EXHIBIT 10.30
STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT, dated as of March 30, 1995
(this "Agreement"), made by PANDA HOLDINGS, INC., a Delaware
corporation (together with its successors and assigns, the
"Pledgor") to SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association, in its capacity as Security Agent
(the "Security Agent") under the Security Deposit Agreement (as
defined in the Loan Agreement referred to below).
W I T N E S S E T H :
WHEREAS, the Pledgor is the legal and beneficial owner
of all of the shares of common stock described in Schedule 1
annexed hereto (such shares of common stock together with any
stock options or rights received pursuant to Section 2 hereof,
being hereinafter referred to as the "Pledged Shares") issued by
Panda Brandywine Corporation, a Delaware corporation, Panda
Energy Corporation, a Delaware corporation and Brandywine Water
Company, a Delaware corporation (Panda Brandywine Corporation,
Panda Energy Corporation and Brandywine Water Company being
individually referred to herein as the "Company" and collectively
referred to herein as the "Companies");
WHEREAS, Panda-Brandywine, L.P. (the "Borrower"), Panda
Brandywine Corporation, and General Electric Capital Corporation
("GE Capital") have entered into the Construction Loan Agreement
and Lease Commitment, dated as of March 30, 1995 (as amended,
supplemented or otherwise modified from time to time, the "Loan
Agreement"), pursuant to which GE Capital has agreed, among other
things, to (i) make Loans to the Borrower, (ii) (acting through
the Owner Trustee established for the benefit of GE Capital)
lease the Site from the Borrower and sublease the Site back to
the Borrower and (iii) (acting through the Owner Trustee
established for benefit of GE Capital) upon completion of the
Project, purchase the Facility from the Borrower and lease the
Facility back to the Borrower pursuant to the Facility Lease;
WHEREAS, it is a condition precedent to the obligation
of GE Capital to make Loans to the Borrower under the Loan
Agreement that the Pledgor shall have executed and delivered this
Agreement to the Security Agent, for the benefit of GE Capital
and the Owner Trustee;
WHEREAS, the Pledgor desires to execute this Agreement
to satisfy the condition described in the preceding recital;
NOW, THEREFORE, in consideration of the foregoing
premises and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the
Pledgor hereby agrees with the Security Agent, for the benefit of
GE Capital and the Owner Trustee, as follows:
Section 1. Defined Terms; Construction.
(b) Unless otherwise defined herein, terms used
herein shall have the meaning set forth in Appendix A to the Loan
Agreement. Defined terms in this Agreement shall include in the
singular number the plural and in the plural number the singular.
(c) The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall,
unless otherwise expressly specified, refer to this Agreement as
a whole and not to any particular provision of this Agreement and
all references to Sections shall be references to Sections of
this Agreement unless otherwise expressly specified.
(d) Unless otherwise expressly specified, any
agreement, contract, or document defined or referred to herein
shall mean such agreement, contract or document in the form
(including all amendments and clarification letters relating
thereto) delivered to GE Capital or the Security Agent on the
Initial Loan Funding Date as the same may thereafter be amended,
supplemented, or otherwise modified from time to time in
accordance with the terms of this Agreement and of the other Loan
Documents.
Section 2. Pledge. As security for the
Obligations and subject to and in accordance with the
provisions of this Agreement, the Pledgor hereby pledges,
grants, assigns, hypothecates, transfers, and delivers to
the Security Agent, for the benefit of GE Capital and the
Owner Trustee, a first priority security interest in the
following (the "Collateral"):
(i) the Pledged Shares, all
additional shares of stock of each Company from
time to time acquired by the Pledgor in any
manner (which shares shall be deemed to be part
of the Pledged Shares), and the certificates
representing all such shares and any interest
of the Pledgor in the entries on the books of
any financial intermediary pertaining to such
shares;
(ii) all dividends, cash,
options, warrants, rights, instruments and
other property or proceeds from time to time
received, receivable or otherwise distributed
in respect of or in exchange for any or all of
the Pledged Shares or the additional shares;
and
(iii) all proceeds of the
foregoing items described in clauses (i) and
(ii) above.
Section 3. Security for Obligations. This
Agreement secures, and the Pledged Shares and the other
Collateral are collateral security for, the payment and
performance in full when due, whether at stated maturity,
by acceleration or otherwise of all Obligations now or
hereafter existing.
Section 4. Delivery of Collateral. All
certificates or instruments representing or evidencing
the Collateral shall be delivered to and held by or on
behalf of the Security Agent, pursuant hereto and shall
be in suitable form for transfer by delivery, or shall be
accompanied by duly executed undated instruments of
transfer or assignment in blank, all in form and
substance reasonably satisfactory to the Security Agent.
If the Pledgor shall become entitled to receive or shall
receive any other Collateral, then the Pledgor shall,
except as otherwise provided in Section 7, accept and
hold the same in trust for the Security Agent, and
segregated from the other property or funds of Pledgor,
and shall deliver to the Security Agent, forthwith all
such other Collateral (except as provided in Section 7
hereof) in the form received by the Pledgor, to be held
by the Security Agent, subject to the terms hereof, as
part of the Collateral. Upon the occurrence and during
the continuance of an Event of Default or Lease Event of
Default, the Security Agent shall have the right, at any
time in its discretion and without notice to the Pledgor,
to transfer to or to register in the name of the Security
Agent, the Owner Trustee or GE Capital, or any of their
respective nominees any or all of the Collateral.
Section 5. Representations and Warranties.
The Pledgor represents and warrants as follows:
(a) Due Organization. The Pledgor is a
corporation duly organized and validly existing under the
laws of the State of Delaware, and is qualified to own
property and transact business in every jurisdiction
where the ownership of its property and the nature of its
business as currently conducted requires it to be so
qualified.
(b) Power and Authority. The Pledgor has
full corporate power, authority and legal right to enter
into this Agreement and to perform its obligations
hereunder and to pledge all the Collateral pursuant to
this Agreement.
(c) Due Authorization. The pledge of the
Collateral pursuant to this Agreement has been duly
authorized by the Pledgor. This Agreement has been duly
authorized, executed and delivered by the Pledgor.
(d) Enforceability. This Agreement
constitutes the legal, valid and binding obligation of
the Pledgor enforceable against the Pledgor in accordance
with its terms except as enforceability may be limited by
applicable bankruptcy, insolvency, moratorium or other
similar laws affecting creditors' rights generally and
except as enforceability may be limited by general
principles of equity (whether considered in a suit at law
or in equity).
(e) No Conflicts. The execution and
delivery by Pledgor of this Agreement, the performance by
Pledgor of its obligations hereunder, and the pledge by
the Pledgor of the Collateral pursuant to this Agreement
will not (i) violate the provisions of the Pledgor's
Certificate of Incorporation or By-laws; (ii) violate the
provisions of any Law applicable to the Pledgor; (iii)
violate any Contractual Obligation; or (iv) result in or
create any Lien (other than the Lien created hereby)
under, or require any consent which has not been obtained
under any agreement or instrument, or the provisions of
any order or decree binding upon the Pledgor or any of
its properties.
(f) No Consents. No consent of any other
party (including, without limitation, stockholders or
creditors of the Pledgor) and no Governmental Action is
required which has not been obtained either (i) for the
execution, delivery and performance by Pledgor of this
Agreement, (ii) for the pledge by the Pledgor of the
Collateral pursuant to this Agreement, or (iii) for the
exercise by the Security Agent of the rights provided for
in this Agreement or the remedies in respect of the
Collateral pursuant to this Agreement (except as may be
required in connection with any disposition of all or any
part of the Collateral under any laws affecting the
offering and sale of securities generally).
(g) No Proceedings. There is no action,
suit or proceeding at law or in equity or by or before
any Governmental Authority or arbitral tribunal now
pending or, to the best knowledge of the Pledgor,
threatened against the Pledgor (i) which questions the
validity or legality of or seeks damages in connection
with this Agreement or any other Transaction Document to
which Pledgor is a party or (ii) which may reasonably be
expected to have a Material Adverse Effect.
(h) Ownership of Collateral. The Pledgor
is the sole legal and beneficial owner of the Pledged
Shares free and clear of any Lien (other than Permitted
Liens) other than the Lien created pursuant to this
Agreement.
(i) Validly Issued. All of the Pledged
Shares have been duly authorized and validly issued and
are fully paid and non-assessable.
(j) Perfection. The pledge of the
Collateral delivered to the Security Agent pursuant to
this Agreement creates a valid and perfected first
priority security interest in the Collateral securing the
payment of the Obligations assuming continued possession
thereof by the Security Agent or its agent.
(k) Percentage Ownership. The Pledged
Shares constitute one hundred percent (100%) of the
issued and outstanding shares of stock of each Company.
Section 6. Supplements, Further Assurances.
The Pledgor agrees that at any time and from time to
time, at the expense of the Pledgor, the Pledgor will
promptly execute and deliver all further instruments and
documents, and take all further action that the Security
Agent or GE Capital may reasonably request, in order to
perfect and protect any security interest granted or
purported to be granted hereby or to enable the Security
Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral.
Section 7. Voting Rights; Dividends; etc.
(a) The Pledgor shall be entitled to
exercise any and all voting and other consensual rights
pertaining to the Collateral or any part thereof so long
as (i) no Event of Default or Lease Event of Default
shall have occurred and be continuing and (ii) the
exercise of such voting and other consensual rights would
not result in an Event of Default or Lease Event of
Default. Upon the occurrence and during the continuance
of an Event of Default or Lease Event of Default all
rights of the Pledgor to exercise the voting and other
consensual rights which it would otherwise be entitled to
exercise pursuant to the preceding sentence shall cease,
and all such rights shall thereupon become vested in the
Security Agent, which shall thereupon have the sole right
to exercise such voting and other consensual rights.
(b) The Pledgor shall be entitled to
receive and retain any and all distributions paid in
respect of the Collateral in compliance with the terms of
the Loan Agreement and the Security Deposit Agreement so
long as (i) no Event of Default or Lease Event of Default
shall have occurred and be continuing and (ii) the
receipt of such distributions would not result in an
Event of Default or Lease Event of Default; provided,
however, that any and all
(i) distributions paid or
payable in shares (or rights to shares) of any
Company,
(ii) distributions paid or
payable in cash, securities or other property
in respect of any Collateral in connection with
a partial or total liquidation or dissolution,
and
(iii) cash, securities or other
property paid, payable or otherwise
distributed in redemption of, or in exchange
for, any Collateral,
shall be, and shall be forthwith delivered to the
Security Agent to hold as Collateral and shall, if
received by the Pledgor, be received in trust for the
benefit of the Security Agent, be segregated from the
other property or funds of the Pledgor, and be forthwith
delivered to the Security Agent as Collateral in the same
form as so received (with any necessary endorsement).
Upon the occurrence and during the continuance of an
Event of Default or Lease Event of Default all rights of
the Pledgor to thereafter receive the distributions which
it would otherwise be authorized to receive pursuant to
the preceding sentence shall cease, and all such rights
shall thereupon become vested in the Security Agent which
shall thereupon have the sole right to receive and hold
as Collateral such distributions.
(c) All distributions and other amounts
which are received by the Pledgor contrary to the
provisions of this Section or of the Loan Agreement shall
be received in trust for the benefit of the Security
Agent, shall be segregated from other funds of the
Pledgor, and shall be forthwith paid over to the Security
Agent as Collateral in the same form as so received (with
any necessary endorsement).
(d) In order to permit the Pledgor to
exercise the voting and other rights which it is entitled
to exercise pursuant to subsection (a) above and to
receive the distributions which it is authorized to
receive and retain pursuant to subsection (b) above, the
Security Agent shall, if necessary, execute and deliver
(or cause to be executed and delivered) to the Pledgor
all such proxies, dividend payment orders and other
instruments as the Pledgor may reasonably request.
Section 8. Covenants.
(a) Legal Existence. The Pledgor shall
preserve and maintain (i) its legal existence, as a
corporation in good standing under the laws of the State
of Delaware and (ii) its qualification to do business in
every jurisdiction where the ownership of its property
and the nature of its business require it to be so
qualified.
(b) No Sale of Collateral; No Liens. The
Pledgor agrees that it will not (i) sell or otherwise
dispose of, or grant any option or warrant with respect
to, the Collateral or any interest therein without the
prior written consent of the Security Agent, (ii) except
for the Lien created hereby, create or permit to exist
any Lien (other than Permitted Liens) upon or with
respect to any of the Collateral or any interest therein
or (iii) permit any Company to merge or consolidate
unless all the outstanding capital stock of the surviving
or resulting corporation is, upon such merger or
consolidation, pledged hereunder and no cash, securities
or other property is distributed in respect of the
outstanding shares of any other constituent corporation.
(c) Additional Shares. The Pledgor
agrees that it will cause each Company not to issue any
stock or other securities in addition to or in
substitution for the Pledged Shares, unless such stock or
securities are pledged to the Security Agent in
accordance with this Agreement. The Pledgor agrees that
it will pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all
additional shares of stock or other securities of each
Company.
(d) Agent for Receipt of Service of
Process. The Pledgor shall appoint and continuously
retain a Person acceptable to the Security Agent and GE
Capital as its agent in the State of New York for receipt
of service of process and shall pay all costs, fees and
expenses in connection therewith.
(e) Subsidiaries. All Subsidiaries
(including partnerships) incorporated or formed in the
United States (whether now existing or hereafter acquired
or formed) of Panda Energy Corporation, a Texas
corporation ("Panda") which are engaged in the financing,
development, construction or operation of independent
power production or energy transmission projects located
in the United States (collectively, "US Cogen
Subsidiaries"), including Panda-Kathleen, L.P., are and
shall continue to be Subsidiaries of the Pledgor, other
than Panda ▇▇▇▇▇▇▇▇ Corporation and PRC II Corporation,
which are and shall continue to be direct, wholly-owned
Subsidiaries of Panda but may become Subsidiaries of the
Pledgor in the future and Panda-Rosemary, L.P., which is
and shall continue to be an indirect, wholly-owned
Subsidiary of Panda but may become a Subsidiary of the
Pledgor in the future. The foregoing notwithstanding,
but subject to the provisions of Section 8(b) hereof and
the provisions of the Loan Agreement, the Pledgor shall
be permitted to sell all or any of the stock of any US
Cogen Subsidiary to any Person who is not an Affiliate of
Panda. In the event that Pledgor merges with Panda as
contemplated by subsection 5.10 of the Loan Agreement,
all US Cogen Subsidiaries of Pledgor and Panda prior to
such merger shall be and continue to be Subsidiaries of
the surviving entity.
(f) Bankruptcy of the Companies. The
Pledgor shall not authorize, seek to cause or permit any
of the Companies to commence a voluntary case or other
proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property or
to consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary
case or other proceeding commenced against it, or to make
a general assignment for the benefit of the creditors.
(g) Bankruptcy of Holdings. Panda shall
not authorize, seek to cause or permit Holdings to
commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or
any substantial part of its property or to consent to any
such relief or to the appointment of or taking possession
by any such official in an involuntary case or other
proceeding commenced against it, or to make a general
assignment for the benefit of the creditors.
Section 9. Security Agent Appointed Attorney-
In-Fact. Upon the occurrence of an Event of Default or
Lease Event of Default, the Pledgor hereby appoints the
Security Agent or any Person or agent whom the Security
Agent may designate the Pledgor's attorney-in-fact, with
full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, at the Pledgor's
cost and expense, at any time and from time to time in
the Security Agent's reasonable discretion to take any
action and to execute any instrument which the Security
Agent may deem necessary or advisable to enforce its
rights under this Agreement, including, without
limitation, authority to receive, endorse and collect all
instruments made payable to the Pledgor representing any
dividends, interest payment or other distribution in
respect of the Collateral or any part thereof and to give
full discharge for the same.
Section 10. Security Agent May Perform. If
the Pledgor fails to perform any agreement contained
herein after receipt of a written request to do so from
the Security Agent, the Security Agent may itself
perform, or cause performance of, such agreement, and the
reasonable expenses of the Security Agent, including the
reasonable fees and expenses of its counsel, incurred in
connection therewith shall be payable by the Pledgor
under Section 19.
Section 11. Reasonable Care. The Security
Agent shall be deemed to have exercised reasonable care
in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment
substantially equivalent to that which the Security Agent
accords its own property consisting of negotiable
securities, cash or other forms of property as
applicable, it being understood that, subject to the
exercise of such reasonable care, the Security Agent
shall have no responsibility for (i) ascertaining or
taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative
to any Collateral, whether or not the Security Agent has
or is deemed to have knowledge of such matters, or (ii)
taking any necessary steps to preserve rights against any
parties with respect to any Collateral.
Section 12. No Liability. Neither the
Security Agent, nor the Owner Trustee, nor GE Capital,
nor any of their respective directors, officers,
employees or agents shall be deemed to have assumed any
of the liabilities or obligations of a shareholder of any
of the companies, or of the owner of any Pledged Shares
or any other security included in the Collateral from
time to time as a result of the pledge and security
interest granted under or pursuant to this Agreement.
Neither the Security Agent, nor the Owner Trustee, nor GE
Capital, nor any of their respective directors, officers,
employees or agents shall be liable for any failure to
collect or realize upon the Obligations or any collateral
security or guarantee therefor, or any part thereof, or
for any delay in so doing nor shall it be under any
obligation to take any action whatsoever with regard
thereto.
Section 13. Remedies Upon Default. If an
Event of Default or Lease Event of Default shall have
occurred and be continuing:
(a)(i) The Security Agent may exercise in
respect of the Collateral, in addition to other rights
and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party
upon a default under the Uniform Commercial Code then in
effect in the State of New York or, unless prohibited by
applicable law, the Uniform Commercial Code in effect in
any other applicable jurisdiction. The Security Agent
may also in its sole discretion, without notice except as
specified below, sell the Collateral or any part thereof
in one or more parcels at public or private sale, at any
exchange, broker's board or at any of the Security
Agent's offices or elsewhere, for cash, on credit or for
future delivery, and at such price or prices and upon
such other terms as the Security Agent may, in accordance
with applicable Law, deem commercially reasonable,
irrespective of the impact of any such sales on the
market price of the Collateral at any such sale. Each
purchaser at any such sale shall hold the property sold
absolutely, free from any claim or right on the part of
the Pledgor, and the Pledgor hereby waives (to the extent
permitted by law) all rights of redemption, stay and/or
appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing
or hereafter enacted. The Pledgor agrees that, to the
extent notice of sale shall be required by law, at least
ten days' notice to the Pledgor of the time and place of
any public sale or the time after which any private sale
is to be made shall constitute reasonable notification.
The Security Agent shall not be obligated to make any
sale of Collateral regardless of notice of sale having
been given. The Security Agent may adjourn any public or
private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it
was so adjourned. The Security Agent shall not incur
liability as a result of the sale of the Collateral, or
any part thereof, at any public or private sale. The
Pledgor hereby waives any claims against the Security
Agent arising by reason of the fact that the price at
which any Collateral may have been sold at such a private
sale, if commercially reasonable, was less than the price
which might have been obtained at a public sale, even if
the Security Agent accepts the first offer received and
does not offer such Collateral to more than one offeree.
(ii) The Pledgor recognizes that the Security
Agent may elect in its sole discretion to sell all or a
part of the Collateral to one or more purchasers in
privately negotiated transactions in which the purchasers
will be obligated to agree, among other things, to
acquire the Collateral for their own account, for
investment and not with a view to the distribution or
resale thereof. The Pledgor acknowledges that any such
private sales may be at prices and on terms less
favorable than those obtainable through a public sale
(including, without limitation, a public offering made
pursuant to a registration statement under the Securities
Act of 1933, as amended (the "Securities Act")), and the
Pledgor and the Security Agent agree that such private
sales shall be made in a commercially reasonable manner
and that the Security Agent has no obligation to engage
in public sales and no obligation to delay sale of any
Collateral to permit the issuer thereof to register the
Pledged Shares for a form of public sale requiring
registration under the Securities Act.
(b) Any cash held by the Security Agent
as Collateral and all cash proceeds received by the
Security Agent in respect of any sale of, collection
from, or other realization upon all or any part of the
Collateral shall, as soon as reasonably practicable, be
applied (after payment of any amounts payable to the
Security Agent pursuant to Sections 19 and 20) by the
Security Agent first to the payment of the costs and
expenses of such sale, collection or other realization,
including reasonable compensation to the Security Agent
and its agents and counsel, and all expenses, liabilities
and advances made or incurred by the Security Agent in
connection therewith; and second to the payment of the
Obligations in accordance with the terms of the Loan
Agreement, the Deed of Trust and Security Agreement and
the Security Agreement. The Borrower shall be liable for
any deficiency remaining after any application of funds
pursuant hereto. Any surplus of such cash or cash
proceeds held by the Security Agent after payment in full
of such amounts shall be paid over to the Pledgor, or its
successors or assigns, or to whomsoever may be lawfully
entitled to receive such surplus or as a court of
competent jurisdiction may direct.
Section 14. Purchase of the Collateral. The
Security Agent, the Owner Trustee, or GE Capital or any
of their respective Affiliates may be a purchaser of the
Collateral or any part thereof or any right or interest
therein at any sale thereof, whether pursuant to
foreclosure, power of sale or otherwise hereunder and the
Security Agent may apply the purchase price to the
payment of the Obligations secured hereby. Any such
purchaser shall, upon any such purchase, acquire good
title to the Pledged Shares so purchased, free of the
security interests created by this Agreement.
Section 15. Notices. All notices, requests
and demands to or upon the respective parties hereto to
be effective shall be in writing (including by telecopy),
and shall be deemed to have been duly given or made when
delivered by hand, or five days after being deposited in
the United States mail, postage prepaid, or, in the case
of telecopy notice, when confirmation is received, or, in
the case of a nationally recognized overnight courier
service, one Business Day after delivery to such courier
service, addressed, in the case of each party hereto, at
its address specified below its name on Schedule 2
hereto, or to such other address as may be designated by
any party in a written notice to the other party hereto.
Section 16. Continuing Security Interest.
This Agreement shall create a continuing Lien in the
Collateral until the release thereof pursuant to Section
18. GE Capital may assign or otherwise transfer any
indebtedness held by it secured by this Agreement to any
other person or entity in accordance with subsection 9.6
of the Loan Agreement, and such other person or entity
shall thereupon become vested with all the benefits in
respect thereof granted herein or otherwise.
Section 17. Security Interest Absolute. All
rights of the Security Agent and security interests
hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(i) any lack of validity or
enforceability of any of the Transaction
Documents or any other agreement or instrument
relating thereto;
(ii) any change in the time,
manner or place of payment of, or in any other
term of, all or any of the Obligations, or any
other amendment or waiver of or any consent to
any departure from the Transaction Documents or
any other agreement or instrument relating
thereto;
(iii) any exchange, release or
non-perfection of any other collateral, or any
release or amendment or waiver of or consent to
any departure from any guaranty, for all or any
of the Obligations; or
(iv) any other circumstance
which might otherwise constitute a defense
available to, or a discharge of, the Pledgor.
Section 18. Release. Upon the indefeasible
payment in full of the Obligations, the Security Agent,
upon the request and at the expense of the Pledgor, shall
execute and deliver all such documentation necessary to
release the liens created pursuant to this Agreement.
Section 19. Expenses. The Pledgor will upon
demand pay to the Security Agent the amount of any and
all reasonable expenses, including the reasonable fees
and expenses of its counsel and of any experts and
agents, and any transfer taxes which the Security Agent
may incur in connection with (i) the custody or
preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral pursuant to
the exercise or enforcement of any of the rights of the
Security Agent hereunder or (ii) the failure by the
Pledgor to perform or observe any of the provisions
hereof. Any amount payable by the Pledgor pursuant to
this Section shall be payable on demand and shall
constitute Obligations secured hereby.
Section 20. Indemnity. (a) The Pledgor
agrees to indemnify, reimburse and hold the Security
Agent, the Owner Trustee and GE Capital, their respective
successors and assigns and their respective officers,
directors, employees, and agents (each individually, an
"Indemnitee," and collectively, "Indemnitees") harmless
from any and all liabilities, obligations, damages,
injuries, penalties, claims, demands, actions, suits,
judgments and any and all costs and expenses (including
reasonable attorneys' fees and disbursements) (such
expenses, for purposes of this Section, hereinafter
"expenses") of whatsoever kind and nature imposed on,
asserted against or incurred by any of the Indemnitees in
any way relating to or arising out of (i) this Agreement
or the certificate executed by the Pledgor in connection
herewith or in any other way connected with the
administration of the Lien or the security interest
granted hereby, or the enforcement of any of the terms
hereof, or the preservation of any rights hereunder, (ii)
any failure of the Pledgor to comply with its obligations
under this Agreement, or any misrepresentation by the
Pledgor in this Agreement, or in any statement or writing
contemplated by or made or delivered pursuant to or in
connection with this Agreement, or (iii) the ownership,
purchase, delivery, control, acceptance, financing,
possession, condition, sale, return or other disposition,
or use of, the Collateral, excluding those (x) finally
judicially determined to have arisen, with respect to any
Indemnitee, solely from the gross negligence or willful
misconduct of such Indemnitee or (y) unless specifically
provided for elsewhere in this Agreement, those arising
out of the actions of any Indemnitee while in possession
or control of the Collateral.
(b) Without limiting the application of
subsection (a), the Pledgor agrees to pay, or reimburse
the Security Agent for any and all fees, costs and
expenses of whatever kind or nature incurred in
connection with the preservation, protection or
validation of the Security Agent's Liens on, and security
interest in, the Collateral, including, without
limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in
public offices, payment or discharge of any taxes or Lien
upon or in respect of the Collateral, premiums for
insurance with respect to the Collateral and all other
fees, costs and expenses in connection with protecting,
maintaining or preserving the Collateral and the Security
Agent's interest therein, whether through judicial
proceedings or otherwise, or in defending or prosecuting
any actions, suits or proceedings arising out of or
relating to the Collateral.
Section 21. Obligations Secured by Collateral.
Any amounts paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement, and any
amounts paid by the Security Agent in preservation of any
of its rights or interest in the Collateral, together
with interest on such amounts from the date paid until
reimbursement in full at a rate per annum equal at all
times to the Overdue Rate shall constitute Obligations
secured by the Collateral.
Section 22. Reinstatement. This Agreement
shall continue to be effective or be reinstated, as the
case may be, if at any time any amount received by the
Security Agent, the Owner Trustee or GE Capital
hereunder, under any other Loan Document or Lease
Document or pursuant hereto or thereto is rescinded or
must otherwise be restored or returned by such Person
upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Pledgor or the Borrower or upon
the appointment of any intervenor or conservator of, or
trustee or similar official for, Pledgor or the Borrower
or any substantial part of their respective assets, or
upon the entry of an order by a bankruptcy court avoiding
the payment of such amount, or otherwise, all as though
such payments had not been made.
Section 23. Amendments, etc. No waiver,
amendment, modification or termination of any provision
of this Agreement, or consent to any departure by the
Pledgor therefrom, shall in any event be effective (x)
without the written concurrence of the Security Agent and
(y) unless made in accordance with subsection 9.1 of the
Loan Agreement and none of the Collateral shall be
released without the written consent of the Security
Agent. Any such waiver or consent shall be effective
only in the specific instance and for the specific
purpose for which given.
Section 24. Successors and Assigns. This
Agreement shall be binding upon the Pledgor and its
successors and assigns and shall inure to the benefit of
the Security Agent, the Owner Trustee and GE Capital and
their respective successors and assigns.
Section 25. Survival.
(a) All agreements, statements,
representations and warranties made by the Pledgor herein
or in any certificate or other instrument delivered by
the Pledgor or on its behalf under this Agreement shall
be considered to have been relied upon by the Security
Agent and shall survive the execution and delivery of
this Agreement and the other Transaction Documents
regardless of any investigation made by or on behalf of
the Security Agent.
(b) The indemnity obligations of Pledgor
contained in Section 20 shall continue in full force and
effect notwithstanding the full payment of the
Obligations and notwithstanding the discharge thereof.
Section 26. No Waiver; Remedies Cumulative.
No failure or delay on the part of the Security Agent in
exercising any right, power or privilege hereunder and no
course of dealing between the Pledgor and the Security
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
Security Agent, the Owner Trustee or GE Capital would
otherwise have.
Section 27. 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.
Section 28. Headings Descriptive. The
headings of the several Sections and subsections 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 29. Severability. In case any
provision 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 30. Conflict with Loan Agreement. In
case of a conflict between any provision of this
Agreement and any provision of the Loan Agreement, the
provisions of the Loan Agreement shall control and
govern. No such conflict shall be deemed to exist merely
because this Agreement imposes greater obligations on the
Pledgor than the Loan Agreement.
Section 31. Recourse Limited to Collateral.
The Security Agent acknowledges and agrees that, except
in the case of fraud, willful misconduct or knowing
misrepresentation on the part of Pledgor, the sole
recourse of the Security Agent for payment and
performance of the obligations of the Pledgor hereunder
shall be to the Collateral. This provision shall not be
deemed to waive any cause of action the Security Agent
may have against any Person for fraud, willful misconduct
or knowing misrepresentation by such Person.
Section 32. GOVERNING LAW; SUBMISSION TO
JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED
IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW EXCEPT
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(b) ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT
IN RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE PLEDGOR HEREBY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF.
THE PLEDGOR IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO THE PLEDGOR AT ITS ADDRESS REFERRED TO IN SECTION 15.
THE PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT BROUGHT IN THE COURTS REFERRED TO
ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES
NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED IN ANY OTHER
JURISDICTION.
(c) EACH OF THE PLEDGOR AND THE SECURITY
AGENT HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT OR ANY MATTER ARISING HEREUNDER OR
THEREUNDER.
Section 33. Certain Rights of Power Purchaser.
Nothing in this Stock Pledge Agreement shall be deemed to
limit the provisions of the Consent of the Power
Purchaser, which provisions are solely for the benefit of
the Power Purchaser and not the Pledgor. Without
limiting the scope of the foregoing, the Security Agent
agrees, for the exclusive benefit of the Power Purchaser
and not the Pledgor, that the exercise of remedies or any
similar action under this Stock Pledge Agreement is
subject to, and shall be conducted in a manner consistent
with, the Power Purchaser's rights under (i) the Consent
of the Power Purchaser and (ii) the Power Purchase
Agreement and the Transfer Agreement (to the extent such
rights under the Power Purchase Agreement and the
Transfer Agreement are not explicitly waived by the Power
Purchaser in accordance with the terms of the Consent of
the Power Purchaser).
IN WITNESS WHEREOF, the parties hereto have
caused their duly authorized officers to execute and
deliver this Agreement as of the date first above
written.
PANDA HOLDINGS, INC., as Pledgor
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
SHAWMUT BANK CONNECTICUT, NATIONAL
ASSOCIATION, as Security Agent
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
With respect to Section 8(g) only:
PANDA ENERGY CORPORATION, a
Texas corporation
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Accepted and Agreed:
PANDA-BRANDYWINE L.P.
By Panda Brandywine Corporation,
its General Partner
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
PANDA BRANDYWINE CORPORATION
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
PANDA ENERGY CORPORATION, a
Delaware Corporation
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
BRANDYWINE WATER COMPANY
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Schedule 1 to
Stock Pledge Agreement
Pledged Shares
No. of Par Value of Certificate
Shares Shares Number
Panda 1000 $.01 002
Brandywine
Corporation
Panda 1000 $.01 002
Energy
Corporation
Brandywine 1000 $.01 002
Water
Company
Schedule 2 to
Stock Pledge Agreement
Notice Addresses
Panda Holdings Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President and General Counsel
telephone: (▇▇▇) ▇▇▇-▇▇▇▇
telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Shawmut Bank Connecticut, National Association,
as Security Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
telephone: (▇▇▇) ▇▇▇-▇▇▇▇
telecopy: (▇▇▇) ▇▇▇-▇▇▇▇