a form to the satisfaction of the Trustee, and that were submitted for registration in the Registrar of Companies and/or the Registrar of Pledges (as required and in
accordance with the provisions set forth in any law) with electronic confirmation or proof regarding receipt for payment, in respect of the registration of the charges and/or the pledges (as the case may be) on all Pledged Assets. It is
clarified that the charge documents shall be submitted for registration within 21 days as of the date of their creation.
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2.2.3.2. |
The charge registration certificates or the confirmation of registration of a pledge in respect of each of the Pledged Assets in the Registrar of Companies or the Registrar of Pledges, as the case may be, together with an updated output
from the Registrar of Companies or the Registrar of Pledges, as the case may be, confirming that the registration of the charge or the pledge is true and accurate, as the case may be, with respect to the entire Pledged Assets;
notwithstanding the said, it is clarified that this condition will be satisfied to the extent that the Trustee receives an updated output from the Registrar of Companies or the Registrar of Pledges, as the case may be, confirming that the
charge or the pledge were registered, even if the Trustee does not receive the charge registration certificates from the Registrar of Companies or confirmation regarding the registration of the pledge from the Registrar of Pledges, as the
case may be. No later than five (5) Business Days as of the date of issuance of the charge registration certificates from the Registrar of Companies or confirmation of registration of the pledge in the Registrar of Pledges, as the case may
be, by the Company or the Pledgor, as the case may be, the Company or the Pledgor, as the case may be, will deliver to the Trustee a true and certified copy of the charge or the pledge certificates (as the case may be).
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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2.2.3.3. |
The opinion of an external counsel of the Company and the Pledgor, as the case may be, with respect to the charges and the pledges on each of the Pledged Assets, including confirmation that these are not in contradiction to the
instruments of incorporation of the Company or the Pledgor, as the case may be, and that these are exercisable and enforceable in Israel according to their level of pledge or charge, as the case may be, that were registered on all the
Pledged Assets, and are valid, lawfully registered and approved by the Company or the Pledgor, as the case may be, in accordance with the provisions set forth in any law and including the Articles of the Company and the instruments of
incorporation of the Pledgor, as the case may be, and all in a form to the satisfaction of the Trustee.
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2.2.3.4. |
A copy of the Notice and the Irrevocable Instructions that were sent from the Pledgor to Dori Energy in accordance with the provisions of clause 2.1 above, and confirmation by Dori Energy that it will act in accordance with the said
instruction.
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2.2.3.5. |
An original executed undertaking by the Pledgor and Ellomay Energy Ltd., in the form attached as Appendix 1 of this Appendix.
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2.2.3.6. |
An original executed affidavit by a senior officer in the Company and the Pledgor, as the case may be, confirmed by an external attorney, confirming that the pledge on the relevant Pledged Asset was lawfully registered and is not in
contradiction to or in violation of other undertakings of the Company or the Pledgor (as the case may be) and in a form to the satisfaction of the Trustee.
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2.2.3.7. |
The approval and consent of the representative of the Lenders and the Luzon Group (as stated in clause 3.7 hereunder) for the creation and the registration of the charges on the Pledged Assets (except for the Trust Account in respect of
which their approval is not required) in favor of the Trustee for the Debenture Holders.
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2.2.3.8. |
A share certificate(s) in the name of the Pledgor in respect of the shares pledged from number 10,001 to no. 20,000, together with a signed and undated transfer deed.
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2.2.3.9. |
A true and certified copy from the Shareholders’ Register of Dori Energy, approved and signed by a senior officer in Dori Energy, including a note regarding the pledge of the Pledged Shares in favor of the Trustee.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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2.3. |
If the conditions set forth in clause 2.2.3 above are not fully satisfied to the satisfaction of the Trustee until expiration of the Specified Period (as hereinafter defined), the Company shall perform compulsory early redemption of the
outstanding balance of the Debentures, as stated hereunder. The “Specified Period”: 90 days as of the date in which the entire issue proceeds were deposited in the Trust Account. However, the Trustee
shall be entitled to extend the 90-day period by 90 additional days, at its discretion, if the Trustee is of the opinion that it is necessary for the purpose of satisfying the entire conditions set out in clause 2.2.3 above. The extension
of the said period for a period exceeding 180 days shall be made possible by adopting an Ordinary Resolution.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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2.4. |
In return for the full and final repayment of the Debentures to the satisfaction of the Trustee, the charges as stated in the Deed of Trust shall be void and the Trustee undertakes that in such circumstances as said the Trustee will sign
all documents that will be reasonably required for the purpose of removing the charges as stated in the Deed of Trust on the said payment date.
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2.5. |
For the avoidance of doubt, it is clarified that the Trustee shall not be obligated to review, and in practice the Trustee did not review the need to provide additional securities for the purpose of securing the payments to the Debenture
Holders. The Trustee was not asked to conduct and the Trustee did not de facto conduct an economic, accounting, or legal due diligence review of the condition of the business conducted by the Company. By engaging in this Deed of Trust, and
the consent of the Trustee to act as a trustee for the Debenture Holders, the Trustee does not express its opinion, whether express or implied, regarding the economic value of the collaterals and the ability of the Company to comply with
its undertakings towards the Debenture Holders. The aforesaid shall be without prejudice to the duties of the Trustee in accordance with the provisions set forth in any law and/or the Deed of Trust and in this regard this shall be without
prejudice to the duty of the Trustee (to the extent that such a duty applies to the Trustee in accordance with the provisions set forth in any law) to examine the effect of changes in the Company as of the date of this Deed henceforth, to
the extent that these have an adverse effect on the ability of the Company to meet its undertakings to the Debenture Holders.
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2.6. |
Disturbing Event
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2.6.1. |
If any of the events as stated in clauses9.1.5, 9.1.6, 9.1.7, 9.1.8, 9.1.9, 9.1.10 and 9.1.11 of the Deed of Trust in connection with the Pledgor, Dori Energy and Dorad occurred, mutatis mutandis,
including the performance of the reviews based on the financial statements of the relevant entity, subject to the remedy periods set out in each of the said clauses, and except for a proceeding whose outcome is that the entire assets and
liabilities of the Pledgor, including its liabilities and the pledges created by the Pledgor under this Deed of Trust, will be transferred to the Company or to another corporation controlled by the Company, provided that the chain of
holdings of the Company in Dorad will not include a larger number of legal entities compared to the situation on the signing date of this Deed (hereinafter: the “Disturbing Event”), the Company and
the Pledgor undertake to act as follows:
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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2.6.1.1. |
To notify the Trustee, immediately and in writing, after the Company becomes aware of the existence of any of the Disturbing Events.
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2.6.1.2. |
The Company shall be obligated to provide a Financial Collateral and/or a substitute asset (in accordance with the provisions of clause 2.7.1.2) solely at the discretion of the Company, and in accordance with the provisions set forth in
the Deed of Trust and this Appendix 7, in lieu of the Pledged Assets that were pledged by the Pledgor, within 50 Business Days from the date the Company became aware of the Disturbing Event. If, upon expiration of the said period, a
Financial Collateral and/or a substitute collateral was provided as said, the Disturbing Event shall not give rise to a cause for immediate repayment.
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2.6.1.3. |
For the avoidance of doubt, if, during the period as stated in clause 2.6.1.2, the Disturbing Event ceased, the Company and/or the Pledgor shall not be required to act in accordance with the provisions set forth in this clause.
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2.7. |
Exchanging Pledged Assets
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2.7.1. |
Without prejudice to the said in the Deed of Trust and this Appendix, and subject to the compliance of the Company with the entire provisions set forth in this clause hereunder, the Company shall be entitled, from time to time, and for
an unlimited number of times, at its sole discretion, to exchange only the entire Pledged Assets, as will be from time to time (the “Exchanged Asset”), with one or more of the following assets:
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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2.7.1.1. |
By the provision of a Financial Collateral for a total amount equal to the entire Liability Value at the time of exchanging the collaterals. In such circumstances as said, the Company will deliver to the Trustee a notice regarding the
Exchanged Asset, no less than fourteen (14) days prior to the performance of the actual exchange, and in the said update the Company will state, inter alia, the essence and the value of the
exchanging asset, and will publish an Immediate Report for the purpose of this matter.
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2.7.1.2. |
In any other asset, provided that the Debenture Holders adopt a Special Resolution for the purpose of this matter in advance. Prior to and until the convening of the meeting, the Company will provide to the Trustee information regarding
the exchanging asset, similar to the data provided about the Exchanged Asset, and according to Position no. 103-29 of the staff of the Securities Authority (as amended from time to time), no less than ten (10) days prior to the convening of
the Meeting, and in such an update as said the Company will specify, inter alia, the nature of the legal rights of the Company in the exchanging asset and the value of the exchanging asset in the
financial statements of the Company, and will publish an Immediate Report for the purpose of this matter.
