EXHIBIT 10.34
AMENDED AND RESTATED
LIMITED PARTNER PLEDGE AGREEMENT
AMENDED AND RESTATED LIMITED PARTNER PLEDGE AGREEMENT,
dated as of December 18, 1996 (this "Agreement"), made by PANDA
ENERGY CORPORATION, a Delaware corporation (together with its
successors and assigns, the "Pledgor") and the sole limited
partner of Panda-Brandywine, L.P., a Delaware limited partnership
(together with its successors and assigns, the "Partnership"), to
FLEET NATIONAL BANK (formerly known as Shawmut Bank Connecticut,
National Association), a national banking association, in its
capacity as Security Agent (the "Security Agent") under the
Security Deposit Agreement (as defined in the Participation
Agreement referred to below).
W I T N E S S E T H :
WHEREAS, the Pledgor is the legal and beneficial owner
of a 50% limited partnership interest in the Partnership (such
partnership interest, being hereinafter referred to as the
"Partnership Interest");
WHEREAS, the Partnership, Panda Brandywine Corporation,
a Delaware corporation, and the sole general partner of the
Partnership (the "General Partner") and General Electric Capital
Corporation, a New York corporation ("GE Capital" or the "Owner
Participant"), entered into the Construction Loan Agreement and
Lease Commitment dated as of March 30, 1995 (the "Construction
Loan Agreement") pursuant to which GE Capital (i) provided
construction financing for the Project and (ii) issued the
Letters of Credit as collateral security for certain obligations
of the Partnership under the Power Purchase Agreement;
WHEREAS, the Pledgor entered into the Limited Partner
Pledge Agreement dated as of March 30, 1995 (as amended,
supplemented or otherwise modified prior to the date hereof, the
"Existing Pledge Agreement"), providing for the collateral
assignment by the Pledgor to the Security Agent of its interest
in the Partnership to secure its obligations to the GE Capital
and the Owner Trustee (as defined below);
WHEREAS, as contemplated by the Construction Loan
Agreement, the Partnership and the Owner Trustee are entering
into the Facility Lease and the other Lease Documents pursuant to
which, among other things, the Owner Trustee will lease the
Facility to the Partnership;
WHEREAS, the Owner Participant has elected to fund the
Facility Lease with non-recourse indebtedness as a leveraged
lease, and pursuant to Section 34 of the Existing Pledge
Agreement, the parties hereto have agreed to amend and restate
the Existing Stock Pledge Agreement subject to the terms and
conditions provided herein;
WHEREAS, the Partnership and GE Capital are entering
into the Reimbursement Agreement to provide for the continued
issuance by GE Capital of the Letters of Credit;
WHEREAS, in order to set forth the rights and
obligations of the Owner Participant, the Owner Trustee, the
Partnership, the Loan Participants, the Administrative Agent, the
Indenture Trustee and the other parties in connection with the
foregoing transactions and to describe and provide for the
transactions contemplated hereby, (i) the parties hereto are
entering into the Participation Agreement, (ii) the Owner Trustee
and the Indenture Trustee are entering into the Indenture, (iii)
certain of the Lessee Security Documents are being amended and
restated pursuant to the Amended and Restated Agreements and (iv)
the Construction Loan Agreement is being terminated;
WHEREAS, it is a condition precedent to the performance
of certain obligations on the Lease Closing Date that the Pledgor
shall have executed and delivered this Agreement to the Security
Agent, for the benefit of the Owner Trustee and GE Capital (and
by collateral assignment, the Indenture Trustee);
WHEREAS, the Pledgor desires to execute this Agreement
to satisfy the conditions 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 Annex A to the
Participation Agreement dated as of December 18, 1996 (the
"Participation Agreement"), among the Partnership, the General
Partner, the Owner Participant, Fleet National Bank (formerly
known as Shawmut Bank Connecticut, National Association), a
national banking association, not in its individual capacity but
solely as owner trustee (in such capacity, the "Owner Trustee")
under the Trust Agreement and as Security Agent, First Security
Bank, National Association, a national banking association, not
in its individual capacity but solely as indenture trustee (in
such capacity, the "Indenture Trustee") under the Indenture,
Credit Suisse, a bank organized and existing under the laws of
Switzerland, acting by and through its New York branch ("Credit
Suisse"), as administrative agent (in such capacity, the
"Administrative Agent"), and the other entities listed on
Schedule I thereto (the "Loan Participants"). Defined terms in
this Agreement shall include in the singular number the plural
and in the plural number the singular.
