EXHIBIT 10.115
PANDA GLOBAL ENERGY COMPANY PLEDGE AGREEMENT
Pledge Agreement, dated as of April 22, 1997, by Panda
Global Energy Company, 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 the
Pledgor 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 Pledgor and the Trustee and any
additional securities ( together with the Senior Secured Notes,
the "Securities") as may be issued by the Pledgor from time to
time pursuant to one or Series Supplemental Indentures (as
described in the Indenture).
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 upon the terms and subject to the
conditions set forth therein;
WHEREAS, the Pledgor is the issuer of the Securities, and it
is to the advantage of the Pledgor to facilitate the sale of the
Senior Secured Notes by entering into this Pledge Agreement; 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 Securities 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 Pledgor, Panda Global Holdings,
Inc. and Panda Energy International, Inc., the Pledgor hereby
agrees with the Trustee, for the ratable benefit of the Holders,
as follows:
I. 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 Note, the Pledged Agreement, the
Pledged Stock and all Proceeds thereof.
"Obligations": the collective reference to the unpaid
principal interest and premium, if any (including Liquidated
Damages and Additional Amounts, if any), on the Securities and
all other obligations and liabilities of the Pledgor to the
Trustee and the Holders (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 Pledgor 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
Indenture, any Series Supplemental Indenture, the Securities, the
other Transaction Documents to which the Pledgor is a party or
any other document made, delivered or given in connection
therewith, in each case whether on account of principal,
interest, 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 the Indenture, any Series Supplemental
Indenture, this Agreement or any other Transaction Document to
which the Pledgor is a party).
"Pan-Sino Agreement": the agreement entered into as of the
date hereof pursuant to which Pan-Sino has pledged certain stock
in favor of the Trustee.
"Pledged Note": the promissory note listed on Schedule 2.
"Pledged Agreement": the Issuer Loan Agreement.
"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 UCC in effect in the
State of New York on the date hereof and, in any event, shall
include, without limitation, (a) with respect to the Pledged
Stock, all dividends or other income from the Pledged Stock,
collections thereon or distributions with respect thereto and (b)
with respect to the Pledged Note, all interest and principal
payments, instruments, and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for the Pledged Note.
"Stock Issuer": the company identified on Schedule 1
attached hereto as the issuer of the Pledged Stock.
"UCC": the Uniform Commercial UCC 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. Pledge; Grant of Security Interest. (a) The
Pledgor hereby delivers to the Trustee all of the Pledged Stock
listed on Schedule 1 hereto and hereby grants to the Trustee 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.
(b) The Pledgor hereby delivers to the Trustee the
Pledged Note and hereby grants to the Trustee 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.
3. Stock Powers; Assignment. (a) Concurrently with
the delivery to the Trustee of each certificate representing one
or more shares of the Pledged Stock, the Pledgor shall deliver an
undated stock power covering such certificate, duly executed in
blank with, if the Trustee so requests, signature guaranteed.
(b) (i) Concurrently with the delivery to the Trustee
of the Pledged Note, the Pledgor shall indorse the Pledged Note
as follows:
"Pay to the order of Bearer
PANDA GLOBAL ENERGY COMPANY
By:_________________________
Title:"
(ii) The Pledgor shall deliver to the Trustee an
Acknowledgement and Consent substantially in the form of Exhibit
A to this Agreement, duly executed by the maker.
4. Payments Under the Pledged Notes. (a) For so long as
any Securities are outstanding and unpaid, the Pledgor shall
cause all payments in respect of the Pledged Notes to be
deposited with the Trustee in accordance with the Indenture. If
the Pledgor shall receive any such payments, the Pledgor shall
hold the same in trust for the Trustee, segregated from other
funds of the Pledgor, and deliver the same forthwith to the
Trustee in the exact form received, duly indorsed by the Pledgor
to the Trustee, if required.