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2.7.2. |
The exchanging asset shall be deemed as the Exchanged Asset, as if the Exchanged Asset was included in the provisions of the Deed of Trust from the start, including the right of the Company to repeat and change the said asset in
accordance with the provisions set forth above. It is hereby clarified that the exchanging asset will be fully pledged, i.e., the entire rights of the Company in the exchanging asset, in favor of the Debenture Holders, in the manner
described in clause 2.1 of this Appendix 7 above (mutatis mutandis, depending on the type of the asset).
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2.7.3. |
The Trustee shall be obligated to sign any reasonable document and/or approval that are necessary for the purpose of performing the exchange, on the condition that the entire conditions set out in this clause 2.7 have been met, and after
the Company completed the registration processes of the pledge on the exchanging asset, to the satisfaction of the Trustee, and provided to the Trustee the entire documents as stated in clause 2.2.3 above, mutatis
mutandis based on the identity of the exchanging asset that will be pledged, and any additional approval and/or document that will be required for the purpose of creating and registering the pledge on the exchanging asset to the
satisfaction of the Trustee. The Trustee shall have no discretion in the approval of the exchanging asset beyond an examination of its compliance with the provisions of the Deed of Trust and this Appendix in connection with the mechanism
for the exchange of Pledged Assets, and the Trustee shall be entitled to rely on the approvals that the Company will provide it as said.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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2.7.4. |
It is clarified that the removal of the charge on the Exchanged Asset shall be performed after the registration of the charge on the exchanging asset, to the extent required, and the provision of all required documents and approvals in
connection with the pledge of the exchanging asset as stated above. The registration of the charge on an exchanging asset that of the type shares or ownership rights and shareholders’ loans shall be performed in accordance with the entire
provisions set forth in this Appendix and in the Deed of Trust, and to the extent that no rights as said were charged in the Deed of Trust and in the Appendix prior to the exchange, the manner of creating and crystalizing the charge shall
be to the satisfaction of the Trustee.
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2.7.5. |
The Company shall perform all actions and shall incur all expenses in anything required for the purpose of performing the exchange, additions and removal of pledges.
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2.8. |
Sale of Pledged Assets
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2.8.1. |
After signing the sale agreement, the Company will provide to the Trustee an approval from the CEO of the Company or the senior financial officer in the Company, confirming that one or more of the causes for calling for immediate
repayment set out in clause 9 of the Deed of Trust did not arise. The Trustee shall be entitled to rely on the approval of the Company and shall not conduct any additional inspection on its behalf.
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2.8.2. |
The net proceeds (with deduction of deposits that are required, to the extent required, by the purchasing party by virtue of the relevant sale agreement and with deduction of the direct tax and the direct expenses in connection with the
transaction) (the “Sale Proceeds”), will be deposited in the Trust Account, or another similar arrangement will be performed to the satisfaction of the Trustee, ensuring the rights of the Debenture
Holders in the Sale Proceeds, and if the Sale Proceeds, in addition to any amount in cash held in the Trust Account prior to and until the date of the sale and/or a Financial Collateral that was provided prior to and until the date of the
sale in favor of the Trustee (hereinafter: the “Financial Collaterals”) will be higher than the entire amount required for early redemption, in accordance with the provisions set forth in this clause,
the difference between the Sale Proceeds and the amount that is required as said (hereinafter: the “Difference of the Sale Proceeds”) shall be transferred directly to the Pledgor and/or the Company,
to an account as ordered by the Company to the Trustee, and the Trustee undertakes to sign any document that is reasonably required for the purpose of this matter. For that purpose, the Company will provide to the Trustee confirmation by
the senior financial officer in the Company, including an Excel file, describing the manner of calculation of the Difference of the Sale Proceeds, and the Trustee shall be entitled to rely on the approval of the Company and shall not
conduct any additional inspection on its behalf.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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2.8.3. |
The Sale Proceeds, in addition to the Financial Collaterals, to the extent that they were deposited by the Trustee at the time, shall be equal, as a minimum, to the necessary amount for the purpose of performing early redemption in
accordance with the provisions of sub- clause D hereunder, or the entire amount that is required for the purpose of replacing the collaterals, in accordance with the provisions of clause 2.7.1.1 above (according to the mechanism selected by
the Company, at its sole discretion).
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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A. |
To the extent that the Company pursues the Early Redemption Alternative, the Company will use the funds deposited in the Trust Account, including the Sale Proceeds, for the purpose of performing the early redemption as said. In such
circumstances as said, the Company will deliver to the Trustee an instruction to transfer the said funds to a nominee company for the purpose of performing the early redemption. The Trustee will transfer the said funds to the nominee
company on the condition that the said funds that are deposited in the Trust Account at the time do not cover the entire amount that is required for the purpose of performing the early redemption, the Company deposited in the Trust Account
the entire difference that is required for the purpose of performing the early redemption or, alternatively, provided to the Trustee proof confirming the transfer of the said difference directly to the nominee company.
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B. |
To the extent that the Company pursues the Collaterals Replacement Alternative, the Company shall be entitled to use the funds deposited in the Trust Account for the purpose of making payments on account of the Debentures (principal
and/or interest) and for the purpose of performing full or partial early redemption, in accordance with the provisions of clause 8.2 of the Deed of Trust, provided that after using the funds as said, the total amounts in the Trust Account
(together with the amount of the financial collaterals that were provided to the Trustee, to the extent provided, and that are in effect) will not fall below the full liability value of the balance of the Debentures at the time. In such
circumstances as said, the Company will deliver to the Trustee an instruction to transfer the said funds to the nominee company for the purpose of making payment. The Trustee will transfer the said funds to the nominee company, subject to
the performance of the aforesaid provisions, and on the condition that to the extent that it is necessary to make whole any amount for the purpose of making the relevant payment, the Company deposited in the Trust Account the full
difference that is required or, alternatively, provided to the Trustee proof regarding the transfer of the said difference directly to the nominee company. To the extent that the Company wishes to use the funds in the Trust Account for the
purpose of making payment for the Debentures as stated in this sub-clause B above, the Company will provide to the Trustee, no less than 2 Business Days prior to and until the record date for the purpose of making this payment, confirmation
by a senior financial officer in the Company, together with a calculation, regarding its compliance with the provisions set forth in this sub-clause B above.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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C. |
The Company shall be entitled to obtain, and the Trustee shall release from the Trust Account to the account(s) as ordered by the Company, any excess amount from the Sale Proceeds that exceeds the entire amount required for early
redemption in accordance with the provisions of sub-clause D hereunder, or that exceeds the entire amount that is required for the purpose of replacing the collaterals, in accordance with the provisions of clause 2.7 above, based on the
alternative that the Company will pursue at its discretion, as stated in this sub-clause.
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D. |
To the extent that the Company pursued the Early Redemption Alternative, the following provisions shall enter into force:
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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E. |
The Company will deliver to the Trustee any calculation that the Company will make for the purpose of performing the said in this sub-clause above in an active Excel file together with any other relevant document.
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2.9. |
Results of the sale or the replacement of the Pledged Assets and the removal of the pledges on Pledged Assets
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2.10. |
With regard to the remainder of the assets of the Company and the Pledgor that are not pledged in favor of the Trustee for the Debenture Holders (Series E), it is clarified that the Company or the Pledgor, as the case may be, shall be
entitled to pledge the said assets (including their returns), in whole or in part, in any charge and in any manner, in favor of any third party, without obtaining any approval from the Trustee or from the Debenture Holders (Series E).
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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3. |
Declarations and undertakings of the Company, Ellomay Energy Ltd. and the Pledgor in connection with the Pledged Assets (as the case may be)
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3.1. |
The Pledgor is a limited, registered partnership, in which the Company is the only limited partner, and its general partner is Ellomay Energy Ltd. a wholly-owned private company under the direct ownership of the Company. The Pledgor
holds directly 50% of the issued and paid-up capital of Dori Energy (including on fully-diluted basis).
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3.2. |
Dori Energy is a private company, whose shares are not listed for trade in any stock exchange, and that, as of the signing date of this Deed, 50% of its issued and paid-up capital is held by the Company (including on fully-diluted basis)
indirectly by the Pledgor. It is clarified that save as provided in the Notice and the Irrevocable Instructions, as such term is defined in clause 2.1.3 of this Appendix, the provisions of this Deed shall not impose any obligation and/or
liability on Dori Energy towards any person and/or corporation, including, and without prejudice to the generality of the aforesaid, any obligation and/or liability towards the Trustee and/or the Debenture Holders.
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3.3. |
Dorad is a private company, whose shares are not listed for trade in any stock exchange, and a rate of 18.75% out of its issued capital is held by Dori Energy, and 9.375% is held by the Company (through the Pledgor). Except for the
indirect holding of the Company in Dorad as stated in this clause, there is no other holding, whether directly or indirectly, of the Company in Dorad or in Dori Energy.
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3.4. |
It is clarified that the aforesaid shall not constitute an undertaking of the Company and/or the Pledgor and/or Dori Energy to continue and hold such a holding rate as said, without prejudice to the undertakings of the Company and the
Pledgor, as the case may be, to comply with the provisions set forth in Appendix 7 pertaining to the sale and/or the replacement of the Pledged Assets.
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3.5. |
The Pledgor holds the entire Pledged Shares, including the entire Rights Attached to the Pledged Shares, and holds the entire rights in connection with the Existing Shareholders’ Loans to Dori Energy, and the Company does not, whether
directly or indirectly, hold additional rights in Dori Energy and Dorad. For the avoidance of doubt, it is clarified that the Existing Shareholders’ Loans to Dori Energy do not include and will not include any loans that were provided
and/or that will be provided to Dori Energy by the Luzon Group and/or anyone acting on its behalf and/or any other shareholder of Dori Energy, to the extent that there is any.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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3.6. |
To date legal proceedings in connection with Dori Energy and Dorad are pending, and the Company and/or the Pledgor and/or other investees of the Company are parties in such proceedings as said. For further information regarding such
proceedings as said see Item 5.B in the annual report published by the Company in the Distribution Website of the Securities Authority on March 31, 2022, Note 6.A of the financial statements of the Company for the year 2021 that were
attached to the said annual report and Note 6.A of the consolidated financial statements of the Company for June 30, 2022, that the Company published in the Distribution Website of the Securities Authority on September 25, 2022.
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3.7. |
There are no limitations on the creation of the pledges on the Pledged Assets in favor of the Trustee, the Debenture Holders in accordance with any law and/or agreement and/or undertaking, including the instruments of incorporation of
the Company, of the Pledgor, of Dori Energy and Dorad, in such manner that these are valid, exercisable and enforceable, except for a restriction on the pledge of the Pledged Shares by virtue of the financing agreements by virtue of which
Dorad borrowed the senior debt (hereinafter: the “Agreement for Provision of Financing to Dorad”) according to which the consent of the representative on behalf of the lenders who lent Dorad the
senior debt is required (hereinafter: the “Lenders”) for the purpose of creating the charge on the shares charged in favor of the Trustee in accordance with the provisions set forth in this Deed
(hereinafter: the “Consent of the Representative on behalf of the Lenders”). In addition, the shareholders agreement in Dori Energy and the Articles of Dori Energy include restrictions on the charge
or the pledge of the shares of Dori Energy and the Pledged Shareholders’ Loans in such manner that the approval of the Luzon Group is required for the purpose of creating the pledges on these assets.
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3.8. |
The Pledged Assets are free and are not charged or attached to any other right and there is no limitation on the realization of the pledges and/or the sale of the Pledged Assets in accordance with the provisions set forth in any law
and/or agreement and/or undertaking, including the instruments of incorporation of the Company, the Pledgor, Dori Energy and Dorad, except for the following: (1) by virtue of the Shareholders Agreement in Dori Energy and the Articles of
Dori Energy, the shareholders in Dori Energy are subject to right of first refusal to purchase and obtain by way of a transfer the entire shares of Dori Energy and the shareholders’ loans that were provided to Dori Energy, under conditions
that are identical to the conditions offered by a third party, and are subject to tag-along right to a sale transaction. It is emphasized that in accordance with the Shareholders Agreement in Dori Energy and the Articles of Dori Energy, the
holder of a pledge or a charge with respect to the shares of Dori Energy, including the Trustee in its capacity as the charge holder with respect to the charged shares in accordance with the provisions set forth in this Deed, and a
liquidator and/or a receiver, whether temporary and whether permanent, and any other person who will be entitled to the shares of Dori Energy by way of a court order or the Execution Office, shall also be subject to the right of first
refusal set out in the shareholders agreement in Dori Energy and the Articles of Dori Energy, however not to the tag-along right set out in the shareholders agreement in Dori Energy, in such manner that the entire process for the
realization of the collateral (the Pledged Shares) shall be deemed, mutatis mutandis, and with respect to dates etc., as the delivery of written notice of a shareholder in Dori Energy of the shares
that are charged to the transfer of the said shares, provided that in such circumstances as said the Luzon Group shall be entitled to exercise the right of first refusal granted to it within 7 days as of the date of the notice3
(hereinafter: the “Right of Refusal of the Luzon Group” or the “Right of Refusal”); (2) in accordance with the Agreements of Dori Energy, a third party that
will purchase the Pledged Shares and the Pledged Shareholders’ Loans will be required to step in and take over the Pledgor for the purpose of this matter these agreements, and join them with respect to rights and obligations, as the case
may be; (3) the Pledged Shares and the Pledged Shareholders’ Loans will be transferred, to the extent transferred, en bloc, in accordance with the provisions set forth in the Agreements of Dori Energy; (4) in accordance with the Dorad
Instruments of Incorporation, the transfer of the Pledged Shares to a direct or indirect competitor of Dorad, to a transferee with a criminal record or to a foreign transferee who is hostile to the State of Israel is prohibited; (5) the
shareholder who is the transferee of the shares of Dori Energy will step in and take over the Company, Ellomay Energy Ltd., and the Pledgor in anything related to the rights and obligations towards the Lenders by virtue of the Dorad
Financing Agreements, and shall be obligated to sign any document or any other approval that is requirements set forth in for the purpose of performing the aforesaid actions; (6) according to the regulation existing on the signing date of
this Deed and the electricity production and supply licenses that were given to Dorad, if the Pledgor is considered an “interested party” in Dorad on the realization date of the charge (as such term is defined in the Electricity Market
Rules (Charges and Transfers of Control), 5779-20194) (hereinafter: the “Electricity Market Rules – Transfers”) the approval of the Electricity Authority shall be required for the purpose
of realizing the charge on the Pledged Shares and the Electricity Authority will consider, inter alia, the identity of the transferee and the effect of the transfer on the electricity market
according to the circumstances of the case; (7) according to the Consent of the Representative on behalf of the Lenders, the realization of the pledge will be subject to the approval of the Lenders of the identity of the shareholder to
which the shares of Dori Energy will be transferred, and such a shareholder as said will step in and take over the Pledgor, Ellomay Energy Ltd., and the Company in anything related to the rights and obligations towards the Lenders by virtue
of the Dorad Financing Agreements, and therefore shall be obligated to sign any document or approval that will be required for the purpose of arranging such requirements as said; and (8) in accordance with the Guarantee Provision Agreement
(as such term is defined in clause 3.17.2 hereunder) if the realization or the sale of the Pledged Assets shall confer on the buyer control5 in Dori Energy the approval of the Bank’ (as such term is defined in clause 3.17.2
hereunder) will be required and the buyer shall be required to step in and take over the Company, Ellomay Energy Ltd., and the Pledgor in anything related to the rights and obligations towards the Bank by virtue of this agreement and
therefore shall be obligated to sign any document or approval that is required for the purpose of arranging the said matters.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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3.9. |
In accordance with the Shareholders Agreement in Dori Energy, the Pledgor and the Luzon Group shall be entitled to approach an adjudicator, as defined in the shareholders agreement in Dori Energy (hereinafter in this clause: the “Adjudicator”) for the purpose of deciding on a separation mechanism between the parties that might be by way of a bidding process or a BMBY (Buy Me Buy You) procedure (hereinabove and hereinafter: the “Separation Procedure”). Within the framework of the Separation Procedure the selling party will assign to the buying party its shares in Dori Energy, together with the entire shareholders’ loans that will
be available to it and that it provided until that time to Dori Energy, and it shall be released from any guarantee and/or security that it provided for an undertaking of Dori Energy and/or of Dorad.
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3.10. |
By virtue of the provisions of the law, the Dorad Instruments of Incorporation and the Financing Agreements of Dorad, there are certain limitations on the ability of Dori Energy (as a shareholder in Dorad) to perform certain transactions
for the transfer of the holdings in Dorad (the main limitations are: right of first refusal for the other shareholders in Dorad that is triggered in certain transfer transactions; a limitation regarding the identity of certain transferees;
the need to obtain the approval of the Board of Directors of Dorad for the performance of the transfer; the approval of finance providers; limitations on the creation of collaterals and/or charges and/or pledges and/or the provision of
priority rights and/or the provision of an option to create a collateral on the shares of Dorad; approval of the Representative on behalf of the Lenders regarding the sale and/or waiver and/or transfer of the Dorad shares (including rights
in the Dorad shares); stepping in and taking over by the transferee to the shareholder transferring the shares of Dorad with respect to the financial documents to which the transferor is a party, and the creation of a charge on the shares
of Dorad that are transferred in favor of the Lenders; limitation on the use of the Dorad shares by a third party; in addition, and in accordance with the existing regulation on the signing date of this Deed and the electricity production
and supply licenses that were issued to Dorad, if the transfer of the holdings in Dorad is considered as a change of an “interested party” in Dorad (as meant by this term in the Electricity Market Rules – Transfers), the approval of the
Electricity Authority for the performance of the transfer shall be required.
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3.11. |
The Articles of Dori Energy permits the issuance of share certificates in respect of the charged shares.
