GENERAL PARTNER PLEDGE AND SECURITY AGREEMENT
This GENERAL PARTNER PLEDGE AND SECURITY AGREEMENT, dated July
31, 1996 (this "Agreement"), is made by PANDA - XXXXXXXX CORPORATION, a
Delaware corporation (together with its successors and assigns, the
"Pledgor") and the sole general partner of Panda-Rosemary, L.P., a Delaware
limited partnership (together with its successors and assigns, the
"Partnership"), to FLEET NATIONAL BANK, a national banking association
established under the laws of the United States of America, as collateral
agent pursuant to Intercreditor Agreement (as defined below) (together with
its successors and assigns, the "Collateral Agent") and grantee hereunder
for the benefit of the Secured Parties (as defined in the Trust Indenture
referred to below).
W I T N E S S E T H:
WHEREAS, the Partnership is the legal and beneficial owner of all
of the shares of common stock issued by Panda-Xxxxxxxx Funding Corporation,
a Delaware corporation (the "Company");
WHEREAS, the Company, the Partnership and Fleet National Bank, as
trustee (the "Trustee"), are parties to that certain Trust Indenture, dated
as of July 31, 1996 (as the same may be amended, modified or supplemented,
the "Trust Indenture"), providing for the issuance by the Company of
certain debt securities (the "Bonds");
WHEREAS, the Partnership has made that certain Partnership
Guaranty, dated the date hereof (as the same may be amended, modified or
supplemented, the "Partnership Guaranty"), in favor of the Trustee to
guarantee the performance by the Company of its obligations under the Bonds
and the Trust Indenture;
WHEREAS, the Company and the Partnership are parties to that
certain Loan Agreement, dated as of the date hereof (as the same may be
amended, modified or supplemented, the "Company Loan Agreement"), pursuant
to which the Company has loaned the proceeds of the Bonds to the
Partnership;
WHEREAS, the Company and the Collateral Agent are parties to that
certain Security Agreement, dated the date hereof, pursuant to which the
Company has assigned to the Collateral Agent, and created a security
interest in, all of its right, title and interest in, to and under the
Company Loan Agreement and the related promissory note;
WHEREAS, in order to satisfy certain requirements of the
Partnership under the Project Agreements (as defined in the Trust
Indenture) or for other purposes, the Partnership may incur indebtedness as
permitted under the Trust Indenture in connection with the issuance of
letters of credit by Bayerische Vereinsbank AG or other Credit Banks (as
defined in the Trust Indenture) pursuant to a Credit Bank Reimbursement
Agreement (as defined in the Trust
Indenture);
WHEREAS, the Partnership may incur indebtedness as permitted
under the Trust Indenture in the form of working capital loans made by
the Credit Banks under a Credit Bank Working Capital Agreement (as defined
in the Trust Indenture);
WHEREAS, the Partnership may also incur additional debt, as
permitted under the Trust Indenture, either directly or indirectly through
the Company, to finance certain modifications and enhancements to the
Project in the future ("Additional Permitted Debt", as that term is defined
in the Trust Indenture) and may enter into interest rate protection
agreements in connection with the Additional Permitted Debt of the
Partnership;
WHEREAS, the Pledgor will receive direct and indirect financial and
other benefits from the issuance of the Bonds by the Company pursuant to
the Trust Indenture and the incurrence of any indebtedness pursuant to any
Credit Bank Reimbursement Agreement, any Credit Bank Working Capital
Agreement and the documents relating to any Additional Permitted Debt or
interest rate protection transactions; and
WHEREAS, the Funding Company, the Partnership, Bayerische Vereinsbank
AG, the Trustee, Fleet National Bank, as depository agent, and the
Collateral Agent are parties to that certain Collateral Agency and
Intercreditor Agreement, dated as of the date hereof (the "Intercreditor
Agreement"), providing for the Collateral Agent to act as collateral agent
for the Secured Parties (as defined in the Trust Indenture); and
WHEREAS, the Collateral Agent and the Secured Parties are willing to
enter into the transactions contemplated by, among other things, the Trust
Indenture and the Credit Bank Documents (as defined in the Trust Indenture)
only upon the condition, among others, that the Pledgor executes and
delivers this Agreement, in favor of the Collateral Agent for the benefit
of the Secured Parties, which grants to the Collateral Agent for the
benefit of the Secured Parties a security interest in the Collateral
referred to below, to secure the Obligations (as hereinafter defined).
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 hereby agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined
herein, terms defined in the Intercreditor Agreement (including terms
defined in the Trust Indenture and incorporated in the Intercreditor
Agreement) shall have such defined meanings when used herein.
"Additional Pledged Interests" shall mean (i) all interests of
certificates representing a distribution in connection with any
reclassification, increase or reduction of capital of the Partnership or
issued in connection with any reorganization of the Partnership, whether as
an addition to, in substitution or redemption of or in exchange for, any
other Collateral or otherwise, (ii) any sums paid upon or in respect of the
Collateral as distributions upon the liquidation or dissolution of the
Partnership and (iii) any distribution of capital made on or in respect of
the Collateral or any property distributed upon or with respect to the
Collateral pursuant to the recapitalization or reclassification of the
capital of the Partnership or pursuant to the reorganization thereof.
"Collateral" shall have the meaning ascribed thereto in Section 2.
"Control Notice" shall have the meaning ascribed thereto in Section
6(c).
"Indemnitee" shall have the meaning ascribed thereto in Section 21.
