EXHIBIT 10.28
EXECUTION COPY
GENERAL PARTNER PLEDGE AGREEMENT
GENERAL PARTNER PLEDGE AGREEMENT, dated as of March 30,
1995 ("this Agreement"), made by PANDA BRANDYWINE CORPORATION, a
Delaware corporation (together with its successors and assigns,
the "Pledgor") and the sole general partner of Panda-Brandywine,
L.P., a Delaware limited partnership (together with its
successors and assigns, the "Borrower"), 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 a 50% general partnership interest in the Borrower (such
partnership interest being hereinafter referred to as the
"Partnership Interest");
WHEREAS, the Borrower, the Pledgor and General Electric
Capital Corporation ("GE Capital") have entered into the
Construction Loan Agreement and Lease Commitment, dated as of the
date hereof (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 the 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 the Owner
Trustee and GE Capital;
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
parties hereto agree as follows:
Section 1. Defined Terms; Construction.
(a) 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.
(b) The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall, un
less 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 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, whether now owned or hereafter
acquired (the "Collateral"):
(a) all of the Pledgor's general partnership interests
in the Borrower (including, without limitation, the Partner
ship Interest and all right, title and interest of the
Pledgor in and to the Transfer Agreement), and all of the
Pledgor's rights (including, without limitation, all voting
rights in or rights to control or direct the affairs of the
Borrower), privileges, authority and powers as general
partner of the Borrower, whether arising under the terms of
the Partnership Agreement, or at law, or otherwise;
(b) all income, cash flow, revenues, issues, profits,
losses, distributions, payments, and other property of every
kind and variety due, accruing or owing to, or to be turned
over to, or to be disbursed to the Pledgor by the Borrower
in respect of the property described in the preceding clause
(a), including without limitation, all rights of the Pledgor
to allocations of profit and loss, distributions and all
monies and property representing a distribution in respect
of the property described in the preceding clause (a); and
(c) all proceeds, products and accessions of and to
any of the property described in the preceding clauses (a)
and (b);
provided, however, that notwithstanding any of the foregoing,
neither the Security Agent, the Owner Trustee nor GE Capital
shall acquire any interest in any of Pledgor's obligations
contained in the Partnership Agreement.
Section 3. Security for Obligations. This Agreement
secures, and the Collateral is collateral security for, the pay
ment 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 proper
ty and the nature of its business as currently conducted requires
it to be qualified.
(b) Power and Authority. The Pledgor has full
corporate power, authority and legal right to enter into this
Agreement and each other Transaction Document to which it is a
party and to perform its obligations hereunder and thereunder 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 and each other Transaction Document to
which the Pledgor is a party has been duly authorized, executed
and delivered by the Pledgor.
(d) Enforceability. This Agreement and each
other Transaction Document to which the Pledgor is a party 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 and each other Transaction Document to
which the Pledgor is a party, the performance by Pledgor of its
obligations hereunder and thereunder, 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 and each other Transaction
Document to which it is a party, (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) Not a Utility. The Pledgor is not, and will
not, as a result of becoming a partner in the Borrower, be or
become, or cause the Borrower to be or become: (i) subject to
regulation under Part II or Part III of the Federal Power Act,
except for Sections 202(c), 210, 211, 212, 213, 214 and 305(c) of
the Federal Power Act (16 U.S.C. 824a(c), 824i, 824j, 824k,
824l, 824m and 825d(c), respectively) and the enforcement
provisions of Part III of the Federal Power Act relating thereto;
(ii) an "electric utility company" for purposes of the Holding
Company Act; (iii) subject to state law or regulation respecting
the financial, rate or organizational regulation of electric
utilities; or (iv) subject to regulation as a "steam heating
company" under Article 78, Public Service Commission Law, of the
Annotated Code of Maryland.
(h) Ownership of Collateral. The Pledgor is the
sole legal and beneficial owner of the Collateral free and clear
of any Lien other than Permitted Liens. No security agreement,
financing statement or other public notice with respect to all or
any part of the Collateral is on file or of record in any public
office, except such as may have been filed in favor of the
Security Agent pursuant to this Agreement, or in favor of GE
Capital, as agent for the lenders which were parties to the
Development Loan Agreement dated as of March 23, 1994, pursuant
to the Amended and Restated General Partner Pledge Agreement
dated as of March 23, 1994, between the Pledgor and GE Capital,
as agent.
(i) Perfection. The execution and delivery of
this Agreement concurrently with the filing of UCC-1 financing
statements in the filing offices listed on Schedule 1 create a
valid and perfected first priority security interest in the
Collateral securing the payment of the Obligations.
(j) Chief Executive Office. The chief executive
office of the Pledgor and the office where the Pledgor keeps its
records concerning the Borrower and the Project and all contracts
relating thereto is located at the address specified on Schedule
2. The Pledgor shall not establish a new location for its chief
executive office or change its name until (i) it has given the
Security Agent and GE Capital not less than 30 days' prior
written notice of its intention so to do, clearly describing such
new location or specifying such new name, as the case may be, and
(ii) with respect to such new location or such new name, as the
case may be, it shall have taken all action, reasonably satisfactory
to the Security Agent and GE Capital, to maintain the
security interest of the Security Agent, on behalf of the Owner
Trustee and GE Capital, in the Collateral intended to be granted
hereby at all times fully perfected and in full force and effect.
(k) Sole Business. The Pledgor is the sole general
partner of the Borrower. The Pledgor is not engaged in any
transaction or activity unrelated to the management, development,
financing, operation and/or maintenance of the Borrower and the
Project.
(l) 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.
(m) Financial Statements. Each of the financial
statements of the Pledgor for the fiscal year and quarter most
recently ended as of the date hereof has been heretofore furnished
to GE Capital, and each of such financial statements is
complete and correct in all material respects and fairly presents
the financial condition of the Pledgor as at said dates, in conformity
with GAAP applied on a consistent basis, except that the
financial statements were prepared on a cash basis and that
certain expenses have not been capitalized as required by GAAP.
Since the date of such annual financial statement, there has been
no Material Adverse Effect.
(n) Partnership Agreement. The copy of the Part
nership Agreement delivered to GE Capital on or prior to the date
hereof is a true, complete and correct copy of the Partnership
Agreement.
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. Without limiting the generality of
the foregoing, the Pledgor will execute and file such financing
or continuation statements, or amendments thereto, and such other
instruments, endorsements or notices, as the Security Agent or GE
Capital may deem necessary or desirable in order to perfect and
preserve the Liens created or intended to be created hereby. The
Pledgor hereby authorizes the Security Agent to file any such
financing or continuation statement without the signature of the
Pledgor to the extent permitted by applicable law. A carbon,
photographic or other reproduction of this Agreement shall be
sufficient as a financing statement for filing in any
jurisdiction.
Section 7. Rights of Pledgor; etc.
(a) Generally. The Pledgor shall be entitled to
exercise any and all rights pertaining to the Collateral or any
part thereof (including, without limitation, the right to manage
and direct the affairs of the Borrower and the right to receive
distributions in respect of its partnership interest) 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 rights
would not otherwise 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 manage and direct the affairs of the Borrower which it
would otherwise be entitled to exercise pursuant to the preceding
sentence shall cease, and all such rights shall thereupon become
immediately vested in the Security Agent, which shall thereupon
have the sole right (subject to the provisions of applicable Law)
to manage and direct the affairs of the Borrower.
(b) Distributions. Unless an Event of Default or
Lease Event of Default shall have occurred and be continuing, 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; provided, however, that any and all
(i) distributions paid or payable in respect
of or in exchange for any Collateral (whether paid in
cash, securities or other property) in connection with
a partial or total liquidation or dissolution of the
Borrower (other than in connection with any deemed
liquidation on account of a termination of the Borrower
under Section 708(b)(1)(B) of the Code), and
(ii) all property (whether cash, securities
or other property) paid, payable or otherwise
distributed in redemption of, or in exchange for, the
property described in Section 2(a) above,
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 receive
the distributions which it would otherwise be authorized to
receive and retain 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) Amounts Wrongfully Received Held in Trust.
All distributions and other amounts which are received by the
Pledgor contrary to the provisions of Section 7(b) above 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).
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) Books, Records and Inspections. The Pledgor
shall keep proper books of record and account in which full, true
and correct entries in conformity with GAAP, except that the
Pledgor's financial statements may be prepared on a cash basis
and that certain expenses may be capitalized other than as
required by GAAP, and all requirements of Law shall be made of
all dealings and transactions in relation to its business and
activities. The Pledgor shall permit officers and designated
representatives of the Security Agent and GE Capital to visit and
inspect any of the properties of the Pledgor, and to examine the
books of record and account of the Pledgor, and discuss the affairs,
finances and accounts of the Pledgor with, and be advised
as to the same by, its and their officers and independent accountants,
all upon reasonable notice and at such reasonable times as
the Security Agent or GE Capital may desire.
(c) Taxes and Claims. The Pledgor shall pay or
cause to be paid when due, all Taxes and all charges,
betterments, or other assessments relating to the Collateral, and
all other lawful claims required to be paid by the Pledgor,
except to the extent any of the same are subject to a Contest.
(d) Compliance with Law. The Pledgor shall
comply with all Laws, except for such noncompliance as could not,
individually or in the aggregate, have a Material Adverse Effect.
(e) Governmental Actions. The Pledgor shall
obtain, maintain and comply with all Governmental Actions
applicable to the Pledgor or the Borrower, except for such
failure or noncompliance as could not, individually or in the
aggregate, have a Material Adverse Effect.
(f) Performance Under Other Agreements. The
Pledgor shall duly perform and observe all of the covenants,
agreements and conditions on its part to be performed and
observed hereunder and under the Loan Agreement and, unless the
Security Agent and GE Capital otherwise consents in writing, duly
perform and observe in all respects all of the covenants,
agreements and conditions on its part to be performed and
observed under the other Transaction Documents to which it is a
party.
(g) Remain as General Partner; Nature of
Business. The Pledgor shall remain as the sole general partner
of the Borrower and shall not withdraw as a general partner in
the Borrower. The Pledgor shall not engage in any business other
than being the general partner of the Borrower.
(h) Purchases of Assets. The Pledgor shall not
purchase or acquire any assets other than the purchase of assets
in the ordinary course of business of the Borrower required in
connection with the operation and maintenance of the Borrower's
business in accordance with the Transaction Documents.
(i) Indebtedness. The Pledgor shall not create,
incur, assume or suffer to exist any Indebtedness other than
Indebtedness of the Borrower that the Borrower is permitted to
incur under the Loan Agreement and on which the Pledgor is liable
solely by virtue of being the general partner of the Borrower.
(j) Contingent Obligations. The Pledgor shall
not create or become or be liable with respect to any Contingent
Obligation.
(k) No Sale of Collateral; No Liens. The Pledgor
agrees that it will not (i) sell, assign, transfer, exchange 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 and (ii) except for the
Lien created hereby, create, incur or permit to exist any Lien
(other than Permitted Liens) upon or with respect to any of the
Collateral or any interest therein or any of its other property
or assets. The Pledgor will defend the right, title and interest
of the Security Agent in and to the Collateral against the claims
and demands of all Persons whomsoever.
(l) Fundamental Changes. The Pledgor shall not:
(i) enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any liquidation or dissolution), discontinue
its business or convey, lease, sell, transfer or otherwise
dispose of, in one transaction or a series of transactions, all
or any part of its business or property, whether now or hereafter
acquired, except sales of obsolete and/or replaced equipment,
(ii) acquire by purchase or otherwise any property or assets of,
or stock or other evidence of beneficial ownership of, any
Person; (iii) create or acquire any Subsidiary; (iv) enter into
any partnership or joint venture; or (v) engage in any business
other than (x) holding a general partnership interest in the Borrower
and (y) managing and directing the affairs of the Borrower
as the general partner of the Borrower.
(m) Advances, Investments and Loans. The Pledgor
shall not lend money or credit or make advances or contributions
to any Person other than the Borrower, or directly or indirectly
purchase or acquire any stock, obligations or securities of, or
any other interest in, or make any capital contribution to any
Person other than Borrower.
(n) Partnership Agreement; Transfer Agreement.
The Pledgor shall not agree to or permit (i) the cancellation or
termination of the Partnership Agreement or the Transfer
Agreement or (ii) without the prior consent of GE Capital or the
Security Agent, any amendment, supplement, or modification of, or
waiver with respect to any of the provisions of, the Partnership
Agreement or the Transfer Agreement.
(o) 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.
(p) Bankruptcy of the Borrower. The Pledgor
shall not authorize, seek to cause or permit the Borrower 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 distribution, interest payment or other payment
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 of the type of which
the Collateral consists, it being understood that 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,
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 partner of the
Borrower 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) The Security Agent (i) may become a substitute
or additional general partner in the Borrower or designate
another Person to become such substitute or additional general
partner and/or (ii) may manage the business and affairs of the
Borrower as provided in Section 7(a) and/or (iii) exercise the
power of attorney described in Section 9.
(b)(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
then 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 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 Collateral for a form of public
sale requiring registration under the Securities Act.
(c) 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 Section 19 and 20) by
the Security Agent first to the payment of the costs and expenses
of such sale, collection or other realization, if any, including
reasonable compensation to the Security Agent and its agents and
counsel, and all expenses, liabilities and advances made or in
curred 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 1. 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 other
wise hereunder and the Security Agent may apply the purchase
price to the payment of the Obligations secured hereby. Any such
purchaser of all or any part of the Collateral shall, upon any
such purchase, acquire good title to the Collateral so purchased,
free of the security interests created by this Agreement.
Section 2. 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 parties hereto.
Section 3. 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 4. 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-per
fection 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 5. 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 6. 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 real
ization 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 7. 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 documents
executed 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 owner
ship, purchase, delivery, control, acceptance, financing, possession,
condition, sale, return or other disposition, or use of,
the Collateral, excluding (x) those 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 1. 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 2. 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 the Security Agent, the
Owner Trustee or GE Capital 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 3. 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 in
stance and for the specific purpose for which given.
Section 4. 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 5. 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 6. 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 7. 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 8. 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 9. Severability. In case any provision in or
obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforce
ability 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 10. Consent to Pledge by General Partner.
Notwithstanding anything to the contrary contained in the
Partnership Agreement, Panda Energy Corporation, a Delaware
corporation, as holder of the Borrower limited partnership inter
est, hereby consents to (i) the execution, delivery, and performance
by the General Partner of this Agreement, (ii) the grant of
the pledge by the General Partner to the Security Agent, for the
benefit of the Owner Trustee and GE Capital, of its partnership
interests in the Borrower pursuant to this Agreement, (iii) the
sale, transfer, assignment or other disposition (whether through
foreclosure, deed-in-lieu of foreclosure, or otherwise) of such
partnership interests to the Security Agent, its designee, or any
purchaser of such partnership interests pursuant to the exercise
by the Security Agent of its rights and remedies under this
Agreement and (iv) the admission to the Borrower of the Security
Agent, such designee, or such purchaser as a general partner of
the Borrower in connection with the exercise of such rights and
remedies.
Section 11. 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 12. 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, its sole recourse 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, the Owner Trustee or GE
Capital may have against any Person for fraud, willful misconduct
or knowing misrepresentation by such Person.
Section 13. 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 14. Leveraged Lease. If, upon the sale of the
Facility by the Borrower to the Owner Trustee, GE Capital
exercises its option under subsection 5.8 of the Loan Agreement
to cause the Owner Trustee to borrow funds to finance (or
refinance) a portion of the purchase price of the Facility, the
parties hereto agree to execute an amendment or supplement hereto
to provide for such provisions as are customary and appropriate
in respect of leveraged lease transactions.
Section 15. Certain Rights of Power Purchaser.
Nothing in this General Partner 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 General Partner 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 BRANDYWINE CORPORATION,
as Pledgor
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
SHAWMUT BANK CONNECTICUT, NATIONAL
ASSOCIATION,
as Security Agent
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
With Respect to Section 30 only:
PANDA ENERGY CORPORATION,
as limited partner
By:_______________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President