EX-10.18.5





Exhibit
10.18.5



EXECUTION COPY




Date:
January 5, 2009




ORPOWER4 INC

as Company




DEG — DEUTSCHE INVESTITIONS- UND

ENTWICKLUNGSGESELLSCHAFT MBH

as Lender




and




DEG — DEUTSCHE INVESTITIONS- UND

ENTWICKLUNGSGESELLSCHAFT MBH

as Global Agent





 






DEG B LOAN AGREEMENT

 









 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 
	 	 	 	 	 	Page
	 
	1	 	 	DEFINITIONS AND INTERPRETATION
	 	 	3	 
	1.1	 	 	Definitions
	 	 	3	 
	1.2	 	 	Construction
	 	 	4	 
	1.3	 	 	Third Party Rights
	 	 	4	 
	1.4	 	 	Lender’s Rights and Obligations
	 	 	4	 
	 	 	 	 
	 	 	 	 
	2	 	 	THE FACILITY
	 	 	4	 
	 	 	 	 
	 	 	 	 
	3	 	 	PURPOSE
	 	 	5	 
	3.1	 	 	Purpose
	 	 	5	 
	3.2	 	 	Monitoring
	 	 	5	 
	 	 	 	 
	 	 	 	 
	4	 	 	CONDITIONS PRECEDENT
	 	 	5	 
	4.1	 	 	Conditions Precedent to First Disbursement
	 	 	5	 
	4.2	 	 	Conditions Precedent to Second Disbursement
	 	 	5	 
	4.3	 	 	Conditions Precedent to Each Disbursement
	 	 	5	 
	4.4	 	 	Maximum Number of Loans
	 	 	5	 
	 	 	 	 
	 	 	 	 
	5	 	 	DISBURSEMENT
	 	 	5	 
	5.1	 	 	Completion of a Drawdown Request
	 	 	5	 
	5.2	 	 	Currency and Amount
	 	 	6	 
	5.3	 	 	Facility Office
	 	 	6	 
	 	 	 	 
	 	 	 	 
	6	 	 	REPAYMENT
	 	 	6	 
	6.1	 	 	Repayment of Loan
	 	 	6	 
	6.2	 	 	Reborrowing
	 	 	6	 
	 	 	 	 
	 	 	 	 
	7	 	 	PREPAYMENT AND CANCELLATION
	 	 	6	 
	7.1	 	 	Voluntary Prepayment
	 	 	6	 
	7.2	 	 	Cancellation
	 	 	6	 
	7.3	 	 	Restrictions
	 	 	7	 
	7.4	 	 	Mandatory Prepayment
	 	 	7	 
	7.5	 	 	Prepayment Premium, Break Costs, etc.
	 	 	7	 
	 	 	 	 
	 	 	 	 
	8	 	 	INTEREST
	 	 	7	 
	8.1	 	 	Calculation of Interest
	 	 	7	 
	8.2	 	 	Payment of Interest
	 	 	7	 
	8.3	 	 	Default Interest
	 	 	7	 
	8.4	 	 	Notification of rates of interest
	 	 	7	 
	 	 	 	 
	 	 	 	 
	9	 	 	INTEREST PERIODS
	 	 	8	 
	9.1	 	 	Duration of Interest Periods
	 	 	8	 
	9.2	 	 	Changes to Interest Periods
	 	 	8	 
	9.3	 	 	Non-Business Days
	 	 	8	 






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	 	 	 	 	 	Page
	 
	9.4	 	 	Consolidation and division of Loans
	 	 	8	 
	9.5	 	 	Fixed Rate Loans
	 	 	8	 
	 	 	 	 
	 	 	 	 
	10	 	 	FEES
	 	 	9	 
	10.1	 	 	Front-end fee
	 	 	9	 
	10.2	 	 	Commitment fee
	 	 	9	 
	10.3	 	 	Monitoring Fee
	 	 	9	 
	 	 	 	 
	 	 	 	 
	11	 	 	TAX GROSS-UP AND INDEMNITIES
	 	 	9	 
	 	 	 	 
	 	 	 	 
	12	 	 	INCREASED COSTS
	 	 	9	 
	 	 	 	 
	 	 	 	 
	13	 	 	OTHER INDEMNITIES
	 	 	10	 
	 	 	 	 
	 	 	 	 
	14	 	 	COSTS AND EXPENSES
	 	 	10	 
	 	 	 	 
	 	 	 	 
	15	 	 	REPRESENTATIONS
	 	 	10	 
	 	 	 	 
	 	 	 	 
	16	 	 	COVENANTS
	 	 	10	 
	 	 	 	 
	 	 	 	 
	17	 	 	EVENTS OF DEFAULT
	 	 	10	 
	 	 	 	 
	 	 	 	 
	18	 	 	ASSIGNMENTS
	 	 	11	 
	 	 	 	 
	 	 	 	 
	19	 	 	DIRECTIONS
	 	 	11	 
	 	 	 	 
	 	 	 	 
	20	 	 	NOTICES
	 	 	11	 
	 	 	 	 
	 	 	 	 
	21	 	 	CALCULATIONS AND CERTIFICATES
	 	 	11	 
	21.1	 	 	Accounts and Certificates and Determinations
	 	 	11	 
	21.2	 	 	Day Count Convention
	 	 	11	 
	 	 	 	 
	 	 	 	 
	22	 	 	PARTIAL INVALIDITY
	 	 	11	 
	 	 	 	 
	 	 	 	 
	23	 	 	AMENDMENTS AND WAIVERS
	 	 	12	 
	 	 	 	 
	 	 	 	 
	24	 	 	COUNTERPARTS
	 	 	12	 
	 	 	 	 
	 	 	 	 
	25	 	 	GOVERNING LAW
	 	 	12	 
	 	 	 	 
	 	 	 	 
	26	 	 	ENFORCEMENT
	 	 	12	 
	26.1	 	 	Jurisdiction
	 	 	12	 
	26.2	 	 	Arbitration
	 	 	12	 
	26.3	 	 	Service of Process
	 	 	14	 
	26.4	 	 	Waiver
	 	 	14	 
	26.5	 	 	Consolidation of Arbitral Proceedings
	 	 	15	 






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THIS
DEG B LOAN AGREEMENT (this “Agreement”) is dated
January 5, 2009 between:




	(1)	 	ORPOWER4 INC, a limited liability company established under the laws of the Cayman Islands
(the “Company”);
	 
	(2)	 	DEG — DEUTSCHE INVESTITIONS- UND ENTWICKLUNGSGESELLSCHAFT mbH (the “Original Lender”); and
	 
	(3)	 	DEG — DEUTSCHE INVESTITIONS- UND ENTWICKLUNGSGESELLSCHAFT mbH (the “Global Agent”).




IT IS AGREED as follows:





	1	 	DEFINITIONS AND INTERPRETATION
	 
	1.1	 	Definitions
	 
	 	 	In this Agreement:
	 
	 	 	“Common Terms Agreement” means the common terms agreement between, inter alia, the
Company, the Original Lenders and the Global Agent, dated on or about the date hereof.
	 
	 	 	“Facility” means the term loan facility made available under this Agreement as
described in Clause 2 (The Facility).
	 
	 	 	“Fixed Rate Break Costs” means the amount (if any) determined by each Lender which
would indemnify that Lender against any Liability that it or any participant incurs as a
consequence of any part of a Fixed Rate Loan or Unpaid Sum relating to a Fixed Rate Loan
being prepaid or otherwise not paid when due, and includes any costs or losses (excluding
the profit element of the Margin) incurred as a result of that Lender terminating all or
any part of its fixed rate, swap, hedging or other similar arrangement or in redeploying
the Loan in USD Treasury Bonds (USD) with a maturity corresponding to the remaining
maturity of the Loan.
	 
	 	 	“Interest Period” means, in relation to a Loan, each period determined in accordance
with Clause 9.1 (Duration of Interest Periods) and in relation to an Unpaid Sum, each
period determined in accordance with Clause 8.3 (Default Interest).
	 
	 	 	“Lender” means:






	 	(a)	 	any Original Lender; and




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	 	(b)	 	any bank or financial institution which has become a Party to this Agreement
and to the Common Terms Agreement in accordance with Clause 27 (Changes to Lenders) of
the Common Terms Agreement,






	 	 	and in each case which has not ceased to be a Party hereto in accordance with the terms of
the Finance Documents.
	 
	 	 	“Loan” means a loan made or to be made under the Facility or, as the context may
require, the principal amount outstanding for the time being of that loan.
	 
	 	 	“Party” means a party to this Agreement and includes its successors in title,
permitted assigns and permitted transferees.
	 
	 	 	“Repayment Instalment” means each instalment for repayment of a Loan referred to in
Clause 6.1 (Repayment of Loan).






	1.2	 	Construction






	 	(a)	 	Capitalised terms defined in the Common Terms Agreement have, unless
expressly defined in this Agreement, the same meaning given in this Agreement.
	 
	 	(b)	 	The provisions of Clause 1.2 (Construction) of the Common Terms Agreement
shall apply to this Agreement as though they were set out in full herein.






	1.3	 	Third Party Rights
	 
	 	 	A person who is not a Party to this Agreement has no rights under the Contracts (Rights of
Third Parties) Act 1999 to enforce any term of this Agreement.
	 
	1.4	 	Lender’s Rights and Obligations
	 
	 	 	The provisions of Clause 2.2 (Finance Parties’ Rights and Obligations) of the Common Terms
Agreement shall apply to this Agreement as though they were set out in full herein.
	 
	2	 	THE FACILITY
	 
	 	 	Subject to the terms of this Agreement and the Common Terms Agreement, the Lender agrees to
lend and the Company agrees to borrow a term loan facility in the aggregate amount of
fifteen million US Dollars (US$15,000,000) (the “Facility”).





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	3	 	PURPOSE
	 
	3.1	 	Purpose
	 
	 	 	The Company shall apply all amounts borrowed by it under the Facility in accordance with
Clause 3.1 (Purpose) of the Common Terms Agreement.
	 
	3.2	 	Monitoring
	 
	 	 	The Lender is not bound to monitor or verify the application of any amount borrowed
pursuant to this Agreement.
	 
	4	 	CONDITIONS PRECEDENT
	 
	4.1	 	Conditions Precedent to First Disbursement
	 
	 	 	The Lender shall not be obliged to make the first Disbursement unless the Global Agent
shall have received the notifications referred to in Clause 4.1(b) (Conditions of First
Disbursement) of the Common Terms Agreement.
	 
	4.2	 	Conditions Precedent to Second Disbursement
	 
	 	 	The Lender shall not be obliged to make the second Disbursement unless the Global Agent
shall have received the notifications referred to in Clause 4.3 (Conditions of Second
Disbursement) of the Common Terms Agreement.
	 
	4.3	 	Conditions Precedent to Each Disbursement
	 
	 	 	The Lender shall not be obliged to make a Disbursement unless the Global Agent shall have
received the notifications referred to in Clause 4.2(b) (Conditions of Each Disbursement)
of the Common Terms Agreement.
	 
	4.4	 	Maximum Number of Loans
	 
	 	 	The Company may not deliver a Drawdown Request if as a result of the proposed Loan, three
(3) or more Loans would be outstanding.
	 
	5	 	DISBURSEMENT
	 
	5.1	 	Completion of a Drawdown Request






	 	(a)	 	Each Drawdown Request shall be in accordance with Clause 5 (Disbursement) of
the Common Terms Agreement, is irrevocable and will not be regarded as having been
duly completed unless it is issued in accordance with the Common Terms Agreement and
the currency and amount of the Loan comply with Clause 5.2 (Currency and Amount);




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	 	(b)	 	Only one Loan may be requested in each Drawdown Request.






	5.2	 	Currency and Amount






	(a)	 	The currency specified in a Drawdown Request must be US Dollars.
	 
	(b)	 	The amount of the proposed Loan must be an amount which is not more than the
Available Facility.






	5.3	 	Facility Office






	 	 	If the conditions set out in this Agreement have been met, the Lender shall make each Loan
available through its Facility Office.






	6	 	REPAYMENT






	6.1	 	Repayment of Loan






	 	(a)	 	The Company shall repay the Loan on the Repayment Dates set out in Schedule
11 (Repayment Schedule) of the Common Terms Agreement.
	 
	 	(b)	 	Such balance of the Loans and any other amounts under this Agreement as
remain outstanding after the repayments pursuant to Clause 6.1(a) (Repayment of Loan)
are made, shall be repaid in full on the Final Repayment Date.






	6.2	 	Reborrowing






	 	 	The Company may not reborrow any part of the Facility which is repaid.






	7	 	PREPAYMENT AND CANCELLATION






	7.1	 	Voluntary Prepayment






	 	(a)	 	Any voluntary prepayment of the Loans shall be made in accordance with Clause
7 (Voluntary Prepayment and Cancellation) of the Common Terms Agreement.
	 
	 	(b)	 	Upon delivery of a notice in accordance with Clause 7.2(a) (Voluntary
Prepayment) of the Common Terms Agreement, the Company shall make the prepayment in
accordance with the terms of that notice.






	7.2	 	Cancellation
	 
	 	 	The Company may cancel the whole or any part of the Available Facility in accordance with
Clause 7.1 (Voluntary Cancellation) of the Common Terms Agreement.




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	7.3	 	Restrictions
	 
	 	 	The provisions of Clause 7.4 (Restrictions) of the Common Terms Agreement shall apply to
this Agreement as though they were set out in full herein.
	 
	7.4	 	Mandatory Prepayment
	 
	 	 	Any mandatory prepayment of the Loans shall be made in accordance with Clause 8 (Mandatory
Prepayments) of the Common Terms Agreement.
	 
	7.5	 	Prepayment Premium, Break Costs, etc.
	 
	 	 	For the avoidance of doubt, any Prepayment Premium, cancellation fees, Break Costs and
Fixed Rate Break Costs (if any) shall be payable in accordance with the Common Terms
Agreement.
	 
	8	 	INTEREST
	 
	8.1	 	Calculation of Interest
	 
	 	 	The rate of interest on each Loan for each Interest Period shall be the rate which is the
sum of:






	 	(a)	 	LIBOR;
	 
	 	(b)	 	the Mandatory Cost, if any; and
	 
	 	(c)	 	the Margin.






	8.2	 	Payment of Interest
	 
	 	 	On each Interest Payment Date the Company shall pay accrued interest on the Loan to which
that Interest Period relates. For the avoidance of doubt, interest in respect of each Loan
shall be calculated from and including the Interest Payment Date on which such Interest
Period commences and end on the day prior to the next occurring Interest Payment Date.
	 
	8.3	 	Default Interest
	 
	 	 	If the Company fails to pay any amount payable by it under this Agreement on its due date,
default interest shall accrue and be payable in accordance with Clause 9.3 (Default
Interest) of the Common Terms Agreement.
	 
	8.4	 	Notification of rates of interest
	 
	 	 	The Global Agent shall promptly notify the Lender and the Company of the determination of a
rate of interest under this Agreement.




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	9	 	INTEREST PERIODS
	 
	9.1	 	Duration of Interest Periods
	 
	 	 	The duration of each Interest Period shall be six (6) months provided that the first
Interest Period shall commence on (and include) the Disbursement Date and end on the day
prior to the next Interest Payment Date.
	 
	9.2	 	Changes to Interest Periods






	 	(a)	 	Prior to determining the interest rate for a Loan, the Global Agent (on the
instructions of the Lenders) may shorten an Interest Period for any Loan to ensure
there are sufficient Loans (with an aggregate amount equal to or greater than the
Repayment Instalment) which have an Interest Period ending on the relevant Interest
Payment Date for the Company to make the Repayment Instalment due on that date.
	 