"Obligations" means (i) all obligations of the Pledgor under this
Agreement or the Collateral Documents, (ii) all obligations of the
Partnership or the Company to the Collateral Agent, the Depositary Agent or
the Secured Parties now or hereafter existing under the Bonds, the Trust
Indenture, each Partnership Guarantee, the Partnership Notes, any Additional
Permitted Debt, any Credit Bank Working Capital Agreement, any Credit Bank
Reimbursement Agreement, any Interest Rate Protection Agreement, this
Agreement or the Collateral Documents, whether for principal, interest
(including, without limitation, interest accruing following the filing by
or against the Partnership or the Company of a bankruptcy petition, whether
or not allowed as a claim in a bankruptcy proceeding), fees,
indemnification, expenses or otherwise, and (iii) all other liabilities,
obligations, covenants and duties owing to the Collateral Agent, the
Depositary Agent or the Secured Parties, from or by the Pledgor, the
Partnership or the Company of any kind or nature, present or future,
whether or not evidenced by any note, guaranty or other instrument, arising
under or in the connection with the Trust Indenture, each Partnership
Guarantee, the Partnership Notes, any Additional Permitted Debt, any Credit
Bank Working Capital Agreement, any Credit Bank Reimbursement Agreement,
any Interest Rate Protection Agreement, this Agreement or the Collateral
Documents, whether or not for the payment of money, whether direct or
indirect (including those acquired by assignment), joint or several,
absolute or contingent, liquidated or unliquidated, due or to become due,
now existing or hereafter arising, renewed or restructured, whether or not
from time to time decreased or extinguished and later increased, created or
incurred, and including, without limitation, all indebtedness of the
Pledgor, the Partnership or the Company under any instrument now or
hereafter evidencing or securing any of the foregoing and however acquired.
"Prime Rate" means, as of any day, the interest rate per annum
established by the Collateral Agent from time to time as its "Prime Rate".
SECTION 2. Pledge. As security for the Obligations and subject to
and in accordance with the provisions of this Agreement, including without
limitation Section 6 hereof, the Pledgor hereby pledges, grants, assigns,
hypothecates, transfers and delivers to the Collateral Agent, for its
benefit and the benefit of the Secured Parties, a first priority security
interest in the following whether now owned or existing or hereafter
acquired or arising and wherever located (the "Collateral"):
(a) all of the Pledgor's general partnership interests in the
Partnership and all of the Pledgor's rights, privileges, authority and
powers as general partner of the Partnership under the Partnership
Agreement (including without limitation, all of the Pledgor's rights,
privileges, authority and powers as managing general partner of the
Partnership to manage the business and affairs of the Partnership), but
excluding all rights of the Pledgor to (i)Indemnification from (x) the
Partnership for any claims, liabilities, damages, losses, costs or other
amounts incurred in connection with the performance of its responsibilities
as the managing general partner of the Partnership or otherwise as the sole
general partner of the Partnership, or (y) any Partner pursuant to the
provisions of the Partnership Agreement in respect of any claim thereunder,
or (ii) any liability insurance maintained by the Pledgor or any Person for
the benefit of the Pledgor; provided, that the foregoing exclusion shall
not exclude the Collateral Agent (or a Person designated by the Collateral
Agent to exercise the remedies provided herein) from the benefits of such
indemnification and liability insurance upon the exercise of any the
remedies provided herein;
(b) subject to Section 6(b), all monies and property representing a
distribution in respect of the property described in the preceding clause
(a), including, without limitation, (i) all income, cash flow, revenues,
issues, profits, losses, distributions, payments, proceeds and other
property of every kind and variety due, accruing or owing to, or to be
turned over to, or disbursed to the Pledgor by the Partnership in
connection with, the Pledgor's general partnership interests therein, and
(ii) all Additional Pledged Interests;
(c) all of the Pledgor's right, title and interest to the
Governmental Approvals; provided, that any Governmental Approval which by
its terms or by operation of law would become void, voidable, terminable or
revocable if mortgaged, pledged or assigned hereunder or if a security
interest therein were granted hereunder is expressly excepted and excluded
from the Lien and the terms of this Agreement to the extent necessary so as
to avoid such voidness, voidability, terminability or revocability;
(d) the Pledgor's interest under any agreement, now or hereafter in
effect, with any other Partner in the Partnership providing for the right
of the Pledgor to acquire or exercise the partnership interest in the
Partnership now or hereafter owned or held by any such other Partner in the
Partnership;
(e) any other claim which the Pledgor now has or may in the future
acquire in the Pledgor's capacity as a general partner of the Partnership
against the Partnership and its property; and
(f) all proceeds, products and accessions of and to any of the
property described in the preceding clauses (a), (b), (c), (d) and (e).
SECTION 3. Security for Obligations.
(a) 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 (including the payment of amounts
which would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. E362(a)), of all
Obligations now or hereafter existing.
(b) This Agreement and the grant of the security interest contained
herein is for collateral purposes only and neither the Collateral Agent nor
any Secured Party shall, by virtue of this Agreement, their receipt of
distributions from the Partnership or their exercise of any right
hereunder, be deemed to (i) have acquired any interest in or responsibility
for the Pledgor's obligations contained in the Partnership Agreement, (ii)
be liable for any contribution to the Partnership under the Partnership
Agreement or the applicable limited partnership act or (iii) have any other
liability for the debts, obligations or liabilities of the Partnership or
the Pledgor, except in the event of foreclosure upon the Collateral (and
only to the extent of such foreclosure on the particular Collateral).
SECTION 4. Representations and Warranties. On and as of the date
hereof, the Pledgor represents and warrants to the Collateral Agent and the
Secured Parties as follows:
(a) The Pledgor is the owner of, and has good and marketable title
to, the general partnership interest and the other Collateral pledged
pursuant to this Agreement, free and clear of any Lien except for the
pledge and security interest granted to the Collateral Agent for the
benefit of the Secured Parties hereunder and Liens for Taxes not yet due or
which are subject to a Good Faith Contest. No financing statement covering
the Collateral is on file in any public office other than terminated
financing statements and the financing statements filed pursuant to this
Agreement or in connection with the transactions contemplated by the Trust
Indenture. The Collateral is not subject to any law (except as may be
required in connection with any disposition of the Collateral by laws
affecting the offering and sale of securities generally) or contractual
obligation that would be violated by or that would prohibit the grant of
the security interest in the Collateral granted pursuant hereto or the
disposition of the Collateral by or to the Collateral Agent upon the
occurrence and continuance of an Event of Default or a Trigger Event.
(b) 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 the State of North Carolina, the State of Texas
and in every other jurisdiction where the ownership of its property and the
nature of its business as currently conducted and as contemplated to be
conducted under each Project Document to which the Pledgor or the
Partnership is a party requires it to be qualified.
(c) The Pledgor has full power, authority and legal right to enter
into this Agreement and each other Project Document to which it is a party
and to perform its obligations hereunder and thereunder and to pledge all
of the Collateral pursuant to this Agreement. The pledge of the Collateral
pursuant to this Agreement has been duly authorized by the Pledgor. This
Agreement and each other Project Document to which the Pledgor is a party
have been duly authorized, executed and delivered by the Pledgor and
constitute legal, valid and binding obligations of the
Pledgor enforceable against the Pledgor in accordance with their 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).
(d) No consent of any other party (including, without limitation,
stockholders or creditors of the Pledgor) and no Governmental Approval is
required which has not been obtained (i)for the execution, delivery and
performance by the Pledgor of this Agreement and each other Project
Document to which the Pledgor is a party, (ii)for the pledge by the Pledgor
of the Collateral pursuant to this Agreement or (iii)for the exercise by
the Collateral 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 (x) in connection with any disposition of all or any part
of the Collateral under any laws affecting the offering and sale of
securities generally, (y)under federal and state laws, rules and
regulations and applicable interpretations thereof providing for the
supervision or regulation of the banking or trust businesses generally and
applicable to the Collateral Agent or any Secured Party and (z)with respect
to the Collateral Agent or any Secured Party as a result of any
relationship which such Person may have with Persons not parties to, or any
activity or business such Person may conduct other than pursuant to, any of
the Financing Documents).
(e) The execution and delivery of this Agreement concurrently with
the filing of Form UCC-1 financing statements with the Secretary of State
of the State of Texas, the Secretary of State of the State of Delaware, the
Secretary of State of the State of North Carolina, the appropriate officer
of Halifax County, North Carolina, and the appropriate officer of
Northampton County, North Carolina create a valid and perfected first
priority security interest in the Collateral securing the payment of the
Obligations subject to no Liens other than those created by this Agreement.
(f) The Pledgor is the sole general partner of the Partnership. The
Pledgor is not engaged in any transaction or activity unrelated to the
management, financing, operation and/or maintenance of the Partnership and
the Project.
(g) The execution, delivery and performance of this Agreement and
each other Project Document to which the Pledgor is a party will not (i)
require any consent or approval of the Board of Directors or stockholders
of the Pledgor which has not been obtained; (ii) violate the provisions of
the Pledgor's Certificate of Incorporation or By-Laws; (iii) violate the
provisions of any law (including, without limitation, any usury law),
regulation or order of any Governmental Authority applicable to the Pledgor
or the Partnership; (iv) conflict with result in a breach of or constitute
a default under the Partnership Agreement or any other material agreement
relating to the management or affairs of the Pledgor or the Partnership, or
any indenture or loan or credit agreement or any other material agreement,
lease or instrument to which the Pledgor or the Partnership is a party or
by which the Pledgor or the Partnership or any of their material properties
may be bound (which default or breach has not been permanently waived by
the other party to such document); or (v) result in or create any Lien
(other than Permitted Liens) under, or require any consent which has not
been obtained under, any indenture or loan or credit agreement or any other
material agreement, instrument or document, or the provisions of any order,
writ, judgment, injunction, decree, determination or award of any
Governmental Authority binding upon the Pledgor or the Partnership or any
of their properties.
(h) There is no action, suit or proceeding at law or in equity or by
or before any Governmental Authority, arbitral tribunal or other body now
pending or, to the best knowledge of the Pledgor, threatened against the
Pledgor or the Partnership which questions the validity or legality of or
seeks damages in connection with this Agreement or any other Project
Document to which the Pledgor or the Partnership is a party or which could
reasonably be expected to have a material adverse effect on the Pledgor or
the Partnership, other than those actions, suits or proceedings which have
been previously disclosed in the Offering Circular, dated July 26, 1996,
relating to the Initial Bonds.
(i) Each of the financial statements of the Pledgor for its most
recently ended fiscal year and quarter has been heretofore furnished to the
Collateral 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.
(j) The chief executive office of the Pledgor is located at 0000
Xxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000.
(k) All contributions currently required to be paid to the
Partnership by the Pledgor have been paid.
(l) The copy of the Partnership Agreement delivered to the Collateral
Agent on the date hereof is a true, complete and correct copy of the
Partnership Agreement.
(m) The Pledgor has not changed its name or done business under any
other name within the last five years.
(n) The Pledgor is not (i) an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or (ii) a "holding company" or
a "subsidiary company" of a "holding company" or an "affiliate" of a
"holding company" or a "subsidiary company" within the meaning of PUHCA or
(iii) a "registered holding company" or a "subsidiary company" of a
"registered holding company" or an "affiliate" of a "registered holding
company" or a "subsidiary company" of a "registered holding company" within
the meaning of PUHCA.
(o) The Pledgor has derived and will continue to derive direct and
indirect benefits from the incurrence of its obligations under this
Agreement and from the incurrence by the Partnership of its obligations
under the Partnership Guaranty, the Trust Indenture, the Company Loan
Agreement and the other Financing Documents.
SECTION 5. Supplements; Further Assurances.
(a) The Pledgor agrees that, at any time and from time to time, the
Pledgor will at its expense promptly execute and deliver all further
instruments and documents, and take all further action, that may be
necessary or desirable, or that the Collateral Agent may reasonably
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Collateral Agent to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral.
(b) All Additional Pledged Interests shall be pledged and, to the
extent such Additional Pledged Interests constitute certificates,
instruments or monies, delivered to the Collateral Agent to be held by it
as additional collateral security for the prompt and complete payment and
performance when due of the Obligations. All Additional Pledged Interests
which are received by the Pledgor shall, until pledged, paid or delivered
to the Collateral Agent, be held by the Pledgor in trust for the benefit of
the Collateral Agent and shall be segregated from the other funds and
property of the Pledgor and the Pledgor agrees to pledge and deliver the
same forthwith to the Collateral Agent in the exact form received (if
applicable), with the endorsement of the Pledgor when necessary and/or
appropriate undated stock powers duly executed in blank, to be held by the
Collateral Agent subject to the terms hereof.
SECTION 6. Rights of Pledgor; Etc.
(a) Generally. The Pledgor shall be entitled to exercise any and all
rights pertaining to the Collateral or any part thereof (including, without
limitation, the right to manage and direct the affairs of the Partnership
and the right to receive distributions in respect of its partnership
interests) so long as (i) no Event of Default or Trigger Event shall have
occurred and be continuing and no Control Notice (as defined in Section
6(c) below) shall have been delivered to it and (ii) the exercise of such
rights would not otherwise result in an Event of Default or Trigger Event.
(b) Distributions. Unless an Event of Default or Trigger Event shall
have occurred and be continuing, the Pledgor shall be entitled to receive,
retain and distribute any and all distributions paid in respect of the
Collateral in compliance with the terms of the Intercreditor Agreement;
provided, that any and all
(i) distributions paid or payable in respect of 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) distributions of 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 Collateral Agent to hold as,
Collateral and shall, if received by the Pledgor, be received in trust for
the benefit of the Collateral Agent, be segregated from the other property
or funds of the Pledgor and be forthwith delivered to the Collateral Agent
as Collateral in the same form as so received (with any necessary
endorsement). Upon the occurrence and during the continuance of an Event
of Default or Trigger Event, 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 Collateral Agent which shall thereupon have
the sole right to receive and hold as Collateral such distributions;
provided, that if and when an Event of Default or Trigger Event is cured in
accordance with the applicable provisions of the Financing Documents, all
rights of the Pledgor shall be restored and the Collateral Agent shall
promptly turn over to the Pledgor all distributions so received during the
period of the continuance of the applicable Event of Default or Trigger
Event(less the amount thereof applied by the Collateral Agent in accordance
with Section 12(c) below).
(c) Management Rights. Upon the occurrence and during the
continuance of an Event of Default or a Trigger Event, after the Collateral
Agent delivers a notice to the Pledgor indicating its determination to
assume control of the business and affairs of the Partnership (the "Control
Notice"), all rights of the Pledgor to manage and direct the affairs of the
Partnership which it would otherwise be entitled to exercise pursuant to
Section 6(a) above shall cease and all such rights shall thereupon become
vested in the Collateral Agent which shall thereupon have the sole right
(subject to the provisions of the Partnership Agreement and applicable law)
to manage and direct the affairs of the Partnership; provided, that if
after the delivery of the Control Notice the Event of Default or a Trigger
Event giving rise thereto is cured in accordance with the applicable
provisions of the Financing Documents, all rights of the Pledgor shall be
restored.
SECTION 7. Covenants.
(a) Without the prior written consent of the Collateral Agent, or as
otherwise permitted under the Intercreditor Agreement, the Pledgor shall
not (i) vote to enable, or take any other action to permit, the Partnership
(x) to issue any additional general partnership interests of any nature,
(y) to issue any other securities convertible into or exchangeable for any
general partnership interests of the Partnership, or (z) to issue any other
securities that grant the right to purchase any partnership interests of
the Partnership, (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 Liens or options in favor of, or any claims of
any Person with respect to, any of the Collateral or any interest therein,
except for Permitted Liens and the Liens provided for by this Agreement;
provided, that, subject to Section 7(i) hereof, the issuance, transfer,
conversion or sale of any of the Collateral may occur notwithstanding the
foregoing if such issuance, transfer, conversion or sale would not result
in an Event of Default or Trigger Event (such issuance, transfer,
conversion or sale being herein referred to as a "Permitted Transfer") and
(x) the purchaser or transferee of such Collateral (including, without
limitation, any Partner of the Partnership to whom the partnership
interests of the Pledgor are transferred following the withdrawal of
the Pledgor as a Partner of the Partnership) shall pledge such Collateral
pursuant to a pledge agreement substantially similar hereto and take
such additional actions as the Collateral Agent may reasonably
request in connection therewith (including, without limitation,
executing and delivering such agreements, certificates, legal opinions,
instruments or other documents as may be reasonably requested by the
Collateral Agent), (y) no Default or Event of Default or Trigger Event
would result therefrom and (z) none of the representations and warranties
set forth in the Trust Indenture shall be untrue or incorrect in any
material respect solely as a result of the occurrence of a Permitted
Transfer.
(b) The Pledgor agrees that it will pledge hereunder,
immediately upon its acquisition (directly or indirectly) thereof,
any and all additional general partnership interests issued to it
by the Partnership.
(c) The Pledgor shall preserve and maintain 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 the State of Texas and the State of
North Carolina and in every other jurisdiction where the ownership of its
property and the nature of its business require it to be so qualified.
(d) The Pledgor shall obtain, maintain and comply with all
Governmental Approvals as shall now or hereafter be necessary under
applicable law, rule or regulation, in each case in connection with the
making and performance by the Pledgor of any material provision of the
Project Documents to which it is a party. The Pledgor shall comply in all
material respects with all applicable laws with respect to which
noncompliance could reasonably be expected to have a material adverse
affect on the Collateral or the Pledgor's ability to perform its
obligations under any Project Document.
(e) The Pledgor shall pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its income or profits or
on any of its property prior to the date on which penalties attach thereto
and all lawful claims which, if unpaid, could reasonably be expected to
become a Lien (other than Permitted Liens) upon the Collateral. The
Pledgor shall have the right, however, to contest in good faith the
validity or amount of any such tax, assessment, charge, levy or claim by
proper proceedings timely instituted, and may permit the taxes,
assessments, charges, levies or claim so contested to remain unpaid during
the period of such contest if (i)the Pledgor diligently prosecutes such
contest, (ii)the Pledgor sets aside on its books adequate reserves in
accordance with GAAP plus an amount equal to 50% of the difference between
the amount being contested and the amount required to be reserved by GAAP
and (iii)during the period of such contest the enforcement of any contested
item is effectively stayed. The Pledgor will promptly pay or cause to be
paid any valid, final judgment enforcing any such tax, assessment, charge,
levy or claim and cause the same to be satisfied of record.
(f) The Pledgor shall furnish to the Collateral Agent the following
documents:
(i) unaudited financial statements of the Pledgor within one
hundred twenty (120) days of the close of each fiscal year of the Pledgor;
and
(ii) from time to time, such further information (whether or
not of the kind mentioned above) regarding the business, affairs,
operations and financial condition of the Pledgor as the Collateral Agent
may reasonably request.
(g) The Pledgor shall keep proper books of record and account in
which full, true and correct entries in accordance with GAAP are made and
permit representatives of the Collateral Agent, upon the giving of
reasonable notice, to visit and inspect its properties, to examine its
books of record and account and to discuss its affairs, finances and
accounts with its principal officers, engineers and independent
accountants, all at such reasonable times during business hours and at such
intervals as the Collateral Agent may desire.
(h) The Pledgor shall perform and observe all of its covenants and
agreements contained in any of the Project Documents to which it is a
party.
(i) The Pledgor shall remain a general partner of the Partnership and
shall not withdraw from the Partnership.
(j) The Pledgor shall not (i)Emerge or consolidate with or into any
other Person, (ii)sell, lease, transfer or otherwise dispose of all or
substantially all of its assets, (iii)create, acquire or operate any
Subsidiary (other than the Partnership and the Company), (iv)be a partner
in any partnership or a participant in any cost sharing arrangement or
joint venture except for the Partnership, (v) directly or indirectly
purchase or acquire any stock, obligations or securities of, or any other
interests in any Person other than the Partnership and Permitted
Investments, (vi) create or become or be liable with respect to any
Guaranty, other than a Guaranty of the Partnership permitted under Section
6.18 of the Trust Indenture for which the Pledgor may become liable as a
general partner of the Partnership or (vii) lend money or credit or make
advances or any capital contribution to any Person other than contributions
to the Partnership.
(k) The Pledgor shall not create, incur, assume or suffer to exist
any Debt other than up to Two Hundred Fifty Thousand Dollars ($250,000)
aggregate principal amount of Debt outstanding at any time and other than
Debt of the Partnership permitted by Section 6.16 of the Trust Indenture
and on which the Pledgor is liable solely by virtue of being a general
partner of the Partnership.
(l) The Pledgor shall not engage in any business other than (i)
holding a general partnership interest in the Partnership and (ii) managing
and directing the affairs of the Partnership as the general partner of the
Partnership.
(m) The Pledgor shall not, without the prior written consent of the
Trustee, agree to or permit (i) the cancellation or termination of the
Partnership Agreement, except upon the expiration of the stated term
thereof, or (ii)any amendment, supplement, modification or waiver with
respect to any of the provisions of the Partnership Agreement if such
amendment, supplement, modification or waiver would have a material adverse
effect on the value of the Collateral, on the rights of the Collateral
Agent or Secured Parties or on the financial condition of the Partnership.
(n) The Pledgor shall not enter into or carry out any transaction
with any Affiliate on a basis less favorable than the Pledgor would obtain
in a comparable arm's-length transaction unless such transaction has been
approved by the Collateral Agent in writing, except that the Pledgor may
carry out transactions with the Partnership on terms less favorable to the
Pledgor than arm's-length terms.
(o) The Pledgor shall not establish a new
location for its chief executive office or change its name until (i) it has
given to the Collateral Agent no less than sixty (60) 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, satisfactory to the Collateral Agent, to maintain the security
interest of the Collateral Agent in the Collateral intended to be granted
hereby at all times fully perfected and in full force and effect.
(p) The Pledgor shall pay or cause to be paid, and shall hold the
Collateral Agent and the Secured Parties 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.
(q) Except as permitted under Section 7(a) hereof, the Pledgor shall
cause the Partnership not to issue any partnership interests or other
securities in addition to or in substitution for the Collateral or any
warrants, options or other rights to acquire its partnership interests or
other Collateral to any Person other than the Pledgor.
SECTION 8. Collateral Agent Appointed Attorney-In-Fact.
(a) Upon the occurrence and during the continuance of an Event of
Default or a Trigger Event, subject to the Pledgor's rights under Section 6
hereof, the Pledgor hereby appoints the Collateral Agent as 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 (i) to exercise all voting,
consent, managerial and other rights related to the Collateral, including,
without limitation, any right to manage the operations and the business and
affairs of the Partnership and any right to dispose of or sell all or any
part of the assets of the Partnership, (ii) to execute and deliver, at any
time and from time to time, any instrument or instruments providing for the
approval of the identity and admission to the Partnership of any person or
entity who becomes a substituted or additional partner in the Partnership
pursuant to the exercise by the Collateral Agent of its rights and remedies
hereunder, under the Trust Indenture or any of the other Project Documents
and (iii), from time to time in the Collateral Agent's discretion, to take
any action and to execute any instrument which the Collateral 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. The Pledgor hereby
ratifies all that such attorney shall lawfully do or cause to be done by
virtue hereof. This power of attorney is coupled with an interest and
shall be irrevocable for the term of this Agreement. Nevertheless, the
Pledgor shall, if so requested by the Collateral Agent, ratify and confirm
all that the Collateral Agent shall lawfully do or cause to be done by
virtue hereof as the Pledgor's attorney-in-fact by executing and delivering
to the Collateral Agent, or to such other Person as the Collateral Agent
shall direct, all documents and instruments as may be necessary or, in the
judgment of the Collateral Agent, advisable for such purpose.
(b) The Pledgor further authorizes the Collateral Agent, at any time
and from time to time, (i) to execute, in connection with any sale provided
for hereunder, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral and (ii) to the full
extent permitted by applicable law, to file one or more financing or
continuation statements, and amendments thereto, relative to all or any
part of the Collateral without the signature of the Pledgor.
SECTION 9. Collateral Agent May Perform. If the Pledgor fails to
perform any agreement contained herein after receipt of a written request
to do so from the Collateral Agent, the Collateral Agent may itself
perform, or cause performance of, such agreement, and the reasonable
expenses of the Collateral Agent, including the reasonable fees and
expenses of its counsel, incurred in connection therewith shall be payable
by the Pledgor pursuant to Section 14 hereof.
SECTION 10. Reasonable Care. The Collateral 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 Collateral Agent accords its own
property of the type of which the Collateral consists, it being understood
that subject to the exercise of such reasonable care the Collateral 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 Collateral 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 11. No Liability.
(a) Until such time as the Collateral Agent shall deliver a Control
Notice pursuant to Section 6(c) above, none of the Collateral Agent or the
Secured Parties or any of their 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 Collateral Agent
or the Secured Parties or any of their directors, officers, employees or
agents shall be liable for any failure to collect or realize upon the
Obligations or any collateral security or guarantee therefor, or any part
thereof, or for any delay in so doing, nor shall any of them be under any
obligation to take any action whatsoever with regard thereto.
(b) Anything herein to the contrary notwithstanding, the Pledgor
shall remain liable under the Partnership Agreement and any other Project
Document to which it is a party to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed. The exercise by the Collateral Agent of
any of the rights or remedies hereunder shall not release the Pledgor from
any of its duties or obligations under the Partnership Agreement or any
other Project Document to which it is a party.
SECTION 12. Remedies Upon Default. If an Event of Default or a
Trigger Event shall have occurred and be continuing:
(a) The Collateral Agent may (i) as provided in and in accordance
with the terms of the Partnership Agreement and applicable law, become a
substitute or additional general partner in the Partnership or designate
another Person to become such substitute or additional general partner,
(ii)manage the business and affairs of the Partnership as provided in
Section 6(c), (iii)exercise the power of attorney described in Section 8,
(iv) grant an option or options to purchase all or any part of the
Collateral and/or (v) exercise any other right or remedy available
hereunder, at law or in equity.
(b) (i) The Collateral Agent may exercise in respect of the
Collateral, in addition to all other rights and remedies provided for
herein or otherwise available to it, all of the rights and remedies of a
secured party on 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, and the Collateral Agent may also in its sole discretion,
without advertisement or 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 Collateral 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 Collateral Agent may reasonably deem commercially
reasonable, irrespective of the impact of any such sales on the market
price of the Collateral at any such sale. The Collateral Agent may, in
its sole discretion, at any such sale, restrict the prospective bidders or
purchasers as to their number, nature of business and investment intention.
Upon any such sale the Collateral Agent shall have the right to deliver,
assign and transfer to the purchaser thereof (including the Collateral
Agent or any Secured Party) the Collateral. Each purchaser at any such
sale shall hold the property sold 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 bylaw, at least ten (10) 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 Collateral Agent shall not be obligated to make any sale
of Collateral regardless of notice of sale having been given. The
Collateral 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. At any such sale, the Collateral may be sold in one lot, as an
entirety or in separate units. Assuming that such sales are made in
compliance with federal and state securities laws, the Collateral Agent
shall incur no 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 Collateral 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 Collateral Agent accepts the first
offer received and does not offer such Collateral to more than one offeree.
(ii) The Pledgor recognizes that the Collateral 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
Collateral Agent agree that such private sales shall be made in a
commercially reasonable manner and that the Collateral 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.
(iii) In case of any sale of all or any part of the Collateral
on credit or for future delivery, the Collateral so sold may be retained by
the Collateral Agent until the full selling price is paid by the purchaser
thereof, but the Collateral Agent shall not incur any liability in case of
the failure of such purchaser to take up and pay for the Collateral so sold
and, in case of any such failure, such Collateral may again be sold
pursuant to the provisions hereof.
(iv) The receipt by the Collateral Agent of the purchase money
paid at any such sale made by it shall be a sufficient discharge of all
obligations of the purchaser thereof. No purchaser (or the representatives
or assigns of any purchaser), after paying such purchase money and
receiving such receipt, shall be bound to see to the application of such
purchase money or any part thereof or in any manner whatsoever be
answerable for any loss, misapplication or nonapplication of any such
purchase money, or any part thereof, or be bound to inquire as to the
authorization, necessity, expediency or regularity of any such sale.
(v) Instead of exercising the power of sale provided in Section
12b(i) hereof, the Collateral Agent may proceed by a suit or suits at law
or in equity to foreclose the security interest under this Agreement and
sell the Collateral or any portion thereof under a judgment or decree of a
court or courts of competent jurisdiction.
(vi) No sale or other disposition of all or any part of the
Collateral by the Collateral Agent pursuant to this Section 12 shall be
deemed to relieve the Partnership, the Company or the Pledgor of any
Obligation except to the extent the proceeds thereof are applied by the
Collateral Agent to the payment of such Obligations.
(vii) The Pledgor hereby waives presentment, demand, protest or
notice (to the extent permitted by applicable law) of any kind in
connection with this Agreement or any Collateral.
(c) The proceeds of any Collateral obtained or disposed of hereunder
shall be applied as set forth in the Intercreditor Agreement and the
Depositary Agreement.
SECTION 13. Purchase of the Collateral. The Pledgor 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. Any 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 14. Expenses. The Pledgor will upon demand pay to the
Collateral Agent and the Secured Parties 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
Collateral Agent or the Secured Parties 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 Collateral Agent hereunder or (ii)
the failure by the Pledgor to perform or observe any of the provisions
hereof, together with interest thereon at the rate per annum equal to the
Prime Rate plus two percent (2%). Any amount payable by the Pledgor
pursuant to this Section 14 shall be payable on demand and shall constitute
Obligations secured hereby.
SECTION 15. No Waiver. No failure or delay on the part of the
Collateral Agent to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise by the
Collateral Agent of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein provided are to the fullest extent permitted
by law cumulative and are not exclusive of any remedies provided by law.
No notice to or demand on the Pledgor in any case shall entitle the Pledgor
to any other or further notice or demand in similar or other circumstances.
SECTION 16. 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 without the
written concurrence of the Collateral Agent and none of the Collateral
shall be released without the written consent of the Collateral Agent. Any
such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
SECTION 17. Release. Subject to Section 25 hereof, upon the
indefeasible payment in full or performance of the Obligations and the
occurrence of the Debt Termination Date, the Collateral Agent, upon request
by the Pledgor, shall execute and deliver all such documentation necessary
to release the Liens created pursuant to this Agreement.
SECTION 18. Notices. Any notice to the Collateral Agent shall be
deemed effective only if sent to and received at the office of the
Collateral Agent at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 or sent by
confirmed telecopy to telecopy number (000) 000-0000. Any notice to the
Pledgor hereunder shall be deemed to have been duly given only if sent to
and received at the office of the Pledgor at 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, Attention: President, or sent by confirmed
telecopy to telecopy number (000) 000-0000, or at such other address of
which such Person shall have notified in writing the other party hereto.
SECTION 19. Continuing Security Interest. This Agreement shall
create a continuing Lien on the Collateral until the release thereof
pursuant to Section 17 hereof.
SECTION 20. Security Interest Absolute. All rights of the Collateral
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 Project Documents or any other agreement or instrument
relating thereto (other than against the Collateral Agent);
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Project Documents or any
other agreement or instrument relating thereto; provided, that the
aggregate amount of the Obligations shall not be increased other than in
accordance with the Trust Indenture without the consent of the Pledgor;
(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 Obligations; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Pledgor.
SECTION 21. Indemnity.
(a) The Pledgor agrees to indemnify, reimburse and hold the
Collateral Agent and the Secured Parties 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 21, hereinafter "expenses") of whatsoever kind and nature imposed
on, asserted against or incurred by any Indemnitee 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
transactions contemplated hereby, or the enforcement of any of the terms
hereof, or the preservation of any rights hereunder or (ii)the ownership,
purchase, delivery, control, acceptance, financing, possession, condition,
sale, return or other disposition, or use of, the Collateral (including,
without limitation, latent or other defects, whether or not discoverable).
Each Indemnitee agrees to use its best efforts promptly to notify the
Pledgor of any assertion of any such liability, damage, injury, penalty,
claim, demand, action, judgment or suit of which such Indemnitee has
knowledge.
(b) Without limiting the application of Section 21(a), the Pledgor
agrees to pay or reimburse the Collateral Agent for any and all reasonable
fees, costs and expenses of whatever kind or nature incurred in connection
with the creation, preservation, protection or validation of the Collateral
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 Liens 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 Collateral 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.
(c) Without limiting the application of Section 21(a), the Pledgor
agrees to pay, indemnify and hold each Indemnitee harmless from and against
any loss, costs, damages and expenses which such Indemnitee may suffer,
expend or incur in consequence of or growing out of 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.
(d) If and to the extent that the obligations of the Pledgor under
this Section 21 are unenforceable for any reason, the Pledgor hereby agrees
to make the maximum contribution to the payment and satisfaction of such
obligations permissible under applicable law.
SECTION 22. Obligations Secured by Collateral. Any amount paid by any
Indemnitee as to which such Indemnitee has the right to reimbursement, and
any amount paid by the Collateral 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 Prime Rate plus two percent (2%), shall
constitute Obligations secured by the Collateral.
SECTION 23. 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. Where provisions of any law or regulation resulting in such
prohibition or unenforceability may be waived, they are hereby waived by
the parties hereto to the full extent permitted by law so that this
Agreement shall be deemed a valid and binding agreement in accordance with
its terms.
SECTION 24. Counterparts; Effectiveness. This Agreement and any
amendment, waiver, consent or supplement may be executed in counterparts,
each of which when so executed and delivered shall be deemed an original,
but all such counterparts together shall constitute but one and the same
instrument. This Agreement shall become effective upon the execution and
delivery of a counterpart hereof by each of the parties hereto.
SECTION 25. 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 Collateral Agent or any Secured Party hereunder or pursuant
hereto is rescinded or must otherwise be restored or returned by the
Collateral Agent or such Secured Party, as the case may be, 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, the 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 26. WAIVER OF SUBROGATION; SUBMISSION TO JURISDICTION; WAIVER
OF JURY TRIAL.
(a) THE PLEDGOR IRREVOCABLY WAIVES ALL RIGHTS OF SUBROGATION (WHETHER
CONTRACTUAL, UNDER SECTION 000 XX XXXXX 00 XX XXX XXXXXX XXXXXX CODE, 11
U.S.C. 101, ET SEQ. (THE "BANKRUPTCY CODE"), UNDER COMMON LAW OR OTHERWISE)
TO THE CLAIMS OF THE COLLATERAL AGENT AND THE SECURED PARTIES AGAINST THE
PLEDGOR WHICH ARISE IN CONNECTION WITH, OR AS A RESULT OF, THIS AGREEMENT.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY DOCUMENT RELATED HERETO 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 THE PLEDGOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF
THE AFORESAID COURTS. THE PLEDGOR AND THE COLLATERAL AGENT HEREBY
IRREVOCABLY WAIVE TRIAL BY JURY, AND THE PLEDGOR HEREBY IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS.
(c) THE PLEDGOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS 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 SPECIFIED IN SECTION 18, SUCH SERVICE TO
BECOME EFFECTIVE FOUR (4) BUSINESS DAYS AFTER SUCH MAILING.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE COLLATERAL AGENT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE PLEDGOR IN ANY OTHER
JURISDICTION.
SECTION 27. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH 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) EXCEPT
TO THE EXTENT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR THE REMEDIES HEREUNDER, ARE GOVERNED BY THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK. UNLESS OTHERWISE DEFINED
HEREIN OR IN THE TRUST INDENTURE, TERMS DEFINED IN ARTICLE 8 OR ARTICLE 9
OF THE NEW YORK UNIFORM COMMERCIAL CODE ARE USED HEREIN AS THEREIN DEFINED.
SECTION 28. Recourse Limited to Collateral. Notwithstanding anything
to the contrary contained herein, the liability and obligation of the
Pledgor as of past, present or future partner, officer, director or
stockholder of the Pledgor under or by reason of this Agreement shall be
limited as provided in Section 4.12 of the Intercreditor Agreement and the
provisions of said Section 4.12 are incorporated herein by reference.
Section 29. Exculpatory Provisions. None of the Collateral Agent or
any Secured Party, or any of their respective officers, employees,
servants, controlling persons, executives, directors, agents, authorized
representatives, attorneys-in-fact or affiliates shall be liable to the
Pledgor for any action taken or omitted to be taken by it or them (other
than actions arising from or relating to any gross negligence or willful
misconduct of any such Person) under or in connection with this Agreement
or any other Project Document to which the Pledgor is a party, or
responsible in any manner to any Person for any recital, statement,
representation or warranty made by the Pledgor or any officer thereof
contained in this Agreement or any other Project Document to which the
Pledgor is aparty or in any certificate, report, statement or other
document referred to or provided for in, or received by the Collateral
Agent or any Secured Party under or in connection with, this Agreement or
any other Project Document to which the Pledgor is a party or for the
value, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Project Document or for any failure of the Pledgor
to perform any of the Obligations.
Section 30. Waiver. To the fullest extent it may lawfully so agree,
the Pledgor agrees that it will not at any time insist upon, claim, plead
or take any benefit or advantage of any appraisement, valuation, stay,
extenuation, moratorium, redemption or similar law now or hereafter in
force in order to prevent, delay or hinder the enforcement hereof or the
absolute sale of any part of the Collateral. The Pledgor, for itself and
all who claim through it, so far as it or they now or hereafter lawfully
may do so, hereby waives the benefit of all such laws and all right to have
the Collateral marshaled upon any foreclosure hereof, and agrees that any
court having jurisdiction to foreclose this Agreement may order the sale of
the Collateral as an entirety. Without limiting the generality of the
foregoing, the Pledgor hereby (i) authorizes the Collateral Agent, in its
sole discretion and without notice to or demand upon the Pledgor and
without otherwise affecting the obligations of the Pledgor hereunder, from
time to time to take and hold other collateral (in addition to the
Collateral) for payment of any Obligations, or any part thereof, and to
exchange, enforce or release such other collateral or any part thereof and
to enforce or release such other collateral or any part thereof and to
accept and hold any endorsement or guarantee of payment of the Obligations
or any part thereof and to release or substitute any endorser or guarantor
or any other Person granting security for or in any other way obligated
upon any Obligations or any part thereof and (ii) waives and releases any
and all right to require the Collateral Agent to collect any of the
Obligations from any specific item or items of the Collateral or from any
other party liable as a guarantor or in any other manner in respect of any
of the Obligations or from any other security for any of the Obligations.
Section 31. Consent. By its execution hereof, the Pledgor hereby
consents to the transfer of the Collateral to any designee of the
Collateral Agent in accordance with this Agreement and the admission to the
Partnership of such designee as a general partner in accordance with this
Agreement.
Section 32. Conflicts with the Intercreditor Agreement or the
Depositary Agreement. In the event of any conflict between the terms of
this Agreement and the Intercreditor Agreement or the Depositary Agreement,
the provisions of the Intercreditor Agreement or the Depositary Agreement,
as the case may be, will apply.
IN WITNESS WHEREOF, each party hereto has caused this General Partner
Pledge and Security Agreement to be duly executed and delivered by its
officer thereunto duly authorized on the date first above written.
PANDA - XXXXXXXX CORPORATION
By
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board,
President and Chief Executive Officer
FLEET NATIONAL BANK,
as collateral agent
By
Name:
Title:
ACKNOWLEDGMENT AND CONSENT
The Partnership referred to in the foregoing 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. The Partnership agrees to notify the Collateral Agent promptly in
writing of the issuance of any Additional Pledged Interests.
PANDA-ROSEMARY, L.P.,
a Delaware limited partnership
By: Panda - Xxxxxxxx Corporation,
a Delaware corporation,
its general partner
By
Name:
Title:
CONSENT
The undersigned corporation, being the sole limited partner of the
Partnership referred to in the foregoing Agreement, hereby consents to the
pledge of the general partner interest in the Partnership owned by
Panda Xxxxxxxx Corporation pursuant to such Agreement.
PRC II CORPORATION,
a Delaware corporation
By
Name:
Title:
