EXHIBIT 10.116
PAN-SINO PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of April 22, 1997, made by Pan-
Sino Energy Development Company LLC, a Cayman Islands exempted
company (the "Pledgor") in favor of Bankers Trust Company, as
Trustee (in such capacity, the "Trustee") for the Holders of the
12-1/2% Senior Secured Notes due 2004 (the "Senior Secured
Notes") of Panda Global Energy Company (the "Issuer") issued
pursuant to the terms and subject to the conditions of the Trust
Indenture dated as of April 22, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Indenture") between
the Trustee and the Issuer and fully and unconditionally
guaranteed by Panda Global Holdings, Inc. (the "Company").
W I T N E S S E T H:
WHEREAS, pursuant to the Indenture, the Trustee has agreed
to act on behalf of the Holders of the Senior Secured Notes upon
the terms and subject to the conditions set forth therein; and
WHEREAS, the Pledgor is a Subsidiary of the Issuer, and
substantially all of the proceeds of the Senior Secured Notes are
being loaned to Subsidiaries of the Pledgor; and
WHEREAS, the Pledgor is the legal and beneficial owner of
the shares of Pledged Stock (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises and to
induce the Trustee to enter into the Indenture and to induce the
Initial Purchaser to purchase the Senior Secured Notes under the
Purchase Agreement dated April 11, 1997 (as it may be amended,
supplemented or otherwise modified from time to time, the
"Purchase Agreement") with the Issuer, the Company and Panda
Energy International, Inc., the Pledgor hereby agrees with the
Trustee, for the ratable benefit of the Holders of the Senior
Secured Notes, as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
terms defined in the Indenture and used herein shall have the
meanings given to them in the Indenture.
(b) The following terms shall have the following meanings:
"Agreement": this Pledge Agreement, as the same may be
amended, modified or otherwise supplemented from time to time.
"Collateral": the Pledged Stock and all Proceeds.
"Collateral Account": any account established to hold money
Proceeds, maintained under the sole dominion and control of the
Trustee, subject to withdrawal by the Trustee for the account of
the Holders of the Senior Secured Notes only as provided in
paragraph 9(a).
"Guaranteed Obligations": the collective reference to the
unpaid principal, interest and premium, if any on the loans made
pursuant to the Issuer Loan Agreement (including, without
limitation, interest accruing at the then applicable rate
provided in the Issuer Loan Agreement after the maturity of the
loans thereunder and interest accruing at the then applicable
rate provided in the Issuer Loan Agreement after the filing of
any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to Pan-
Western whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or
in connection with, the Issuer Loan Agreement, the Issuer Note,
this Agreement or any other document made, delivered or given in
connection therewith whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and
disbursements of counsel that are required to be paid by Pan-
Western pursuant to the terms of the Issuer Loan Agreement, the
Issuer Note, this Agreement or any other Transaction Document).
"Obligations": (i) the collective reference to the unpaid
principal, interest and premium, if any (including Liquidated
Damages and Additional Amounts, if any), on the Senior Secured
Notes and all other obligations and liabilities of the Issuer to
the Trustee and the Holders of the Senior Secured Notes
(including, without limitation, interest accruing after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the
Issuer whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or
in connection with, the Senior Secured Notes; and
(ii) all obligations and liabilities of the Pledgor which
may arise under or in connection with this Agreement or any other
Transaction Document to which the Pledgor is a party;
in each case, whether on account of reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to the
Trustee or counsel to the Initial Purchaser that are required to
be paid by the Pledgor pursuant to the terms of this Agreement or
any other Transaction Document.
"Pledged Stock": the shares of capital stock listed on
Schedule 1 hereto, together with all stock certificates, options
or rights of any nature whatsoever that may be issued or granted
by the Stock Issuer to the Pledgor in respect of the Pledged
Stock while this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in
Section 9-306(1) of the Uniform Commercial Code in effect in the
State of New York on the date hereof and, in any event, shall
include, without limitation, all dividends or other income from
the Pledged Stock, collections thereon or distributions with
respect thereto.
"Stock Issuer": the company identified on Schedule 1
attached hereto as the issuer of the Pledged Stock.
"UCC": the Uniform Commercial Code from time to time in
effect in the State of New York.
(c) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
2. Guarantee. (a) Subject to the provisions of paragraphs
2(b) and 2(c) below, the Pledgor hereby unconditionally and irre-
vocably guarantees to the Trustee, for the ratable benefit of the
Holders of the Senior Secured Notes and their respective suc-
cessors, indorsees, transferees and assigns, the prompt and
complete payment and performance by Pan-Western (whether at the
stated maturity, by acceleration or otherwise) of the Guaranteed
Obligations.
(b) The Pledgor shall have no personal liability for
payment of the Guaranteed Obligations, and in any action or suit
to collect the Guaranteed Obligations the Trustee and the Holders
of the Senior Secured Notes shall not seek any in personam
judgment against the Pledgor or any judgment for a deficiency but
shall look solely to the security interests hereunder and under
the Pan-Sino Security Agreement and the collateral described
herein and therein for payment of the Guaranteed Obligations.
Nothing contained in this Section shall be construed to impair
the validity of the Guaranteed Obligations or the Pan-Sino
Security Agreement or affect or impair in any way the right of
the Trustee and the Holders of the Senior Secured Notes to
exercise their rights and remedies under the Indenture, any
Series Supplemental Indentures, the Senior Secured Notes and any
other Transaction Document in accordance with their terms.
(c) The maximum liability of the Pledgor hereunder and
under the Pan-Sino Security Agreement shall in no event exceed
the amount which can be guaranteed by the Pledgor under
applicable laws relating to the insolvency of debtors.
3. Pledge; Grant of Security Interest. The Pledgor hereby
delivers to the Trustee, for the ratable benefit of the Holders
of the Senior Secured Notes, all the Pledged Stock and hereby
grants to the Trustee, for the ratable benefit of the Holders of
the Senior Secured Notes, a first security interest in the
Collateral, as collateral security for the prompt and complete
payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of the Obligations.
4. Stock Powers. Concurrently with the delivery to the
Trustee of each certificate representing one or more shares of
Pledged Stock, the Pledgor shall deliver an undated stock power
covering such certificate, duly executed in blank by the Pledgor
with, if the Trustee so requests, signature guaranteed.
5. Representations and Warranties. The Pledgor represents
and warrants that:
(a) The Pledgor has the corporate power and authority and
the legal right to execute and deliver, to perform its
obligations under, and to grant the security interest in the
Collateral pursuant to, this Agreement and has taken all
necessary corporate action to authorize its execution, delivery
and performance of, and grant of the security interest in the
Collateral pursuant to, this Agreement.
(b) This Agreement constitutes a legal, valid and binding
obligation of the Pledgor, enforceable in accordance with its
terms, and upon delivery to the Trustee of the stock certificates
evidencing the Pledged Stock, the security interest created
pursuant to this Agreement will constitute a valid, perfected
first priority security interest in the Collateral, enforceable
in accordance with the terms hereof against all creditors of the
Pledgor and any Persons purporting to purchase any Collateral
from the Pledgor, except in each case as enforceability may be
affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
(c) The execution, delivery and performance of this
Agreement will not violate any provision of any Requirements of
Law or contractual obligation of the Pledgor and will not result
in the creation or imposition of any Lien on any of the
properties or revenues of the Pledgor pursuant to any
Requirements of Law or contractual obligation of the Pledgor,
except the security interest created by this Agreement.
(d) No consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority
and no consent of any other Person (including, without
limitation, any stockholder or creditor of the Pledgor), is
required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement.
(e) No litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of the Pledgor, threatened by or against the Pledgor or
against any of its properties or revenues with respect to this
Agreement or any of the transactions contemplated hereby.
(f) The shares of Pledged Stock constitute at least 99% of
the issued and outstanding shares of all classes of the capital
stock of the Stock Issuer.
(g) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(h) The Pledgor is the record and beneficial owner of, and
has good and marketable title to, the Pledged Stock, free of any
and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement.
6. Covenants. The Pledgor covenants and agrees with the
Trustee for the benefit of the Holders of the Senior Secured
Notes that except as the Trustee may otherwise consent in
accordance with the terms of the Indenture, from and after the
date of this Agreement until this Agreement is terminated and the
security interests created hereby are released:
(a) If the Pledgor shall, as a result of its ownership of
the Pledged Stock, become entitled to receive or shall receive
any stock certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in
connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any
reorganization), option or rights, whether in addition to, in
substitution of, as a conversion of, or in exchange for any
shares of the Pledged Stock, or otherwise in respect thereof, the
Pledgor shall accept the same as the agent of the Trustee, hold
the same in trust for the Trustee and deliver the same forthwith
to the Trustee in the exact form received, duly indorsed by the
Pledgor to the Trustee, if required, together with an undated
stock power covering such certificate duly executed in blank by
the Pledgor and with, if the Trustee so requests, signature
guaranteed, to be held by the Trustee, subject to the terms
hereof, as additional collateral security for the Obligations.
Any sums paid upon or in respect of the Pledged Stock upon the
liquidation or dissolution of the Stock Issuer shall be paid over
to the Trustee to be held by it hereunder as additional
collateral security for the Obligations, and in case any
distribution of capital shall be made on or in respect of the
Pledged Stock or any property shall be distributed upon or with
respect to the Pledged Stock pursuant to the recapitalization or
reclassification of the capital of the Stock Issuer or pursuant
to the reorganization thereof, the property so distributed shall
be delivered to the Trustee to be held by it hereunder as
additional collateral security for the Obligations. If any sums
of money or property so paid or distributed in respect of the
Pledged Stock shall be received by the Pledgor, the Pledgor
shall, until such money or property is paid or delivered to the
Trustee, hold such money or property in trust for the Trustee,
segregated from other funds of the Pledgor, as additional
collateral security for the Obligations.
(b) Without the prior written consent of the Trustee, the
Pledgor will not (1) vote to enable, or take any other action to
permit, the Stock Issuer to issue any stock or other equity
securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange
for any stock or other equity securities of any nature of the
Stock Issuer, (2) sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Collateral,
(3) create, incur or permit to exist any Lien or option in favor
of, or any claim of any Person with respect to, any of the
Collateral, or any interest therein, except for the security
interest created by this Agreement or (4) enter into any
agreement or undertaking restricting the right or ability of the
Pledgor or the Trustee to sell, assign or transfer any of the
Collateral, provided, however, that, with the consent of the
Issuer, the Pledgor may be merged into Pan-Western or the Issuer
in accordance with the terms of the Indenture.
(c) The Pledgor shall maintain the security interest
created by this Agreement as a first, perfected security interest
and shall defend such security interest against claims and
demands of all Persons whomsoever. At any time and from time to
time, upon the written request of the Trustee, and at the sole
expense of the Pledgor, the Pledgor will promptly and duly
execute and deliver such further instruments and documents and
take such further actions as the Trustee may reasonably request
for the purposes of obtaining or preserving the full benefits of
this Agreement and of the rights and powers herein granted. If
any amount payable under or in connection with any of the
Collateral shall be or become evidenced by any promissory note,
other instrument or chattel paper, such note, instrument or
chattel paper shall be immediately delivered to the Trustee, duly
endorsed in a manner satisfactory to the Trustee, to be held as
Collateral pursuant to this Agreement.
(d) The Pledgor shall pay, and save the Trustee and the
Holders of the Senior Secured Notes harmless from, any and all
liabilities with respect to, or resulting from any delay in
paying, any and all stamp, excise, sales or other taxes which may
be payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions
contemplated by this Agreement.