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3.12. |
Save as provided in this Deed hereinabove and hereunder, the undertakings that the Company and the Pledgor assumed in accordance with this Deed, and the creation of the charges on the Pledged Assets, are not in contradiction to any
undertaking that applies to the Company and/or the Pledgor and/or Dori Energy and/or in favor of any other third party, and the charge of the Pledged Assets does not require approval by Dori Energy and/or from any third party and/or the
delivery of any notice to any third-party.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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3.13. |
Subject to the aforesaid, (a) the rights of the Company and the Pledgor in the Pledged Assets, as the case may be, and each of the Pledged Assets themselves are free and unencumbered from any claim, demand, debt, attachment, charge
and/or any other third-party rights, and no third-party has any right in connection therewith, and no right and/or option was granted to any person and/or any other entity to purchase the Pledged Assets or a part thereof; (b) no assignment
of right or any other action that derogates from the value of the Pledged Assets and/or from the rights of the Company and/or the Pledgor in connection with the Pledged Assets, in whole or in part, save as provided in this Deed of Trust,
and in particular in this clause above. The Company and the Pledgor hereby undertake that as of the date of this Deed, they shall notify the Trustee immediately and in writing regarding any circumstances in which a change in the provisions
set forth in this sub- clause will occur; (c) no approval from any third party is required for the purpose of creating the charges under this Deed, save as provided above.
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3.14. |
On the signing date of this Deed the Company and/or Ellomay Energy Ltd. and/or the Pledgor and/or Dori Energy and/or Dorad are not under liquidation proceedings and/or receivership proceedings (temporary or permanent) including in
connection with any of their assets and/or a stay of proceedings and/or any proceeding in accordance with the Insolvency Law, and no application for a liquidation order and/or a receivership order and/or stay of proceedings and/or any other
proceeding in accordance with the Insolvency Law was filed against them as said, including in connection with any of their assets, and the Company or Ellomay Energy Ltd. or the Pledgor are not aware of any threat to file such an application
or to commence such proceedings as said. In addition, the Company, Ellomay Energy Ltd., the Pledgor and Dori Energy did not adopt a resolution on liquidation and do not intend to adopt such a resolution. The Company undertakes that as of
the date of this Deed the Company will notify the Trustee in any event in which a change in this sub-clause occurs, to the best of its knowledge.
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3.15. |
On the signing date of this Deed the Company, Ellomay Energy Ltd. and the Pledgor did not create and did not undertake to create a floating charge on its entire assets.
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3.16. |
The Company, Ellomay Energy Ltd. and the Pledgor, as the case may be, did not receive any notice regarding any claims regarding its rights in the Pledged Assets, in whole or in part. The Company undertakes to deliver written notice to
the Trustee in any event in which a change in this sub-clause occurs in 2 Business Days after becoming aware of the said.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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3.17. |
Information regarding the existing shareholders’ loans to Dori Energy:
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3.17.1. |
The Existing Shareholders’ Loans to Dori Energy include the following: (1) a loan that is subject to a shareholders’ loans agreement between Dori Energy and the Pledgor dated January 19, 2023 in the amount of NIS 10 million that,
according to its conditions, will be paid on December 31, 2023 and that can be paid in early payment without penalty, bearing annual interest at a rate of the amount of the interest that the senior debt of Dorad bears with the addition of
3% (as of the date of this Deed of Trust, the senior debt of Dorad bears annual interest at a rate of 5.1% and, respectively, as of the date of this Deed of Trust, the loan bears annual interest at a rate of 8.1% and is linked to the
consumer price index (principal and interest)) and (2) capital notes between Dori Energy and the Pledgor, dated December 31, 2022, from no. 5 to no. 8, for a total amount of NIS 23,466,472.17 and that, according to their conditions, are
payable only after sixty (60) months as of the date of signing thereof.
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3.17.2. |
In accordance with the agreement for the provision of a bank guarantee in favor of Dori Energy, that was made between Dori Energy and Israel Discount Bank Ltd. (hereinafter in this clause respectively: the “Guarantee Provision Agreement in favor of Dori Energy” and the “Bank”), upon the occurrence of the cases as stated in the Guarantee Provision Agreement in favor of Dori Energy and that
include, inter alia, a change of control in the Company, in Ellomay Energy Ltd., in the Pledgor or in Dori Energy that was not approved by the Bank, failure to comply with financial covenants,
failure by the Company, the Pledgor or Dori Energy to comply with their undertakings towards the Bank, to the extent that there are such undertakings as said, the occurrence of an event of default under the Dorad financing agreements and in
any event in which the Bank is entitled to call the credit of the Company, Dori Energy or the Pledgor for immediate repayment and/or bring forward the payment dates that are due from any thereof to the Bank and/or reduce and/or cancel the
credit limits of any thereof in their accounts in the Bank, to the extent that there are any, the Pledged Shareholders’ Loans shall be subordinated to the amounts that Dori Energy will owe to the Bank as said. As of the signing date of this
Deed, none of the events that, upon their occurrence, the Pledged Shareholders’ Loans will be subordinated as said, occurred. The Company will include disclosure in its annual financial statements and in its quarterly financial results
regarding the existence or lack of existence of the causes by virtue of the Pledged Shareholders’ Loans will become subordinated as stated above. To the extent that one or more of the said causes holds true, the Company will include in the
disclosure the amounts that Dori Energy will owe to the Bank.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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3.17.3. |
The provisions of the law do not prevent from Dori Energy to offset and/or withhold the return of the Pledged Shareholders’ Loans.
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3.18. |
As of the date of this Deed, there are no limitations imposed on the performance of transactions between the Pledgor and Dori Energy, including by virtue of the Dori Energy agreements, except for the following: (1) in accordance with the
Shareholders Agreement in Dori Energy that requires a majority of 75% in the general meeting of Dori Energy and/or in the meeting of the Board of Directors of Dori Energy (as the case may be) for the purpose of performing transactions of
Dori Energy with an interested party or in which an interested party has personal interest; and (2) upon the occurrence of the cases as stated in clause 3.17.2 above; and (3) pursuant to the resolution adopted by the Board of Directors of
Dori Energy dated January 14, 2016, notwithstanding any provision to the contrary in the instruments of incorporation of Dori Energy, and despite the fact that Dori Energy is a private company, as of this date Dori Energy shall act in
accordance with the provisions set forth in Sections 268 to 284 of the Companies Law and/or any other provisions of the law that will replace and/or supplement them from time to time, as if Dori Energy was a public company.
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3.19. |
As of the date of this Deed, there are no limitations on the performance of a distribution by Dori Energy, including by virtue of the Dori Energy agreements, except for the following: (1) in accordance with the Shareholders Agreement in
Dori Energy, in which a majority at a rate of 75% is required in the general meeting of Dori Energy and/or in the meeting of the Board of Directors of Dori Energy (as the case may be) for the purpose of performing a distribution by Dori
Energy; and (2) upon the occurrence of the cases as stated in clause 3.17.2. As of the signing date of this Deed, Dori Energy did not commit such a breach as said.
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3.20. |
As of the date of this Deed, there are no limitations on a change in the field of activity of Dori Energy, including by virtue of the Dori Energy Agreements, and except for the provisions of the Shareholders Agreement in Dori Energy in
which a requisite majority of 75% in the general meeting of Dori Energy and/or in the meeting of the Board of Directors of Dori Energy (as the case may be) is required, for the purpose of making a material change in the business of Dori
Energy, including the entry of Dori Energy into a material business activity in which it is not engaged on the date of adopting the resolution and/or terminating a material business activity of Dori Energy.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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3.21. |
It is clarified that the provisions of clauses 3.7-3.10 and 3.18-3.20 in this Appendix above shall not constitute an undertaking of the Company or the Pledgor not to agree to change the limitations set out in the said clauses. To the
extent that the said limitations in the said clauses change, the Company will provide disclosure for the purpose of this matter in the financial statements or in the financial results, as the case may be, for the period in which the said
change was performed. The Company shall exercise its powers stemming from the holding of the Pledgor in the Pledged Shares for the purpose of trying to prevent changes as said that will harm the rights of the Holders.
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3.22. |
The holdings of the Luzon Group in Dori Energy and the rights relating to the shareholders’ loans that were provided by the Luzon Group to Dori Energy are charged in favor of the Debenture Holders (Series H) of the Luzon Group, in
accordance with a Deed of Trust between the Luzon Group and Reznik Paz Nevo Trusts Ltd., dated January 19, 2017.
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4. |
Undertakings of the Company, Ellomay Energy Ltd. (as the general partner of the Pledgor) and the Pledgor in connection with the Pledged Shares of Dori Energy
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4.1. |
To exercise the power stemming from the holding of the Pledgor of the Pledged Shares so that Dori Energy will sign any document that is required in accordance with the Deed of Trust for the purpose of creating, registering and amending
(to the extent required) the pledge on the Pledged Shares and the Rights Attached thereto.
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4.2. |
To exercise the power stemming from the holding of the Pledgor of the Pledged Shares so that Dori Energy will not amend its instruments of incorporation and/or any agreement or document that Dori Energy will engage in the future, in such
manner that any limitations will apply to the pledge of the Pledged Shares, their transferability or exercise thereof and/or in connection with the realization of the said pledge in addition to the limitations existing as of the date of
this Deed as stated above.
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4.3. |
Subject to the provisions set forth in the Deed of Trust, to avoid from the performance of any Disposition in the Pledged Shares in contravention of the provisions set forth in this Deed and as long as the entire secured amounts were not
paid and the entire undertakings of the Company in respect of the Debentures were not fulfilled without obtaining the prior and signed approval of the Trustee after adopting an Ordinary Resolution of the Meeting of the Debenture Holders. “Disposition” for the purpose of this matter – any action, whether by way of an act or omission, that can cause circumstances that the Company will not be the holder of the Pledged Shares (whether directly
or indirectly), including an undertaking to perform such an action in the future.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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4.4. |
Not to commence any proceedings or actions in respect of the Pledged Assets (including the Pledged Shares) or any part thereof, and the rights attached to the Pledged Assets in contravention of the provisions set forth in this Deed of
Trust, i.e., inter alia, not to affect the relative rate of the right of the Pledged Shares to dividends, the right of the Pledgor to participate in the distribution of the surplus of assets of Dori
Energy in the event of liquidation, the voting power in the general meetings of the shareholders of Dori Energy, including the right to appoint directors or managers, and rights of any kind that the Pledgor, in its capacity as the holder of
the Pledged Shares has, or to commence any proceedings or actions that will impair the effect of the charges or their scope or the ability of the Trustee to realize the Pledged Assets or enforce the charge on the Pledged Assets in
accordance with this Deed, all unless the prior approval of the Meeting of the Debenture Holders is adopted in a Special Resolution, with respect to any of the actions enumerated in this clause above.
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4.5. |
Subject to the provisions of the Deed of Trust, not to commence any proceedings in respect of the Pledged Assets that can impair the effect of the pledges on the Pledged Assets and/or the ability of the Trustee to realize the Pledged
Assets.
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4.6. |
Not to create and not to undertake to create and not to permit the existence, in any manner, and all by way of an act or omission, of any pledge or charge or any other similar action of any kind and/or level with respect to any of the
Pledged Assets and not to grant any right of any kind in the Pledged Assets to any third party in any manner, except for the pledges that are permitted in accordance with the provisions set forth in this Deed.
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4.7. |
To act in connection with the Pledged Assets in accordance with the undertakings set out in the Deed of Trust and to use, hold and act in anything related to and/or stemming from the Pledged Assets subject to the provisions set forth in
the Deed of Trust.
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4.8. |
Within 2 Business Days after the Company becomes aware of the said, to notify to the Trustee in writing regarding any event of an attachment that is imposed, commencement of execution proceedings, realization of a charge or the filing of
an application for the appointment of a receiver on the Pledged Assets or a part thereof or the appointment of any other functionary by the court. In addition, after the Company becomes aware of the said, to deliver notice promptly
regarding the existence of a pledge in favor of the Trustee to the authority that imposed the attachment or commenced execution proceedings or that was asked to appoint a receiver as said and/or any other functionary who was appointed by
the court and/or a third party that commenced or that requested the aforesaid or any part thereof, and commence immediately at the expense of the Company all reasonable measures that are required for the purpose of canceling the attachment,
the execution proceeding or the appointment of the receiver or any other functionary who was appointed by the court, as the case may be.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
|
4.9. |
To perform and order Dori Energy to perform, at the expense of the Company, to the extent that this is required and reasonable under the circumstances of the case, so that the effect of the pledge on the Pledged Assets shall be valid
towards third parties, including other creditors – present or future – of the Company or the Pledgor, and shall take precedence over their rights in anything related to the Pledged Assets.
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4.10. |
To object to any amendment in the Articles of Dori Energy stating that additional limitations on the transfer and/or sale and/or charge and/or realization of the Pledged Assets will apply, or will enable the issuance of securities with
priority rights with relation to the ordinary shares of Dori Energy, and object to any limitation as said that will be incorporated in any Shareholders Agreement in Dori Energy, and all except for the performance of the actions permitted in
accordance with this Deed of Trust, including in accordance with the provisions of clause 4.12.
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4.11. |
As of the signing date of this Deed, the Company or the Pledgor is not aware of any defect in their rights in the Pledged Assets and if such a defect in their rights in the Pledged Assets is detected they shall act for the purpose of
repairing such a defect at the earliest opportunity immediately after the Company or the Pledgor becomes aware of the said, as the case may be, and shall deliver written notice promptly to the Trustee regarding the said defect, the manner
it intends to repair the defect, the period of time in which the defect will be repaired and completed and the repair of the defect.
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4.12. |
No corporation between the Pledgor and Dori Energy shall be formed and the Pledgor shall not take any financial debt, except for shareholders’ loans, guarantees, loans and undertakings that are required in direct connection with Dorad,
and shall not register any charge and/or pledge in favor of a third party, except for the circumstances required in direct connection with Dorad. The Company shall exercise the power stemming from the holding of the Pledgor of the charged
shares so that Dori Energy will not take any financial debt, except for shareholders’ loans, guarantees, loans and undertakings that are required in direct connection with Dorad, and shall not register any charge and/or pledge in favor of a
third party, except for the circumstances required in direct connection to Dorad. The Company shall use the power stemming from the holding of the Pledgor of the shares of Dori Energy so that the sole activity of the Pledgor and of Dori
Energy shall be the holding of Dorad and activities related to Dorad.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
|
|
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[The Pledgor]
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[Ellomay Energy Ltd.]
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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1. |
In the framework or with regards to my position as ___________ to the Holders of Debentures (Series E) of Ellomay Capital Ltd. (hereinafter: “the Work”), I might receive or be exposed to
information which is not public knowledge, including, without limitation, information or professional, technical, financial, technological, commercial or other knowledge pertaining directly and/or indirectly to the Company, the Company’s
subsidiaries or affiliates (as these terms are defined in the Securities Law, 5728-1968 (hereinafter: “the Securities Law”)), to corporations in the Company’s group (associate companies and
corporations in which any of the entities as stated in this clause have holdings) and/or to holders of controlling interests in the Company (hereinafter jointly: “the Group”), procedures and/or
methods of work and/or activity of the Group as well as commercial and business information of any other type which is not public knowledge (hereinafter jointly: “Confidential Information”). Despite
the foregoing, the term Confidential Information shall not include information as stated above, which I could prove, that: (1) it is public knowledge (including information publicly published by you or by holders of controlling interests
within you) or which shall become public knowledge not due to breaching the provisions of this confidentiality undertaking; or (2) which was known to us prior to its disclosure by the Company and we can provide reasonable proof thereof; or
(3) that it was given to us by a third party, provided that upon receiving the information as stated we were not aware, having asked its provider, that the disclosure of that information by that third party constitutes a breach of the
fiduciary duty by that third party towards the Company.
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2. |
I am aware that I am prohibited from disclosing the Confidential Information to any person, and that I shall not be entitled to use the Confidential Information for any purpose, unless it is for the Work. Despite the foregoing, I shall
be entitled (a) to deliver conclusions and evaluations based on the Confidential Information to Holders of Debentures (Series E) of the Company (including presenting it in the Meetings of Debenture Holders for the purpose of adopting a
resolution pertaining to their rights), provided that the reliance upon information as stated shall be limited to the minimal extent and scope required in order to meet the requirements of the law, and that I have given a notice to the
Company in this regard a reasonable time in advance, in order to give the Company sufficient leave to approach the court in order to prevent the delivery of conclusions and evaluations as stated, to the extent that this is without prejudice
to the rights of the Debenture Holders; (b) to deliver conclusions and evaluations based on the Confidential Information to the representing body of the Debenture Holders, which shall be duly appointed by the Debenture Holders, provided
that all members of the representing body (inasmuch as there shall be any) have signed a declaration regarding the absence of a conflict of interests or non-competition with the Company, and to enable the representing body of Debenture
Holders as stated, to view the Confidential Information in our office; (c) to disclose Confidential Information, inasmuch as I shall be required to do so by law or at the request of a competent authority by law and/or in accordance with a
judicial order, provided that the disclosure is limited to the minimal extent and scope required in order to meet the requirements of the law and I shall pre-coordinate with you, inasmuch as it is possible and permitted, and to the extent
that this is without prejudice to the rights of the Debenture Holders, the content and timing of the disclosure in order to give you sufficient leave to defend against such as request.
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UNOFFICIAL TRANSLATION FROM HEBREW
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THE BINDING VERSION IS THE HEBREW VERSION
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3. |
In addition to permitted delivery of Confidential Information as stated in clause 2, and without derogation to the stated therein, disclosing Confidential Information shall be done only to my employees and/or authorized representatives
on my behalf, including my professional consultants alone. I am aware, that disclosure or use on a need-to-know basis by an authorized receiver (hereinafter: “Authorized Receiver”) not in accordance
with the provisions of this letter is treated as disclosure or use as stated by myself, and I shall take all means required to keep the Confidential Information confidential. My undertaking herein shall not apply to an Authorized Receiver
who shall sign an undertaking of confidentiality similar by all material aspects to the undertaking set forth in this letter.
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4. |
I am aware that disclosing the Confidential Information to any person or body might be contrary to the Israeli securities laws. I am aware, that due to my exposure to the Confidential Information, various limitations might apply to me if
I shall receive inside information, as this term is defined in the Israeli Securities Law, and I am taking and I shall take all reasonable means to ensure that there shall be no prohibited use of inside information pertaining to the
Confidential Information.
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5. |
All documents which shall be given to me by you or which shall arrive in my possession as a result and/or pertaining to my engagement with you, and which are related, directly or indirectly, to the Group and/or its activity (including
any copy or processing thereof) (hereinafter jointly: “the Documents”) shall belong to you at all times and shall be considered as your property for all matters and purposes, and shall be returned to
you by me at your request immediately upon the termination of the Work, apart from the information which I shall keep in accordance with the provisions of any law, including the instructions of a competent authority, or in accordance with
internal procedures, inasmuch as it is required for the purpose of documenting work processes. For the purpose of the stated in my undertaking herein, the term Documents shall be interpreted to include any means of holding information
whatsoever, including, but without derogation from the generality of the foregoing, physical, mechanical, magnetic, electronic, optic and/or electro-optic means.
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6. |
My undertaking in accordance with this letter shall remain effective even after the termination of the Work for any reason whatsoever, and until the Confidential Information becomes public (not due to breaching the undertaking in
accordance with this letter, inasmuch as there shall be any). My undertakings in accordance with this letter of confidentiality are irrevocable and cannot be cancelled and they are in addition and not instead of any duty imposed on me by
law and/or pursuant to any other agreement. My signature on this undertaking does not grant me any right to perform the Work, and the terms of employment shall be arranged in separate documents between us.
|
7. |
I shall keep the information in complete secrecy, at least at the same level of care by which I keep my own confidential information, and for this purpose I shall take a reasonable level of care at least.
|
8. |
It is clarified, that subject to the provisions of the Securities Law, the stated in this undertaking does not bind the Company to disclose any information whatsoever, and any disclosure and delivery to us shall be at the Company’s
absolute discretion.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
9. |
My undertakings in this document are towards each and every of the corporations in the Group, the Confidential Information of which shall be given to me.
|
10. |
If any instance or authority whatsoever shall determine that any of the undertakings in this document are not valid – the undertaking shall be minimized up to the rate permittee by law at that time, and a determination as stated shall
not harm the other undertakings and rights in accordance with this document.
|
|
|
|
|
|
Full name
|
|
ID number
|
|
Signature
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
1. |
The Company shall pay fee to the Trustee for its services in accordance with the Deed of Trust for the Debentures, as set forth hereafter:
|
1.1. |
Annual payment in the amount of NIS 20,000 for the first year of trust.
|
1.2. |
Annual payment in the amount of NIS 18,000 for each additional year of trust.
|
2. |
In addition to the amounts as stated in clauses 1.1 and 1.2 above, for actual hours of work that will be dedicated, inter alia, to handle the collaterals in a scope that will exceed 45 hours a
year, the Company will pay to the Trustee additional fees based on the hours of work that the Trustee will actually invest, multiplied by the fees per hour as stated in clause 6 hereunder. The count of the hours shall commence only as of
the date of the issuance, without taking into consideration the hours that were invested previously, except for the hours that were invested in handling the collaterals.
|
3. |
The Annual Fee shall be paid to the Trustee at the beginning of each trust year. The Annual Fee shall be paid to the Trustee for the period until the end of the trust period according to the terms of the Deed of Trust, even if a receiver
and/or receiver manager was appointed for the Company and/or if the trust according to the Deed of Trust shall be managed under the supervision of the court.
|
4. |
In the event that the Trustee shall participate in the discussions with the Securities Authority the Trustee will receive fees (for the rate stipulated in clause 1 hereafter), in accordance with the hours of the discussions the Trustee
will participate in, including a refund of travel costs. This payment is not conditioned upon the issue of the Debentures or signing the Deed of Trust.
|
5. |
In the event the term of the Trustee has expired as mentioned in the Deed of Trust, the Trustee shall not be entitled to the payment of its fee starting on the date that its office has expired. If the Trustee’s office has expired during
the trust year the fee paid to it for the months that it did not serve as Trustee of the Company shall be returned. The provisions in this clause shall not apply regarding the first trust year.
|
6. |
The Trustee is entitled to reimbursement for the reasonable expenses that it shall expend in the framework of fulfilling its duties, and/or pursuant to the powers granted to it according to the Deed of Trust, including, but not limited
to, expenses and costs for calling and convening meetings of Debenture Holders, reimbursement for transactions in the bank account of any kind including bank charges, issuance of printouts and powers of attorney, sale of securities and
delivery of documents, courier services, photocopying and travel.
|
7. |
The Trustee is entitled to additional payment, for actions, including those which it must perform in order to fulfill its lawful obligations pursuant to the Securities Law, (including amendments 50 and 51 of the Securities Law), and also
those arising from a breach or concern of a breach of this Deed of Trust by the Company such as the convening and management of meetings of the Debenture Holders, delivery of ballots to the Debenture Holders, comprehensive legal reviews and
analysis etc., the Trustee shall receive additional fees in the amount of NIS 600 for each hour of work.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
8. |
With regard to the obligation of the Trustee to attend the meetings of shareholders of the Company pursuant to Section 35 of the Securities Law, the Trustee shall receive an additional amount of NIS 500 per meeting for each meeting that
the Trustee will attend.
|
9. |
In the event that the series is increased, the annual fee paid to the Trustee will be increased (in respect of each year or a part thereof) notwithstanding anything to the contrary in clauses 1.1 and 1.2 above, for the same rate in which
the series was increased with relation to the par value on the initial public offering of the Debentures, however in any event the Trustee will not receive annual fee exceeding an addition of 50% of the annual fee as stated in clauses 1.1
and 1.2 above.
|
10. |
VAT if applicable, shall be added to the payments due to the Trustee, according to the provisions of this appendix and it shall be paid by the Company. The sums in this Appendix will be linked to the consumer price index, when the base
index shall be the index known on the date of this Deed of Trust however in any event no amount in arrears lower than the amount set out in this Appendix shall be paid. Each payment will be paid to the Trustee shortly after the date of
receiving the demand for payment, however in any event no later than 30 days as of the date of the demand.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
1. |
The Trustee shall summon a Debenture Holders Meeting for each series separately (“Annual Meeting”) each year and no later fourteen (14) days after the second annual report regarding trust matters
(as mentioned in clause 21 of the Deed of Trust) was submitted, which shall be convened no later than sixty (60) days after the report was submitted. The agenda of the Annual Meeting shall include the appointment of the Trustee for the
period that shall be determined (unless the prior Meeting determined a longer appointment time), a discussion of the annual report regarding trust matters as well as any other subject included in the agenda as stated in Section 25L2 of the
Securities Law.
|
2. |
The Trustee shall convene a Meeting of the Debenture Holders if it saw a need for this, or according to a written request of Debenture Holders that hold, alone or together, at least five percent (5%) of the balance of the nominal value
of the Debentures in circulation of that series.
|
3. |
In the event those requesting to summon a Meeting are Debenture Holders, the Trustee shall be entitled to demand indemnification from them, including in advance, for the reasonable costs involved in this.
|
4. |
The Trustee who was required to summon a Debenture Holders Meeting in accordance with the provisions of clause 2, shall summon it within 21 days after a demand to summon it was submitted to the Trustee, to a date that shall be determined
in the summons, provided that the convening date shall not be earlier than seven days and not later than 21 days from the summons date; however, the Trustee is entitled to bring the meeting forward, to at least one day after the summons
date, if it thought that this was required in order to protect the Debenture Holders rights and subject to the provisions of clause 21 hereafter; if it did so, the Trustee shall explain the reasons for bringing the convening date forward in
the report regarding the summoning of the Meeting.
|
5. |
The Trustee may, at its reasonable discretion, change the scheduled meeting time of a Meeting convened by him as well as per the Company’s request, in case the Meeting was summoned by the Company.
|
6. |
In the event the Trustee convened a Meeting of the Debenture Holders not according to the request of the Debenture Holders the Trustee is entitled to determine that the Meeting shall take place by electronic means.
|
7. |
If the Trustee did not summon the Debenture Holders Meeting, according to the demand of the Debenture Holder, within such time as mentioned in clause 1.4 above, the Debenture Holder may convene the Meeting, provided that the scheduled
Meeting shall be within 14 days, after the end of the period for summoning the Meeting by the Trustee and the Trustee shall bear the expenses that the Debenture Holder expended with respect to convening the meeting.
