EXHIBIT 10.35
AMENDED AND RESTATED
STOCK PLEDGE AGREEMENT
AMENDED AND RESTATED STOCK PLEDGE AGREEMENT, dated as
of December 18, 1996 (this "Agreement"), made by PANDA
INTERHOLDING CORPORATION, a Delaware corporation (together with
its successors and assigns, the "Pledgor") to FLEET NATIONAL BANK
(formerly known as 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 Participation 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 (the
"General Partner"), Panda Energy Corporation, a Delaware
corporation ("Panda Energy-Delaware") and Brandywine Water
Company, a Delaware corporation (Panda Brandywine Corporation,
Panda Energy-Delaware 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 "Partnership"),
the General Partner and General Electric Capital Corporation, a
New York corporation ("GE Capital" or the "Owner Participant"),
entered into the Construction Loan Agreement and Lease Commitment
dated as of March 30, 1995 (the "Construction Loan Agreement")
pursuant to which GE Capital (i) provided construction financing
for the Project and (ii) issued the Letters of Credit as
collateral security for certain obligations of the Partnership
under the Power Purchase Agreement;
WHEREAS, the Pledgor (or its predecessors in interest,
Panda Holdings Inc., a Delaware corporation, and Panda Energy
Corporation, a Texas corporation ("PEC")) entered into the Stock
Pledge Agreement dated as of March 30, 1995 (as amended,
supplemented or otherwise modified prior to the date hereof, the
"Existing Stock Pledge Agreement"), providing for the collateral
assignment by the Pledgor to the Security Agent of the capital
stock of the Companies to secure the obligations of the
Partnership to GE Capital and the Owner Trustee;
WHEREAS, as contemplated by the Construction Loan
Agreement, the Partnership and the Owner Trustee are entering
into the Facility Lease and the other Lease Documents pursuant to
which, among other things, the Owner Trustee will lease the
Facility to the Partnership;
WHEREAS, the Owner Participant has elected to fund the
Facility Lease with non-recourse indebtedness as a leveraged
lease and in connection therewith, the parties hereto have agreed
to amend and restate the Existing Stock Pledge Agreement subject
to the terms and conditions provided herein;
WHEREAS, the Partnership and GE Capital are entering
into the Reimbursement Agreement to provide for the continued
issuance by GE Capital of the Letters of Credit;
WHEREAS, in order to set forth the rights and
obligations of the Owner Participant, the Owner Trustee, the
Partnership, the Loan Participants, the Administrative Agent, the
Indenture Trustee and the other parties in connection with the
foregoing transactions and to describe and provide for the
transactions contemplated hereby, (i) the parties hereto are
entering into the Participation Agreement, (ii) the Owner Trustee
and the Indenture Trustee are entering into the Indenture, (iii)
certain of the Lessee Security Documents are being amended and
restated pursuant to the Amended and Restated Agreements and (iv)
the Construction Loan Agreement is being terminated;
WHEREAS, it is a condition precedent to the performance
of certain obligations on the Lease Closing Date that the Pledgor
shall have executed and delivered this Agreement to the Security
Agent, for the benefit of the Owner Trustee and GE Capital (and
by collateral assignment, the Indenture 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
the Owner Trustee and GE Capital, as follows:
Section 1. Defined Terms; Construction.
(a) Unless otherwise defined herein, terms used
herein shall have the meaning set forth in Annex A to the
Participation Agreement dated as of December 18, 1996 (the
"Participation Agreement"), among the Partnership, the General
Partner, the Owner Participant, Fleet National Bank (formerly
known as Shawmut Bank Connecticut, National Association), a
national banking association, not in its individual capacity but
solely as owner trustee (in such capacity, the "Owner Trustee")
under the Trust Agreement and as Security Agent, First Security
Bank, National Association, a national banking association, not
in its individual capacity but solely as indenture trustee (in
such capacity, the "Indenture Trustee") under the Indenture,
Credit Suisse, a bank organized and existing under the laws of
Switzerland, acting by and through its New York branch ("Credit
Suisse"), as administrative agent (in such capacity, the
"Administrative Agent"), and the other entities listed on
Schedule I thereto (the "Loan Participants"). Defined terms in
this Agreement shall include in the singular number the plural
and in the plural number the singular.
(b) 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.
(c) 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 on the Lease Closing Date as the same may
thereafter be amended, supplemented, or otherwise modified from
time to time in accordance with the terms of such agreement and
the Participation Agreement.
Section 2. Pledge. As security for the Lessee
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 Lessee 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 Lessee Obligations now or
hereafter existing.
Section 4. Delivery of Collateral. All certificates
or instruments representing or evidencing the Collateral have
been or shall be delivered to and shall be 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 a Reimbursement Event of Default or a 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 Lessee 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 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 Reimbursement
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 a Reimbursement Event of
Default or a Lease Event of Default. Upon the occurrence and
during the continuance of a Reimbursement Event of Default or a
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 and distribute, by dividend or otherwise, to its
stockholders any and all distributions paid in respect of the
Collateral in compliance with the terms of the Participation
Agreement and the Security Deposit Agreement so long as (i) no
Reimbursement 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 a Reimbursement Event of
Default or in a 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 a Reimbursement
Event of Default or a 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 the Participation 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 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 the
Pledgor 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"), other than Panda-
▇▇▇▇▇▇▇▇, L.P. (the "▇▇▇▇▇▇▇▇ Partnership"), Panda-▇▇▇▇▇▇▇▇
Corporation ("Panda-▇▇▇▇▇▇▇▇ Corp."), the general partner of the
▇▇▇▇▇▇▇▇ Partnership, and Panda/Live Oak Corporation ("Panda/Live
Oak"), the limited partner of the ▇▇▇▇▇▇▇▇ Partnership (the
▇▇▇▇▇▇▇▇ Partnership, Panda-▇▇▇▇▇▇▇▇ Corp. and Panda/Live Oak
hereinafter referred to as the "▇▇▇▇▇▇▇▇ Subsidiaries"), are and
shall continue to be Subsidiaries of the Pledgor; provided that
the ▇▇▇▇▇▇▇▇ Subsidiaries are and shall continue to be
Subsidiaries of PEC and provided further that PEC shall cause the
▇▇▇▇▇▇▇▇ Subsidiaries to become Subsidiaries of the Pledgor
within one hundred eighty (180) days following the date of
Financial Closing, if any, or the date of Commercial Operations,
if any (whichever first occurs), with respect to the cogeneration
facility being developed by the ▇▇▇▇▇▇▇▇ Partnership (the
"▇▇▇▇▇▇▇▇ Facility"). For the purposes hereof, "Financial
Closing" shall mean the closing of the initial construction or
long-term project financing for the ▇▇▇▇▇▇▇▇ Facility, whichever
first occurs. "Commercial Operations" shall mean (i) the
completion of construction and testing and the functioning of the
▇▇▇▇▇▇▇▇ Facility, and (ii) the satisfaction and discharge of all
completion requirements of, and commencement of regular capacity
or reservation payments under, the purchase, transportation or
other off-take or use contracts for the ▇▇▇▇▇▇▇▇ Project. The
foregoing notwithstanding, but subject to the provisions of
Section 8(b) hereof and the provisions of the Participation
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 Pledgor.
(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 Pledgor. PEC shall not
authorize, seek to cause or permit Pledgor 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 a Reimbursement Event of Default or a
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. None of the Security Agent,
the Owner Trustee, GE Capital, the Administrative Agent, the
Indenture Trustee, any Holder 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. None of the Security Agent, the
Owner Trustee, GE Capital, the Administrative Agent, the
Indenture Trustee, any Holder nor any of their respective
directors, officers, employees or agents shall be liable for any
failure to collect or realize upon the Lessee 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 a Reimbursement
Event of Default or a 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 Lessee Obligations in accordance
with the terms of the Security Deposit Agreement. The
Partnership 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, GE Capital, the Administrative Agent,
the Indenture Trustee, any Loan Participant 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 Lessee 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.
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 Lessee 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 Lessee 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 Lessee 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 Lessee Obligations secured hereby.
Section 20. Indemnity. (a) The Pledgor agrees to
indemnify, reimburse and hold the Security Agent, the Owner
Trustee (in its individual and trust capacities), GE Capital, the
Administrative Agent, the Indenture Trustee, the Loan
Participants, 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. Lessee 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 Lessee
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, GE Capital, the Administrative Agent, any Holder or the
Indenture Trustee hereunder, under any other Transaction 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 Partnership or upon the appointment of any
intervenor or conservator of, or trustee or similar official for,
Pledgor or the Partnership 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 Section
13.1 of the Participation 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, GE Capital and, so long as the Indenture shall be in
effect, the Indenture Trustee, 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 Lessee 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 Participation Agreement. In
case of a conflict between any provision of this Agreement and
any provision of the Participation Agreement, the provisions of
the Participation 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 Participation
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 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 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).
Section 34. Assignment to Indenture Trustee.
In order to secure the indebtedness evidenced by the
Loan Certificates, and certain other obligations as provided in
the Indenture, the Indenture provides, among other things, for
the assignment by the Owner Trustee, to the Indenture Trustee of
all of its right, title and interest in, to and under this
Agreement, to the extent set forth in the Indenture, and for the
creation of a Lien on and security interest in the Lessor's
Estate in favor of the Indenture Trustee, and in furtherance
thereof, the Lessee and the Owner Trustee have entered into the
Security Deposit Agreement with the Security Agent. The Pledgor
hereby acknowledges and consents to such assignment and such
security interest and hereby acknowledges that to the extent set
forth in the Indenture, the Indenture Trustee shall have the
right in its own name (in certain cases together with the Owner
Trustee and in other cases to the exclusion of the Owner Trustee,
all as set forth in Section 3.10 of the Indenture) to direct the
Security Agent to take or refrain from taking action under this
Agreement, including the right (i) of the Security Agent to
exercise any election or option, and to make any decision or
determination, and to give any notice, consent, waiver or
approval under this Agreement or in respect thereof, (ii) to
exercise any and all of the rights, powers and remedies of the
Security Agent hereunder and (iii) to receive all moneys payable
to the Security Agent under this Agreement. Pledgor agrees that
it will make all payments payable under this Agreement to the
Security Agent in accordance with the provisions of the Security
Deposit Agreement.
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 INTERHOLDING CORPORATION,
as Pledgor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
FLEET NATIONAL BANK, as Security Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
With respect to Section 8(g) only:
PANDA ENERGY CORPORATION, a
Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Accepted and Agreed:
PANDA-BRANDYWINE L.P.
By Panda Brandywine Corporation,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
PANDA BRANDYWINE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
PANDA ENERGY CORPORATION, a
Delaware Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
BRANDYWINE WATER COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Schedule 1 to
Stock Pledge Agreement
Pledged Shares
No. of Par Value of Certificate
Shares Shares Number
Panda 1000 $.01 004
Brandywine
Corporation
Panda 1000 $.01 004
Energy
Corporation
Brandywine 1000 $.01 004
Water
Company