(b) The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall,
unless otherwise expressly specified, refer to this Agreement as
a whole and not to any particular provision of this Agreement and
all references to Sections shall be references to Sections of
this Agreement unless otherwise expressly specified.
(c) Unless otherwise expressly specified, any
agreement, contract, or document defined or referred to herein
shall mean such agreement, contract or document in the form
(including all amendments and clarification letters relating
thereto) delivered on the Lease Closing Date as the same may
thereafter be amended, supplemented, or otherwise modified from
time to time in accordance with the terms of such agreement and
the Participation Agreement.
Section 2. Pledge. As security for the Lessee
Obligations and subject to and in accordance with the provisions
of this Agreement, the Pledgor hereby pledges, grants, assigns,
hypothecates, transfers, and delivers to the Security Agent, for
the benefit of GE Capital and the Owner Trustee, a first priority
security interest in the following, whether now owned or
hereafter acquired (the "Collateral"):
(a) all of the Pledgor's limited partnership
interests in the Partnership (including, without limitation,
the Partnership Interest and the Pledgor's right, title and
interest in the Transfer Agreement), and all of the
Pledgor's rights, privileges, authority and powers as
limited partner of the Partnership, 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
Partnership 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,
none of 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 Lessee Obligations. This
Agreement secures, and the Collateral is collateral security for,
the payment and performance in full when due, whether at stated
maturity, by acceleration or otherwise, of all Lessee Obligations
now or hereafter existing.
Section 4. Delivery of Collateral. All certificates
or instruments representing or evidencing the Collateral have
been or shall be delivered to and shall be held by or on behalf
of the Security Agent pursuant hereto and shall be in suitable
form for transfer by delivery, or shall be accompanied by duly
executed undated instruments of transfer or assignment in blank,
all in form and substance reasonably satisfactory to the Security
Agent. If the Pledgor shall become entitled to receive or shall
receive any other Collateral, then the Pledgor shall, except as
otherwise provided in Section 7, accept and hold the same in
trust for the Security Agent and segregated from the other
property or funds of Pledgor, and shall deliver to the Security
Agent forthwith all such other Collateral (except as provided in
Section 7 hereof) in the form received by the Pledgor, to be held
by the Security Agent, subject to the terms hereof, as part of
the Collateral. Upon the occurrence and during the continuance
of a Reimbursement Event of Default or a Lease Event of Default,
the Security Agent shall have the right, at any time in its
discretion and without notice to the Pledgor, to transfer to or
to register in the name of the Security Agent, the Owner Trustee
or GE Capital or any of their respective nominees any or all of
the Collateral.
Section 5. Representations and Warranties. The
Pledgor represents and warrants as follows:
(a) Due Organization. The Pledgor is a
corporation duly organized and validly existing under the
laws of the State of Delaware, and is qualified to own
property and transact business in every jurisdiction
where the ownership of its property and the nature of its
business as currently conducted requires it to be
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) except as
otherwise set forth in Section 34 hereof, 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
Partnership, 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. Ss. 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.
(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 Lessee Obligations.