|
8. |
If the Debenture Holders Meeting was not convened as mentioned in clauses 1 or 2 above, the court may at the request of the Debenture Holder, order that it be convened.
|
9. |
If the court ordered as mentioned in clause 8, the Trustee shall bear reasonable costs that the applicant expended in a court proceeding, as shall be determined by the court.
|
10. |
The Company is entitled to convene, at any time, a Meeting of Debenture Holders in coordination with the Trustee. If the Company summons a Meeting as stated, it must immediately send the Trustee a written notice regarding the place, day
and time on which the Meeting shall take place, as well as the subjects to be brought up for discussion therein, and the Trustee or a representative on its behalf shall be entitled to participate in a Meeting as stated without having the
right to vote.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
11. |
Where there is no practical possibility to convene a Debenture Holders Meeting or to conduct it in the manner determined for this in the Deed of Trust or in the Law, the court may, at the request of the Company, of a Debenture Holder
that is entitled to vote in the Meeting or the Trustee, to order that a Meeting be convened and conducted in the manner as the court shall determine, and it may give supplementary instructions for this insofar as it shall see fit.
|
12. |
The court may, at the request of a Debenture Holder, order the cancellation of a resolution that was adopted in a Debenture Holders Meeting that was convened or conducted without fulfilling the requirements in the Law or according to
this Deed.
|
13. |
If the flaw in convening the Meeting concerns a notice regarding the place of convening the Meeting or its scheduled time, a Debenture Holder that attended the Meeting despite the flaw, shall not be entitled to demand the cancellation of
the resolution.
|
14. |
A notice of a Meeting of the Debenture Holders shall be published according to the provisions of chapter G1 of the Law (“Electronic Reporting”) and it shall be delivered to the Company by the
Trustee before the reporting and in accordance with the provisions in the regulations.
|
15. |
The summons notice shall include the agenda, the proposed resolutions and arrangements regarding a written vote according to the provisions of clauses 28 and 30 hereafter.
|
16. |
The Trustee shall determine the agenda in the Debenture Holders Meeting and it shall include issues for which the Debenture Holders Meeting is required according to clauses 1 and/or 2 above, and a subject for which it was requested as
mentioned in clause 18 of the Debenture Holder’s request.
|
17. |
Inasmuch as a Meeting shall be summoned in accordance with clause 10 above, the Company shall determine the Meeting’s agenda.
|
18. |
A Debenture Holder, one or more, that has five percent (5%) at least of the balance of the nominal value of the series of Debentures may request the Trustee to include an issue on the agenda of the Debenture Holders Meeting that shall be
convened in the future, provided that the issue is suitable to be discussed in the Meeting as mentioned.
|
19. |
In the Debenture Holders Meeting resolutions shall be adopted in issues as set forth in the agenda only.
|
20. |
The Debenture Holders Meeting shall take place in Israel at the Company’s offices or another place which the Trustee shall notify of. The Trustee may change the address of the Meeting. The Company shall bear the costs of convening the
Meeting at an address which is not its office.
|
21. |
Debenture Holders that are entitled to participate and to vote in the Debenture Holders’ Meetings are Holders of Debentures at the time that shall be determined in the decision to summon a Debenture Holders Meeting, provided that this
date shall not exceed three days before the date of convening the Debenture Holders Meeting and it shall not be less than one day before the convening date.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
22. |
In each Debenture Holders Meeting the Trustee or whomever it appointed shall serve as chairman of that Meeting.
|
23. |
The Trustee shall prepare a protocol of the Meeting of the Debenture Holders and shall keep it at its registered office for a period of seven (7) years after the Meeting date. The protocol of the Meeting may be by way of recording. A
protocol, insofar as made in writing, shall be signed by the chairman of the Meeting or by a chairman of the Meeting that was held after it. Each protocol that was signed by the chairman of the Meeting constitutes prima facie evidence to
whatever is stated in it. The protocol registry shall be kept with the Trustee as mentioned, and it shall be open for viewing by the Debenture Holders during work hours and with advance coordination and a copy of it shall be sent to any
Debenture Holder that shall request this.
|
24. |
The declaration of the chairman of the Meeting that a resolution in the Debenture Holders Meeting was adopted or rejected, whether unanimously or by a certain majority, shall be prima facie evidence to whatever is stated in it.
|
25. |
A Meeting of the Debenture Holders shall be opened by the chairman of the Meeting after he has determined that the legal quorum required for any of the issues on the agenda of the Meeting exists, as follows:
|
25.1. |
The legal quorum required for opening a Meeting of the Debenture Holders shall be the presence of at least two Debenture Holders, who are present themselves or by their proxies, that hold at least twenty five percent (25%) of the voting
rights in circulation, within half an hour of the time that was scheduled for opening the Meeting, unless stipulated otherwise in the Law.
|
25.2. |
If a legal quorum was not present in the Debenture Holders Meeting at the end of half an hour after the time scheduled for the beginning of the Meeting, the meeting shall be deferred to another time which shall not be earlier than two
Business Days after the record date that was determined for convening the original meeting or one Business Day, if the Trustee was of the opinion that this is required for protecting the rights of the Debenture Holders; if the Meeting was
deferred, the Trustee shall explain the reasons for this in the Meeting summons report.
|
25.3. |
If a legal quorum was not present in the deferred Debenture Holders Meeting as mentioned in clause 25.2 above, half an hour after the time that was scheduled for it, the Meeting shall be convened with any number of participants, unless
stipulated otherwise in the Law.
|
25.4. |
Notwithstanding the provisions in clause 25.3 above, in the event a Debenture Holders Meeting was summoned according to the demand of Debenture Holders that hold five percent (5%) at least of the balance of the nominal value of the
Debentures in circulation, the deferred Meeting shall be convened only if holders of certificates of undertaking were present in it at least in the number required for summoning a Meeting as mentioned (in other words: five percent (5%) at
least of the balance of the nominal value of the Debentures in circulation).
|
26. |
According to the decision of the Trustee or resolution by ordinary majority of those voting in a Meeting in which a legal quorum was present, the continuation of the Meeting adjourned (the “Original
Meeting”) from time to time, the discussion or adopting a resolution in an issue that was set forth in the agenda, to another time and to a place that shall be determined as the Trustee or the aforementioned Meeting shall decide
(the “Continued Meeting”). In the Continued Meeting and in the deferred meeting only matters that were on the agenda and in respect to which no resolution was adopted shall be discussed.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
27. |
The Trustee, at its reasonable discretion and subject to the provisions of any law, shall be entitled to split the Meeting into class meetings and to determine who shall be entitled to participate in each type of meeting.
|
28. |
A Debenture Holder is entitled to vote in Debenture Holders Meetings by himself or by proxy as well as by a voting deed in which he shall state the manner of his voting, and in accordance with the provisions of clause 30 hereinafter.
|
29. |
A resolution in the Debenture Holders Meeting shall be made by a count of votes.
|
30. |
A voting deed shall be sent by the Trustee to all of the Debenture Holders; a Debenture Holder may note the manner of his vote in the voting deed and send it to the Trustee.
|
31. |
Each 1 NIS nominal value of the Debentures that are represented by vote shall confer one vote in the voting. In case of joint Debenture Holders, only the vote of the person registered first in the registry shall be counted.
|
32. |
A Debenture Holder may vote for part of the Debentures held by him including voting for some of them in favor for the proposed resolution and for another part of them against the resolution, all as he shall see fit.
|
33. |
The holdings of an Affiliated Holder shall not be taken into account for determining the legal quorum in the Debenture Holders Meetings, and his votes shall not be taken into account in the vote of the Meeting as mentioned.
|
34. |
Resolutions in the Debenture Holders Meetings shall be adopted by a vote of an ordinary majority by a count of votes, unless another majority was determined in the Law or in the Deed of Trust.
|
35. |
The votes of those who have abstained in the vote shall not be counted in the number of votes participating in the vote.
|
36. |
A proposed resolution regarding an issue that was not determined in respect to it that it shall be decided by a certain majority as following hereafter, shall be decided in an ordinary resolution.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
37. |
The issues hereafter shall be decided in a Debenture Holders Meeting by a majority which is not ordinary and/or by a legal quorum that is different than the one set forth in clause 25, and these are the
issues:
|
37.1. |
Change, including an addition and/or amendment in the provisions of the Deed of Trust as mentioned in clause 27 of the Deed of Trust.
|
37.2. |
Any other issue in respect to which it was determined in the Deed of Trust that it is subject to a resolution by a majority that is not an ordinary majority.
|
37.3. |
A resolution regarding the replacement of a, shall be adopted by a majority of fifty percent (50%) at least of the unpaid balance of the Debentures in circulation.
|
38. |
An appointment instrument appointing an agent shall be in writing and it shall be signed by the appointer or by his proxy that has authorization to do so lawfully in writing. If the appointer is a corporation, the appointment instrument
shall be made in writing and will be signed by a stamp of the corporation, with a signature of the authorized signatories of the corporation.
|
39. |
An appointment instrument of the agent shall be made in any form which shall be acceptable by the Trustee.
|
40. |
An agent does not need to be a Debenture Holder himself.
|
41. |
An appointment instrument and power of attorney and any other certificate according to which an appointment instrument was signed or a certified copy of such power of attorney, shall be given to the Trustee by the time of convening the
Meeting unless it was otherwise stipulated in the notice summoning the Meeting.
|
42. |
The Trustee shall participate in the Meeting via its employees, officers, functionaries or another person that shall be appointed by it, however it shall not have a voting right.
|
43. |
The Company and any other person except for the Trustee shall be prevented from participating in the Debenture Holders Meeting or in any part of it, according to the decision of the Trustee or according to an ordinary resolution of the
Debenture Holders. Despite the stated in this clause, the Company could participate in the opening of a Meeting for the purpose of expressing its opinion regarding any subject on the Meeting’s agenda and/or presenting a certain subject (as
the case may be).
|
44. |
The Trustee, and the Debenture Holder, one or more, that has five percent (5%) at least of the balance of the nominal value of the Debentures in circulation, are entitled to address the Debenture Holders in writing, via the Trustee, in
order to convince them regarding the manner of their vote in any of the issues being raised for discussion in that Meeting (the “Position Paper”).
|
45. |
If a Debenture Holders Meeting was summoned in accordance with clause 2 above, a Holder is entitled to approach the Trustee in a request to publish, in accordance with the provisions of Chapter G.1 of the Law, Position Papers on his
behalf to the other Debenture Holders.
|
46. |
The Trustee or the Company are entitled to send Position Papers to Debenture Holders, as a response for a Position Paper sent as stated in clauses 44 and 45 above, or in response to any other inquiry towards the Debenture Holders.
|
47. |
The votes of a Debenture Holder who is the controlling shareholder in the Company, his family member or a corporation controlled by any thereof shall not be counted in the count of the votes, and these Debentures shall not entitle to
vote in the general meetings of the Debenture Holders as long as they are held by such a person as said.
|
UNOFFICIAL TRANSLATION FROM HEBREW
|
THE BINDING VERSION IS THE HEBREW VERSION
|
48. |
Save as provided in clause 47 above, the Trustee will take into consideration in the count of the votes the votes of all voters, except for the votes of the Debenture Holders who state in the ballot that their vote should not be
considered as a result of a conflict of interests these Debenture Holders have, and the Trustee will not independently examine their personal interest.
|
49. |
It is clarified that the examination of the conflict of interests as said above, to the extent that it is necessary in the opinion of the Trustee, will be made separately with relation to each of the decisions on the agenda of the
meeting, and separately with relation to each meeting. It is further clarified that the declaration of a Holder as having a conflict of interests in any decision or meeting, in and of itself, shall not attest to a conflict of interests of
that Debenture Holder in another decision on the agenda of the meeting or his conflict of interests in other meetings.
|
50. |
The provisions of clauses 2, 7, 16, 18 and 19 above cannot derogate from the Trustee’s authority to convene a Debenture Holders Meeting, if it saw it necessary to consult with them; in the summons to the Meeting as mentioned the issues
on its agenda shall not be detailed, and the date of the Meeting shall be one day at least after the summons date.
|
1. Execution date
|
25 May 2022.
|
2. Location and Size
|
The land is located on a plot with a size of 107,480 m2 in the Municipality of Latina, Lazio Latina, Latina - Borgo Bainsizza.
|
3. Term
|
Thirty one (31) years (until May 2053).
|
4. Annual Rent
|
€67,000, not including VAT and linked to the consumer price index in Italy.
|
1. Execution date
|
25 May 2022.
|
2. Location and Size
|
The Plant is located on a plot with a size of 96,319 m2 in the Municipality of Latina, Lazio Latina, Latina - Borgo Bainsizza.
|
3. Term
|
Thirty one (31) years (until May 2053).
|
4. Annual Rent
|
€24,000, not including VAT and linked to the consumer price index in Italy.
|
1. Execution date
|
1 July, 2022.
|
2. Location and Size
|
The Plant is located on a plot with a size of 20.30 hectares in the Municipality of Rome, Lazio Rome, Valletri.
|
3. Term
|
Thirty one (31) years (until March 2053).
|
4. Rent
|
Capitalized rent in the aggregate amount of €409,000, not including VAT, as an advance payment for the entire rental period and a regular annual rent of €36,000, not including VAT and linked
to the consumer price index in Italy.
|
1. Execution date
|
11 July, 2022.
|
2. Location and Size
|
The Plant is located on a plot with a total size of 987,856 m2 in the Municipality of Latina, Lazio Latina.
|
3. Term
|
Thirty one (31) years (until July 2053).
|
4. Rent
|
Capitalized rent in the aggregate amount of €916,000, not including VAT, as an advance payment for the entire rental period and a regular annual rent of €300,000, not including VAT and linked
to the consumer price index in Italy.
|
1. Execution date
|
22 December, 2022.
|
2. Location and Size
|
The Plant is located on a plot with a size of 28.50.24 hectares in the Municipality of Rome, Lazio Rome, Capena.
|
3. Term
|
Thirty one (31) years (until December 2053).
|
4. Annual Rent
|
€85,000, not including VAT and linked to the consumer price index in Italy.
|
Name of Subsidiary
|
Percentage of Ownership
|
Jurisdiction of Incorporation
|
Ellomay Clean Energy Ltd.
|
100%
|
Israel
|
Ellomay Clean Energy LP
|
100%
|
Israel
|
Ellomay Luxembourg Holdings S.àr.l.
|
100%
|
Luxembourg
|
Ellomay Spain S.L.
|
100%1
|
Spain
|
Rodríguez I Parque Solar, S.L
|
100%1
|
Spain
|
Rodríguez II Parque Solar, S.L.
|
100%1
|
Spain
|
Seguisolar S.L.
|
100%1
|
Spain
|
Talasol Solar S.L.U.
|
51%1
|
Spain
|
Ellomay Solar S.L.
|
100%1
|
Spain
|
Ellomay Solar Spain Two S.L.
|
100%1
|
Spain
|
Ellomay Solar Spain Three S.L.
|
100%1
|
Spain
|
Ellomay Holdings Talmei Yosef Ltd.
|
100%
|
Israel
|
Ellomay Sun Team Ltd.
|
100%2
|
Israel
|
Ellomay Talmei Yosef Ltd.
|
100%3
|
Israel
|
Ellomay Water Plants Holdings (2014) Ltd.
|
100%
|
Israel
|
Ellomay Manara (2014) Ltd.
|
100%4
|
Israel
|
Ellomay Pumped Storage (2014) Ltd.
|
83.33%4
|
Israel
|
Chashgal Elyon Ltd.
|
75%5
|
Israel
|
Pumped Storage Electra LP
|
75%5
|
Israel
|
Groen Gas Goor B.V.
|
100%1
|
The Netherlands
|
Groen Gas Oude-Tonge B.V.
|
100%1
|
The Netherlands
|
Groen Gas Gelderland B.V.
|
100%1
|
The Netherlands
|
Ellomay Development Italy S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy One S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Two S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Three S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Four S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Five S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Six S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Seven S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Eight S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Nine S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Ten S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Eleven S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Twelve S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Thirteen S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Fourteen S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Fifteen S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Sixteen S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Seventeen S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Eighteen S.r.l
|
100%1
|
Italy
|
Ellomay Solar Italy Nineteen S.r.l
|
100%1
|
Italy
|
1. |
Held by Ellomay Luxembourg Holdings S.àr.l.
|
2. |
Held by Ellomay Holdings Talmei Yosef Ltd.
|
3. |
Held by Ellomay Sun Team Ltd.
|
4. |
75% is held by Ellomay Water Plants Holdings (2014) Ltd. and 25% is held by Sheva Mizrakot Ltd., in which Ellomay Water Plants Holdings
(2014) Ltd. holds 33.333%.
|
5. |
Held by Ellomay Manara (2014) Ltd.
|
(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c) |
Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this
report based on such evaluation; and
|
(d) |
Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the
company’s internal control over financial reporting; and
|
(a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report
financial information; and
|
(b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
|
/s/ Ran Fridrich | ||
Ran Fridrich | ||
Chief Executive Officer
|
(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c) |
Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this
report based on such evaluation; and
|
(d) |
Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the
company’s internal control over financial reporting; and
|
(a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report
financial information; and
|
(b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
|
/s/Kalia Rubenbach
|
||
Kalia Rubenbach
|
||
Chief Financial Officer
|
A) |
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
B) |
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
/s/ Ran Fridrich | ||
Ran Fridrich | ||
Chief Executive Officer |
/s/ Kalia Rubenbach | ||
Kalia Rubenbach | ||
Chief Financial Officer
|
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