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 Lien on 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 Lien on 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, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and the security interest created pursuant to this
Agreement will constitute a valid, perfected, first priority
security interest;
(c) the execution, delivery and performance of this
Agreement will not violate any provision of any Requirement
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
Requirement of Law or contractual obligation, except as
contemplated hereby;
(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 or the Stock Issuer), 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 listed on Schedule 1
hereto constitute at least 90% 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
listed on Schedule 1 hereto, free of any and all Liens or
options in favor of, or claims of, any other Person, except
the Lien created by this Agreement;
(i) the Pledged Note is the legal, valid and binding
obligation of Pan-Western (which is the maker thereof),
enforceable against Pan-Western in accordance with its
terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally;
and
(j) upon delivery to the Trustee of the stock
certificates evidencing the Pledged Stock and the Pledged
Note, the Lien granted pursuant to this Agreement will
constitute a valid, perfected first priority Lien on the
Collateral, enforceable as such against all creditors of the
Pledgor and any Persons purporting to purchase any
Collateral from the Pledgor.
6. Covenants. The Pledgor covenants and agrees with
the Trustee 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 the Obligations are paid in full:
(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 Trustee's agent, 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 and with,
if the Trustee so requests, signature guaranteed, to be held
by the Trustee hereunder as additional collateral security
for the Obligations. Any sums paid upon or in respect of
the Pledged Stock or the Pledged Note upon the liquidation
or dissolution of any Stock Issuer or maker of the Pledged
Note 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 the Pledged
Note or any property shall be distributed upon or with
respect to the Pledged Stock or the Pledged Note pursuant to
the recapitalization or reclassification of the capital of
any Stock Issuer or the maker of the Pledged Note or
pursuant to the reorganization thereof, the property so
distributed shall be delivered to the Trustee to be held by
it, subject to the terms hereof, as additional collateral
security for the Obligations. If any sums of money or
property so paid or distributed in respect of the Pledged
Stock or the Pledged Note 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 all other funds as
additional collateral security for the Obligations.
(b) Without the prior written consent of the Trustee,
the Pledgor will not (i) vote to enable, or take any other
action to permit, any 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 such Stock Issuer, or (ii) sell, assign,
transfer, exchange or otherwise dispose of, or grant any
option with respect to, the Collateral, or (iii) 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 Lien
provided for by this Agreement, or (iv) take any action, the
taking of which might result in an alteration or impairment
of the Pledged Note, or (v) enter into any agreement
amending, modifying or supplementing the Pledged Note, or
(vi) waive or release any obligation of any party to the
Pledged Note, or (vii) consent or agree to any act or
omission to act on the part of any party to the Pledged Note
which, without such omission, consent or agreement, would
constitute a default thereunder, or (viii) fail to exercise
promptly and diligently each and every right which it may
have under the Pledged Note (except the right to recovery,
release or cancel unless the Pledged Note has been paid in
full), or (ix) fail to give prompt notice to the Trustee of
any notice of default given by or to the Pledgor under or
with respect to the Pledged Note together with a complete
copy of such notice; provided, however, that Pan-Sino may be
merged into Pan-Western or the Pledgor in accordance with
the terms of the Indenture. The Pledgor will defend the
right, title and interest of the Trustee in and to the
Collateral against the claims and demands of all Persons
whomsoever.
(c) 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 agrees to pay, and to save the Trustee
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.
(e) In the event that the Stock Issuer is merged or
consolidated into Pan-Western, the Pledgor will pledge at
least 99% of the Capital Stock of Pan-Western to the
Trustee.
(f) In the event that the Stock Issuer is merged or
consolidated into the Pledgor, the Pledgor will assume the
obligations of the Stock Issuer under the Pan-Sino Pledge
Agreement.
(g) In the event that a Non-U.S. Permitted Project is
developed, constructed or owned pursuant to the provisions
of the Indenture, the Issuer shall not expend in excess of
$2,500,000 in the furtherance of the development of such Non-
U.S. Permitted Project, unless a first priority perfected
security interest in 100% of the Capital Stock of the Person
that owns such Non-U.S. Permitted Project has been given to
the Trustee for the ratable benefit of the Holders of the
Securities (or, to the extent that a Non-U.S. Permitted
Project is not Wholly Owned by the Issuer or its Subsidiary,
in the entire ownership interest in such Non-U.S. Permitted
Project held by the Issuer or such Subsidiary or group of
Subsidiaries). Notwithstanding the requirement of the
preceding sentence, (i) in the event that the financing
arrangements with respect to a Non-U.S. Permitted Project
require the pledge of a Non-U.S. Permitted Project's Capital
Stock to secure Non-Recourse Debt, upon financial closing,
the Trustee shall release such stock to the extent necessary
to allow for such a pledge and (ii) the Issuer shall not be
required to pledge the Capital Stock of a Subsidiary if (A)
such a pledge is contrary to the law, taking into account
the structure of the project, of the jurisdiction of
domicile of the relevant Subsidiary or (B) such a pledge is
not permitted under the Project Documents of such Non-U.S.
Permitted Project. The Pledgor shall attempt in good faith
to provide, or cause to be provided, such a pledge to the
Trustee. In the event that the Capital Stock of a
Subsidiary that was not available for a pledge to the
Trustee pursuant to clauses (i) and (ii) of the preceding
sentence becomes available at a subsequent date, the Issuer
shall be required to pledge promptly the Capital Stock of
such Subsidiary to the Trustee.
7. Cash Dividends; Voting Rights; Etc. For so long
as any Securities are outstanding pursuant to the Indenture, the
Pledgor shall cause all dividends, distributions and other
Proceeds 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 Indenture, the Securities or this Agreement.
8. Rights of the Trustee. (a) 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 Pledgors: (i) the
Trustee shall have the right to receive any and all cash
dividends paid in respect of the Pledged Stock and any and all
cash payments of interest and principal with respect to the
Pledged Note and make application thereof to the Obligations in
such order as it may determine, (ii) 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 it may determine), all without liability except to
account for property actually received by it, but the Trustee
shall have no duty to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or
delay in so doing, and (iii) the Pledged Note shall be registered
in the name of the Trustee or its nominee, and the Trustee or its
nominee may thereafter exercise all rights pertaining to the
holder of the Pledged Note, all without liability except to
account for property actually received by it, but the Trustee
shall have no duty to exercise any such rights and shall not be
responsible for any failure to do so or delay in so doing.
(b) If an Event of Default shall occur and be
continuing, the Trustee shall be entitled to exercise all rights
of the Pledgor under the Pledged Agreement.
(c) The rights of the Trustee hereunder shall not be
conditioned or contingent upon the pursuit by the Trustee of any
right or remedy against the Stock Issuer or against any other
Person which may be or become liable in respect of all or any
part of the Obligations or against any other collateral security
therefor, guarantee thereof or right of offset with respect
thereto. The Trustee shall not be liable for any failure to
demand, collect or realize upon all or any part of the Collateral
or for any delay in doing so, nor shall it be under any
obligation to sell or otherwise dispose of any Collateral upon
the request of any Pledgor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part
thereof.
9. Remedies. If an Event of Default shall occur and
be continuing, the Trustee 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 any
Pledgor, the Stock Issuer 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 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 any 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 therein 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 hereunder, including, without limitation,
reasonable attorneys' fees and disbursements, 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 any
Pledgor. To the extent permitted by applicable law, the Pledgor
waives all claims, damages and demands it may acquire against the
Trustee arising out of the exercise by the Trustee of any of its
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 shall remain
liable for any deficiency if the proceeds of any sale or other
disposition of Collateral are insufficient to pay the Obligations
and the fees and disbursements of any attorneys employed by the
Trustee to collect such deficiency. The Pledgor further waives
and agrees not to assert any rights or privileges which it may
acquire under Section 9-112 of the UCC.
10. No Subrogation. Notwithstanding any payment or
payments made by the Pledgor hereunder, or any setoff or
application of funds of the Pledgor by the Trustee, or the
receipt of any amounts by the Trustee with respect to any of the
Collateral, the Pledgor shall not be entitled to be subrogated to
any of the rights of the Trustee. 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.
11. Amendments, etc. with respect to the Obligations.
The Pledgor shall remain obligated hereunder, and the Collateral
shall remain subject to the Lien 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 may be
rescinded by the Trustee, and any of the Obligations continued,
and the Obligations, or the liability of the Stock Issuer 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, and any other document in
connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Trustee may deem
advisable from time to time, and any guarantee, right of offset
or other collateral at any time held by the Trustee for the
payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Trustee shall have no 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 upon this
Agreement; the Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred in
reliance upon this Agreement; and all dealings between the Stock
Issuer, the maker of the Pledged Note, the Pledgor and the
Trustee shall likewise 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 Stock Issuer or
the Pledgor with respect to the Obligations.
12. Limitation on Duties Regarding Collateral. 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. Neither the Trustee nor any of
its directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon any of the Collateral
or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Collateral upon the request of
the Pledgor or otherwise.