7. Cash Dividends; Voting Rights. For so long as the
Senior Secured Notes are outstanding and unpaid, the Pledgor
shall cause all cash dividends, distributions and other Proceeds
in respect of the Pledged Stock to be deposited with the Trustee
in accordance with the Indenture. Unless an Event of Default
shall have occurred and be continuing, the Pledgor shall be
permitted to exercise all voting and corporate rights with
respect to the Pledged Stock; provided, however, that no vote
shall be cast or corporate right exercised or other action taken
which would impair the Collateral or which would be inconsistent
with or result in any violation of any provision of the
Indenture, any Series Supplemental Indentures, or any other
Transaction Document.
8. Rights of the Trustee. (a) All money Proceeds received
by the Trustee hereunder shall be deposited with the Trustee
under the Indenture for the benefit of the Holders of the Senior
Secured Notes. All Proceeds while held by the Trustee (or by the
Pledgor in trust for the Trustee) shall continue to be held as
collateral security for all the Obligations and shall not
constitute payment thereof until applied as provided in paragraph
9(a).
(b) If an Event of Default shall occur and be continuing
and the Trustee shall give notice of its intent to exercise such
rights to the Pledgor, (1) the Trustee shall have the right to
receive any and all cash dividends paid in respect of the Pledged
Stock and make application thereof to the Obligations in such
order as the Trustee may determine, and (2) all shares of the
Pledged Stock shall be registered in the name of the Trustee or
its nominee, and the Trustee or its nominee may thereafter
exercise (A) all voting, corporate and other rights pertaining to
such shares of the Pledged Stock at any meeting of shareholders
of the Stock Issuer or otherwise and (B) any and all rights of
conversion, exchange, subscription and any other rights,
privileges or options pertaining to such shares of the Pledged
Stock as if it were the absolute owner thereof (including,
without limitation, the right to exchange at its discretion any
and all of the Pledged Stock upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in
the corporate structure of the Stock Issuer, or upon the exercise
by the Pledgor or the Trustee of any right, privilege or option
pertaining to such shares of the Pledged Stock, and in connection
therewith, the right to deposit and deliver any and all of the
Pledged Stock with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and
conditions as the Trustee may determine), all without liability
except to account for property actually received by it, but the
Trustee shall have no duty to the Pledgor to exercise any such
right, privilege or option and shall not be responsible for any
failure to do so or delay in so doing.
9. Remedies. (a) If an Event of Default shall have
occurred and be continuing, at any time at the Trustee's
election, the Trustee may apply all or any part of Proceeds held
in any Collateral Account in payment of the Obligations in such
order as the Trustee may elect.
(b) If an Event of Default shall occur and be continuing,
the Trustee, on behalf of the Holders of the Senior Secured
Notes, may exercise, in addition to all other rights and remedies
granted in this Agreement and in any other instrument or
agreement securing, evidencing or relating to the Obligations,
all rights and remedies of a secured party under the UCC.
Without limiting the generality of the foregoing, the Trustee,
without demand of performance or other demand, presentment,
protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Pledgor or any
other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize
upon the Collateral, or any part thereof, and/or may forthwith
sell, assign, give option or options to purchase or otherwise
dispose of and deliver the Collateral or any part thereof (or
contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market,
at any exchange, broker's board or office of the Trustee or
elsewhere upon such terms and conditions as it may deem advisable
and at such prices as it may deem best, for cash or on credit or
for future delivery without assumption of any credit risk. The
Trustee or any Holder of the Senior Secured Notes shall have the
right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of
any right or equity of redemption in the Pledgor, which right or
equity is hereby waived or released. The Trustee shall apply any
Proceeds from time to time held by it and the net proceeds of any
such collection, recovery, receipt, appropriation, realization or
sale, after deducting all reasonable costs and expenses of every
kind incurred in respect thereof or incidental to the care or
safekeeping of any of the Collateral or in any way relating to
the Collateral or the rights of the Trustee and the Holders of
the Senior Secured Notes hereunder, including, without
limitation, reasonable attorneys' fees and disbursements of
counsel to the Trustee and counsel to the Initial Purchaser to
the payment in whole or in part of the Obligations, in such order
as the Trustee may elect, and only after such application and
after the payment by the Trustee of any other amount required by
any provision of law, including, without limitation, Section
9-504(1)(c) of the UCC, need the Trustee account for the surplus,
if any, to the Pledgor. To the extent permitted by applicable
law, the Pledgor waives all claims, damages and demands it may
acquire against the Trustee or any Holder of the Senior Secured
Notes arising out of the exercise by them of any rights
hereunder. If any notice of a proposed sale or other disposition
of Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least 10 days before
such sale or other disposition. The Pledgor waives and agrees
not to assert any rights or privileges which it may acquire under
Section 9-112 of the UCC.
10. Irrevocable Authorization and Instruction to Stock
Issuer. The Pledgor hereby authorizes and instructs the Stock
Issuer to comply with any instruction received by it from the
Trustee in writing that (a) states that an Event of Default has
occurred and (b) is otherwise in accordance with the terms of
this Agreement, without any other or further instructions from
the Pledgor, and the Pledgor agrees that the Stock Issuer shall
be fully protected in so complying.
11. No Subrogation. Notwithstanding any payment or
payments made by the Pledgor hereunder, or any setoff or
application of funds of the Pledgor by any Holders of the Senior
Secured Notes, or the receipt of any amounts by the Trustee or
any Holder of the Senior Secured Notes with respect to any of the
Collateral, the Pledgor shall not be entitled to be subrogated to
any of the rights of the Trustee or any Holder of the Senior
Secured Notes against the Issuer or Pan-Western or against any
other collateral security held by the Trustee or any Holder of
the Senior Secured Notes for the payment of the Obligations, nor
shall the Pledgor seek any reimbursement from the Issuer or the
Company in respect of payments made by the Pledgor in connection
with this Agreement, or amounts realized by the Trustee or any
Holders of the Senior Secured Notes in connection with the
Collateral, until all amounts owing to the Trustee and the
Holders of the Senior Secured Notes on account of the Obligations
are paid in full. If any amount shall be paid to the Pledgor on
account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall
be held by the Pledgor in trust for the Trustee, segregated from
other funds of the Pledgor, and shall, forthwith upon receipt by
the Pledgor, be turned over to the Trustee in the exact form
received by the Pledgor (duly indorsed by the Pledgor to the
Trustee, if required) to be applied against the Obligations,
whether matured or unmatured, in such order as the Trustee may
determine.
12. Amendments, etc. with respect to the Obligations;
Waiver of Rights. The Pledgor shall remain obligated hereunder,
and the Collateral shall remain subject to the security interests
granted hereby, notwithstanding that, without any reservation of
rights against the Pledgor, and without notice to or further
assent by the Pledgor, any demand for payment of any of the
Obligations made by the Trustee or any Holders of the Senior
Secured Notes may be rescinded by the Trustee or such Holders of
the Senior Secured Notes and any of the Obligations may be
continued, and the Obligations, or the liability of the Issuer or
the Company or any other Person upon or for any part thereof, or
any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered, or released by the Trustee or
any Holder of the Senior Secured Notes, and the Indenture, any
Series Supplemental Indenture, the Senior Secured Notes, the
other Transaction Documents and any other documents executed and
delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or part, in accordance with
their terms and the terms of the Indenture and, subject to the
Indenture, any guarantee, right of offset or other collateral
security at any time held by the Trustee or any Holder of the
Senior Secured Notes for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. Neither the
Trustee nor any Holder of the Senior Secured Notes shall have any
obligation to protect, secure, perfect or insure any other Lien
at any time held by it as security for the Obligations or any
property subject thereto. The Pledgor waives any and all notice
of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Trustee or
any Holder upon this Agreement; the Obligations, and any of them,
shall be deemed conclusively to have been created, contracted or
incurred in reliance upon this Agreement; and all dealings
between the Issuer or the Company and the Pledgor, on the one
hand, and the Trustee and the Holders of the Senior Secured
Notes, on the other, likewise shall be conclusively presumed to
have been had or consummated in reliance upon this Agreement.