	 	(b)	 	If the Global Agent makes any change to an Interest Period referred to in
this Clause 9.2, it shall promptly notify the Company and the Lenders.






	9.3	 	Non-Business Days
	 
	 	 	If an Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period will instead end on the next Business Day in that calendar month (if there
is one) or the preceding Business Day (if there is not).
	 
	9.4	 	Consolidation and division of Loans
	 
	 	 	If two or more Interest Periods:






	 	(a)	 	relate to Loans; and
	 
	 	(b)	 	end on the same date,






	 	 	those Loans will be consolidated into, and treated as, a single Loan on the last day of the
Interest Period.






	9.5	 	Fixed Rate Loans






	 	(a)	 	If the Company and the Global Agent agree to convert the interest rate in
respect of each Loan to a Fixed Interest Rate in accordance with Clause 9.4 (Fixed
Rate Loans) of the Common Terms Agreement, Clause 9.4 (Fixed Rate Loans) and Clause
9.5 (Fixed Rate Basis) of the Common Terms Agreement shall apply.
	 
	 	(b)	 	If the Company and the Lenders are unable to agree to convert the interest
rate in respect of the Loans to a Fixed Interest Rate, the conversion to the Fixed
Interest Rate in accordance with Clause 9.4(a) (Fixed Rate Loans)




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	 	 	 	of the Common Terms Agreement shall not take effect in respect of the Loans and
Clause 8.1 (Calculation of Interest) shall continue to apply to the Loans.






	10	 	FEES
	 
	10.1	 	Front-end fee
	 
	 	 	The Company shall pay to the Global Agent for each Lender a fee computed at a rate of 1.0
per cent. of that Lender’s Commitment payable as follows:






	 	(a)	 	an amount equal to 50% of the fee shall be payable no later than 30 days from
the date of this Agreement; and
	 
	 	(b)	 	the remainder of the fee shall be payable on the date of the Security
Documents.






	10.2	 	Commitment fee






	 	(a)	 	The Company shall pay to the Global Agent for each Lender a commitment fee
computed at a rate of 1.0 per cent. per annum on the undrawn, uncancelled amount of
that Lender’s Commitment.
	 
	 	(b)	 	Accrued commitment fee is payable during the Availability Period on each
Interest Payment Date in arrears. Accrued commitment fee is also payable to the
Global Agent for a Lender on the date its Commitment is cancelled in full.






	10.3	 	Monitoring Fee
	 
	 	 	The Company shall pay to the Global Agent for the account of the Lender a monitoring fee in
accordance with Clause 10.6 (Monitoring Fees) of the Common Terms Agreement.
	 
	11	 	TAX GROSS-UP AND INDEMNITIES
	 
	 	 	The provisions of Clause 11 (Taxes) of the Common Terms Agreement shall apply to this
Agreement as though they were set out in full herein.
	 
	12	 	INCREASED COSTS
	 
	 	 	The provisions of Clause 12 (Increased Costs) of the Common Terms Agreement shall apply to
this Agreement as though they were set out in full herein.




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	13	 	OTHER INDEMNITIES
	 
	 	 	The provisions of Clause 13 (Other Indemnities) of the Common Terms Agreement shall apply
to this Agreement as though they were set out in full herein.
	 
	14	 	COSTS AND EXPENSES
	 
	 	 	The provisions of Clause 15 (Costs and Expenses) of the Common Terms Agreement shall apply
to this Agreement as though they were set out in full herein.
	 
	15	 	REPRESENTATIONS
	 
	 	 	The provisions of Clause 23 (Representations and Warranties) of the Common Terms Agreement
shall apply to this Agreement as though they were set out in full herein.
	 
	16	 	COVENANTS
	 
	 	 	The provisions of Clause 24 (Affirmative Covenants) of the Common Terms Agreement and
Clause 25 (Negative Covenants) of the Common Terms Agreement shall apply to this Agreement
as though they were set out in full herein.
	 
	17	 	EVENTS OF DEFAULT






	 	(a)	 	The provisions of Clause 26 (Events of Default) of the Common Terms Agreement
shall apply to this Agreement as though they were set out in full herein.
	 
	 	(b)	 	Upon the occurrence of and during the continuance of an Event of Default, the
Global Agent (acting on the instructions of the Lenders) may declare an Event of
Default and accelerate the Loans, and exercise any or all remedies set out under the
Finance Documents, including the following:






	 	(i)	 	cancel or suspend the commitments of the Lender under this
Agreement;
	 
	 	(ii)	 	declare the principal amount of the Loans together with
accrued interest thereon and any other outstanding amounts under this
Agreement to be immediately due and payable or repayable on demand; or
	 
	 	(iii)	 	cancel or suspend further Disbursements;




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	 	(c)	 	Upon the occurrence of an Event of Default of the type described in Clauses
26.1(h) (Expropriation), 26.1(k) (Insolvency), 26.1(l) (Winding-Up), 26.1(m)
(Appointment of Officer) or 26.1(n) (Analogous Events) of the Common Terms Agreement,
the Loans, all interest accrued on them and any other amounts payable under this
Agreement will become immediately due and payable without any presentment, demand,
protest or notice of any kind, all of which the Company waives.






	18	 	ASSIGNMENTS
	 
	 	 	The provisions of Clause 27 (Changes to Lenders) and Clause 28 (Assignments and Transfer by
the Parties) of the Common Terms Agreement shall apply to this Agreement as though they
were set out in full herein.
	 
	19	 	DIRECTIONS
	 
	 	 	The provisions of Clause 29.4 (Directions) of the Common Terms Agreement shall apply to
this Agreement as though they were set out in full herein.
	 
	20	 	NOTICES
	 
	 	 	The provisions of Clause 34 (Notices) of the Common Terms Agreement shall apply to this
Agreement as though they were set out in full herein.
	 
	21	 	CALCULATIONS AND CERTIFICATES
	 
	21.1	 	Accounts and Certificates and Determinations
	 
	 	 	The provisions of Clause 35.1 (Accounts) and Clause 35.2 (Certificates and Determinations)
of the Common Terms Agreement shall apply to this Agreement as though they were set out in
full herein.
	 
	21.2	 	Day Count Convention
Any interest, commission or fee accruing under this Agreement will accrue from day to day
and is calculated on the basis of the actual number of days elapsed and a year of 360 days.
	 
	22	 	PARTIAL INVALIDITY
	 
	 	 	The provisions of Clause 36 (Partial Invalidity) of the Common Terms Agreement shall apply
to this Agreement as though they were set out in full herein.




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	23	 	AMENDMENTS AND WAIVERS
	 
	 	 	The provisions of Clause 37 (Amendments and Waivers) of the Common Terms Agreement shall
apply to this Agreement as though they were set out in full herein.
	 
	24	 	COUNTERPARTS
	 
	 	 	The provisions of Clause 39 (Counterparts) of the Common Terms Agreement shall apply to
this Agreement as though they were set out in full herein.
	 
	25	 	GOVERNING LAW
	 
	 	 	This Agreement and any non-contractual rights arising out of or in connection with this
Agreement shall be governed by English law.
	 
	26	 	ENFORCEMENT
	 
	26.1	 	Jurisdiction






	 	(a)	 	Except as otherwise provided in any of the Security Documents and subject to
the Company’s right to propose arbitration pursuant to Clause 26.2 (Arbitration) and
the Lenders’ option to agree to such proposal, or to initiate arbitration pursuant to
Clause 26.2 (Arbitration), the Parties agree that the courts of England shall have
exclusive jurisdiction to resolve any dispute arising out of or in connection with the
Finance Documents (including a dispute regarding the existence, breach, validity or
termination of this Agreement or any of the Finance Documents) (a “Dispute”).
	 
	 	(b)	 	The Parties agree that English law shall govern the determination of any
Dispute regardless of the jurisdiction in which the Dispute is heard.






	26.2	 	Arbitration






	 	(a)	 	Prior to the commencement of any legal proceedings by the Company (other than
Interim Proceedings) in the courts of England in respect of a Dispute the Company
shall give prior notice to the Lenders, and the Lenders acting unanimously shall
indicate to the Company in writing within fifteen (15) days of receipt of such notice
from the Company, whether that Dispute shall instead be resolved by arbitration
pursuant to this Clause 26.2 (Arbitration), provided that this Clause 26.2
(Arbitration) shall not prejudice the right of the Lenders to commence arbitration in
respect of a Dispute by giving prior notice to the Company. If the Lenders notify the
Company that the Dispute is to be resolved by arbitration, to which the Company shall
not object, the following provisions shall apply. For the avoidance of doubt, the
Company shall not be required to give




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	 	 	 	notice pursuant to this Clause prior to the commencement of Interim Proceedings.
	 
	 	(b)	 	Any arbitration commenced in respect of a Dispute shall be resolved in
accordance with the rules of the United Nations Commission on International Trade Law
(“UNCITRAL”), which rules are deemed to be incorporated by reference into this Clause
save as modified by this Agreement. In any such arbitration:






	 	(i)	 	the appointing authority shall be the London Court of
International Arbitration (the “LCIA”);
	 
	 	(ii)	 	the language to be used in the arbitration shall be English;
	 
	 	(iii)	 	the place and seat of the arbitration shall be London,
England; and
	 
	 	(iv)	 	the number of arbitrators shall be three. For the purpose of
Article 7 of the UNCITRAL Rules, where there are multiple parties, whether as
claimant or as respondent, the claimants shall act and be treated, jointly, as
‘a party’ and the respondents shall act and be treated, jointly, as ‘a party’.






	 	(c)	 	In any arbitration commenced pursuant to this Clause 26.2 (Arbitration):






	 	(i)	 	the Parties hereby waive any rights under the Arbitration Act
1996 (UK) to seek determination of a preliminary point of law by the courts of
England; and
	 
	 	(ii)	 	subject to the terms of any arbitration agreement agreed
between the Parties and the provisions of the UNCITRAL Arbitration Rules, the
Company shall be entitled to seek only from the Arbitral Tribunal, but not
from any judicial authority, any interim measures of protection or pre-award
relief (other than any relief sought through Interim Proceedings) against any
of the Finance Parties. Until the Arbitral Tribunal has been constituted, the
Company shall be entitled to institute Interim Proceedings in the courts of
England.






	 	(d)	 	In any arbitral proceeding, the certificate of a Finance Party as to any
amount due to that Finance Party under any Finance Document shall be prima facie
evidence of such amount.





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	26.3	 	Service of Process
	 
		 	Without prejudice to any other mode of service allowed under any relevant law, the Company:






	 	(a)	 	irrevocably appoints Chadbourne & Parke MNP of Regis House, 45 King William
Street, London, EC4R 9AN, United Kingdom, as its agent for service of process in
relation to any proceedings before the English courts in connection with any Finance
Document;
	 
	 	(b)	 	agrees that failure by a process agent to notify the Company of the process
will not invalidate the proceedings concerned;
	 
	 	(c)	 	undertakes that as long as any of the Finance Documents remains in force, the
Company shall maintain a duly appointed and authorised agent to receive for and on its
behalf service of the writ of summons or other legal process in any action, suit or
proceeding brought by any Finance Party in the courts of England with respect to each
of the Finance Documents and shall keep the Global Agent advised of the identity and
location of such agent; and
	 
	 	(d)	 	irrevocably consents, if for any reason the Company’s authorized agent for
service of process of summons, complaint and other legal process in any action, suit
or proceeding is not present in England, to service of such papers being made out of
those courts by mailing copies of the papers by registered air mail, postage prepaid,
to the Company at its address specified pursuant to Clause 20 (Notices). In such a
case, any Finance Party shall also send by facsimile, or have sent by facsimile, a
copy of the papers to the Company.






26.4     Waiver





	 	(a)	 	To the extent that the Company may be entitled in any jurisdiction to claim
for itself or its assets immunity with respect to its obligations under this Agreement
or any other Finance Document from any suit, execution, attachment (whether
provisional or final, in aid of execution, before judgment or otherwise) or other
legal process or to the extent that in any jurisdiction that immunity (whether or not
claimed), may be attributed to it or its assets, the Company irrevocably agrees not to
claim and irrevocably waives such immunity to the fullest extent now or in the future
permitted by the laws of such jurisdiction.
	 
	 	(b)	 	To the extent that the Company may, in any suit, action or proceeding brought
in any of the courts referred to in Clause 26.1 (Jurisdiction) or a court of Kenya,
Cayman Islands or elsewhere arising out of or in connection with this Agreement or any
other Finance Document to which the Company is a party, be entitled to the benefit of
any provision of law




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	 	 	 	requiring any Finance Party in such suit, action or proceeding to post security for
the costs of the Company, or to post a bond or to take similar action, the Company
hereby irrevocably waives such benefit, in each case to the fullest extent now or
in the future permitted under the laws of England, Cayman Islands or Kenya or, as
the case may be, the jurisdiction in which such court is located.
	 
	 	(c)	 	Each Party waives any right it may have to a jury trial of any claim or cause
of action in connection with any Finance Documents or any transaction contemplated by
any Finance Document. This Agreement may be filed as a written consent to trial by
court.






	26.5	 	Consolidation of Arbitral Proceedings
	 
	 	 	The arbitral tribunal constituted pursuant to Clause 26.2 (Arbitration) may consolidate an
arbitration arising out of or relating to this Agreement with any arbitration arising out
of or relating to one or more Finance Documents that provides for arbitration by the London
Court of International Arbitration, if the subject matter of the disputes arises out of or
relates to essentially the same facts or transactions. Such consolidated arbitration shall
be determined by the arbitral tribunal appointed for the arbitration proceeding that was
commenced first in time. Except as otherwise provided in this Clause 26.5 (Consolidation
of Arbitral Proceedings), the rights of the Parties to proceed with dispute resolution
hereunder shall be independent of their rights to proceed with dispute resolution under any
of the other Finance Documents.




THIS AGREEMENT has been entered into by the Parties on the date stated at the beginning of this
Agreement.





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SIGNATORIES




	 	 	 	 	 
	Company



ORPOWER4 INC.

 	 
	By:  	/s/  Yehudit
Bronicki
	 	Name:  	Yehudit Bronicki	 
	 	Title:  	Director / President	 
	 



In the presence of:  /s/  Connie Stechman




Name: Connie
Stechman




Address:  OrPower4 Inc. c/o Ormat Nevada Inc., 6225 Neil Road, Reno, Nevada




Occupation:  Director / Assistant Secretary




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	Lender



DEG — DEUTSCHE INVESTITIONS- UND ENTWICKLUNGSGESELLSCHAFT MBH

 
	By:  	/s/ Justus
Vitinius/Matthias Goulnik	 
	 	Name:  	Justus Vitinius/Matthias Goulnik	 
	 	Title:  	First Vice President/Vice President	 
	 



In the presence of:  /s/ Burckhard Thiemann




Name:  Burckhard Thiemann




Address:  DEG-Deutsche Investitions- und Entwicklungsgesellschaft mbH, Kämmergasse 22, 50676 Köln, Germany




Occupation:  Vice
President




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	Global Agent



DEG — DEUTSCHE INVESTITIONS- UND ENTWICKLUNGSGESELLSCHAFT MBH

 
	By:  	/s/ Justus
Vitinius/Matthias Goulnik	 
	 	Name:  	Justus Vitinius/Matthias Goulnik	 
	 	Title:  	First Vice President/Vice President	 
	 



In the presence of:  /s/ Burckhard Thiemann




Name:  Burckhard Thiemann




Address:  DEG-Deutsche Investitions- und Entwicklungsgesellschaft mbH, Kämmergasse 22, 50676 Köln, Germany




Occupation:  Vice
President





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