EXECUTION COPY
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PLEDGE AND SECURITY AGREEMENT
Dated as of February 13, 2004
by and between
ORMAT NEVADA INC.,
a Delaware corporation
and
UNION BANK OF CALIFORNIA, N.A.,
in its capacity as Collateral Agent
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PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this "Agreement"), dated as of
February 13, 2004, is made by and between ORMAT NEVADA INC., a Delaware
corporation (together with its permitted successors and assigns, the "Obligor"),
and UNION BANK OF CALIFORNIA, N.A., in its capacity as the Collateral Agent for
the Noteholders described below (in such capacity, the "Collateral Agent").
RECITALS:
A. Ormat Funding Corp., a Delaware corporation (the "Note Issuer"),
Union Bank of California, N.A., in its capacity as the Trustee, ORNI 1 LLC, a
Delaware limited liability company, ORNI 2 LLC, a Delaware limited liability
company, ORNI 7 LLC, a Delaware limited liability company, OrMammoth, Inc., a
Delaware corporation, Xxxxx Power Partners, a Nevada general partnership,
Steamboat Development Corp., a Utah corporation, and Steamboat Geothermal LLC, a
Delaware limited liability company (the "Subsidiary Guarantors"), and Ormesa
LLC, a Delaware limited liability company, have entered into the Indenture dated
as of even date herewith (the "Indenture"), pursuant to which the Note Issuer is
issuing the 8.25% Senior Secured Notes (collectively, the "Notes"), and Union
Bank of California, N.A. has been appointed the Trustee on behalf of the holders
of the Notes (collectively, the "Noteholders").
B. It is a condition precedent to the issuance of the Notes by the
Note Issuer, that Obligor shall have executed and delivered this Agreement.
C. Obligor will derive substantial direct and indirect benefit from
the issuance of the Notes.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Obligor hereby agrees with Collateral Agent as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms.
(a) Each capitalized term used and not otherwise defined herein
shall have the meaning assigned to such term (whether directly or by
reference to another agreement or document) in Article I the Indenture. The
Rules of Construction set forth in Section 1.04 of the Indenture are hereby
incorporated by reference as if fully set forth herein.
(b) In addition to the terms defined in the Indenture, the
preamble and the recitals, the following terms shall have the following
respective meanings:
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"Capital Stock" of any Person shall mean any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interest in (however designated) the common or preferred
equity or equity or preference share capital of such Person, including, without
limitation, partnership interests and limited liability company membership
interests.
"Certificated Security" has the meaning assigned to the term
"certificated security" in the Uniform Commercial Code.
"Collateral" has the meaning assigned to that term in Section 2.01.
"Discharge Date" shall mean the date when the outstanding principal of
the Notes and other amounts payable to the Noteholders under the Indenture have
been paid in full.
"Ownership Collateral" has the meaning assigned to that term in
Section 2.01(a)(iii).
"Pledged Ownership Interests" has the meaning assigned to that term in
Section 2.01(a)(i).
"Proceeds" has the meaning assigned to the term "proceeds" in the
Uniform Commercial Code.
"Secured Obligations" shall mean any and all indebtedness,
liabilities, and other obligations of the Note Issuer, Obligor and the
Subsidiary Guarantors (including, but not limited to, all such obligations in
respect of principal, interest (including post-petition interest), fees,
indemnities, costs and other expenses, whether due after acceleration or
otherwise and whether incurred before or after a bankruptcy of Obligor), of
whatever nature and however evidenced, owed to the Secured Parties under or
pursuant to the Indenture and each other Transaction Document, in each case,
direct or indirect, primary or secondary, fixed or contingent, now or hereafter
arising out of or relating to any such document.
"Security" has the meaning assigned to the term "security" in the
Uniform Commercial Code.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as
the same may, from time to time, be in effect in the State of New York;
provided, however, in the event that, by reason of mandatory provisions of law,
any or all of the attachment, perfection or priority of the security interest in
any Collateral (as hereinafter defined) is governed by the Uniform Commercial
Code as in effect in a jurisdiction other than the State of New York, the term
"UCC" shall mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such attachment,
perfection or priority and for purposes of definitions related to such
provisions.
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ARTICLE II
THE COLLATERAL
Section 2.01. Grant. As collateral security for the prompt payment in
full when due (whether at stated maturity, upon acceleration, on any optional or
mandatory prepayment date or otherwise) and performance of the Secured
Obligations, Obligor hereby pledges and grants to the Collateral Agent, for the
benefit of the Secured Parties, and subject to the rules and regulations of the
Bureau of Land Management, as applicable with respect to certain Geothermal
Resource Leases to which Obligor is a party, a security interest in all of
Obligor's right, title and interest in and to (subject to any Permitted Liens)
the following property, whether now owned or in the future acquired by Obligor
and whether now existing or in the future coming into existence (all of the
property, assets and revenues described in this Section 2.01 being collectively,
the "Collateral"):
(a) (i) all of the Capital Stock in any Subsidiary identified in
Annex 2 now or hereafter owned by Obligor, in each case together with
all certificates (if any) evidencing the same (collectively, the
"Pledged Ownership Interests");
(ii) all shares, partnership interests, membership
interests, Securities, moneys or property representing a dividend on
any of the Pledged Ownership Interests, or representing a distribution
or return of capital upon or in respect of the Pledged Ownership
Interests, or resulting from a split-up, revision, reclassification or
other like change of the Pledged Ownership Interests or otherwise
received in exchange therefore, and any subscription warrants, rights
or options issued to the holders of, or otherwise in respect of, the
Pledged Ownership Interests;
(iii) without affecting the obligations of Obligor under any
provision prohibiting that action under any Transaction Document, in
the event of any consolidation or merger in which any Subsidiary
Guarantor is not the surviving Person, all ownership interests of any
class or character in the successor Person (unless that successor
Person is Obligor itself) formed by or resulting from that
consolidation or merger (collectively, and together with the property
described in clauses (i) and (ii) above, the "Ownership
Collateral");and
(b) all Proceeds and products in whatever form of all or any part
of the other Collateral, including all rents, profits, income and benefits,
substitutions and replacements of and to any of the Collateral and all
proceeds of insurance and all condemnation awards and all other
compensation for any event of loss with respect to all or any part of the
other Collateral (together with all rights to recover and proceed with
respect to the same), and all accessions to, substitutions for and
replacements of all or any part of the other Collateral.
IT BEING UNDERSTOOD, HOWEVER, that (A) in the case of any of the foregoing that
consists of general or limited partnership interests in a general or limited
partnership, the security
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interest hereunder shall be deemed to be created only to the maximum extent
permitted under the applicable organizational instrument pursuant to which such
partnership is formed and (B) in no event shall the security interest granted
under this Section 2.01 attach to any lease, license, contract, property rights
or agreement to which any Obligor is a party or any other part of the Collateral
(or to any of its rights or interests thereunder) if the grant of such security
interest would constitute or result in either (i) the abandonment, voiding,
invalidation or unenforceability of any right, title or interest of any Obligor
therein or (ii) in a breach or termination pursuant to the terms of, or a
default under, any such lease, license, contract, property rights or agreement
(other than, to the extent that any such term would be rendered ineffective
pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial
Code).
Notwithstanding the foregoing, Collateral shall not include all Capital Stock of
any Subsidiary of Obligor other than the Pledged Ownership Interests. To the
extent that Obligor is permitted under (a) Section 3.2 of the Depositary
Agreement to receive disbursements from the Operating Account in respect of
Operating and Maintenance Expenses, (b) Section 3.4(b), 3.5(c) or 3.7(b) of the
Depositary Agreement to receive disbursements from the Debt Service Reserve
Account, the Galena Re-powering Account or the Ormesa Loan Repayment Account, as
applicable or (c) Section 3.8 of the Depositary Agreement to receive Restricted
Payments, upon receipt by Obligor of such disbursements made pursuant to Section
3.2, 3.4(b), 3.5(c), 3.7(b) or 3.8 of the Depositary Agreement, as applicable,
such cash or other property distributed to Obligor shall automatically be
released, without any further action by the Collateral Agent, from any security
interest that may have been created in such cash or other property pursuant to
the foregoing grant clause.
Section 2.02. Obligations Unconditional. The obligations of Obligor in
this Agreement shall be continuing, irrevocable, primary, absolute and
unconditional irrespective of the value, genuineness, validity, regularity or
enforceability of any Financing Document or any other agreement or instrument
referred to therein, or any substitution, release or exchange of any guarantee
of or security for any of the Secured Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 2.02 that the
obligations of Obligor hereunder shall be absolute and unconditional under any
and all circumstances. Without limiting the generality of the foregoing, it is
agreed that the occurrence of any one or more of the following shall not alter
or impair the liability of Obligor hereunder, which shall remain absolute and
unconditional as described above without regard to and not be released,
discharged or in any way affected (whether in full or in part) by:
(a) at any time or from time to time, without notice to Obligor,
the time for any performance of or compliance with any of the Secured
Obligations shall be extended, or such performance or compliance shall be
waived;
(b) any Financing Document shall be amended or modified or there
shall be a departure from, or waiver of, any of the terms of any Financing
Document;
(c) the maturity of any of the Secured Obligations shall be
accelerated, or any of the Secured Obligations shall be modified,
supplemented or amended in any
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respect, or any right under any Financing Document or any other agreement
or instrument referred to therein shall be waived or any guarantee of any
of the Secured Obligations or any security therefore shall be released or
exchanged in whole or in part or otherwise dealt with;
(d) any lien granted to, or in favor of, the Collateral Agent as
security for any of the Secured Obligations shall fail to be perfected; or
(e) any proceeding, voluntary or involuntary, involving the
bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of Obligor or the Note Issuer or by any defense which Obligor
or the Note Issuer may have by reason of the order, decree or decision of
any court or administrative body resulting from any such proceeding.
Obligor acknowledges and agrees that the Secured Obligations include
interest on the Secured Obligations at the applicable rate therefor under
the Financing Documents which accrues after the commencement of any such
proceeding (or, if interest on any portion of the Secured Obligations
ceases to accrue by operation of law by reason of the commencement of said
proceeding, such Secured Obligations includes the interest which would have
accrued on such portion of the Secured Obligations if said proceedings had
not been commenced), since it is the intention of the parties that the
amount of the Secured Obligations secured pursuant to this Agreement should
be determined without regard to any rule of law or order which may relieve
Obligor or the Note Issuer of any portion of the Secured Obligations.
Obligor will permit any trustee in bankruptcy, receiver, debtor in
possession, assignee for the benefit of creditors or similar person to pay
the Collateral Agent, or allow the claim of the Collateral Agent in respect
of, interest which would have accrued after the date on which such
proceeding is commenced. Notwithstanding the above, so long as any Secured
Obligation shall remain outstanding, Obligor shall not, without the prior
written consent of the Collateral Agent, commence or join with any other
person in commencing any bankruptcy, reorganization or insolvency
proceedings of or against the Note Issuer.
Section 2.03. Waiver.
(a) Obligor hereby expressly waives promptness, diligence,
presentment, demand for payment or performance and protest; filing of
claims with any court; any proceeding to enforce any provision of the
Financing Documents; notice of acceptance of and reliance on this Agreement
by the Secured Parties, notice of the creation of any Secured Obligations
of the Note Issuer, and (except with respect to any notice required by the
Transaction Documents) any other notice whatsoever; any requirement that
the Collateral Agent exhausts any right, power or remedy or proceed or take
any other action against Obligor or the Note Issuer under any Financing
Document to which it is a party or any lien or encumbrance on, or any claim
of payment against, any property of Obligor or the Note Issuer or any other
agreement or instrument referred to therein, or any other Person under any
guarantee of, or lien securing, or claim for payment of, any of the Secured
Obligations; any right to require a proceeding by the Collateral Agent
first against the Note Issuer whether to marshal any assets or to exhaust
any right or take any action against the Note Issuer or any other Person or
any collateral
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or otherwise, any diligence in collection or protection for realization
upon any Secured Obligation; any obligation hereunder or any collateral
security for any of the foregoing; any right of protest, presentment,
notice or demand whatsoever, and any claims of waiver, release, surrender,
alteration or compromise and all defenses, set-offs counterclaims,
recoupments, reductions, limitations, impairments or terminations, whether
arising hereunder or otherwise. Obligor further waives (i) any requirement
that any other Person be joined as a party to any proceeding for the
enforcement by the Collateral Agent of any Secured Obligation and (ii) the
filing of claims by the Collateral Agent in the event of the receivership
or bankruptcy of the Note Issuer. The Collateral Agent shall have the right
to bring suit directly against Obligor with respect to the obligations owed
to the Collateral Agent hereunder either prior to or concurrently with any
lawsuit against, or without bringing any suit against Obligor, the Note
Issuer or any other Person.
(b) The enforceability and effectiveness of this Agreement and
the liability of Obligor, and the rights, remedies, powers and privileges
of the Collateral Agent, under this Agreement shall not be affected,
limited, reduced, discharged or terminated, and Obligor hereby expressly
waives to the fullest extent permitted by law any defense now or in the
future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or
any part of the Secured Obligations, any Financing Document or any
agreement, security document, guarantee or other instrument relating
to all or any part of the Secured Obligations;
(ii) any disability or other defense with respect to all of
any part of the Secured Obligations of Obligor, including the effect
of any statute of limitations that may bar the enforcement of all or
any part of the Secured Obligations;
(iii) the illegality, invalidity or unenforceability of any
security or guarantee for all or any part of the Secured Obligations
or the lack of perfection or continuing perfection or failure of the
priority of any lien or encumbrance on any collateral for all or any
part of the Secured Obligations;
(iv) the cessation, for any cause whatsoever, of the
liability of any Person that is a guarantor of all or any part of the
Secured Obligations (other than, subject to Section 2.05, by reason of
the full payment and performance of all Secured Obligations);
(v) except as required by Section 5.01 hereof, any failure
of the Collateral Agent to give notice of sale or other disposition of
any collateral (including any notice of any judicial or nonjudicial
foreclosure or sale of any interest in real property serving as
collateral for all or any part of the Secured Obligations) for all or
any part of the Secured Obligations to the Note Issuer, Obligor or any
other Person or any defect in, or any failure by the Note Issuer,
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Obligor or any other Person to receive, any notice that may be given
in connection with any sale or disposition of any collateral;
(vi) any failure of the Collateral Agent to comply with
applicable laws in connection with the sale or other disposition of
any collateral for all or any part of the Secured Obligations;
(vii) any judicial or nonjudicial foreclosure or sale of, or
other election of remedies with respect to, any interest in real
property or other Collateral serving as security for all or any part
of the Secured Obligations, even though such foreclosure, sale or
election of remedies may impair the subrogation rights of either the
Note Issuer or Obligor or may preclude the Note Issuer or Obligor from
obtaining reimbursement, contribution, indemnification or other
recovery from the other Subsidiary Guarantors, the Note Issuer or any
other Person and even though the Note Issuer or Obligor may not, as a
result of such foreclosure, sale or election of remedies, be liable
for any deficiency;
(viii) any act or omission of the Collateral Agent or any
other Person (other than payment of the Secured Obligations) that
directly or indirectly results in or aids the discharge or release of
Obligor or any part of the Secured Obligations or any security or
guarantee (including any letter of credit) for all or any part of the
Secured Obligations by operation of law or otherwise;
(ix) any law which provides that the obligation of a surety
or Obligor must neither be larger in amount nor in other respects more
burdensome than that of the principal or which reduces a surety's or
Obligor's obligation in proportion to the principal obligation;
(x) any counterclaim, set-off or other claim which Obligor
has or alleges to have with respect to all or any part of the Secured
Obligations;
(xi) any failure of the Collateral Agent to file or enforce
a claim in any bankruptcy or other proceeding with respect to any
Person;
(xii) the election by the Collateral Agent, in any
bankruptcy proceeding of any Person, of the application or
non-application of Section 1111(b)(2) of the United States Bankruptcy
Code;
(xiii) any extension of credit or the grant of any lien or
encumbrance under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code;
(xiv) any use of cash collateral under Section 363 of the
United States Bankruptcy Code;
(xv) any agreement or stipulation with respect to the
provision of adequate protection in any bankruptcy proceeding of any
Person;
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(xvi) the avoidance of any lien or encumbrance in favor of
the Collateral Agent for any reason;
(xvii) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution
proceeding commenced by or against any Person, including any discharge
of, or bar or stay against collecting, all or any part of the Secured
Obligations (or any interest on all or any part of the Secured
Obligations) in or as a result of any such proceeding; or
(xviii) any action taken by the Collateral Agent that is
authorized by this Section 2.03(b) or otherwise in this Agreement or
by any other provision of any Financing Document or any omission to
take any such action.
Section 2.04. Reinstatement. The obligations of Obligor under this
Article II and the security interest in, and the lien on, the Collateral shall
be automatically reinstated if and to the extent that for any reason any payment
by or on behalf of Obligor in respect of the Secured Obligations is rescinded or
must be otherwise restored by any holder of any of the Secured Obligations or if
and to the extent that for any reason any payment by or on behalf of the Note
Issuer in respect of its obligations under the Indenture and the Senior Secured
Notes is rescinded or must be otherwise restored by any Noteholder, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise. Obligor
agrees that it will indemnify the Collateral Agent on demand for all reasonable
and reasonably documented costs and expenses (including reasonable and
reasonably documented fees of counsel) incurred by the Collateral Agent in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
Section 2.05. Subrogation. Obligor shall be subrogated to all rights
of the Collateral Agent and the Secured Parties in respect of any amounts paid
by Obligor pursuant to the terms of this Agreement; provided, however, that
Obligor hereby waives all rights of subrogation or contribution, whether arising
by contract or operation of law (including, without limitation, any such right
arising under any bankruptcy, insolvency or other similar law) or otherwise by
reason of any payment by it pursuant to the provisions of this Article II. If
any amount shall be paid to Obligor on account of such subrogation rights at any
time prior to the payment, discharge or performance in full of the Secured
Obligations, such amount shall be held in trust for the benefit of the
Collateral Agent (if applicable) and shall forthwith be paid to the Collateral
Agent to be credited and applied upon and against the Secured Obligations, to
the extent then matured, in accordance with the terms of the relevant Financing
Documents or, to the extent not then matured or existing, be held by the
Collateral Agent as collateral security for such Secured Obligations.
Section 2.06. Remedies. Obligor agrees that, as between Obligor and
the Collateral Agent, any obligations of the Note Issuer to the Secured Parties
under any of the Financing Documents to which it is a party may be declared to
be forthwith due and payable notwithstanding any stay, injunction or other
prohibition (except any applicable prohibitions set forth in the Transaction
Documents) preventing such declaration (or such obligations from
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becoming automatically due and payable) as against the Note Issuer and that, in
the event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations shall forthwith be deemed to
have become due and payable for purposes of this Agreement. For the avoidance of
doubt, it is understood and agreed that any amount paid pursuant to the
immediately preceding sentence is intended to be applied to the payment or
prepayment (as the case may be) of the related obligations of the Note Issuer.
Each of the obligations of Obligor under this Agreement is separate and
independent of each other obligation of Obligor hereunder and separate and
independent of the Secured Obligations, and Obligor agrees that a separate
action or actions may be brought and prosecuted by the Collateral Agent against
Obligor to enforce this Agreement, irrespective of whether any action is brought
by the Collateral Agent against the Note Issuer under any relevant Financing
Document or whether the Note Issuer is joined in any such action or actions.
Section 2.07. Continuing Obligation. The obligation provided in this
Article II is a continuing obligation and shall apply to all Secured Obligations
whenever arising.
Section 2.08. [Intentionally Omitted.]
Section 2.09. [Intentionally Omitted.]
Section 2.10. Perfection. Obligor authorizes the Collateral Agent to
file such financing statements and continuation statements in such offices as
are or shall be necessary or as the Collateral Agent may determine to be
appropriate to create, perfect and establish the priority of the liens granted
by this Agreement in any and all of the Collateral, to preserve the validity,
perfection or priority of the liens granted by this Agreement in any and all of
the Collateral or to enable the Collateral Agent to exercise its remedies,
rights, powers and privileges under this Agreement. Concurrently with the
execution and delivery of this Agreement, Obligor shall (i) deliver to the
Collateral Agent any and all certificates for all Certificated Securities,
including those identified in Annex 2, duly endorsed in blank; (ii) with respect
to any part of the Ownership Collateral that constitutes an uncertificated
security Obligor shall cause any issuer thereof to register the Collateral Agent
as the registered owner of such security; and (iii) take all such other actions,
and authenticate or sign and file or record such other records or instruments,
as are necessary or as the Collateral Agent may reasonably request to perfect
and establish the priority of the liens granted by this Agreement in any and all
of the Collateral or to enable the Collateral Agent to exercise its remedies,
rights, powers and privileges under this Agreement, including, without
limitation, causing any or all of the Collateral to be transferred of record
into the name of the Collateral Agent as such (and the Collateral Agent agrees
that if any Collateral is transferred into its name, the Collateral Agent will
thereafter promptly give to Obligor copies of any notices and communications
received by it with respect to the Collateral pledged by Obligor hereunder).
Section 2.11. Preservation and Protection of Security Interests.
Obligor shall:
(a) upon the acquisition after the date of this Agreement by
Obligor of any Certificated Securities covered by a certificate of title or
ownership promptly (x) take such action with respect to that Collateral as
is specified for that type of Collateral in
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Section 2.10 and (y) take all such other actions, and authenticate or sign
and file or record such other records or instruments, as are necessary or
as the Collateral Agent may reasonably request to create, perfect and
establish the priority of the liens granted by this Agreement in any and
all the Collateral, to preserve the validity, perfection or priority of the
liens granted by this Agreement in any and all of the Collateral or to
enable the Collateral Agent to exercise its remedies, rights, powers and
privileges under this Agreement;
(b) whether with respect to Collateral as of the date of this
Agreement or Collateral in which Obligor acquires rights in the future,
authorize, give, authenticate, execute, deliver, file or record any and all
financing statements, notices, contracts, agreements or other records or
instruments, obtain any and all Governmental Approvals, and take all such
other actions, as are necessary or as the Collateral Agent may reasonably
request to create, perfect and establish the priority of the liens granted
by this Agreement in any and all the Collateral, to preserve the validity,
perfection or priority of the liens granted by this Agreement in any and
all of the Collateral or to enable the Collateral Agent to exercise and
enforce its remedies, rights, powers and privileges under this Agreement,
including causing any or all of the Ownership Collateral to be transferred
of record into the name of the Collateral Agent or its nominee (and the
Collateral Agent agrees that if any Security is transferred into its name
or the name of its nominee, the Collateral Agent shall thereafter promptly
give to Obligor copies of any notices and communications received by it
with respect to that Security); and
(c) furnish to the Collateral Agent from time to time and no
later than 90 days prior to the date that continuation statements are
required to be filed to preserve the validity, perfection or priority of
the liens granted by this Agreement, statements and schedules further
identifying and describing the Collateral pledged by hereunder and such
other reports in connection with the Collateral pledged by Obligor
hereunder as the Collateral Agent may reasonably request, all in reasonable
detail.
Section 2.12. Attorney-in-Fact.
(a) Subject to Obligor's rights under Sections 2.13 through 2.16,
Obligor hereby irrevocably constitutes and appoints the Collateral Agent
and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority
in the place and stead of Obligor and in the name of Obligor or in its own
name, for the purpose of carrying out the provisions of this Agreement upon
the occurrence and during the continuation of an Event of Default, to (x)
take any appropriate action and to execute any document or instrument that
may be necessary or desirable to accomplish the purposes of this Agreement,
(y) preserve the validity, perfection and priority of the liens granted by
this Agreement and, (z) exercise its rights, remedies, powers and
privileges under this Agreement. This appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality
of the foregoing, Obligor hereby gives the Collateral Agent the power and
right, on behalf of Obligor, without notice to or assent by Obligor, upon
the occurrence and during the continuation of any Event of Default (i) to
ask, demand, collect, xxx for,
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recover, receive and give receipt and discharge for amounts due and to
become due under and in respect of all or any part of the Collateral, (ii)
to file any claims or take any action or proceeding that the Collateral
Agent may deem necessary or advisable for the collection of all or any part
of the Collateral, (iii) to execute, in connection with any sale or
disposition of the Collateral under Article V, any endorsements,
assignments, bills of sale or other instruments of conveyance or transfer
with respect to all or any part of the Collateral, (iv) pay or discharge
taxes and Liens levied or placed on or threatened against the Collateral
(other than Permitted Liens), effect any repair or pay or discharge any
insurance called for by the terms of this Agreement (including all or any
part of the premiums therefor and the costs thereof), (v) execute, in
connection with any sale provided for in Article V, any endorsement,
assignment or other instrument of conveyance or transfer with respect to
the collateral; and (vi) (A) direct any party liable for any payment under
any Collateral to make payment of any moneys due or to become due
thereunder directly to the Collateral Agent or as the Collateral Agent
shall direct, (B) ask or demand for, collect, and receive payment of and
receipt for, any moneys, claims and other amounts due or to become due at
any time in respect of or arising out of any Collateral, (C) sign and
indorse any invoice, freight or express xxxx, xxxx of lading, storage or
warehouse receipt, draft against debtors, assignment, verification, notice
and other document in connection with any Collateral, (D) commence and
prosecute any suit, action or proceeding at law or in equity in any court
of competent jurisdiction to collect any Collateral and to enforce any
other right in respect of any Collateral, (E) defend any suit, action or
proceeding brought against Obligor with respect to any Collateral, (F)
settle, compromise or adjust any such suit, action or proceeding and, in
connection therewith, give such discharges or releases as the Collateral
Agent may deem appropriate and (G) generally, sell, transfer, pledge and
make any agreement with respect to or otherwise deal with any Collateral as
fully and completely as though the Collateral Agent were the absolute owner
thereof for all purposes, and do, at the Collateral Agent's option and
Obligor's expense, at any time, or from time to time, all acts and things
that the Collateral Agent reasonably deems necessary to protect, preserve
or realize upon the Collateral and the Collateral Agent's and the other
Secured Parties' security interests therein and to effect the intent of
this Agreement, all as fully and effectively as Obligor might do.
(b) Without limiting the rights and powers of the Collateral
Agent under Section 2.12(a), Obligor hereby appoints the Collateral Agent
as its attorney-in-fact, effective the date of this Agreement and
terminating upon the Discharge Date, for the purpose of, upon the
occurrence and during the continuation of an Event of Default, executing
such other documents and instruments on behalf of, and taking such other
action in the name of, Obligor as the Collateral Agent may deem necessary
or advisable to accomplish the purposes of this Agreement (including the
purpose of exercising the rights, remedies, powers and privileges of the
Collateral Agent under Section 5.01). This appointment as attorney-in-fact
is irrevocable and coupled with an interest.
(c) [Intentionally Omitted.]
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(d) The expenses of the Collateral Agent incurred in connection
with actions undertaken as provided in this Section 2.12, together with
interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Notes under the Indenture, from
the date of payment by the Collateral Agent to the date reimbursed by
Obligor, shall be payable by Obligor to the Collateral Agent on demand and
shall constitute Secured Obligations and be secured by the Liens of the
Collateral Documents.
(e) Obligor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers,
authorizations and agencies contained in this Agreement are coupled with an
interest and are irrevocable until this Agreement is terminated and the
security interests created hereby are released.
Section 2.13. Special Provisions Relating to Securities.
(a) So long as no Event of Default has occurred and is
continuing, Obligor shall have the right to exercise all voting, consensual
and other powers of ownership pertaining to all Ownership Collateral for
all purposes not inconsistent with the terms of any Transaction Document,
provided that Obligor shall not vote the Ownership Collateral in any manner
that is inconsistent with the terms of any Transaction Document; and the
Collateral Agent shall, at Obligor's expense, execute and deliver to
Obligor or cause to be executed and delivered to Obligor all such proxies,
powers of attorney, dividend and other orders and other instruments,
without recourse, as Obligor may reasonably request for the purpose of
enabling Obligor to exercise the rights and powers that it is entitled to
exercise pursuant to this Section 2.13(a).
(b) So long as no Event of Default has occurred and is
continuing, Obligor shall be entitled to receive and retain any dividends
on all Ownership Collateral paid in cash.
(c) If any Event of Default has occurred and is continuing, and
whether or not the Collateral Agent exercises any available right to
declare any Secured Obligation due and payable or seeks or pursues any
other right, remedy, power or privilege available to it under applicable
law, this Agreement or any other Transaction Document, all dividends and
other distributions on all Ownership Collateral shall be paid directly to
an account designated by the Collateral Agent and retained by it in such
account as part of the Collateral, subject to the terms of the Transaction
Documents, and, if the Collateral Agent so requests, Obligor shall execute
and deliver to the Collateral Agent appropriate additional dividend,
distribution and other orders and instruments to that end, provided that if
the applicable Event of Default is cured, any such dividend or distribution
paid to the Collateral Agent prior to that cure shall, upon request of
Obligor (except to the extent applied to the Secured Obligations), be
returned by the Collateral Agent to Obligor.
Section 2.14. [Intentionally Omitted.]
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
12
Section 2.15. Use of Collateral. So long as no Event of Default has
occurred and is continuing, Obligor shall be entitled to use and possess the
Collateral, subject to the rights, remedies, powers and privileges of the
Collateral Agent under Articles II and V.
Section 2.16. Rights and Obligations.
(a) No reference in this Agreement to proceeds or to the sale or
other disposition of Collateral shall authorize Obligor to pledge, sell or
otherwise dispose of any Collateral except to the extent otherwise
expressly permitted by the terms of any Transaction Document. The
Collateral Agent shall not be required to take steps necessary to preserve
any rights against prior parties to any part of the Collateral.
(b) Obligor shall remain liable to perform its duties and
obligations under the contracts and agreements included in the Collateral
in accordance with their respective terms to the same extent as if this
Agreement had not been executed and delivered. The exercise by the
Collateral Agent of any right, remedy, power or privilege in respect of
this Agreement shall not release Obligor from any of its duties and
obligations under those contracts and agreements. The Collateral Agent
shall not have any duty, obligation or liability under those contracts and
agreements or in respect to any Governmental Approval included in the
Collateral by reason of this Agreement or any other Transaction Document,
nor shall the Collateral Agent be obligated to perform any of the duties or
obligations of Obligor under any such contract or agreement or any such
Governmental Approval or to take any action to collect or enforce any claim
(for payment) under any such contract or agreement or Governmental
Approval.
(c) No lien granted by this Agreement in Obligor's right, title
and interest in any contract, agreement or Governmental Approval shall be
deemed to be a consent by the Collateral Agent to any such contract,
agreement or Governmental Approval.
Section 2.17. Release of Collateral. Upon the Discharge Date, or the
date of any sale or conveyance of a motor vehicle or any other portion of the
Collateral for which Obligor is entitled, pursuant to the terms and conditions
of the Indenture, to sell or otherwise convey free and clear of the Liens of the
Transaction Documents, and upon the request of, and at the expense of, Obligor,
the Collateral Agent will execute and deliver to Obligor such instruments as
Obligor reasonably requests to remove the notation of the Collateral Agent as
lienholder on any financing statement with respect to such applicable portion of
the Collateral; provided that in connection with such sale or conveyance, any
such instruments shall be delivered, and the release shall be effective, only
upon receipt by the Collateral Agent of a certificate from Obligor stating that
such portion of the Collateral the lien on which is to be released is to be sold
or conveyed in accordance with the terms and conditions of the Indenture.
Section 2.18. [Intentionally Omitted.]
Section 2.19. Termination. Upon the occurrence of the Discharge Date,
all liens granted hereunder shall be deemed terminated, and the Collateral Agent
shall forthwith cause to
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
13
be assigned, transferred and delivered, against receipt but without any
recourse, warranty or representation whatsoever, any remaining Collateral and
money received in respect of the Collateral, to or on the order of Obligor. The
Collateral Agent shall also execute and deliver to Obligor, at Obligor's
expense, upon the occurrence of the Discharge Date such Uniform Commercial Code
termination statements and other documentation as shall be reasonably requested
by Obligor to effect the termination and release of the liens created under this
Agreement. The security interest created hereby and the other liens created by
the Transaction Documents shall also be released with respect to any portion of
the Collateral that is sold, transferred or otherwise disposed of in compliance
with the terms and conditions of the Transaction Documents.
ARTICLE III
REPRESENTATIONS
Section 3.01. Organization; Power; Authorization; Validity.
(a) Without limiting the generality of Section 3.01, Obligor
represents and warrants (i) it is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, has
all requisite power and authority to carry on its business as now conducted
and is qualified to do business in and is in good standing in Delaware,
(ii) the execution, delivery and performance by Obligor of its obligations
under this Agreement and the other Transaction Documents to which it is a
party are within Obligor's powers as a corporation and have been duly
authorized by all corporate action, and (iii) this Agreement has been duly
executed and delivered by Obligor and constitutes a legal, valid and
binding obligation of Obligor, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.
(b) Annex 1 correctly sets forth Obligor's full and correct legal
name, type of organization, jurisdiction of organization, organizational
identification number (if applicable), chief executive office and mailing
address as of the date of this Agreement.
(c) Obligor has not (i) changed its location (as defined in
Section 9307 of the Uniform Commercial Code), (ii) previously changed its
name except as set forth on Annex 1 and (iii) previously become a "new
debtor" (as defined in the Uniform Commercial Code) with respect to a
currently effective security agreement entered into by another Person
except as set forth on Annex 1.
Section 3.02. Title. Obligor is the sole beneficial owner of the
Collateral in which it purports to xxxxx x xxxx pursuant to this Agreement, and
the Collateral is free and clear of all liens (subject to Permitted Liens) and
the liens granted by this Agreement have attached and constitute a perfected
security interest in all of the Collateral prior to all other liens and
encumbrances.
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
14
Section 3.03. Pledged Ownership Interests.
(a) The Pledged Ownership Interests identified in Annex 2 are
duly authorized, validly existing, fully paid and nonassessable, and none
of the Pledged Ownership Interests is subject to any contractual
restriction, or any restriction under the organizational documents of the
Note Issuer, upon the transfer of such Pledged Ownership Interests (except
for any such restriction contained in any Transaction Document). Such
Pledged Ownership Interests exist in a certificated form.
(b) The Pledged Ownership Interests identified in Annex 2
constitute all of the issued and outstanding membership interests or other
interests of any class or character in the Note Issuer (whether or not
registered in the name of Obligor), and Annex 2 correctly identifies the
issuer of such Pledged Ownership Interests and the respective number (and
registered owners) of the interests identified in Annex 2.
(c) No Person other than Obligor is the registered owner of the
Pledged Ownership Interests.
Section 3.04. Intercompany Notes. The intercompany notes identified in
Annex 6 constitute all of the outstanding intercompany notes payable to Obligor.
ARTICLE IV
COVENANTS
Until the Discharge Date, Obligor covenants and agrees as follows:
Section 4.01. Preservation of Rights. Obligor shall warrant and defend
its title to the Collateral and the interest of the Collateral Agent in the
Collateral against any claim or demand of any persons which may in the
reasonable judgment of the Collateral Agent, materially affect Obligor's title
to or the Collateral Agent' right or interest in such Collateral.
Section 4.02. Further Assurances. Obligor, from time to time upon the
written request of the Collateral Agent, shall execute and deliver such further
documents and do such other acts and things as the Collateral Agent may
reasonably request in order fully to effect the purposes of this Agreement.
Section 4.03. Records. Obligor shall, at all times, keep accurate and
complete records of the Collateral. Obligor shall permit representatives of the
Collateral Agent at any time during normal business hours of Borrower and upon
three Business Days' notice to inspect and make abstracts from Obligor's books
and records pertaining to the Collateral. Upon the occurrence and continuance of
an Event of Default, at the Collateral Agent's request, Obligor shall promptly
deliver any and all such records to the Collateral Agent.
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
15
ARTICLE V
REMEDIES
Section 5.01. Events of Default, Etc. Without limiting the rights,
powers and privileges of the Collateral Agent under Article II, if any Event of
Default shall have occurred and be continuing:
(a) The Collateral Agent in its discretion may require Obligor
to, and Obligor shall, assemble the Collateral owned by it at such place or
places, reasonably convenient to both the Collateral Agent and Obligor,
designated in the Collateral Agent's request;
(b) The Collateral Agent in its discretion may make any
reasonable compromise or settlement it deems desirable with respect to any
of the Collateral and may extend the time of payment, arrange for payment
in installments, or otherwise modify the terms of, all or any part of the
Collateral;
(c) The Collateral Agent in its discretion may, in its name or in
the name of Obligor or otherwise, demand, xxx for, collect or receive any
money or property at any time payable or receivable on account of or in
exchange for all or any part of the Collateral, but shall be under no
obligation to do so;
(d) The Collateral Agent in its discretion may, upon ten (10)
Business Days' prior written notice to Obligor of the time and place, with
respect to all or any part of the Collateral which shall then be or shall
thereafter come into the possession, custody or control of the Collateral
Agent or any of its agents, sell, lease or otherwise dispose of all or any
part of such Collateral, at such place or places as the Collateral Agent
deems best, for cash, for credit or for future delivery (without thereby
assuming any credit risk) and at public or private sale, without demand of
performance or notice of intention to effect any such disposition or of
time or place of any such sale (except such notice as is required above or
by applicable statute and cannot be waived), and the Collateral Agent or
any other Person may be the purchaser, lessee or recipient of any or all of
the Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise), of Obligor, any
such demand, notice and right or equity being hereby expressly waived and
released. The Collateral Agent may, without notice or publication, adjourn
any public or private sale or cause the same to be adjourned from time to
time by announcement at the time and place fixed for the sale, and such
sale may be made at any time or place to which the sale may be so
adjourned;
(e) The Collateral Agent shall have, and in its discretion may
exercise, all of the rights, remedies, powers and privileges with respect
to the Collateral of a secured party under the Uniform Commercial Code
(whether or not the Uniform Commercial Code is in effect in the
jurisdiction where such rights, remedies, powers and privileges are
asserted) and such additional rights, remedies, powers and privileges to
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
16
which a secured party is entitled under the laws in effect in any
jurisdiction where any rights, remedies, powers and privileges in respect
of this Agreement or the Collateral may be asserted, including the right,
to the maximum extent permitted by law, to exercise all voting, consensual
and other powers of ownership pertaining to the Collateral as if the
Collateral Agent were the sole and absolute owner of the Collateral (and
Obligor agrees to take all such action as may be appropriate to give effect
to such right);
(f) The Collateral Agent in its discretion may, to the full
extent provided by law, have a court having jurisdiction appoint a
receiver, which receiver shall take charge and possession of and protect,
preserve, replace and repair the Collateral or any part thereof, and manage
and operate the same, and receive and collect all rents, income, receipts,
royalties, revenues, issues and profits therefrom. Obligor irrevocably
consents and shall be deemed to have hereby irrevocably consented to the
appointment thereof, and upon such appointment, Obligor shall immediately
deliver possession of such Collateral to the receiver. Obligor also
irrevocably consents to the entry of an order authorizing such receiver to
invest upon interest any funds held or received by the receiver in
connection with such receivership. The Collateral Agent shall be entitled
to such appointment as a matter of right, if it shall so elect, without the
giving of notice to any other party and without regard to the adequacy of
the security of the Collateral; and
(g) The Collateral Agent in its discretion may enforce one or
more remedies hereunder, successively or concurrently, and such action
shall not operate to estop or prevent the Collateral Agent from pursuing
any other or further remedy which it may have hereunder or by law, and any
repossession or retaking or sale of the Collateral pursuant to the terms
hereof shall not operate to release Obligor until full and final payment of
any deficiency has been made. Obligor shall reimburse the Collateral Agent
upon demand for, or the Collateral Agent may apply any proceeds of
Collateral to, the costs and expenses (including reasonable attorneys'
fees, transfer taxes and any other charges) incurred by the Collateral
Agent in connection with any sale, disposition, repair, replacement,
alteration, addition, improvement or retention of any Collateral hereunder.
The proceeds of, and other realization upon, the Collateral by virtue of the
exercise of remedies under this Section 5.01 shall be applied in accordance with
Section 5.04.
Section 5.02. [Intentionally Omitted.]
Section 5.03. [Intentionally Omitted.]
Section 5.04. Application of Proceeds. The Proceeds of, or other
realization upon, all or any part of the Collateral by virtue of the
exercise of remedies under Section 5.01, and any other cash at the time
held by the Collateral Agent under this Article V, shall be applied by the
Collateral Agent in accordance with the terms and provisions of the
Collateral Agency Agreement.
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
17
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Notices. All notices and other communications provided
for herein (including, without limitation, any modifications of, or waivers or
consents under, this Agreement) shall be given or made in writing (which may be
by telecopier with confirmation of receipt) delivered to the intended recipient:
if to the Collateral Agent, at the address set forth in Section 10.02 of the
Indenture and if to Obligor, at the address set forth in Annex 1; or, as to any
party, at such other address as shall be designated by such party in a notice to
each other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.s
Section 6.02. Amendments. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be amended or modified only
by an instrument in writing signed by Obligor and the Collateral Agent and
(except for this Section 6.02) any provision of this Agreement may be waived in
writing only by the Collateral Agent.
Section 6.03. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns of the parties to this Agreement; provided,
however, that (a) Obligor may not assign or transfer any of its respective
rights or interest in or under this Agreement or delegate any of its obligations
under this Agreement without the prior written consent of the Collateral Agent
and (b) the Collateral Agent shall transfer or assign its rights under this
Agreement in connection with a resignation or removal of such Person from its
respective capacity in accordance with the terms of this Agreement.
Section 6.04. Survival. All agreements, statements, representations
and warranties made by Obligor herein or in any certificate or other instrument
delivered by Obligor or on its behalf under this Agreement shall be considered
to have been relied upon by the Collateral Agent and shall survive the execution
and delivery of this Agreement and the other Transaction Documents until the
earlier to occur of (i) termination thereof; and (ii) the Discharge Date, in
each case, regardless of any investigation made by or on behalf of the
Collateral Agent.
Section 6.05. No Waiver; Remedies Cumulative. No failure or delay on
the part of the Collateral Agent in exercising any right, power or privilege
hereunder and no course of dealing between Obligor and the Collateral Agent
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies herein expressly provided are cumulative and
not exclusive of any rights or remedies which the Collateral Agent would
otherwise have.
Section 6.06. Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
18
Section 6.07. Captions. The headings of the several articles and
sections and sub sections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision of
this Agreement.
Section 6.08. Severability. In case any provision contained in or
obligation under this Agreement shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
Section 6.09. Governing Law; Submission to Jurisdiction and Venue;
Waiver of Jury Trial.
(a) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
(b) Submission to Jurisdiction. The Obligor hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York for the purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. The Obligor
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such court has been brought in an inconvenient forum.
(c) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
(d) NO CLAIM MAY BE MADE BY ANY PARTY HERETO AGAINST ANY OTHER
PARTY HERETO OR ANY OF ITS SUCCESSORS IN INTEREST OR ITS AFFILIATES, DIRECTORS,
OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS OF ANY OF ANY OF THEM FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH
OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATING TO, OR
ANY ACT, OMISSION OR EVENT
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
19
OCCURRING IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE OTHER TRANSACTION
DOCUMENTS, AND EACH PARTY HERETO HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX
UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT
KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
Section 6.10. Entire Agreement. This Agreement, together with any
other agreement executed in connection with this Agreement, is intended by the
parties as a final expression of their agreement as to the matters covered by
this Agreement and is intended as a complete and exclusive statement of the
terms and conditions of such agreement.
Section 6.11. Independent Obligations. Obligor's obligations under
this Agreement are independent of those of any other Person. The Collateral
Agent may bring a separate action against Obligor without first proceeding
against any other Person or any other security held by the Collateral Agent and
without pursuing any other remedy.
Section 6.12. Expenses. Obligor agrees to pay or to reimburse the
Collateral Agent for all costs and expenses (including reasonable attorney's
fees and expenses) that may be incurred by the Collateral Agent in any effort to
enforce any of the provisions of Article II or Article V, or any of the
obligations of Obligor in respect of the Collateral or in connection with (a)
the preservation of the liens on, or the rights of the Collateral Agent to the
Collateral pursuant to this Agreement or (b) any actual or attempted sale,
lease, disposition, exchange, collection, compromise, settlement or other
realization in respect of, or care of, the Collateral, including all such costs
and expenses (and reasonable attorney's fees and expenses) incurred in any
bankruptcy, reorganization, workout or other similar proceeding.
[SIGNATURES TO FOLLOW]
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective authorized officers as of the
date first written above.
OBLIGOR:
ORMAT NEVADA INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name:
Title:
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
COLLATERAL AGENT:
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
ANNEX 1
Organization and Chief Executive Office of Obligor
Obligor's Legal Name, Type and Jurisdiction of Organization, and Organizational
Identification Number:
Ormat Nevada Inc., a Delaware corporation, organizational ID#: 2278574.
Obligor's Chief Executive Office and Mailing Address:
Ormat Nevada Inc.
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: President
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
ANNEX 2
PLEDGED OWNERSHIP INTERESTS
Issuer: Ormat Funding Corp., a Delaware corporation ("Ormat Funding")
Chief Executive Office and Address of the Issuer:
Ormat Funding Corp.
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: President
Pledged Ownership Interests: 100% of all equity interests of Ormat Funding
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
ANNEX 3
GOVERNMENT APPROVALS
None.
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
ANNEX 4
INTERCOMPANY NOTES
The obligation, in an amount up to $55,000,000, owing to Obligor by Ormat
Funding Corp., a Delaware corporation, evidenced under the Amended and
Restated Credit Facility between Obligor and Ormesa LLC dated December 1,
2003, as amended by the First Amendment to Amended and Restated Credit
Facility, dated February 5, 2004.
PLEDGE AND SECURITY AGREEMENT
(ORMAT NEVADA)