The Pledgor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Issuer
or the Company or the Pledgor with respect to the Obligations.
When pursuing its rights and remedies hereunder against the
Pledgor, the Trustee and any Holder of the Senior Secured Notes
may, but shall be under no obligation to, pursue such rights and
remedies as it may have against the Issuer or the Company or any
other Person or against any collateral security or guarantee for
the Obligations or any right of offset with respect thereto, and
any failure by the Trustee or any Holder of the Senior Secured
Notes to pursue such other rights or remedies or to collect any
payments from the Issuer or the Company or any such other Person
or to realize upon any such collateral security or guarantee or
to exercise any such right of offset, or any release of the
Issuer or the Company or any such other Person or of any such
collateral security, guarantee or right of offset, shall not
relieve the Pledgor of any liability hereunder, and shall not
impair or affect the rights and remedies, whether express,
implied or available as a matter of law, of the Trustee or any
Holder of the Senior Secured Notes against the Pledgor or the
Collateral.
13. Trustee's Appointment as Attorney-in-Fact. (a) The
Pledgor hereby irrevocably constitutes and appoints the Trustee
and any officer or agent of the Trustee, with full power of
substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the
Pledgor and in the name of the Pledgor or in the Trustee's own
name, from time to time in the Trustee's discretion, for the
purpose of carrying out the terms of this Agreement, to take any
and all appropriate action and to execute any and all documents
and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including, without limitation,
any financing statements, endorsements, assignments or other
instruments of transfer.
(b) The Pledgor hereby ratifies all that said attorneys-in-
fact shall lawfully do or cause to be done pursuant to the power
of attorney granted in paragraph 12(a). All powers, authoriza-
tions and agencies contained in this Agreement are coupled with
an interest and are irrevocable until this Agreement is terminated
and the security interests created hereby are released.
14. Duty of Trustee. The Trustee's sole duty with respect
to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the UCC or
otherwise, shall be to deal with it in the same manner as the
Trustee deals with similar securities and property for its own
account, except that the Trustee shall have no obligation to
invest funds held in any Collateral Account and may hold the same
as demand deposits. Neither the Trustee, any Holder of the
Senior Secured Notes nor any of their respective directors,
officers, employees or agents (a) shall be liable for failure to
demand, collect or realize upon any of the Collateral or for any
delay in doing so or (b) shall be under any obligation to sell or
otherwise dispose of any Collateral upon the request of the
Pledgor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
15. Execution of Financing Statements. Pursuant to Section
9-402 of the UCC, the Pledgor authorizes the Trustee to file
financing statements with respect to the Collateral without the
signature of the Pledgor in such form and in such filing offices
as the Trustee reasonably determines appropriate to perfect the
security interests of the Trustee under this Agreement. A
carbon, photographic or other reproduction of this Agreement
shall be sufficient as a financing statement for filing in any
jurisdiction.
16. Authority of Trustee. The Pledgor acknowledges that
the rights and responsibilities of the Trustee under this
Agreement with respect to any action taken by the Trustee or the
exercise or non-exercise by the Trustee of any option, voting
right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as
between the Trustee and the Holders of the Senior Secured Notes,
be governed by the Indenture and by such other agreements with
respect thereto as may exist from time to time among them, but,
as between the Trustee and the Pledgor, the Trustee shall be
conclusively presumed to be acting as agent for the Holders of
the Senior Secured Notes with full and valid authority so to act
or refrain from acting, and neither the Pledgor nor the Stock
Issuer shall be under any obligation, or entitlement, to make any
inquiry respecting such authority.
17. Notices. All notices, requests and demands to or upon
the Trustee or the Pledgor to be effective shall be in writing
(or by telex, fax or similar electronic transfer confirmed in
writing) and shall be deemed to have been duly given or made
(1) when delivered by hand or (2) if given by mail, when
deposited in the mails by certified mail, return receipt
requested, or (3) if by telex, fax or similar electronic
transfer, when sent and receipt has been confirmed, addressed as
follows:
(a) if to the Trustee, at its address or transmission
number for notices provided in the Recitals to the Indenture; and
(b) if to the Pledgor, at its address or transmission
number for notices set forth under its signature below.
The Trustee and the Pledgor may change their addresses and
transmission numbers for notices by notice in the manner provided
in this Section.
18. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
19. Integration. This Agreement represents the agreement
of the Pledgor with respect to the subject matter hereof and
there are no promises or representations by the Trustee or any
Holder of the Senior Secured Notes relative to the subject matter
hereof not reflected herein.
20. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Pledgor and the Trustee,
provided that any provision of this Agreement may be waived by
the Trustee on behalf of the Holders of the Senior Secured Notes
pursuant to the Indenture, in a letter or agreement executed by
the Trustee or by telex or facsimile transmission from the
Trustee.
(b) Neither the Trustee nor any Holder of the Senior
Secured Notes shall by any act (except by a written instrument pur-
suant to paragraph 20(a) hereof), delay, indulgence, omission or
or otherwise be deemed to have waived any right or remedy hereunder
or to have acquiesced in any Default or Event of Default or in any
any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of the Trustee
Trustee, any right, power or privilege hereunder shall operate as
a waiver thereof. No single or partial exercise of any right, power
power or privilege hereunder shall preclude any other or further ex-
ercise thereof or the exercise of any other right, power or privi-
lege. A waiver by the Trustee of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or any
right or remedy which the Trustee would otherwise have on any future
occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
21. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in
the interpretation hereof.
22. Successors and Assigns. This Agreement shall be
binding upon the successors and assigns of the Pledgor and shall
inure to the benefit of the Trustee and the Holders of the Senior
Secured Notes and their successors and assigns.
23. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
24. Submission To Jurisdiction; Waivers. The Pledgor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement, or for
recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York sitting in the Borough of
Manhattan, the courts of the United States of America for
the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(c) designates, appoints and empowers CT Corporation
Systems, at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ as its
authorized agent to receive for and on its behalf service of
any summons, complaint or other legal process in any such
action, suit or proceeding in the State of New York;
(d) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted
by law or shall limit the right to ▇▇▇ in any other
jurisdiction; and
(e) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal
action or proceeding referred to in this paragraph any
special, exemplary, punitive or consequential damages.
25. WAIVERS OF JURY TRIAL. THE PLEDGOR AND, BY ITS
ACCEPTANCE HEREOF, THE TRUSTEE HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
26. Return of Pledged Stock. When this Agreement is
terminated and the security interests created hereby are
released, the Trustee shall return the certificate representing
the Pledged Stock to the Pledgor.
IN WITNESS WHEREOF, the undersigned has caused this
Agreement to be duly executed and delivered as of the date first
above written.
PAN-SINO ENERGY DEVELOPMENT COMPANY
LLC
By
Title
Address: Pan-Sino Energy
Development Company LLC
▇/▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ House
South Church Street
▇▇▇▇▇▇ Town, Grand Cayman
Cayman Islands, British
West Indies
with a copy to: Panda Energy
International Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
Exhibit A
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the
Pledge Agreement dated as of April 22, 1997, made by Pan-Sino
Energy Development Company for the benefit of Bankers Trust
Company as Trustee (the "Pledge Agreement"). The undersigned
agrees for the benefit of the Trustee as follows:
1. The undersigned will be bound by the terms of the Pledge
Agreement and will comply with such terms insofar as such terms
are applicable to the undersigned.
2. The undersigned will notify the Trustee promptly in
writing of the occurrence of any of the events described in
paragraph 6(a) of the Pledge Agreement.
PAN-WESTERN ENERGY CORPORATION LLC
By
Title
Address for Notices:
Pan-Western Energy
Corporation, LLC
▇/▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ House
South Church Street
▇▇▇▇▇▇ Town, Grand Cayman
Cayman Islands, British West Indies
with a copy to: Panda Energy International Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
Issuer
Class of Stock* Stock Certificate No.
No. of Shares
Pan-Western Energy Corporation LLC Class B 002 9,900,000