Exhibit 10.1.2
AMENDED AND RESTATED BRIDGE LOAN AGREEMENT
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This AMENDED AND RESTATED BRIDGE LOAN AGREEMENT (this "Agreement")
is made as of October 2, 2003 by and between ORMAT NEVADA, INC. (the
"Borrower"), a Delaware corporation having its principal place of business at
000 Xxxx Xxxxxx, Xxxxxx, Xxxxxx 00000-0000, and BANK LEUMI USA (the "Bank"), a
New York State chartered banking institution with its office at 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000.
The Borrower and the Bank heretofore entered into a Bridge Loan
Agreement, made as of May 2, 2002, which was subsequently amended by a First
Amendment made as of July 11, 2002, and letter agreements dated April 30 and
July 2, 2003 (the said Bridge Loan Agreement as so amended is the "Initial
Agreement"). This Agreement amends, restates and supersedes the Initial
Agreement.
1. DEFINITIONS
Certain capitalized terms are defined below:
Affiliate: Any individual, corporation, partnership, trust,
unincorporated association, business, or other legal entity that would be
considered to be an affiliate of the Borrower under Rule 144(a) of the Rules and
Regulations of the Securities and Exchange Commission, as in effect on the date
hereof, if the Borrower were issuing securities.
Agreement: See preamble, which term shall include this Agreement
and the Schedules hereto, all as amended and in effect from time to time.
Bank: Bank Leumi USA.
BLITA: Bank Leumi Le-Israel B.M., an Israeli banking institution
and an Affiliate of the Bank.
Borrower: Ormat Nevada, Inc.
Business Day: Any day on which banks in New York, NY, are open for
business generally.
Charter Documents: In respect of any entity, the certificate or
articles of incorporation or organization and the by-laws of such entity, or
other constitutive documents of such entity.
Commitment: The undertaking of the Bank, subject to the terms and
conditions of this Agreement, to make Loans to the Borrower up to an aggregate
outstanding principal amount not to exceed the Commitment Amount; provided,
however, that the Bank is in receipt of a Standby Letter of Credit in an amount
which is not less than 105% of the intended outstanding principal amount of each
Loan (which Standby Letter of Credit shall be a condition precedent to making
such Loan).
Commitment Amount: $20,000,000.
Consent: In respect of any person or entity, any permit, license
or exemption from, approval, consent of, registration or filing with any local,
state or federal governmental or regulatory agency or authority, required under
applicable law.
Default: An event or act which with the giving of notice and/or
the lapse of time, would become an Event of Default.
Drawdown Date: In respect of any Loan, the date on which such Loan
is made to the Borrower.
Environmental Laws: All laws pertaining to environmental matters,
including without limitation, the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, the
Superfund Amendments and Reauthorization Act of 1986, the Federal Clean Water
Act, the Federal Clean Air Act, the Toxic Substances Control Act, in each case
as amended, and all rules, regulations, judgments, decrees and orders arising
under all such laws.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended, and all rules, regulations, judgments, decrees, and orders arising
thereunder.
Event of Default: Any of the events listed as such in the Restated
Note or in (section) VIII hereof.
Federal Funds Effective Rate: For any day, the rate per annum
equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by the Bank
from three funds brokers of recognized standing selected by the Bank.
Financials: In respect of any period, the balance sheet of any
person or entity as at the end of such period, and the related statement of
income and statement of cash
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flow for such period, each setting forth in comparative form the figures for the
previous comparable fiscal period, all in reasonable detail and prepared in
accordance with GAAP.
GAAP: Generally accepted accounting principles consistent with
those adopted by the Financial Accounting Standards Board and its predecessor,
as in effect from time to time.
Indebtedness: In respect of any entity, all obligations,
contingent and otherwise, that in accordance with GAAP should be classified as
liabilities, including without limitation (i) all debt obligations, (ii) all
liabilities secured by Liens, (iii) all guarantees and (iv) all liabilities in
respect of bankers' acceptances or letters of credit.
Interest Period: As defined in the Restated Note.
Liens: Any encumbrance, mortgage, pledge, hypothecation, charge,
restriction or other security interest of any kind securing any obligation of
any entity or person.
Loan: Any loan made or to be made to the Borrower pursuant to
(section) II hereof.
Loan Documents: This Agreement, the Restated Note and the Standby
Letter of Credit in each case as from time to time amended or supplemented.
Loan Request: See (section) 2.1.
Materially Adverse Effect: Any materially adverse effect on the
financial condition or business operations of the Borrower or material
impairment of the ability of the Borrower to perform its obligations hereunder
or under any of the other Loan Documents.
Maturity Date: February 2, 2005, or such earlier date on which all
Loans may become due and payable pursuant to the terms hereof.
Obligations: All indebtedness, obligations and liabilities of the
Borrower to the Bank, existing on the date of this Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or incurred under this
Agreement or any other Loan Document or in respect of any of the Loans or the
Restated Note or other instruments at any time evidencing any thereof.
Requirement of Law: In respect of any person or entity, any law,
treaty, rule, regulation or final and binding determination of an arbitrator,
court, or other
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governmental authority, in each case applicable to or binding upon such person
or entity or affecting any of its property.
Restated Note: See (section) 2.1 .
Standby Letter of Credit: One or more unconditional, irrevocable
standby letters of credit in a total amount of not less than 105% of the
outstanding principal amount of each Loan made up to the Commitment Amount
issued by BLITA in favor of the Bank, and expiring not earlier than thirty (30)
days after the Maturity Date. The Standby Letter of Credit shall be available
for drawing at any given time in an amount equal to the sum of the then
outstanding principal, accrued interest and other amounts payable with respect
to the Loans.
2. BRIDGE LOAN FACILITY
2.1 Commitment to Lend.
(a) On the terms and subject to the conditions of this Agreement,
the Bank agrees to lend to the Borrower such sums that the Borrower may request,
from the date hereof until, but not including, the Maturity Date, provided that
the sum of the outstanding principal amount of all Loans (after giving effect to
amounts requested) shall at no time exceed the then applicable Commitment
Amount.
(b) The Commitment Amount is Twenty Million Dollars ($20,000,000).
(c) Loans shall be in the minimum aggregate amount of $1,000,000
or an integral multiple thereof. The Borrower shall deliver to the Bank and to
BLITA in writing or telephonically a notice of the principal amount of each
requested Loan. Each such notice must be received by the Bank and by BLITA not
later than 12:00 p.m. New York time three Business Days before the Drawdown Date
(which must be a Business Day). Subject to the foregoing, so long as the
Commitment is then in effect and the conditions set forth in Section VI hereof
are fully satisfied as of such Drawdown Date, the Bank shall advance the amount
requested to the Borrower's account at the Bank in immediately available funds
not later than the close of business on such Drawdown Date. The obligation of
the Borrower to repay to the Bank the principal of the Loans and interest
accrued thereon is evidenced by an amended and restated promissory note (the
"Restated Note"), dated as of even date with this Agreement, in the maximum
aggregate principal amount of $20,000,000.00 executed and delivered by the
Borrower and payable to the order of the Bank, in form and substance
satisfactory to the Bank.
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2.2 Interest. The Borrower shall pay interest on the Loans in
accordance with the terms of the Restated Note.
2.3 Repayments, Prepayments and Reborrowings.
(a) The Borrower shall pay to the Bank on the Maturity Date the
entire unpaid principal of and interest on all Loans.
(b) The Borrower may elect to prepay the outstanding principal of
all or any part of any Loan, without premium or penalty, in a minimum amount of
$1,000,000 or an integral multiple thereof, upon written notice to the Bank
given by 10:00 a.m. New York time on the Business Day before the date of such
prepayment, of the amount to be prepaid. If prepayment is made on a date other
than the last day of an Interest Period, Borrower shall also pay to the Bank
additional compensation as prescribed in the Restated Note.
(c) Each repayment or prepayment of principal of any Loan shall be
accompanied by payment of the unpaid interest accrued to such date on the
principal being repaid or prepaid.
(d) The Borrower may elect to reduce or terminate the Commitment
Amount by a minimum principal amount of $2,000,000 or an integral multiple
thereof, upon written notice to the Bank given by 10:00 a.m. New York time at
least two (2) Business Days prior to the date of such reduction or termination.
The Borrower shall not be entitled to increase or reinstate the Commitment
Amount following such reduction or termination.
3. CHANGES IN CIRCUMSTANCES
If after the date hereof the Bank determines that (i) the adoption
of or any change in any banking law, rule, regulation or guideline or the
administration thereof (whether or not having the force of law), or (ii)
compliance by the Bank or its parent bank holding company with any guideline,
request or directive (whether or not having the force of law), has the effect of
reducing the return on the Bank's or such holding company's capital as a
consequence of the Commitment or the Loans to a level below that which the Bank
or such holding company could have achieved but for such adoption, change or
compliance by any amount deemed by the Bank to be material, the Bank may notify
the Borrower thereof. The Borrower agrees to pay the Bank the amount of the
Borrower's allocable share of the amount of such reduction in the return on
capital as and when such reduction is determined, upon presentation by the Bank
of a statement in the amount and setting forth the Bank's calculation thereof,
which statement shall be deemed true and correct absent manifest error. The Bank
agrees to allocate shares of such
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reduction among the Borrower and the Bank's other customers similarly situated
on a fair and nondiscriminatory basis.
4. FEES AND PAYMENTS
4.1 Up-front Fees. Contemporaneously with execution and delivery
of this Agreement, the Borrower shall pay to the Bank a one-time total up-front
fee in the amount of $20,000.
4.2 Commitment Fees. Until the earlier of the Maturity Date or the
date upon which the Commitment is no longer in effect, the Borrower shall pay to
the Bank, on the first day of each calendar quarter hereafter, and upon the
Maturity Date or the date upon which the Commitment is no longer in effect, a
commitment fee calculated at a rate per annum which is equal to one quarter
percent (1/4%) of the average daily difference by which the then applicable
Commitment Amount exceeds the aggregate of the outstanding Loans during the
preceding calendar quarter or portion thereof.
4.3 Manner of Payment. All payments to be made by the Borrower
under this Agreement shall be made in U.S. dollars in immediately available
funds at the Bank's office at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 without
set-off or counterclaim and without any withholding or deduction whatsoever. The
Bank shall be entitled to charge any account of the Borrower with the Bank for
any sum due and payable by the Borrower to the Bank hereunder, or under any of
the other Loan Documents. If any payment hereunder is required to be made on a
day which is not a Business Day, it shall be paid on the immediately preceding
Business Day. All computations of interest or of the commitment fee payable
hereunder shall be made by the Bank on the basis of actual days elapsed and on a
360-day year. The aggregate unpaid amount of Loans set forth on the Bank's
internal records shall be prima facie evidence of the principal amount thereof
owing and unpaid to the Bank, but the failure to record, or any error in so
recording, any such amount on the Bank's records shall not affect the
obligations of the Borrower hereunder or under the Restated Note to make
payments of principal of and interest on the Restated Note when due.
5. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Bank on the date
hereof, on the date of any Loan Request, and on each Drawdown Date that:
(a) the Borrower is duly organized, validly existing, and in good
standing under the laws of the State of Delaware, is duly qualified and
in good standing in every other jurisdiction where it is doing business,
and the execution, delivery and performance by the Borrower of the Loan
Documents (i) are within its corporate
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authority, (ii) have been duly authorized, and (iii) do not conflict with
or contravene its Charter Documents;
(b) upon execution and delivery thereof, each Loan Document shall
constitute the legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms;
(c) the Borrower has good and marketable title to all its material
properties, and possesses all assets, including intellectual properties,
franchises and Consents, adequate for the conduct of its business as now
conducted, without known conflict with any rights of others;
(d) the Borrower has provided to the Bank its unaudited Financials
as at December 31, 2002, and for the period then ended, and such
Financials are complete and correct and fairly present the position of
the Borrower as at such date and for such period in accordance with GAAP
consistently applied;
(e) since December 31, 2002, there has been no materially adverse
change of any kind in the Borrower which would have a Materially Adverse
Effect;
(f) there are no legal or other proceedings or investigations
pending or threatened against the Borrower before any court, tribunal or
regulatory authority which would, if adversely determined, alone or
together, have a Materially Adverse Effect;
(g) the execution, delivery, performance of its obligations, and
exercise of its rights under the Loan Documents by the Borrower,
including borrowing under this Agreement (i) do not require any Consents;
and (ii) are not and will not be in conflict with or prohibited or
prevented by (A) any Requirement of Law, or (B) any Charter Document,
corporate minute or resolution, instrument, agreement or provision
thereof, in each case binding on it or affecting its property; and
(h) the Borrower is not in violation of (i) any Charter Document,
corporate minute or resolution, (ii) any instrument or agreement, in each
case binding on it or affecting its property, or (iii) any Requirement of
Law, in a manner which could have a Materially Adverse Effect.
6. CONDITIONS PRECEDENT
In addition to the making of the foregoing representations and
warranties, the payment of fees, and the delivery of the Loan Documents, the
obligation of the Bank to
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make each Loan hereunder shall be subject to the satisfaction, as of the date of
the funding of each such Loan, of the following further conditions precedent:
(a) BLITA shall have advanced funds to the Bank in the amount of
such Loan;
(b) the Standby Letter of Credit shall be in full force and
effect;
(c) the representations and warranties of the Borrower to the Bank
shall be true and correct in all material respects as of the time made or
claimed to have been made;
(d) no Default or Event of Default shall be continuing;
(e) all proceedings in connection with the transactions
contemplated hereby shall be in form and substance satisfactory to the
Bank, and the Bank shall have received all information and documents as
it may have reasonably requested;
(f) no change shall have occurred in any law or regulation or in
the interpretation thereof that in the reasonable opinion of the Bank
would make it unlawful for the Bank to make such Loan; and
(g) prior to the funding of the first Loan under this Agreement,
the Bank shall have received the legal opinion of counsel to the
Borrower, substantially in the form attached as Exhibit A.
7. COVENANTS
7.1 Affirmative Covenants. The Borrower agrees that until the
termination of the Commitment and the payment and satisfaction in full of all
the Obligations, the Borrower will comply with its obligations as set forth
throughout this Agreement and will:
(a) furnish the Bank: (i) as soon as available but in any event
within ninety (90) days after the close of each fiscal year, its
Financials, prepared in accordance with GAAP, for such fiscal year, in
such form as is satisfactory for inclusion in the audited Financials of
Ormat Industries Ltd. (the ultimate parent company), and certified by the
Borrower's accountants; (ii) as soon as available but in any event within
sixty (60) days after the end of each fiscal quarter its unaudited
Financials for such quarter, certified by its chief financial officer;
and (iii) together with the quarterly and annual audited Financials, a
certificate of the Borrower certifying that no Default or Event of
Default has occurred, or if it has, the actions taken by the Borrower
with respect thereto;
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(b) keep true and accurate books of account, maintain its current
fiscal year and permit the Bank or its designated representatives to
inspect the Borrower's premises during normal business hours and to
examine and be advised as to such or other business records upon the
request of the Bank;
(c) (i) maintain its corporate existence, business and assets,
(ii) keep its business and assets adequately insured, (iii) maintain its
chief executive office in the United States, (iv) continue to engage in
the same lines of business, and (v) comply with all Requirements of Law,
including ERISA and Environmental Laws;
(d) notify the Bank promptly in writing of (i) the occurrence of
any Default or Event of Default, (ii) any material noncompliance with
ERISA or any Environmental Law or proceeding in respect thereof which
could have a Materially Adverse Effect, (iii) any change of address, (iv)
any threatened or pending litigation or similar proceeding affecting the
Borrower or any Affiliate which could have a Materially Adverse Effect,
or any material adverse change in any such litigation or proceeding
previously reported, and (v) material claims against any assets or
properties of the Borrower or any of its Affiliates encumbered in favor
of the Bank; and
(e) cooperate with the Bank, take such action, execute such
documents, and provide such information as the Bank may from time to time
reasonably request in order further to effect the transactions
contemplated by and the purposes of the Loan Documents.
7.2 Negative Covenants. The Borrower agrees that until the
termination of the Commitment and the payment and satisfaction in full of all
the Obligations, the Borrower will not, without the prior written consent of the
Bank:
(a) make any distributions on or in respect of its capital of any
nature whatsoever to its shareholders in their capacity as shareholders;
(b) become party to a merger or sale-leaseback transaction, or
effect any disposition of assets other than in the ordinary course.
8. EVENTS OF DEFAULT; ACCELERATION
Each of the following shall constitute an Event of Default under
this Agreement:
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(a) the Borrower shall fail to pay when due and payable any
principal of the Loans when the same becomes due;
(b) the Borrower shall fail to pay interest on the Loans or any
other sum due under any of the Loan Documents within two (2) Business
Days after the date on which the same shall have first become due and
payable;
(c) the Borrower shall fail to perform any term, covenant or
agreement contained in (sections) 7.1(c)(i) and 7.2;
(d) the Borrower shall fail to perform any other term, covenant or
agreement contained in any Loan Document within fourteen (14) days after
the Bank has given written notice of such failure to the Borrower;
(e) any representation or warranty of the Borrower in the Loan
Documents or in any certificate or notice given in connection therewith
shall have been false or misleading in any material respect at the time
made or deemed to have been made;
(f) the Borrower, or any Affiliate of Borrower, shall be in
default (after any applicable period of grace or cure period) under any
agreement evidencing Indebtedness owing to the Bank, or shall fail to pay
such Indebtedness when due (after any applicable period of grace or cure
period);
(g) any of the Loan Documents shall cease to be in full force and
effect;
(h) the Borrower (i) shall make an assignment for the benefit of
creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall
seek the appointment of, or be the subject of an order appointing, a
trustee, liquidator or receiver as to all or part of its assets, (iv)
shall commence, approve or consent to, any case or proceeding under any
bankruptcy, reorganization or similar law and, in the case of an
involuntary case or proceeding, such case or proceeding is not dismissed
within forty-five (45) days following the commencement thereof, or (v)
shall be the subject of an order for relief in an involuntary case under
federal bankruptcy law;
(i) the Borrower shall be unable to pay its debts as they mature;
(j) there shall remain undischarged for more than thirty (30) days
any final judgment or execution action against the Borrower that,
together with other outstanding claims and execution actions against the
Borrower exceeds $200,000 in the aggregate;
(k) the commencement of a foreclosure proceeding affecting any
Approved Geothermal Project;
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(l) the Borrower, or any Affiliate of Borrower, shall be in
default (after any applicable period of grace or cure period) under any
agreement evidencing Indebtedness owing to BLITA, or to any Affiliate of
BLITA other than the Bank, or shall fail to pay such Indebtedness when
due (after any applicable period of grace or cure period); or
(m) a change in the financial condition or affairs of Borrower
which in the reasonable opinion of the Bank materially reduces Borrower's
ability to pay all the Obligations.
If any of the Events of Default shall occur and be continuing,
then, or at any time thereafter:
(a) In the case of any Event of Default under clause (h) or (i),
the Commitment shall automatically terminate, and the entire unpaid
principal amount of the Loans, all interest accrued and unpaid thereon,
and all other amounts payable thereunder and under the other Loan
Documents shall automatically become forthwith due and payable, without
presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived by the Borrower;
(b) In the case of any Event of Default under clause (a) or (b),
the Bank may, by written notice to the Borrower, terminate the Commitment
and/or declare the unpaid principal amount of the Loans, all interest
accrued and unpaid thereon, and all other amounts payable hereunder and
under the other Loan Documents to be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; and
(c) In the case of any Event of Default other than (a), (b), (h)
or (i), the Bank may, by two (2) Business Days' prior written notice to
the Borrower, and where such Event of Default has not been cured during
such period, terminate the Commitment and/or declare the unpaid principal
amount of the Loans, all interest accrued and unpaid thereon, and all
other amounts payable hereunder and under the other Loan Documents to be
forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by
the Borrower.
No remedy herein conferred upon the Bank is intended to be
exclusive of any other remedy and each and every remedy shall be cumulative and
in addition to every other remedy hereunder, now or hereafter existing at law or
in equity or otherwise.
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9. SETOFF
Regardless of the adequacy of any collateral for the Obligations,
any deposits or other sums credited by or due from the Bank to the Borrower may
be applied to or set off against any principal, interest and any other amounts
due from the Borrower to the Bank at any time without notice to the Borrower, or
compliance with any other procedure imposed by statute or otherwise, all of
which are hereby expressly waived by the Borrower.
10. MISCELLANEOUS
(a) The Borrower agrees to indemnify and hold harmless the Bank,
its officers, employees, affiliates, agents, and controlling persons from and
against all claims, damages, liabilities and losses of every kind, including
reasonable legal fees, arising out of the Loan Documents, and including claims
in respect of the application of Environmental Laws to the Borrower, absent the
gross negligence and willful misconduct of the Bank.
(b) The Borrower shall pay to the Bank promptly on demand in
accordance with the mutual agreement of the Bank and the Borrower reasonable
costs and expenses (including reasonable legal fees) incurred by the Bank in
connection with the subsequent amendment, administration or enforcement of any
of the Loan Documents, provided that the costs and expenses incurred with
respect to the execution and preparation of this Agreement, and the related
documents by counsel to the Bank shall not exceed the maximum amount of US$
7,000.
(c) Any communication to be made hereunder shall (i) be made in
writing, but unless otherwise stated, may be made by facsimile transmission or
letter, and (ii) be made or delivered to the address of the party receiving
notice which is identified with its signature below (unless such party has by
five (5) days' written notice specified another address), and shall be deemed
made or delivered, when dispatched, left at that address, or five (5) days after
being mailed, postage prepaid, to such address.
(d) This Agreement shall be binding upon and inure to the benefit
of each party hereto and its successors and assigns, but the Borrower may not
assign its rights or obligations hereunder. This Agreement may not be amended or
waived except by a written instrument signed by the Borrower and the Bank, and
any such amendment or waiver shall be effective only for the specific purpose
given. No failure or delay by the Bank to exercise any right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege preclude any other right, power or privilege. The
provisions of this Agreement are severable and if any one provision hereof shall
be held invalid or unenforceable in whole or in part in any jurisdiction, such
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invalidity or unenforceability shall affect only such provision in such
jurisdiction. This Agreement, together with all Schedules hereto, expresses the
entire understanding of the parties with respect to the transactions
contemplated hereby. This Agreement and any amendment hereby may be executed in
several counterparts, each of which shall be an original, and all of which shall
constitute one agreement. In proving this Agreement, it shall not be necessary
to produce more than one such counterpart executed by the party to be charged.
(e) THIS AGREEMENT AND THE RESTATED NOTE ARE CONTRACTS UNDER THE
LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN ACCORDANCE THEREWITH AND
GOVERNED THEREBY. THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF ANY
OF THE LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR
ANY FEDERAL COURT SITTING THEREIN. The Borrower, as an inducement to the Bank to
enter into this Agreement, hereby waives its right to a jury trial with respect
to any action arising in connection with any Loan Document.
(f) In the event of inconsistency between this Agreement and any
other Loan Document, the provisions of this Agreement shall control.
IN WITNESS WHEREOF, the undersigned have duly executed this Bridge
Loan Agreement as a sealed instrument as of the date first above written.
ORMAT NEVADA, INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Secretary
Address: 000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
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BANK LEUMI USA
By: /s/ Xxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxx Xxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Bank Leumi Le-Israel B.M. hereby executes a copy of this Agreement for the
sole purpose of undertaking to the Borrower that, in each case in which all
of other conditions set forth in the Agreement to the obligation of the Lender
to make a Loan have been satisfied, Bank Leumi Le-Israel B.M. will advance to
the Lender funds equal to the amount of such Loan, as described in Section 6(a)
of the Agreement.
BANK LEUMI LE-ISRAEL B.M.
By:
------------------------------------
Name: Shuki Zeitak
Title: Customer Relationship Manager
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STATE OF NEVADA )
: ss:
COUNTY OF WASHOE )
On November 6th, 2003 before me, Xxxxxxxx Xxxxx, a Notary Public,
personally appeared Xxxxxx Xxxxxxxx, personally, known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that she executed the same in her
authorized capacity, and that by her signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxxx Xxxxx
----------------------------------------
--------------------------------------
[GRAPHIC]
XXXXXXXX XXXXX
Notary Public - State of Nevada
Appointment Recorded in Washoe County
No: 00-0000-0 Expires February 1, 2004
--------------------------------------
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EXHIBIT A
[Form of Legal Opinion]
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[XXXXXXX COIE LOGO]
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
PHONE: 000-000-0000
FAX: 000-000-0000
xxx.xxxxxxxxxxx.xxx
November 6, 2003
Bank Leumi USA
000 Xxxxx Xxx.
Xxx Xxxx, XX 00000
RE: AMENDED AND RESTATED BRIDGE LOAN AGREEMENT WITH ORMAT NEVADA, INC.,
DATED AS OF OCTOBER 2, 2003
Ladies and Gentlemen:
We have acted as special counsel to Ormat Nevada, Inc., a Delaware
corporation ("Borrower"), in connection with certain loans (the "Loans")
contemplated by the Amended and Restated Bridge Loan Agreement dated as of
October 2, 2003 (the "Loan Agreement") between the Borrower and Bank Leumi USA
(the "Bank"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Loan Agreement.
A. DOCUMENTS AND MATTERS EXAMINED
In connection with this opinion, we have examined the original, or a copy
certified or otherwise identified to our satisfaction, of the Loan Agreement and
the Restated Note (the "Loan Documents"). Our opinions are based solely upon a
review of the Loan Documents and, as to factual matters, certificates provided
by the Secretary of State of the States of Delaware and Nevada, and by the
Borrower and, with your consent, we have reviewed no other documents, records,
certificates or other statements as a basis for the opinions herein expressed.
Whenever a statement herein is qualified by the phrase "to our knowledge," or by
any other phrase of similar import, or where it is noted that nothing has been
brought to our attention, it means that the opinion stated is based solely upon
the consoious awareness of information as to the matters being opined upon by
the attorney who signs, on behalf of Xxxxxxx Coie LLP, this opinion letter. We
have not been involved on behalf of the Borrower in the negotiation or
preparation of the Loan Documents. With your consent, we have not undertaken,
nor were we obligated or expected to undertake, an independent investigation to
determine the accuracy of the facts or other information as to which our
knowledge is sought, and any limited inquiry undertaken by us during the
preparation of this opinion letter should not be regarded as such an
investigation. In particular, the attorneys at Xxxxxxx Coie LLP preparing this
opinion have not made inquiry of other attorneys in the firm (other than
attorneys actively involved in
PC-Opinion-Ormat/Bank Leumi
ANCHORAGE . BEIJING . BELLEVUE . BOISE . CHICAGO . DENVER . HONG KONG .
LOS ANGELES MENLO PARK - OLYMPIA . FORTLAND . SAN FRANCISCO . SEATTLE .
WASHINGTON, D.C.
Perkins Coie LLP (Xxxxxxx Coie LLC in Illinois)
Bank Leumi USA
November 6, 2003
Page 2
preparing this opinion), and have not researched court or agency records. No
inference as to our knowledge of any matters bearing on the accuracy of any such
statement should be drawn from the fact of our representation of Borrower.
B. ASSUMPTIONS
For purposes of this opinion letter, we have relied without investigation,
upon the following assumptions:
B-1. The signatures of persons signing the Loan Documents are genuine.
B-2. All natural persons who are involved on behalf of Borrower have
sufficient legal capacity to enter into and perform the transactions
contemplated by the Loan Documents.
B-3. Each document submitted to us for review is accurate and complete,
each such document that is an original is authentic, each such document that is
a copy conforms to an authentic original.
B-4. The Bank has acted in good faith and without notice of any defense
against the enforceability of any rights created by, or adverse claim to any
property or security interest transferred or created as a part of, the
transaction.
B-5. There are no agreements or understandings among the parties, written
or oral, and there is no usage of trade or course of prior dealing among the
parties that would, in either case, define, supplement or qualify the terms of
the Loan Documents.
B-6. The constitutionality or validity of the relevant statute, rule,
regulation or agency action is not in issue unless a reported decision in the
opining jurisdiction has specifically addressed but not resolved, or has
established, its unconstitutionality or invalidity.
B-7. The Bank has the power, authority and legal right to execute and
deliver, and to perform its obligations under, the Loan Documents.
B-8. The factual representations and warranties in the Loan Documents are
true, and the facts and circumstances contemplated pursuant to the Loan
Documents are as contemplated therein.
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Bank Leumi USA
November 6, 2003
Page 3
B-9. The Bank has complied with all legal requirements pertaining to its
status as such status relates to its rights to enforce the Loan Documents
against the Borrower.
B-10. The conduct of the parties to the transaction has complied with any
requirement of good faith, fair dealing and conscionability.
B-11. Each of the parties to the Loan Documents will receive sufficient
consideration to support the creation of the obligations found in each of the
Loan Documents to which it is a party.
B-12. The Bank has satisfied those legal requirements applicable to it that
are necessary to make the documents signed by it enforceable against it in
accordance with its terms.
B-13. The party to whom this opinion letter is directed and any agent
acting for it in connection with the transactions have acted in good faith and
without notice of any defense against the enforceability of any rights created
by, or adverse claim to any property or security interest transferred or created
as a part of the transactions.
B-14. There are no agreements or understandings among the parties, written
or oral, and there is no usage of trade or course of prior dealing among the
parties that would, in either case, define, supplement or qualify the terms of
the Loan Documents.
C. OPINIONS
Based upon the foregoing examinations and assumptions and subject to the
exclusions stated below, we are of the opinion that:
C-1. The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of Delaware, and has all requisite corporate power
and authority to own its properties and to carry on its business as now being
conducted and is duly qualified and in good standing as a foreign corporation,
and authorized to do business, under the laws of each jurisdiction where the
character of the properties owned or leased by it or the transaction of its
business makes such qualification or authorization necessary, except where such
failure to qualify would not have a material adverse effect on the Borrower's
business.
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Bank Leumi USA
November 6, 2003
Page 4
C-2. The Borrower has full power and authority to enter into and perform
its obligations under the Loan Documents and to borrow the Loans, all of which
have been duly authorized by all necessary and proper corporate action. No
consent or approval (governmental or otherwise) or the taking of any other
action (including, without limitation, by shareholders of the Borrower) is
required as a condition to the validity or enforceability of any of the Loan
Documents except for any consents and approvals heretofore delivered to you.
C-3. Each of the Loan Documents, when duly executed and delivered by the
Borrower, will constitute the valid and legally binding obligations of the
Borrower, enforceable in accordance with its respective terms.
C-4. To our knowledge, there are no actions, suits, investigations or
administrative proceedings of or before any court, arbitrator or governmental
authority, pending or threatened against the Borrower or any of its
subsidiaries, properties, or other assets which (i) if adversely determined,
would materially, adversely affect the business, operations or condition,
financial or otherwise, of the Borrower; or (ii) question the validity of any of
the Loan Documents or any action to be taken in connection with the transactions
contemplated thereby.
C-5. The execution, delivery and performance by the Borrower of the Loan
Documents do not and will not (i) violate any provision of the corporate charter
or by-laws of the Borrower; (ii) to our knowledge violate any order, decree or
judgment to which Borrower is a party or by which its assets are bound, or any
provisions of any statute, rule or regulation applicable to Delaware
corporations; (iii) violate or conflict with, result in a breach of or
constitute (with notice or lapse of time, or both) a default under any material
shareholder agreement, stock preference agreement, mortgage, indenture or
contract to which the Borrower is a party, or by which any of its properties are
bound or affected; or (iv) result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any property or assets of
the Borrower.
C-6. To the best of our knowledge (after due inquiry) the proceeds of the
Loans are not being and will not be used, directly or indirectly, for the
purpose of "purchasing" or "carrying" any "margin stock" in contravention of
Regulation U or X promulgated by the Board of Governors of the Federal Reserve
System.
PC-Opinion-Ormat/Bank Leumi
Bank Leumi USA
November 6, 2003
Page 5
C-7. The Borrower is not in default with respect to any order, writ,
injunction or decree of any court or of any federal, state, municipal or other
governmental department, commission, board, bureau, agency or authority,
domestic or foreign known to us to which it is a party or by which it or any of
its property may be bound or affected except for such defaults which, in the
aggregate, will not have a material, adverse effect on the business operations
or condition, financial or otherwise, of the Borrower.
D. EXCLUSIONS AND QUALIFICATIONS
D-1. We express no opinion as to the effect, if any, of the following:
(a) the choice of law, service of process, consent to jurisdiction and
consent to venue provisions in the Loan Documents;
(b) federal securities laws and regulations administered by the
Securities and Exchange Commission, state "blue sky" laws and regulations, and
laws and regulations relating to commodity (and other) futures and indices and
other similar instruments; and
(c) pension and employee benefit laws and regulations.
D-2. The opinion set forth herein as to enforceability of the Loan
Documents is subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting the rights and
remedies of creditors generally and the effect of general principles of equity,
whether applied by a court of law or equity.
D-3. The opinions set forth herein are subject to the effect of generally
applicable rules of law that:
(a) limit or affect the enforceability of provisions of a contract
that purport to require waiver of the obligations of good faith, fair dealing,
diligence and reasonableness;
(b) limit the availability of a remedy under certain circumstances
where another remedy has been elected;
PC-Opinion-Ormat/Bank Leumi
Bank Leumi USA
November 6, 2003
Page 6
(c) limit the enforceability of provisions releasing, exculpating or
exempting a party from, or requiring indemnification of a party for, liability
for its own action or inaction, to the extent that the action or inaction
involves negligence, recklessness, willful misconduct, or unlawful conduct;
(d) may, where less than all of a contract may be enforceable, limit
the enforceability of the balance of the contract to circumstances in which the
unenforceable portion is not an essential part of the agreed exchange;
(e) govern and afford judicial discretion regarding the determination
of damages and entitlement to attorneys' fees and other costs; and
(f) may permit a party who has materially failed to render or offer
performance required by the contract to cure that failure unless (i) permitting
a cure would unreasonably hinder the aggrieved party from making substitute
arrangements for performance or (ii) it is important in the circumstances to the
aggrieved party that performance occur by the date stated in the contract.
D-4. We express no opinion as to the validity, binding effect or
enforceability of purported waivers of any statutory or other rights, court
rules or defenses to obligations to the extent that such waivers (i) are against
public policy or (ii) constitute waivers of rights that by law, regulation or
judicial decision may not be waived.
D-5. The enforceability of provisions in the Loan Documents to the effect
that terms may not be waived or modified except in writing may be limited under
certain circumstances.
D-6. We express no opinion as to the effect of the laws of any jurisdiction
in which the Bank is located (other than the State of New York) that limit the
interest, fees or other charges that the Bank may impose for the loan or use of
money or other credit.
PC-Opinion-Ormat/Bank Leumi
Bank Leumi USA
November 6, 2003
Page 7
D-7. We have not reviewed, nor are our opinions in any way predicated upon
an examination of, the laws of any jurisdiction other than the federal laws of
the United States of America, the laws of the State of New York and the Delaware
corporation law. We expressly disclaim responsibility for advising you as to the
effect, if any, that the laws of any other jurisdiction may have upon the
opinions set forth herein. Furthermore, we express no opinion as to matters that
may be affected by pending or proposed federal, state or local legislation, even
though such legislation, if subsequently enacted, might affect the opinions
expressed herein. Please be advised that we do not maintain an office in either
Delaware or New York.
D-8. The opinions set forth herein are as of the date hereof, and we
disclaim any undertaking or obligation to update these opinions for events and
circumstances occurring after the date hereof or as to facts relating to prior
events that are subsequently brought to our attention.
D-9. The opinions set forth herein, including those opinions as to the
enforceability of the Loan Documents, are subject to the qualification that they
do not address, except as expressly stated elsewhere in the opinion letter,
enforceability of any of the following provisions included in such documents:
(a) provisions that contain a waiver of (i) broadly or vaguely stated
rights, (ii) the benefits of statutory, regulatory or constitutional rights,
unless and to the extent the statute, regulation or constitution explicitly
allows waiver, (iii) unknown future defenses, and (iv) rights to damages;
(b) provisions that attempt to change or waive rules of evidence or
fix the method or quantum of proof to be applied in litigation or similar
proceedings;
(c) provisions waiving the pledgor's rights under the Uniform
Commercial Code, including the right that Collateral be disposed of in a
reasonable commercial manner; and
(d) provisions appointing one party as attorney-in-fact for an adverse
party.
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November 6, 2003
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This opinion letter is rendered only to you and your successors and assigns
and is solely for your benefit in connection with the transactions contemplated
by the Loan Documents. This opinion letter may not be used or relied upon for
any other purpose or by any other person without our prior written consent.
Very truly yours,
/s/ XXXXXXX COIE LLP
----------------------------------------
XXXXXXX COIE LLP
PC-Opinion-Ormat/Bank Leumi
Bank Leumi USA
Member FDIC
RESTATED PROMISSORY NOTE (GRID)
New York, N.Y., October 2, 2003 $20,000,000.00
For Value Received, Ormat Nevada Inc., a Delaware corporation ("Borrower"),
promises to pay to the order of BANK LEUMI USA (the "Bank"), at its offices at
000 Xxxxx Xxxxxx, Xxx Xxxx XX 00000 the principal sum of Twenty Million Dollars
($20,000,000.00) ("Maximum Principal Amount") or, if less, the aggregate unpaid
principal sum of all Loans made by the Bank, to the Borrower of this Restated
Note from time to time in accordance with the Amended and Restated Bridge Loan
Agreement between the Borrower and the Bank of even date herewith (the "Loan
Agreement"). The principal sum of each such Loan shall be payable on February
2, 2005, or such earlier date as may be specified herein or in the Loan
Agreement.
This Restated Note evidences borrowings under and has been issued by the
Borrower in accordance with the terms of the Loan Agreement. The Borrower
acknowledges that the obligation of the Bank to make Loans is subject to
satisfaction at the time of each such Loan of the conditions set forth in the
Loan Agreement. The Bank and any holder hereof is entitled to the benefits of
the Loan Agreement and the other Loan Documents, and may enforce the agreements
of the Borrower contained therein, and any holder hereof may exercise the
respective remedies provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms thereof. All capitalized
terms used in this Restated Note and not otherwise defined herein shall have the
same meanings herein as in the Loan Agreement.
The Borrower has the right in certain circumstances and the obligation under
certain other circumstances to prepay the whole or part of the principal of this
Restated Note, and the right under certain circumstances to reborrow, on the
terms and conditions specified in the Loan Agreement.
Each Loan shall bear interest (from the date of such Loan) at a rate per annum
which shall be equal to one-and-one-half percentage points (1.5%) per annum
above the Libor Rate (Reserve Adjusted) for a three month term, calculated by
the Bank, in the manner hereinafter provided,
----------
* "Libor Rate" means, relative to any Interest Period (hereinafter defined) (i)
the rate quoted by the British Bankers Association in London as its "LIBOR" rate
for U.S. dollar deposits at or about 11:00 a.m., London time, on the second
Business Day prior to the commencement of the Interest Period; provided,
however, that if the Bank adopts generally in its business a different rate
quoting system or service for obtaining the rate of interest commonly known as
"LIBOR" for U.S. dollar deposits, then upon giving prompt notice to the Borrower
such alternative rate quoting system or service shall be utilized for
determining "IBOR" in lieu of the rate quoted by the British Bankers
Association, and (ii) if the rate may not be determined by the Bank as provided
in the preceding clause (i) for any reason, as determined by the Bank in its
reasonable judgment, then the rate equal to the rate of interest per annum
determined by the Bank to be the arithmetic mean (rounded upward to the next
l/16th of 1%) of the rates of interest per annum at which U.S. dollar deposits
in the approximate amount of the amount of the Loan to be made or continued
hereunder by the Bank and having a maturity comparable to such Interest Period
would be offered to the Bank in the London Interbank market at its request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
The "Libor Reserve Percentage" means, relative to any Interest Period for Loans
hereunder, the percentage (expressed as a decimal, rounded upward to the next
1/100th of 1%) in effect on such day (whether or not applicable to the Bank)
under regulations issued from time to time by the Federal Reserve System Board
for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
but in no event in excess of the maximum rate permitted by applicable law;
provided, that if the Bank shall have determined that by reason of circumstances
affecting the Libor Rate (Reserve Adjusted) adequate and reasonable means do not
exist for ascertaining the Libor Rate (Reserve Adjusted) for any Interest
Period, or if the time remaining to the stated maturity date of this Restated
Note is less than the Interest Period, then in either such case, the applicable
rate of interest during such Interest Period shall be equal to the rate of
interest designated by the Bank, and in effect from time to time, as its
"Reference Rate", adjusted when said Reference Rate changes, but in no event in
excess of the maximum rate permitted by law (the Borrower acknowledges that the
Reference Rate may not necessarily represent the lowest rate of interest charged
by the Bank to customers). No Libor Rate (Reserve Adjusted)-based Loan shall be
made less than three months before the stated maturity date of this Restated
Note or after the occurrence and continuance of an Event of Default or an event
which, upon notice, passage of time or both would constitute an Event of
Default. Interest hereunder shall be payable on the last day of each Interest
Period and at maturity (whether by acceleration or otherwise). The term
"Interest Period" as used in this Restated Note shall mean a period of three
months. No Interest Period shall extend beyond the stated maturity date of this
Restated Note. The initial Interest Period for this Restated Note shall begin on
the day of the initial draw down under the Restated Note, and each subsequent
Interest Period shall begin on the last day of the immediately preceding
Interest Period. If an Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall end on the next succeeding Business
Day; provided, however, that, if any Interest Period would otherwise end on a
day that is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall end on the next
preceding Business Day and further provided that if any Interest Period
commences on the last Business Day in a calendar month or if there is no
corresponding day in the calendar month in which it is to end, then it shall end
on the last Business Day in a calendar month. The Bank shall give notice to the
Borrower of the interest rate determined for each Interest Period as provided
herein, and such notice shall be conclusive and binding upon the Borrower for
all purposes absent manifest error.
Borrower shall pay to the Bank to compensate it for any loss, cost or expense
that the Bank determines is attributable to any prepayment of a Loan bearing
interest at the Libor Rate (Reserve Adjusted). Such compensation shall be an
amount equal to the excess (if any) of (i) the amount of interest that otherwise
would have accrued on the principal amount so prepaid for the period from the
date of such prepayment to the last day of the then current Interest Period for
such Loan at the applicable rate of interest for such Loan provided for herein,
less (ii) the amount of interest that otherwise would have accrued on such
principal amount from the date of such prepayment until the end of the then
current Interest Period at a rate per annum equal to the interest component of
the amount the Bank would have bid in The London Interbank market for dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by the
Bank). The term "Business Day" shall mean any day of the year on which the Bank
is open for business (as required or permitted by law or otherwise) and on which
dealings in U.S. dollar deposits are carried on in London, England.
If any law, treaty, rule, regulation or determination of a court or governmental
authority or any change therein or in the interpretation or application thereof
(each, a "Change in Law") shall make it unlawful for the Bank to make Libor Rate
(Reserve Adjusted)-based Loans, or to maintain interest rates based on Libor,
then in the former event, any obligation of the Bank contained herein or in any
agreement of the Bank to make available such unlawful Libor Rate
--------------------------------------------------------------------------------
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Federal Reserve System Board).
"Libor Rate (Reserve Adjusted)" means, relative to any Loan to be made or
continued hereunder for any Interest Period, the rate of interest per annum
(rounded upwards to the next 1/16th of 1%) determined by the Bank as follows:
Libor Rate Libor Rate
-------------------------
(Reserve Adjusted) = 1.00-Libor Reserve Percentage
(Reserve Adjusted)-based Loans shall immediately be cancelled, and in the latter
event, any such unlawful Libor Rate (Reserve Adjusted)-based Loans then
outstanding shall be converted, at the Bank's option, so that interest on the
outstanding principal balance subject hereto is determined in relation to the
Reference Rate as herein above provided; provided however, that if any such
Change in Law shall permit any Libor Rate (Reserve Adjusted)-based Loans to
remain in effect until the expiration of the Interest Period applicable thereto,
then such permitted Libor Rate (Reserve Adjusted)-based Loans shall continue in
effect until the expiration of such Inerest Period. Upon the occurrence of any
of the foregoing events, Borrower shall pay to the Bank immediately upon demand
such amounts as may be necessary to compensate the Bank for any fines, fees,
charges, penalties or other costs incurred or payable by the Bank as a result
thereof and which are attributable to any Libor Rate (Reserve Adjusted) options
made available to Borrower hereunder, and any reasonable allocation made by the
Bank among its operations shall be conclusive and binding upon Borrower.
If any Change in Law or compliance by the Bank with any request or directive
(whether or not having the force of law) from any central bank or other
governmental authority shall:
(A) subject the Bank to any tax, duty or other charge with respect to any Libor
Rate (Reserve Adjusted) options, or change the basis of taxation of payments to
the Bank of principal, interest, fees or any other amount payable hereunder
(except for changes in the rate of tax on the overall net income of the Bank);
or
(B) impose, modify or hold applicable any reserve, special deposit, compulsory
loan or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances or loans by, or any other
acquisition or funds by any office of the Bank; or
(C) impose on the Bank any other condition;
and the result of any of the foregoing is to increase the cost to the Bank of
making, renewing or maintaining any Libor Rate (Reserve Adjusted)-based Loan
hereunder and/or to reduce any amount receivable by the Bank in connection
therewith, then in any such case, Borrower shall pay to the Bank immediately
upon demand such amounts as may be necessary to compensate the Bank for any
additional costs incurred by the Bank and/or reductions in amounts received by
the Bank which are attributable to such Libor Rate (Reserve Adjusted)-based
Loan. In determining which costs incurred by the Bank and/or reductions in
amounts received by the Bank are attributable to any Libor Rate (Reserve
Adjusted)-based Loan made to Borrower hereunder, any reasonable allocation made
by the Bank among its operations shall be conclusive and binding upon Borrower.
The Bank is hereby authorized to enter on the schedule attached hereto the
amount of each Loan (including all Loans now outstanding and evidenced by the
Note made pursuant to the Initial Agreement) and each payment of principal
thereon, without any further authorization on the part of the Borrower, but the
Bank's failure to make such entry shall not limit or otherwise affect the
obligations of the Borrower. In the event that any other Liabilities (as
hereinafter defined) of Borrower to the Bank are due at any time that the Bank
receives a payment from Borrower on account of this Restated Note or any such
other Liabilities of Borrower, the Bank may apply such payments to amounts due
under this Restated Note or any such other Liabilities in such manner as the
Bank, in its discretion, elects, regardless of any instructions from Borrower to
the contrary.
Interest shall be computed on the basis of a 360-day year.
The Borrower authorizes (but shall not require) the Bank to debit any account
maintained by the Borrower with the Bank, at any date on which the payment of
principal or of interest on any of the Liabilities is due; in an amount equal to
any unpaid portion of such payment. If the time for payment of principal of or
interest on any of the Liabilities or any other money payable hereunder or with
respect to any of the Liabilities becomes due on a day on which the Bank's
offices are closed (as required or permitted by law or otherwise), such payment
shall be made on the next succeeding Business Day, and such extension shall be
included in computing interest in connection with such payment. All payments by
any Borrower of this Restated Note on account
of principal, interest or fees hereunder shall be made in lawful money of the
United States of America, in immediately available funds.
All Property (as hereinafter defined) held by the Bank shall be subject to a
security interest in favor of the Bank or holder hereof as security for any and
all Liabilities. The term "Property" shall mean the balance of every deposit
account of the Borrower with the Bank or any of the Bank's nominees or agents
and all other obligations of the Bank or any of its nominees or agents to the
Borrower, whether now existing or hereafter arising, and all other personal
property of the Borrower (including without limitation all money, accounts,
general intangibles, goods, instruments, documents and chattel paper) which, or
evidence of which, are now or at any time in the future shall come into the
possession or under the control of or be in transit to the Bank or any of its
nominees or agents for any purpose, whether or not accepted for the purposes for
which it was delivered. The term "Liabilities" shall mean the indebtedness
evidenced by this Restated Note and all other indebtedness, liabilities and
obligations of any kind of the Borrower (or any partnership or other group of
which the Borrower is a member) to (a) the Bank, (b) any group of which the Bank
is a member, or (c) any other person if the Bank has a participation or other
interest in such indebtedness, liabilities or obligations, whether (i) for the
Bank's own account or as agent for others, (ii) acquired directly or indirectly
by the Bank from the Borrower or others, (iii) absolute or contingent, joint or
several, secured or unsecured, liquidated or unliquidated, due or not due,
contractual or tortious, now existing or hereafter arising, or (iv) incurred by
the Borrower as principal, surety, endorser, guarantor or otherwise, and
including without limitation all expenses, including attorneys' fees, incurred
by the Bank in connection with any such indebtedness, liabilities or obligations
or any of the Property (including any sale or other disposition of the
Property).
Upon the occurrence of any Event of Default, as defined in the Loan Agreement,
this Restated Note may become, or may be declared, due and payable immediately
without demand or notice, and all other debts or obligations of the Borrower to
the Bank or holder hereof, whether due or not due and whether direct or
contingent and howsoever evidenced, shall, at the option of the Bank or holder
hereof, also become due and payable immediately without demand or notice. After
this Restated Note becomes due, at stated maturity or on acceleration, any
unpaid balance hereof shall bear interest from the date it becomes due until
paid at a rate per annum 3% above the rate borne by this Restated Note when it
becomes due or, if such rate shall not be lawful with respect to the
undersigned, then at the highest lawful rate. The liability of any party to
commercial paper held by the Bank or holder hereof, other than the Borrower
hereof, shall remain unaffected hereby, and such parties shall remain liable
thereon in accordance with the original tenor thereof. The Borrower agrees that
if an attorney is retained to enforce or collect this Restated Note or any other
obligations by reason of non-payment of this Restated Note when due or made due
hereunder, a reasonable attorneys' fee shall be paid in addition.
This Restated Note shall be governed by the laws of the State of New York and
shall be binding upon the Borrower and the Borrower's heirs, administrators,
successors and assigns. The Borrower hereby irrevocably consents to the
jurisdiction of any New York State or Federal court located in New York City
over any action or proceeding arising out of any dispute between the Borrower
and the Bank, and the Borrower further irrevocably consents to the service of
process in any such action or proceeding by the mailing of a copy of such
process to the Borrower at the address set forth below. In the event of
litigation between the Bank and the Borrower over any matter connected with this
Restated Note or resulting from transactions hereunder, the right to a trial by
jury is hereby waived by the Bank and the Borrower. The Borrower also waives the
right to interpose any set-off or counterclaim of any nature. The Bank or any
holder may accept late payments, or partial payments, even though marked
"payment in full" or containing words of similar import or other conditions,
without waiving any of its rights. No amendment, modification or waiver of any
provision of this Restated Note nor consent to any departure by Borrower
therefrom shall be effective, irrespective of any course of dealing, unless the
same shall be in writing and signed by the Bank, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
The rights and remedies of the Bank provided for hereunder (including but not
limited to the right to accelerate Liabilities of Borrower and to realize on any
security for any such Liabilities) are cumulative with the rights and remedies
of the Bank available under any other instrument or agreement or under
applicable law.
The Restated Note amends, restates and supersedes the Note made pursuant to the
Initial Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Restated Note to be signed in
its corporate name and its corporate seal to be impressed thereon by its duly
authorized officer as of the day and year first above written.
ORMAT NEVADA, INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Secretary
[Corporate Seal]
