Second, while the first part was transferred about a month after the second agreement and in one amount, to the second part the defendants attributed large sums of money, which were transferred over a long period of time and in parallel with the construction work of the venture, mainly after the completion of the skeleton. In this situation, in which sums are regularly transferred for both "construction expenses" and "consultant costs", the aforementioned ambiguity is sharpened, and as stated, it must be attributed to the defendants' obligation.
Third, while in the first part the increase was in the amount of NIS 18,000, which constitutes only 6% of the amount that was agreed upon, in this part the alleged increase is in the nominal amount of NIS 363,000, and in a scope that exceeds twice what was originally agreed. In these circumstances, and in view of the impact of the increase on the interest amounts, there was room for the defendants to present a concrete agreement regarding it.
- The defendants claimed that the group committee had retroactively agreed to attribute the amounts to the second part, since in the framework of the invoice it approved the total amount of the debt calculated on the basis of this attribution (see the defendants' summaries on page 29 of the transcript of the hearing of September 18, 2025, line 38 to page 30). However, as stated in the paragraph 54 above, with respect to the defendants' general argument regarding the board's consent and its implications, retroactive consent, and with respect to the total amount of the debt, is not equivalent to prior agreement, and concretely to increase this part of the loan, as it should have been.
- The interest rate will therefore be calculated, as determined by the expert, so that the second part of the loan will be set at NIS 253,000 and will bear interest at the rate of 15% per annum. The balance of the sums up to NIS 663,000 will be attributed to the third part of the loan, and in view of the date of their issuance – to the second phase thereof (see paragraph 131 of the opinion and the expert's testimony on page 100 of the transcript of the hearing of September 10, 2025, lines 23-29). This balance will bear interest as determined below in respect of this phase.
E(2)(2)(3) Calculating the Interest for the Third Tranche of the Loan - The First Phase
- As already noted, clause 3.3.1 of the second agreement instructs that the first phase of the third part includes the provision of a credit facility in a maximum amount of NIS 25,000,000 plus NIS 1,250,000 defined as "costs in the enterprise", in order to pay for the costs of executing the venture (clause 3.3.1.1). It was agreed that the repayment date would be 30 days from the date of completion of the skeleton, or on the date of receipt of bank financing, whichever is earlier (clause 3.3.1.5), and that interest would be paid for the provision of the credit in a nominal amount of NIS 2,700,000, "no later than the date of completion of the project" (clause 3.3.1.2 of the agreement). It was also agreed that if the sums made available were not paid on time, they would bear interest at the rate of 7% per annum until the actual date of payment (clause 3.3.1.6 of the agreement).
- The expert made the interest calculations for this component of the loan, in accordance with his understanding of the provisions of the second agreement. In their summaries, the defendants complained about a number of assumptions underlying the calculations, which are based on the expert's interpretation of the agreement: this is the case with regard to the date from which "arrears interest" is to be paid for the amounts of the credit facility and the credit facility, which according to the defendants is already from the completion of 40% of the scope of the construction and not only from the completion of the skeleton; so with regard to this interest rate, which according to the defendants should be about 18% per year and not only 7%; and so with regard to the date from which "arrears interest" should be paid for the interest in the amount of NIS 2,700,000. According to the defendants, it is already from the date on which the class members should have repaid the credit facility and the costs of the insurance company, and not only from the end of the venture. I will address these claims.
- The first argument is directed, as stated, to the expert's decision to add the additional interest for non-payment of the amounts of the credit facility and the costs of the credit facility on time (beyond the nominal amount of NIS 2,700,000, which is the interest in respect of their actual position), only as of the passage of 30 days from the date on which the skeleton was completed, during the month of July 2016 (for this date, see the performance accounts in Exhibit N/2). The expert did so in light of clauses 3.3.1.5-6 of the agreement.
The defendants claimed that the date of repayment of the credit facility and the costs of the insurance policy set out in the agreement was different, and with the consent of the group committee, the date on which the construction would reach a rate of 40% of the total scope of construction (even if the frame had not yet been completed). It was argued that this date already occurred during the month of January 2016 (see the aforementioned performance accounts), so the additional interest should already be added from it. According to the defendants, the basis for the change was the fact that the order to stop work on a certain part of the project prevented the completion of the skeleton, and in order to reduce the delay, it was agreed with the group committee that the construction work would continue in the meantime in other parts, and at the same time, the date from which the additional interest would be paid would be changed.