Exhibit 10.gg
AMENDED AND RESTATED PROMISSORY NOTE
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$20,000,000.00
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December 25,
2008
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FOR
VALUE RECEIVED, MERHAV (M.N.F) LIMITED, a company formed pursuant
to the laws of the State of Israel, located at 33 Havatzelet
Hasharon Street, Herzlia, Israel (“ Borrower ”),
promises to pay to the order of Ampal-American Israel Corporation,
a New York corporation, located at 10 Abba Even St., Ackerstein
Tower C, 9th Floor, Herzliya, Israel (“ Lender
”), at such office of Lender or at such other place as the
holder hereof may from time to time appoint in writing, in lawful
money of the United States of America in immediately available
funds, the principal sum of TWENTY MILLION ($20,000,000.00) Dollars
or so much thereof as may then be the aggregate unpaid principal
balance of such loan made by Lender to Borrower hereunder (the
“ Loan ”) as shown on the schedule attached to
and made a part of this Note. Borrower also promises to pay
interest (computed on the basis of a 360 day year for actual days
elapsed) at said office in like money on the unpaid principal
amount of the Loan from time to time outstanding at a rate per
annum equal to LIBOR plus 3.25% . The applicable interest rate
shall be reset on the first Business Day of each month. The entire
unpaid balance, together with all interest accrued and unpaid
thereon, and all other sums then due and payable to Lender under
this Note shall be due and payable in full on the earlier of (i)
December 31, 2009 and (ii) the Financing Date (as defined below)
(the “ Maturity Date ”).
This
Amended and Restated Promissory Note amends and restates in its
entirety the Promissory Note, dated December 24, 2007, executed by
the Borrower. This Note shall have the benefit of the Guaranty,
dated as of the date hereof, from Yosef Maiman in favor of
Lender.
Interest
on outstanding amounts hereunder shall accrue on a quarterly basis
and be payable on the earlier of (i) the date on which any portion
of the balance of this Note is converted in accordance with Section
4 hereof or (ii) together with principal and any other amounts due
hereunder, on the maturity hereof. Borrower further agrees that
upon and following an Event of Default and/or after any stated or
any accelerated maturity of the indebtedness evidenced hereby, the
aggregate outstanding principal balance of the Loan shall bear
interest (computed daily) at a rate equal to 5% per annum in excess
of the rate applicable to such Loan, payable on demand. In no event
shall interest payable hereunder be in excess of the maximum rate
of interest permitted under applicable law. If any payment to be so
made hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding
Business Day and, to the extent permitted by applicable law,
interest thereon shall be payable during such extension.
All
payments made in connection with this Note shall be in lawful money
of the United States in immediately available funds. All such
payments shall be applied first to the payment of all fees,
expenses and other amounts due to Lender (excluding principal and
interest), then to accrued interest, and the balance on account of
outstanding principal; provided, however, that after the occurrence
of an Event of Default, payments will be applied to the obligations
of Borrower to Lender as Lender determines in its sole discretion.
Borrower hereby expressly authorizes Lender to record on the
attached schedule the amount and date of the Loan and the date and
amount of each payment of principal. All such notations shall be
presumptive as to the correctness thereof (absent manifest error);
provided, however, the failure of Lender to make any such notation
shall not limit or otherwise affect the obligations of Borrower
under this Note.
In
consideration of the granting of the Loan evidenced by this Note,
Borrower hereby agrees as follows:
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1.
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Loan .
Borrower hereby confirms that the principal amount outstanding
under this Promissory Note as of the date hereof is $20,000,000 and
the accrued and unpaid interest as of the date hereof is
$988,576.40. Interest shall continue to accrue on the outstanding
principal amount from the date hereof at the interest rate set
forth herein.
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2.
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Prepayment . Borrower may not prepay the Loan at any time
in whole or in part.
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3.
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Use of
Proceeds . The proceeds
of the Loan shall be used to facilitate the Project (as defined in
the Option Agreement) and to fund the purchase of 11,000 hectares
of real property located in Colombia in connection with the
development of an ethanol producing Project more fully described on
Exhibit B.
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4.
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Conversion . This Note shall be convertible into equity
interests in the Project in the manner and in accordance with the
Option Agreement, dated as of December 24, 2007, between Borrower
and Lender (as amended from time to time, the “ Option
Agreement ”). Interest shall cease to accrue on such
portion of the outstanding amounts hereunder converted on the date
of the Option Closing (as defined in the Option Agreement) under
the Option Agreement.
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5.
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Events of
Default . Upon the
occurrence of any of the following specified events of default
(each an “ Event of Default ”): (a) default in
making any payment of principal, interest, or any other sum payable
under this Note when due and such failure shall continue unremedied
for a period of 30 days after Borrower receives notice thereof from
Lender; or (b) default by Borrower (i) of any other obligation
hereunder or (ii) in the due payment of any other obligation owing
to Lender or (iii) under any other Loan Document, and the failure
set forth in (i), (ii) or (iii) above shall continue unremedied for
a period of 30 days after Borrower receives notice thereof from
Lender; or (c) default by Borrower in the due payme
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