13. Powers Coupled with an Interest. All
authorizations and agencies herein contained with respect to the
Collateral are irrevocable and powers coupled with an interest.
14. 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.
15. Paragraph Headings. The paragraph 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.
16. No Waiver; Cumulative Remedies. The Trustee shall
not by any act (except by a written instrument pursuant to
Paragraph 17 hereof), delay, indulgence, omission 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 breach of
any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Trustee, any
right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
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
remedy which the Trustee would otherwise have on any future
occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
17. Waivers and Amendments; Successors and Assigns.
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 in a
letter or agreement executed by the Trustee or by facsimile
transmission from the Trustee. This Agreement shall be binding
upon the successors and assigns of the Pledgor and shall inure to
the benefit of the Trustee and its successors and assigns.
18. Irrevocable Authorization and Instruction to Stock
Issuer. The Pledgor hereby authorizes and instructs the Stock
Issuer and the maker of the Pledged Note 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 and the maker of the Pledged Note shall be
fully protected in so complying.
19. 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.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
21. 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.
22. 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.
23. Return of Collateral.
(a) When this Agreement is terminated and the security
interests created hereby are released, the Trustee shall
return the Pledged Note and certificates representing the
the Pledged Stock to the Pledgor.
(b) Upon payment in full of any Pledged Note and
payment of the Proceeds thereof as provided in this
Agreement, the Trustee shall return such Pledged Note to the
Pledgor.
(c) Upon the occurrence of a default or event of
default under the Pledged Note, subject to Sections 8 and 9
hereof, the Trustee shall cooperate reasonably with the
Pledgor, at the expense of the Pledgor, in the exercise of
the Pledgor's rights and remedies under such Pledged Note.
IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be duly executed and delivered as of the date first
above written.
PANDA GLOBAL ENERGY COMPANY
By
Title
Address for Notices:
Panda Global Energy Company
c/▇ ▇▇▇▇▇▇ and Calder
▇▇▇▇▇▇ House
P.O. Box 309
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
Stock
Class of Certificate No. of
Stock Issuer Stock No Shares
Pan-Sino Energy Class B 004 9,750
Development Company LLC
SCHEDULE 2
TO PLEDGE AGREEMENT
THE PLEDGED NOTE
Principal Amount/
Description of Pledged Note Interest Payment
Promissory Note dated April Outstanding principal amount:
22, 1997, made by Pan-Western $114,271,288
Energy Corporation LLC to the
order of Panda Global Energy Last date to which interest
Company in the original was paid: n/a
principal amount of
$114,271,288.
EXHIBIT A
TO PLEDGE AGREEMENT
April 22, 1997
TO: Pan-Western Energy Corporation LLC
▇/▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Street
▇▇▇▇▇▇ Town, Grand Cayman
Cayman Islands, British West Indies
Reference is hereby made to the Promissory Note dated April
22, 1997, (the "Note"), made by you to the order of Panda Global
Energy Company (the "Pledgor") in the original principal amount
of $____________. By Pledge Agreement, dated as of April 22,
1997 (the "Pledge Agreement"), the Pledgor has pledged the Note
to Bankers Trust Company, as Trustee for the Holders pursuant to
the Indenture referred to in the Pledge Agreement (the
"Trustee"), to secure payment and performance of obligations of
the Pledgor to the Trustee.
You are hereby irrevocably directed, until receipt of notice
from the Trustee, to make any and all payments becoming due under
the Note directly to the Trustee, without set-off or
counterclaim, to such account as the Trustee may designate by
written notice to you.
The instructions contained herein are irrevocable and may
not be amended, revoked or otherwise modified without the prior
written consent of the Trustee.
PANDA GLOBAL ENERGY COMPANY
By
Title
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the
Pledge Agreement dated as of April 22, 1997, made by Panda Global
Energy Company for the benefit of Bankers Trust Company as
Trustee (the "Pledge Agreement"). The undersigned agrees for the
benefit of the Trustee and the Holders 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-SINO ENERGY DEVELOPMENT COMPANY
LLC
By
Title
Address for Notices:
Pan-Sino Energy Development
Company, LLC
c/▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇ House
P.O. Box 309
South Church Street
▇▇▇▇▇▇ Town, Grand Cayman
Cayman Islands, British West Indies
with a copy to:
Panda Energy International Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel