EXHIBIT 10.31
AMENDMENT NO. 1 dated as of October 27, 1995 (the
"Amendment") to the Stock Pledge Agreement referred to below
between PANDA ENERGY CORPORATION, a Texas corporation ("Panda"),
as successor by merger to Panda Holdings, Inc., a Delaware
corporation ("Holdings"), and 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, in connection with the Construction Loan
Agreement and Lease Commitment dated as of March 30, 1995 among
General Electric Capital Corporation ("GE Capital"), Panda-
Brandywine, L.P. and Panda Brandywine Corporation (as the same
may be amended, supplemented or otherwise modified from time to
time, the "Loan Agreement"; capitalized terms used herein and not
otherwise defined having the meanings set forth in the Loan
Agreement), Holdings has entered into a Stock Pledge Agreement
dated as of March 30, 1995 with the Security Agent (the "Stock
Pledge Agreement"), pursuant to which Holdings has pledged the
Pledged Shares;
WHEREAS, Holdings has merged with and into Panda with
Panda as the surviving corporation (the "Merger"), the Articles
of Merger have been filed with the Secretary of State of the
State of Texas and the Certificate of Merger effecting the Merger
has been issued by the Secretary of State of the State of Texas;
WHEREAS, Panda has, pursuant to the Merger, assumed and
succeeded to all of Holdings' rights, obligations and
liabilities, including, without limitation, Holdings' rights,
obligations and liabilities under the Loan Agreement, the Stock
Pledge Agreement and the other Transaction Documents to which
Holdings is a party;
WHEREAS, pursuant to subsection 5.10 of the Loan
Agreement, GE Capital has consented to the Merger so long as
Panda assumes all of the obligations of Holdings under the
Transaction Documents and executes an amendment to the Stock
Pledge Agreement;
WHEREAS, Panda has agreed to satisfy a condition
described in the preceding recital by executing and delivering
this Amendment to the Security Agent, for the benefit of GE
Capital and the Owner Trustee.
NOW, THEREFORE, in consideration of the foregoing
premises and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Panda
hereby agrees with the Security Agent, for the benefit of GE
Capital and the Owner Trustee, as follows:
1. References to the Pledgor in the Stock Pledge
Agreement. Each reference to "the Pledgor" in the Stock Pledge
Agreement is hereby amended to be a reference to Panda.
2. Amendment to Section 5(a) of the Stock Pledge
Agreement. The reference in Section 5(a) of the Stock Pledge
Agreement to the State of Delaware is hereby amended to be a
reference to the State of Texas.
3. Amendment to Section 5(e) of the Stock Pledge
Agreement. Clause (i) of Section 5(e) of the Stock Pledge
Agreement is hereby amended to read as follows: "(i) violate the
provisions of the Pledgor's Articles of Incorporation or By-
laws;".
4. Amendment to Section 8(a) of the Stock Pledge
Agreement. Clause (i) of Section 8(a) of the Stock Pledge
Agreement is hereby amended to read as follows: "(i) its legal
existence as a corporation in good standing under the laws of the
State of Texas and".
5. Amendment to Section 8(e) of the Stock Pledge
Agreement. Section 8(e) of the Stock Pledge Agreement is hereby
amended to read in its entirety as follows:
"(e) Subsidiaries. All Subsidiaries (including
partnerships) incorporated or formed in the United States
(whether now existing or hereafter acquired or formed) of
the Pledgor and, prior to the Merger, of Holdings, 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. 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."
6. Amendment to Section 8(g) of the Stock Pledge
Agreement. Section 8(g) of the Stock Pledge Agreement is hereby
amended to read in its entirety as follows:
"(g) Bankruptcy of Pledgor. Panda Energy
International, Inc., a Texas corporation of which the
Pledgor is a direct, wholly-owned Subsidiary, 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."
7. Amendment to Schedule I to the Stock Pledge
Agreement. Schedule I to the Stock Pledge Agreement is hereby
amended to read in its entirety as set forth in Exhibit A hereto.
8. Amendment to Schedule II to the Stock Pledge
Agreement. Schedule II to the Stock Pledge Agreement is hereby
amended to read in its entirety as set forth in Exhibit B hereto.
9. Conditions Precedent. This Amendment shall not
become effective until the following conditions precedent are
satisfied:
(a) Delivery of Collateral. All certificates or
instruments representing or evidencing the Collateral shall
have been delivered to and held by or on behalf of the
Security Agent, pursuant to the terms of the Stock Pledge
Agreement, 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.
(b) Representations and Warranties. The
representations and warranties of the Pledgor contained in
Section 5 of the Stock Pledge Agreement shall be true and
correct on and as of the Effective Date as if made on and as
of the Effective Date; provided that all references to the
"Agreement" shall be and be deemed to mean this Amendment as
well as the Stock Pledge Agreement amended hereby.
(c) No Default. No Default or Event of Default has
occurred and is occurring as of the Effective Date.
10. Effect of Amendment. Except as expressly amended
hereby, all of the terms and provisions of the Stock Pledge
Agreement shall remain in full force and effect and are hereby
ratified and confirmed. The amendments provided herein shall be
limited precisely as drafted and shall not constitute a waiver or
an amendment of any other term, condition or provision of the
Stock Pledge Agreement.
11. Expenses. Panda agrees to pay and reimburse GE
Capital and the Security Agent for all of its out-of-pocket costs
and expenses incurred in connection with the development,
preparation and execution of this Amendment, including the fees
and expenses of counsel to GE Capital and the Security Agent.
12. Definition of Effective Date. As used in this
Amendment, the term "Effective Date" shall mean the date on which
each of the conditions precedent shall have been satisfied in
accordance with Section 9 hereof.
13. Governing Law. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK.
14. Counterparts. This Amendment may be executed in
any number of counterparts by the parties hereto, each of which
counterpart when so executed shall be an original, but all
counterparts together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
PANDA ENERGY CORPORATION, a Texas corporation,
as Pledgor and as successor by merger to
Panda Holdings, Inc.
By:
Name:
Title:
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION,
as Security Agent
By:
Name:
Title:
With respect to Section 5 of
this Amendment only:
PANDA ENERGY INTERNATIONAL, INC.
By:
Name:
Title:
Accepted and Agreed:
PANDA-BRANDYWINE, L.P.
By Panda Brandywine Corporation,
its General Partner
By:
Name:
Title:
PANDA BRANDYWINE CORPORATION
By:
Name:
Title:
PANDA ENERGY CORPORATION, a
Delaware Corporation
By:
Name:
Title:
BRANDYWINE WATER COMPANY
By:
Name:
Title:
Acknowledged and Accepted:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
Name:
Title:
EXHIBIT A
Schedule 1 to
Stock Pledge Agreement
Pledged Shares
No. of Par Value of Certificate
Shares Shares Number
Panda 1000 $.01 003
Brandywine
Corporation
Panda 1000 $.01 003
Energy
Corporation
Brandywine 1000 $.01 003
Water
Company
EXHIBIT B
Schedule 2 to
Stock Pledge Agreement
Notice Addresses
Panda Energy Corporation
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Attention: President and General Counsel
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Shawmut Bank Connecticut, National Association,
as Security Agent
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Attention: Corporate Trust Administration
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