(j) Chief Executive Office. The chief
executive office of the Pledgor and the office where the
Pledgor keeps its records concerning the Partnership 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 to the Security Agent, GE Capital and, so long as
the Indenture shall be in effect, the Indenture Trustee
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, GE Capital
and, so long as the Indenture shall be in effect, the
Indenture Trustee to maintain the security interest of
the Security Agent, on behalf of the Owner Trustee, GE
Capital and the Indenture Trustee, in the Collateral
intended to be granted hereby at all times fully
perfected and in full force and effect.
(k) Sole Limited Partner. The Pledgor is
the sole limited partner of the Partnership. The Pledgor
is not engaged in any transaction or activity unrelated
to the financing of the Partnership 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 the Owner Participant and
the Administrative Agent, 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 Partnership Agreement delivered to the Owner
Participant and the Administrative Agent on or prior to
the Lease Closing Date is a true, complete and correct
copy of the Partnership Agreement on the date hereof.
Section 6. Supplements, Further Assurances. The
Pledgor agrees that at any time and from time to time, at the
expense of the Pledgor, the Pledgor will promptly execute and
deliver all further instruments and documents, and take all
further action that the Security Agent may reasonably request, in
order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Security Agent to
exercise and enforce its rights and remedies hereunder with
respect to any Collateral. 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 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 such 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 receive distributions in respect of
its partnership interest) so long as (i) no Reimbursement
Event of Default or Lease Event of Default shall have
occurred and be continuing and (ii) the exercise of such
rights would not otherwise result in a Reimbursement Event
of Default or a Lease Event of Default. Upon the occurrence
and during the continuance of a Lease Event of Default or a
Reimbursement Event of Default all rights of the Pledgor
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.
(b) Distributions. Unless a Reimbursement
Event of Default or a 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
Participation 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
Partnership (other than in connection with any
deemed liquidation on account of a termination of
the Partnership 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 a Reimbursement Event of Default
or a 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 the Participation Agreement shall be
received in trust for the benefit of the Security Agent,
shall be segregated from other funds of the Pledgor and
shall be forthwith paid over to the Security Agent as
Collateral in the same form as so received (with any
necessary endorsement).
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, the Administrative
Agent and the Owner Participant 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, the Administrative
Agent or the Owner Participant 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, except for such failure or
noncompliance as could not, individually or in the
aggregate, have a Material Adverse Effect.
(f) Remain as Limited Partner. The Pledgor
shall remain as the sole limited partner of the Partnership
and shall not withdraw as a limited partner in the
Partnership. The Pledgor shall not engage in any business
other than being the limited partner of the Partnership.
(g) No Sale of Collateral; No Liens. The
Pledgor agrees that it will not (i) sell or otherwise
dispose of, or grant any option or warrant with respect to,
the Collateral or any interest therein without the prior
written consent of the Security Agent and (ii) except for
the Lien created hereby, create or permit to exist any Lien
(other than Permitted Liens) upon or with respect to any of
the Collateral or any interest therein or any of its other
property or assets.
(h) Fundamental Changes. The Pledgor shall
not enter into any merger or consolidation, or liquidate,
wind-up or dissolve (or suffer any liquidation or
dissolution) or discontinue its business.
(i) 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 written
consent of the Owner Participant and the Administrative
Agent, any amendment, supplement, or modification of, or
waiver with respect to any of the provisions of, the
Partnership Agreement or the Transfer Agreement.
(j) 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.
(k) Bankruptcy of the Partnership. The
Pledgor shall not authorize, seek to cause or permit the
Partnership 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 its creditors.
Section 9. Security Agent Appointed Attorney-In-Fact.
Upon the occurrence of a Reimbursement Event of Default or a
Lease Event of Default, the Pledgor hereby appoints the Security
Agent or any Person or agent whom the Security Agent may
designate the Pledgor's attorney-in-fact with full authority in
the place and stead of the Pledgor and in the name of the Pledgor
or otherwise, at the Pledgor's cost and expense, at any time and
from time to time in the Security Agent's reasonable discretion
to take any action and to execute any instrument which the
Security Agent may deem necessary or advisable to enforce its
rights under this Agreement, including, without limitation,
authority to receive, endorse and collect all instruments made
payable to the Pledgor representing any 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. None of the Security Agent,
the Owner Trustee, GE Capital, the Administrative Agent, the
Indenture Trustee, or any Holder nor any of their respective
directors, officers, employees or agents shall be deemed to have
assumed any of the liabilities or obligations of a partner of the
Partnership as a result of the pledge and security interest
granted under or pursuant to this Agreement. None of the
Security Agent, the Owner Trustee, GE Capital, the Administrative
Agent, the Indenture Trustee, or any Holder nor any of their
respective directors, officers, employees or agents shall be
liable for any failure to collect or realize upon the Lessee
Obligations or any collateral security or guarantee therefor, or
any part thereof, or for any delay in so doing nor shall it be
under any obligation to take any action whatsoever with regard
thereto.
Section 13. Remedies Upon Default. If a Reimbursement
Event of Default or a Lease Event of Default shall have occurred
and be continuing:
(a) The Security Agent (i) may become a
substitute or additional limited partner in the Partnership
or designate another Person to become such substitute or
additional limited partner and/or (ii) may 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
incurred by the Security Agent in connection therewith; and
second to the payment of the Lessee Obligations in
accordance with the terms of the Security Deposit Agreement.
The Partnership shall be liable for any deficiency remaining
after any application of funds pursuant hereto. Any surplus
of such cash or cash proceeds held by the Security Agent
after payment in full of such amounts shall be paid over to
the Pledgor, or its successors or assigns, or to whomsoever
may be lawfully entitled to receive such surplus or as a
court of competent jurisdiction may direct.
Section 14. Purchase of the Collateral. The Security
Agent, the Owner Participant, GE Capital, the Administrative
Agent, the Indenture Trustee or any Loan Participant or any of
their respective Affiliates may be a purchaser of the Collateral
or any part thereof or any right or interest therein at any sale
thereof, whether pursuant to foreclosure, power of sale or
otherwise hereunder and the Security Agent may apply the purchase
price to the payment of the Lessee Obligations secured hereby.
Any such purchaser 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 15. Notices. All notices, requests and
demands to or upon the respective parties hereto to be effective
shall be in writing (including by telecopy), and shall be deemed
to have been duly given or made when delivered by hand, or five
days after being deposited in the United States mail, postage
prepaid, or, in the case of telecopy notice, when confirmation is
received, or, in the case of a nationally recognized overnight
courier service, one Business Day after delivery to such courier
service, addressed, in the case of each party hereto, at its
address specified below its name on Schedule 2 hereto, or to such
other address as may be designated by any party in a written
notice to the other parties hereto.
Section 16. Continuing Security Interest. This
Agreement shall create a continuing Lien in the Collateral until
the release thereof pursuant to Section 18.
Section 17. Security Interest Absolute. All rights of
the Security Agent and security interests hereunder, and all
obligations of the Pledgor hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability
of any of the Transaction Documents or any other agreement
or instrument relating thereto;
(b) any change in the time, manner or place
of payment of, or in any other term of, all or any of the
Lessee Obligations, or any other amendment or waiver of or
any consent to any departure from the Transaction Documents
or any other agreement or instrument relating thereto;
(c) any exchange, release or non-perfection
of any other collateral, or any release or amendment or
waiver of or consent to any departure from any guaranty, for
all or any of the Lessee Obligations; or
(d) any other circumstance which might
otherwise constitute a defense available to, or a discharge
of, the Pledgor.
Section 18. Release. Upon the indefeasible payment in
full of the Lessee Obligations, the Security Agent, upon the
request and at the expense of the Pledgor, shall execute and
deliver all such documentation necessary to release the liens
created pursuant to this Agreement.
Section 19. Expenses. The Pledgor will upon demand
pay to the Security Agent the amount of any and all reasonable
expenses, including the reasonable fees and expenses of its
counsel and of any experts and agents, and any transfer taxes
which the Security Agent may incur in connection with (i) the
custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral pursuant to the
exercise or enforcement of any of the rights of the Security
Agent hereunder or (ii) the failure by the Pledgor to perform or
observe any of the provisions hereof. Any amount payable by the
Pledgor pursuant to this Section shall be payable on demand and
shall constitute Lessee Obligations secured hereby.
Section 20. Indemnity.
(a) The Pledgor agrees to indemnify, reimburse
and hold the Security Agent, GE Capital, the Administrative
Agent, the Indenture Trustee and the Loan Participants, the Owner
Trustee (in its individual and trust capacities), 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
ownership, 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 21. Lessee Obligations Secured by Collateral.
Any amounts paid by any Indemnitee as to which such Indemnitee
has the right to reimbursement, and any amounts paid by the
Security Agent in preservation of any of its rights or interest
in the Collateral, together with interest on such amounts from
the date paid until reimbursement in full at a rate per annum
equal at all times to the Overdue Rate shall constitute Lessee
Obligations secured by the Collateral.
Section 22. Reinstatement. This Agreement shall
continue to be effective or be reinstated, as the case may be, if
at any time any amount received by the Security Agent, the Owner
Trustee, GE Capital, the Administrative Agent, any Holder, or the
Indenture Trustee hereunder, under any other Transaction Document
or pursuant hereto or thereto is rescinded or must otherwise be
restored or returned by the Security Agent, the Owner Trustee, GE
Capital, the Administrative Agent, any Holder or the Indenture
Trustee upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Pledgor or the Partnership or upon the
appointment of any intervenor or conservator of, or trustee or
similar official for, Pledgor or the Partnership or any
substantial part of their respective assets, or upon the entry of
an order by a bankruptcy court avoiding the payment of such
amount, or otherwise, all as though such payments had not been
made.
Section 23. Amendments, etc. No waiver, amendment,
modification or termination of any provision of this Agreement,
or consent to any departure by the Pledgor therefrom, shall in
any event be effective (x) without the written concurrence of the
Security Agent and (y) unless made in accordance with section
13.1 of the Participation Agreement and none of the Collateral
shall be released without the written consent of the Security
Agent. Any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 24. Successors and Assigns. This Agreement
shall be binding upon the Pledgor and its successors and assigns
and shall inure to the benefit of the Security Agent, the Owner
Trustee, GE Capital and, so long as the Indenture shall be in
effect, the Indenture Trustee and their respective successors and
assigns.
Section 25. Survival.
(a) All agreements, statements, representations
and warranties made by the Pledgor herein or in any certificate
or other instrument delivered by the Pledgor or on its behalf
under this Agreement shall be considered to have been relied upon
by the Security Agent and shall survive the execution and
delivery of this Agreement and the other Transaction Documents
regardless of any investigation made by or on behalf of the
Security Agent.
(b) The indemnity obligations of Pledgor
contained in Section 20 shall continue in full force and effect
notwithstanding the full payment of the Lessee Obligations and
notwithstanding the discharge thereof.
Section 26. No Waiver; Remedies Cumulative. No
failure or delay on the part of the Security Agent in exercising
any right, power or privilege hereunder and no course of dealing
between the Pledgor and the Security Agent shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies
herein expressly provided are cumulative and not exclusive of any
rights or remedies which the Security Agent (or the Owner Trustee
or GE Capital) would otherwise have.
Section 27. Counterparts. This Agreement may be
executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
Section 28. Headings Descriptive. The headings of the
several Sections and subsections of this Agreement are inserted
for convenience only and shall not in any way affect the meaning
or construction of any provision of this Agreement.
Section 29. Severability. In case any provision in or
obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not
in any way be affected or impaired thereby.
Section 30. Consent to Pledge by Limited Partner.
Notwithstanding anything to the contrary contained in the
Partnership Agreement, the General Partner hereby consents to (i)
the execution, delivery, and performance by the Pledgor of this
Agreement, (ii) the grant of the pledge by the Pledgor to the
Security Agent, for the benefit of GE Capital and the Owner
Trustee (and, by collateral assignment, the Indenture Trustee),
of its partnership interests in the Partnership 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 Partnership of the Security Agent, such
designee, or such purchaser as a limited partner of the
Partnership in connection with the exercise of such rights and
remedies.
Section 31. Conflict with Participation Agreement. In
case of a conflict between any provision of this Agreement and
any provision of the Participation Agreement, the provisions of
the Participation Agreement shall control and govern. No such
conflict shall be deemed to exist merely because this Agreement
imposes greater obligations on the Pledgor than the Participation
Agreement.
Section 32. 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 may have against any Person
for fraud, willful misconduct or knowing misrepresentation by
such Person.
Section 33. 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 34. Certain Rights of Power Purchaser.
Nothing in this Agreement shall be deemed to limit the provisions
of the Consent of the Power Purchaser, which provisions are
solely for the benefit of the Power Purchaser and not the
Pledgor. Without limiting the scope of the foregoing, the
Security Agent agrees, for the exclusive benefit of the Power
Purchaser and not the Pledgor, that the exercise of remedies or
any similar action under this Agreement is subject to, and shall
be conducted in a manner consistent with, the Power Purchaser's
rights under (i) the Consent of the Power Purchaser and (ii) the
Power Purchase Agreement and the Transfer Agreement (to the
extent such rights under the Power Purchase Agreement and the
Transfer Agreement are not explicitly waived by the Power
Purchaser in accordance with the terms of the Consent of the
Power Purchaser).
Section 35. Assignment to Indenture Trustee. In order
to secure the indebtedness evidenced by the Loan Certificates and
certain other obligations as provided in the Indenture, the
Indenture provides, among other things, for the assignment by the
Owner Trustee, to the Indenture Trustee of all of its right,
title and interest in, to and under this Agreement, to the extent
set forth in the Indenture, and for the creation of a Lien on and
security interest in the Lessor's Estate in favor of the
Indenture Trustee, and in furtherance thereof, the Lessee and
Owner Trustee have entered into the Security Deposit Agreement
with the Security Agent. The Pledgor hereby acknowledges and
consents to such assignment and such security interest and hereby
acknowledges that to the extent set forth in the Indenture, the
Indenture Trustee shall have the right in its own name (in
certain cases together with the Owner Trustee and in other cases
to the exclusion of the Owner Trustee, all as set forth in
Section 3.10 of the Indenture) to direct the Security Agent to
take or refrain from taking action under this Agreement,
including the right (i) of the Security Agent to exercise any
election or option, and to make any decision or determination,
and to give any notice, consent, waiver or approval under this
Agreement or in respect thereof, (ii) to exercise any and all of
the rights, powers and remedies of the Security Agent and (iii)
to receive all moneys payable to the Security Agent under this
Agreement. The Pledgor will make all payments hereunder in
accordance with the provisions of the Security Deposit Agreement.
IN WITNESS WHEREOF, the parties hereto have
caused their duly authorized officers to execute and
deliver this Agreement as of the date first above
written.
PANDA ENERGY CORPORATION,
a Delaware corporation,
as Pledgor
By: /s/ βββββββ β. ββββββββ
Name: βββββββ β. ββββββββ
Title: Senior Vice President
FLEET NATIONAL BANK,
as Security Agent
By: /s/ βββββ β. ββββββββ
Name: βββββ β. ββββββββ
Title: Assistant Vice President
With Respect to Section 30 only:
PANDA BRANDYWINE CORPORATION,
as general partner
By: /s/ βββββββ β. ββββββββ
Name: βββββββ β. ββββββββ
Title: Senior Vice President
Exhibit A to
Limited Partner
Pledge Agreement
ACKNOWLEDGMENT AND CONSENT
Panda-Brandywine, L.P., the Partnership
referred to in the foregoing Amended and Restated Limited
Partner Pledge Agreement, hereby acknowledges receipt of
a copy thereof and agrees to be bound thereby and to
comply with the terms thereof insofar as such terms are
applicable to it.
Panda-Brandywine, L.P. also agrees to make all
payments due to Panda Energy Corporation, in its capacity
as limited partner of Panda-Brandywine, L.P., a Delaware
corporation, in compliance with the terms of the
Participation Agreement and the Security Deposit
Agreement and (i) in the event that a Reimbursement Event
of Default or a Lease Event of Default shall have
occurred and be continuing or (ii) in connection with a
partial or total liquidation or dissolution of the
Partnership (other than in connection with any deemed
liquidation on account of a termination of the
Partnership under Section 708(b)(1)(B) of the Code, to
Fleet National Bank, as Security Agent (the "Security
Agent"). Panda-Brandywine, L.P. further agrees that the
Security Agent will not have any of the obligations of
either a limited partner or a general partner of Panda-
Brandywine, L.P. unless the Security Agent affirmatively
elects to undertake such obligations in accordance with
the terms of the foregoing Amended and Restated Limited
Partner Pledge Agreement and the Consent of the Power
Purchaser.
December __, 1996
PANDA-BRANDYWINE, L.P.
By Panda Brandywine Corporation,
its general partner
By:________________________________
Name:
Title:
Exhibit B to
Limited Partner
Pledge Agreement
December __, 1996
Panda-Brandywine, L.P.
ββββ ββββββ ββββββ
βββββ ββββ
ββββββ, βββββ βββββ
Gentlemen:
Panda Energy Corporation, a Delaware corporation,
hereby instructs Panda-Brandywine, L.P. to register the pledge of
its limited partnership interest in Panda-Brandywine, L.P. in
favor of Fleet National Bank, as Security Agent (the "Security
Agent") pursuant to the Amended and Restated Limited Partner
Pledge Agreement, dated as of December __, 1996 between Panda
Energy Corporation and the Security Agent.
Very truly yours,
PANDA ENERGY CORPORATION,
a Delaware corporation
By___________________________
Title:
FLEET NATIONAL BANK,
as Security Agent
By____________________________
Title:
Exhibit C to
Limited Partner
Pledge Agreement
December __, 1996
To: Fleet National Bank,
as Security Agent
βββ ββββ ββββββ
ββββββββ, βββββββββββ βββββ
Attention: Corporate Trust Administration
This statement is to advise you that a pledge of the
following uncertificated security has been registered in the name
of Fleet National Bank, as Security Agent, as follows:
1. Uncertificated Security:
The entire limited partnership interest of Panda
Energy Corporation in the undersigned partnership.
2. Registered Owner:
Panda Energy Corporation,
a Delaware corporation
ββββ ββββββ ββββββ
βββββ ββββ
ββββββ, βββββ βββββ
3. Registered Pledgee:
Fleet National Bank, as Security Agent
Taxpayer Identification Number: βββββββββ
4. There are no liens or restrictions on the
undersigned partnership and no adverse claims to which
such uncertificated security is or may be subject known
to the undersigned partnership, except as set forth in
the Amended and Restated Limited Partner Pledge
Agreement dated as of December __, 1996 between the
undersigned and Fleet National Bank, as Security Agent.
5. The pledge was registered on December __, 1996.
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE
ADDRESSEE AS OF THE TIME OF ITS ISSUANCE. DELIVERY OF THIS
STATEMENT, OF ITSELF, CONFERS NO RIGHTS ON THE RECIPIENT. THIS
STATEMENT IS NEITHER A NEGOTIABLE INSTRUMENT NOR A SECURITY.
Very truly yours,
PANDA-BRANDYWINE, L.P.
By Panda Brandywine Corporation,
its general partner
By:______________________________
Name:
Title: