EXHIBIT 10.118
PANDA GLOBAL HOLDINGS, INC. ISSUER PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of April 22, 1997, made by Panda
Global Holdings, Inc., a Delaware corporation (the "Pledgor"), in
favor of Bankers Trust Company, as Trustee (in such capacity, the
"Trustee") for the Holders of the Senior Secured Notes Guarantee
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
"Company Indenture") between the Pledgor and the Trustee.
W I T N E S S E T H:
WHEREAS, pursuant to the Company Indenture, the Trustee has
agreed to act on behalf of the Holders of the Senior Secured
Notes Guarantee upon the terms and subject to the conditions set
forth therein;
WHEREAS, pursuant to the Company Indenture the Pledgor has
issued the Senior Secured Notes Guarantee, a guarantee of certain
notes (the "Senior Secured Notes") issued by Panda Global Energy
Company (the "Issuer") in order to facilitate the sale of the
Senior Secured Notes;
WHEREAS, the Issuer is a Wholly-Owned Subsidiary of the
Pledgor, and it is to the advantage of the Pledgor to facilitate
the sale of the Senior Secured Notes; 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 Company Indenture and to
induce the Initial Purchaser to purchase the Senior Secured Notes
under the Purchase Agreement dated April 11, 1997 (as may be
amended, supplemented or otherwise modified from time to time,
the "Purchase Agreement") with the Issuer, the Pledgor and Panda
Energy International, Inc., the Pledgor hereby agrees with the
Trustee, for the ratable benefit of the Holders of the Senior
Secured Notes Guarantee, as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
terms defined in the Indenture and used herein shall have the
meanings given to them in the Indenture.
(b) The following terms shall have the following meanings:
"Agreement": this Pledge Agreement, as the same may be
amended, modified or otherwise supplemented from time to time.
"Collateral": the Pledged Stock and all Proceeds.
"Collateral Account": any account established to hold money
Proceeds, maintained under the sole dominion and control of the
Trustee, subject to withdrawal by the Trustee for the account of
the Holders of the Senior Secured Notes Guarantee only as
provided in paragraph 8(a).
"Obligations": (i) the collective reference to the unpaid
principal, interest and premium, if any (including Liquidated
Damages and Additional Amounts, if any), and any other amount
payable pursuant to the Senior Secured Notes Guarantee and all
other obligations and liabilities of the Pledgor to the Trustee
and the Holders of the Senior Secured Notes Guarantee (including,
without limitation, interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Issuer whether
or not a claim for post-filing or post-petition interest is
allowed in such proceeding), whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with,
the Senior Secured Notes Guarantee, this Agreement, the other
Transaction Documents or any other document made, delivered or
given in connection therewith; and
(ii) all obligations and liabilities of the Pledgor which
may arise under or in connection with this Agreement or any other
Transaction Document to which the Pledgor is a party;
in each case whether on account of 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
Purchasers that are required to be paid by the Pledgor pursuant
to the terms of the Company Indenture, the First Supplemental
Indenture thereto, the Senior Secured Notes Guarantee, this
Agreement or any other Transaction Document).
"Pledged Stock": the shares of capital stock listed on
Schedule 1 hereto, together with all stock certificates, options
or rights of any nature whatsoever that may be issued or granted
by the Stock Issuer to the Pledgor while this Agreement is in
effect.
"Proceeds": all "proceeds" as such term is defined in
Section 9-306(1) of the Uniform Commercial Code in effect in the
State of New York on the date hereof and, in any event, shall
include, without limitation, all dividends or other income from
the Pledged Stock, collections thereon or distributions with
respect thereto.
"Stock Issuer": the company identified on Schedule 1
attached hereto as the issuer of the Pledged Stock.
"UCC": the Uniform Commercial Code from time to time in
effect in the State of New York.
(c) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
2. Pledge; Grant of Security Interest. The Pledgor hereby
delivers to the Trustee, for the ratable benefit of the Holders
of the Senior Secured Notes Guarantee, all the Pledged Stock and
hereby grants to the Trustee, for the ratable benefit of the
Holders of the Senior Secured Notes Guarantee only, 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. Concurrently with the delivery to the
Trustee of each certificate representing one or more shares of
Pledged Stock, the Pledgor shall deliver an undated stock power
covering such certificate, duly executed in blank by the Pledgor
with, if the Trustee so requests, signature guaranteed.
4. Representations and Warranties. The Pledgor represents
and warrants that:
(a) The Pledgor has the corporate power and authority and
the legal right to execute and deliver, to perform its
obligations under, and to grant the security interest in the
Collateral pursuant to, this Agreement and has taken all
necessary corporate action to authorize its execution, delivery
and performance of, and grant of the security interest in the
Collateral pursuant to, this Agreement.
(b) This Agreement constitutes a legal, valid and binding
obligation of the Pledgor, enforceable in accordance with its
terms, and upon delivery to the Trustee of the stock certificates
evidencing the Pledged Stock, the security interest created
pursuant to this Agreement will constitute a valid, perfected
first priority security interest in the Collateral, enforceable
in accordance with the terms hereof against all creditors of the
Pledgor and any Persons purporting to purchase any Collateral
from the Pledgor, except in each case as enforceability may be
affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
(c) The execution, delivery and performance of this
Agreement will not violate any provision of any Requirements of
Law or contractual obligation of the Pledgor and will not result
in the creation or imposition of any Lien on any of the
properties or revenues of the Pledgor pursuant to any
Requirements of Law or contractual obligation of the Pledgor,
except the security interest created by this Agreement.
(d) No consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority
and no consent of any other Person (including, without
limitation, any stockholder or creditor of the Pledgor), is
required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement.
(e) No litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of the Pledgor, threatened by or against the Pledgor or
against any of its properties or revenues with respect to this
Agreement or any of the transactions contemplated hereby.
(f) The shares of Pledged Stock constitute all the issued
and outstanding shares of all classes of the capital stock of the
Stock Issuer.
(g) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(h) The Pledgor is the record and beneficial owner of, and
has good and marketable title to, the Pledged Stock, free of any
and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement.
5. Covenants. The Pledgor covenants and agrees with the
Trustee that, except as the Trustee may otherwise consent
pursuant to the terms of the Company Indenture, from and after
the date of this Agreement until this Agreement is terminated and
the security interests created hereby are released:
(a) If the Pledgor shall, as a result of its ownership of
the Pledged Stock, become entitled to receive or shall receive
any stock certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in
connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any
reorganization), option or rights, whether in addition to, in
substitution of, as a conversion of, or in exchange for any
shares of the Pledged Stock, or otherwise in respect thereof, the
Pledgor shall accept the same as the agent of the Trustee, hold
the same in trust for the Trustee and deliver the same forthwith
to the Trustee in the exact form received, duly indorsed by the
Pledgor to the Trustee, if required, together with an undated
stock power covering such certificate duly executed in blank by
the Pledgor and with, if the Trustee so requests, signature
guaranteed, to be held by the Trustee, subject to the terms
hereof, as additional collateral security for the Obligations.
Any sums paid upon or in respect of the Pledged Stock upon the
liquidation or dissolution of the Stock Issuer shall be paid over
to the Trustee to be held by it hereunder as additional
collateral security for the Obligations, and in case any
distribution of capital shall be made on or in respect of the
Pledged Stock or any property shall be distributed upon or with
respect to the Pledged Stock pursuant to the recapitalization or
reclassification of the capital of the Stock Issuer or pursuant
to the reorganization thereof, the property so distributed shall
be delivered to the Trustee to be held by it hereunder as
additional collateral security for the Obligations. If any sums
of money or property so paid or distributed in respect of the
Pledged Stock shall be received by the Pledgor, the Pledgor
shall, until such money or property is paid or delivered to the
Trustee, hold such money or property in trust for the Trustee,
segregated from other funds of the Pledgor, as additional
collateral security for the Obligations.
(b) Without the prior written consent of the Trustee, the
Pledgor will not (1) vote to enable, or take any other action to
permit, the Stock Issuer to issue any stock or other equity
securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange
for any stock or other equity securities of any nature of the
Stock Issuer, (2) sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Collateral,
(3) create, incur or permit to exist any Lien or option in favor
of, or any claim of any Person with respect to, any of the
Collateral, or any interest therein, except for the security
interest created by this Agreement or (4) enter into any
agreement or undertaking restricting the right or ability of the
Pledgor or the Trustee to sell, assign or transfer any of the
Collateral.
(c) The Pledgor shall maintain the security interest
created by this Agreement as a first, perfected security interest
and shall defend such security interest against claims and
demands of all Persons whomsoever. At any time and from time to
time, upon the written request of the Trustee, and at the sole
expense of the Pledgor, the Pledgor will promptly and duly
execute and deliver such further instruments and documents and
take such further actions as the Trustee may reasonably request
for the purposes of obtaining or preserving the full benefits of
this Agreement and of the rights and powers herein granted. If
any amount payable under or in connection with any of the
Collateral shall be or become evidenced by any promissory note,
other instrument or chattel paper, such note, instrument or
chattel paper shall be immediately delivered to the Trustee, duly
endorsed in a manner satisfactory to the Trustee, to be held as
Collateral pursuant to this Agreement.
(d) The Pledgor shall pay, and save the Trustee and the
Holders of the Senior Secured Notes Guarantee 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.
6. Cash Dividends; Voting Rights. 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 Company
Indenture, any Series Supplemental Indenture, the Senior Secured
Notes Guarantee, or any other Transaction Document to which the
Pledgor is a party.
7. Rights of the Trustee. (a) All money Proceeds received
by the Trustee hereunder shall be deposited by the Trustee for
the benefit of the Holders of the Senior Secured Notes Guarantee
in the Issuer Revenue Fund. All Proceeds while held by the
Trustee (or by the Pledgor in trust for the Trustee) shall
continue to be held as collateral security for all the
Obligations and shall not constitute payment thereof until
applied as provided in paragraph 8(a).
(b) If an Event of Default shall occur and be continuing
and the Trustee shall give notice of its intent to exercise such
rights to the Pledgor, (1) the Trustee shall have the right to
receive any and all cash dividends paid in respect of the Pledged
Stock and make application thereof to the Obligations in such
order as the Trustee may determine, and (2) all shares of the
Pledged Stock shall be registered in the name of the Trustee or
its nominee, and the Trustee or its nominee may thereafter
exercise (A) all voting, corporate and other rights pertaining to
such shares of the Pledged Stock at any meeting of shareholders
of the Stock Issuer or otherwise and (B) any and all rights of
conversion, exchange, subscription and any other rights,
privileges or options pertaining to such shares of the Pledged
Stock as if it were the absolute owner thereof (including,
without limitation, the right to exchange at its discretion any
and all of the Pledged Stock upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in
the corporate structure of the Stock Issuer, or upon the exercise
by the Pledgor or the Trustee of any right, privilege or option
pertaining to such shares of the Pledged Stock, and in connection
therewith, the right to deposit and deliver any and all of the
Pledged Stock with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and
conditions as the Trustee may determine), all without liability
except to account for property actually received by it, but the
Trustee shall have no duty to the Pledgor to exercise any such
right, privilege or option and shall not be responsible for any
failure to do so or delay in so doing.
8. Remedies. (a) If an Event of Default shall have
occurred and be continuing, at any time at the Trustee's
election, the Trustee may apply all or any part of Proceeds held
in any Collateral Account in payment of the Obligations in such
order as the Trustee may elect.
(b) If an Event of Default shall occur and be continuing,
the Trustee, on behalf of the Holders of the Senior Secured Notes
Guarantee, may exercise, in addition to all other rights and
remedies granted in this Agreement and in any other instrument or
agreement securing, evidencing or relating to the Obligations,
all rights and remedies of a secured party under the UCC.
Without limiting the generality of the foregoing, the Trustee,
without demand of performance or other demand, presentment,
protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Pledgor or any
other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize
upon the Collateral, or any part thereof, and/or may forthwith
sell, assign, give option or options to purchase or otherwise
dispose of and deliver the Collateral or any part thereof (or
contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market,
at any exchange, broker's board or office of the Trustee or
elsewhere upon such terms and conditions as it may deem advisable
and at such prices as it may deem best, for cash or on credit or
for future delivery without assumption of any credit risk. The
Trustee or any Holder of the Senior Secured Notes Guarantee shall
have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of
any right or equity of redemption in the Pledgor, which right or
equity is hereby waived or released. The Trustee shall apply any
Proceeds from time to time held by it and the net proceeds of any
such collection, recovery, receipt, appropriation, realization or
sale, after deducting all reasonable costs and expenses of every
kind incurred in respect thereof or incidental to the care or
safekeeping of any of the Collateral or in any way relating to
the Collateral or the rights of the Trustee hereunder, including,
without limitation, reasonable attorneys' fees and disbursements
of counsel to the Trustee and counsel to the Initial Purchaser to
the payment in whole or in part of the Obligations, in such order
as the Trustee may elect, and only after such application and
after the payment by the Trustee of any other amount required by
any provision of law, including, without limitation, Section
9-504(1)(c) of the UCC, need the Trustee account for the surplus,
if any, to the Pledgor. To the extent permitted by applicable
law, the Pledgor waives all claims, damages and demands it may
acquire against the Trustee or any Holder of the Senior Secured
Notes Guarantee arising out of the exercise by them of any rights
hereunder. If any notice of a proposed sale or other disposition
of Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least 10 days before
such sale or other disposition. The Pledgor waives and agrees
not to assert any rights or privileges which it may acquire under
Section 9-112 of the UCC.
9. Irrevocable Authorization and Instruction to Stock
Issuer. The Pledgor hereby authorizes and instructs the Stock
Issuer to comply with any instruction received by it from the
Trustee in writing that (a) states that an Event of Default has
occurred and (b) is otherwise in accordance with the terms of
this Agreement, without any other or further instructions from
the Pledgor, and the Pledgor agrees that the Stock Issuer shall
be fully protected in so complying.
10. No Subrogation. Notwithstanding any payment or
payments made by the Pledgor hereunder, or any setoff or
application of funds of the Pledgor by any Holders of the Senior
Secured Notes Guarantee, or the receipt of any amounts by the
Trustee or any Holder of the Senior Secured Notes Guarantee with
respect to any of the Collateral, the Pledgor shall not be
entitled to be subrogated to any of the rights of the Trustee or
any Holder of the Senior Secured Notes Guarantee against the
Issuer or against any other collateral security held by the
Senior Secured Notes Trustee or any holder for the payment of the
Senior Secured Notes, nor shall the Pledgor seek any
reimbursement from the Issuer in respect of payments made by the
Pledgor in connection with this Agreement, or amounts realized by
the Trustee or any Holders of the Senior Secured Notes Guarantee
in connection with the Collateral, until all amounts owing to the
Trustee and the Holders of the Senior Secured Notes on account of
the Senior Secured Notes are paid in full. If any amount shall
be paid to the Pledgor on account of such subrogation rights at
any time when all of the Senior Secured Notes 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 Senior Secured Notes, whether matured or
unmatured, in such order as the Trustee may determine.
11. Amendments, etc. with respect to the Obligations;
Waiver of Rights. The Pledgor shall remain obligated hereunder,
and the Collateral shall remain subject to the security interests
granted hereby, notwithstanding that, without any reservation of
rights against the Pledgor, and without notice to or further
assent by the Pledgor, any demand for payment of any of the
Obligations made by the Trustee or any Holders of the Senior
Secured Notes Guarantee may be rescinded by the Trustee or such
Holders of the Senior Secured Notes Guarantee and any of the
Obligations may be continued, and the Obligations, or the
liability of the Issuer, the Pledgor or any other Person upon or
for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time
to time, in whole or in part, be renewed, extended, amended,
modified, accelerated, compromised, waived, surrendered, or
released by the Trustee or any Holder of the Senior Secured Notes
Guarantee, and the Indenture, any Series Supplemental Indenture,
the Senior Secured Notes Guarantee, the other Transaction
Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or
terminated in accordance with their terms and the terms of the
Indentures, in whole or part, from time to time, and any
guarantee, right of offset or other collateral security at any
time held by the Trustee or any Holder of the Senior Secured
Notes Guarantee for the payment of the Obligations may be sold,
exchanged, waived, surrendered or released. Neither the Trustee
nor any Holder of the Senior Secured Notes Guarantee shall have
any obligation to protect, secure, perfect or insure any other
Lien at any time held by it as security for the Obligations or
any property subject thereto. The Pledgor waives any and all
notice of the creation, renewal, extension or accrual of any of
the Obligations and notice of or proof of reliance by the Trustee
or any Holder of the Senior Secured Notes Guarantee upon this
Agreement; the Obligations, and any of them, shall be deemed
conclusively to have been created, contracted or incurred in
reliance upon this Agreement; and all dealings between the Issuer
and the Pledgor, on the one hand, and the Trustee and the Holders
of the Senior Secured Notes Guarantee, on the other, likewise
shall be conclusively presumed to have been had or consummated in
reliance upon this Agreement. The Pledgor waives diligence,
presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Issuer or the Pledgor with respect to
the Obligations. When pursuing its rights and remedies hereunder
against the Pledgor, the Trustee may, but shall be under no
obligation to, pursue such rights and remedies as it may have
against the Issuer or any other Person or against any collateral
security or guarantee for the Obligations or any right of offset
with respect thereto, and any failure by the Trustee to pursue
such other rights or remedies or to collect any payments from the
Issuer or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of
offset, or any release of the Issuer or any such other Person or
of any such collateral security, guarantee or right of offset,
shall not relieve the Pledgor of any liability hereunder, and
shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Trustee
against the Pledgor or the Collateral.
12. Trustee's Appointment as Attorney-in-Fact. (a) The
Pledgor hereby irrevocably constitutes and appoints the Trustee
and any officer or agent of the Trustee, with full power of
substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the
Pledgor and in the name of the Pledgor or in the Trustee's own
name, from time to time in the Trustee's discretion, for the
purpose of carrying out the terms of this Agreement, to take any
and all appropriate action and to execute any and all documents
and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including, without limitation,
any financing statements, endorsements, assignments or other
instruments of transfer.
(b) The Pledgor hereby ratifies all that said attorneys-in-
fact shall lawfully do or cause to be done pursuant to the power
of attorney granted in paragraph 12(a). All powers,
authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until this Agreement
is terminated and the security interests created hereby are
released.
13. Duty of Trustee. The Trustee's sole duty with respect
to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the UCC or
otherwise, shall be to deal with it in the same manner as the
Trustee deals with similar securities and property for its own
account, except that the Trustee shall have no obligation to
invest funds held in any Collateral Account and may hold the same
as demand deposits. Neither the Trustee, any Holder of the
Senior Secured Notes Guarantee nor any of their respective
directors, officers, employees or agents (a) shall be liable for
failure to demand, collect or realize upon any of the Collateral
or for any delay in doing so or (b) shall be under any obligation
to sell or otherwise dispose of any Collateral upon the request
of the Pledgor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
14. Execution of Financing Statements. Pursuant to Section
9-402 of the UCC, the Pledgor authorizes the Trustee to file
financing statements with respect to the Collateral without the
signature of the Pledgor in such form and in such filing offices
as the Trustee reasonably determines appropriate to perfect the
security interests of the Trustee under this Agreement. A
carbon, photographic or other reproduction of this Agreement
shall be sufficient as a financing statement for filing in any
jurisdiction.
15. Authority of Trustee. The Pledgor acknowledges that
the rights and responsibilities of the Trustee under this
Agreement with respect to any action taken by the Trustee or the
exercise or non-exercise by the Trustee of any option, voting
right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as
between the Trustee and the Holders of the Senior Secured Notes
Guarantee, be governed by the Indenture and by such other
agreements with respect thereto as may exist from time to time
among them, but, as between the Trustee and the Pledgor, the
Trustee shall be conclusively presumed to be acting as agent for
the Holders of the Senior Secured Notes Guarantee with full and
valid authority so to act or refrain from acting, and neither the
Pledgor nor the Stock Issuer shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
16. 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.
17. 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.
18. Integration. This Agreement represents the agreement
of the Pledgor with respect to the subject matter hereof and
there are no promises or representations by the Trustee or any
Holder of the Senior Secured Notes Guarantee relative to the
subject matter hereof not reflected herein.
19. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Pledgor and the Trustee,
provided that any provision of this Agreement may be waived by
the Trustee on behalf of the Holders of the Senior Secured Notes
Guarantee pursuant to the terms of the Indentures, in a letter or
agreement executed by the Trustee or by telex or facsimile
transmission from the Trustee.
(b) Neither the Trustee nor any Holder of the Senior
Secured Notes Guarantee shall by any act (except by a written
instrument pursuant to paragraph 19(a) 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.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
20. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in
the interpretation hereof.
21. Successors and Assigns. This Agreement shall be
binding upon the successors and assigns of the Pledgor and shall
inure to the benefit of the Trustee and the Holders of the Senior
Secured Notes Guarantee and their successors and assigns.
22. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
23. 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) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar
form of mail), postage prepaid, to the Pledgor at its
address set forth below or at such other address of which
the Trustee shall have been notified pursuant hereto;
(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 xxx 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.
24. 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.
25. Return of Pledged Stock. When this Agreement is
terminated and the security interests created hereby are
released, the Trustee shall return the certificate representing
the Pledged Stock to the Pledgor.
IN WITNESS WHEREOF, the undersigned has caused this
Agreement to be duly executed and delivered as of the date first
above written.
PANDA GLOBAL HOLDINGS, INC.
By
Title
Address: 0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
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
Holdings, Inc. for the benefit of Bankers Trust Company as
Trustee (the "Pledge Agreement"). The undersigned agrees for the
benefit of the Trustee as follows:
1. The undersigned will be bound by the terms of the Pledge
Agreement and will comply with such terms insofar as such terms
are applicable to the undersigned.
2. The undersigned will notify the Trustee promptly in
writing of the occurrence of any of the events described in
paragraph 5(a) of the Pledge Agreement.
PANDA GLOBAL ENERGY COMPANY
By
Title
Address for Notices:
Panda Global Energy Company
c/x Xxxxxx and Calder
Xxxxxx House
P.O. Box 309
South Church Street
Xxxxxx Town, Grand Cayman
Cayman Islands, British West Indies
With a copy to:
Panda Energy International Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
Stock
Class of Certificate No. of
Issuer Stock No. Shares
Panda Global Energy Common 004 2
Company
