PARTNERSHIP GUARANTY
THIS PARTNERSHIP GUARANTY (this "Guaranty"), dated
July 31, 1996, is made by Panda-Rosemary, L.P., a Delaware
limited partnership (the "Partnership"), in favor of Fleet
National Bank, a national banking association established
under the laws of the United States of America, as trustee
(in such capacity, and including its successors, endorsees,
transferees and assigns, the "Trustee").
WHEREAS, Panda-Xxxxxxxx Funding Corporation, a
Delaware corporation (the "Company"), the Partnership and
the Trustee have entered into a Trust Indenture, dated as of
July 31, 1996 (as the same may be amended, modified or
supplemented from time to time, the "Indenture"), pursuant
to which the Company may issue one or more series of bonds
(collectively, the "Bonds") in such principal amount or
amounts as may be authorized in accordance with the terms of
the Indenture;
WHEREAS, the Company has authorized, as the first
series of Bonds, the issuance of its 8 5/8% First Mortgage
Bonds due 2016 in the aggregate principal amount of
$111,400,000;
WHEREAS, the Company is a wholly-owned subsidiary
of the Partnership and was established as a special purpose
funding corporation;
WHEREAS, the Company will use the proceeds of any
sale of the Bonds to, directly and indirectly, make loans
(the "Loans") to the Partnership pursuant to a promissory
note or notes in an aggregate principal amount equal to the
principal amount of the Bonds; and
WHEREAS, the Indenture requires as a condition
precedent to the issuance of any series of Bonds that the
Company's obligations thereunder be guaranteed by the
Partnership as set forth herein;
NOW, THEREFORE, in consideration of the foregoing
premises and the purchase of the Bonds by the holders
thereof (the "Holders") and for other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged, the Partnership, intending to be
legally bound, hereby agrees for the equal and proportionate
benefit of all Holders from time to time of the Bonds as
follows:
1. Definitions
1.01 As used in this Guaranty, the terms defined
in the preamble and recitals hereto shall have the
respective meanings specified therein. Capitalized terms
used and not otherwise defined herein shall have the
meanings set forth in the Indenture and the following term
shall have the following meaning:
"Obligations" shall mean all obligations and
liabilities of the Company to the Trustee or the Holders,
whether direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter incurred, which may
arise under or in connection with the Indenture, any Series
Supplemental Indenture, the Bonds, the Collateral Documents
or any other document made, delivered or given in connection
therewith, including the principal of, premium, if any, and
interest on each series of Bonds and the indebtedness
represented thereby, and each other obligation and
liability, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or
hereafter incurred, of the Company to the Trustee or the
Holders, whether on account of principal, premium (if any),
interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees and
disbursements of Trustee's counsel) or otherwise (including,
without limitation, such interest or other charges as would
have accrued on any portion of the Obligations but for the
commencement of any bankruptcy or insolvency proceedings),
it being the intention of the parties that the Obligations
that are guaranteed by the Partnership pursuant to this
Guaranty should be determined without regard to any rule of
law or order that may relieve the Company of any portion of
such Obligations.
2. Guaranty
2.01 Unconditional Guaranty. The Partnership
hereby unconditionally and irrevocably guarantees, as a
primary obligor and not merely as a surety, to the Trustee
for its own benefit and the benefit of the Holders from time
to time of the Bonds, the prompt, punctual and complete
payment when due, whether at the stated maturity, on
acceleration, call for redemption or otherwise, and the
prompt, punctual and complete performance when owing, of the
Obligations, irrespective of (i) the validity of the
Obligations or any other agreement or instrument relating
thereto, or (ii) any other circumstance that might otherwise
constitute a defense to this Guaranty. Each and every
default in the payment or performance of the Obligations
shall give rise to a separate cause of action hereunder, and
separate suits may be brought hereunder as each cause of
action arises.
2.02 No Subrogation. Notwithstanding any payment
or payments made by the Partnership hereunder or any set-off
or application of funds of the Partnership by the Trustee,
the Partnership hereby waives any and all right to which it
may be entitled, by operation of law or otherwise, upon
making any payment hereunder (a) to be subrogated to any of
the rights of the Trustee or the Holders from time to time
of the Bonds against the Company or any other guarantor or
in any Collateral or other collateral security or guaranty
or right of offset held by the Trustee for the payment of
any Obligations, or (b) to seek any reimbursement or
contribution from the Company or any other guarantor in
respect to any payment, set-off or application of funds made
by or for the account of the Partnership hereunder.
2.03 No Effect on Guaranty. The obligations of
the Partnership under this Guaranty shall not be altered,
limited, impaired or otherwise affected by:
(a) any rescission of any demand for payment or
performance of any of the Obligations or any failure by the
Trustee to make any such demand on the Company or any other
guarantor or to collect any payments from the Company or any
other guarantor or any release of the Company or any other
guarantor;
(b) any renewal, extension, modification,
amendment, acceleration, compromise, waiver, indulgence,
rescission, discharge, surrender or release, in whole or in
part, of the Indenture or the Obligations or any other
instrument or agreement evidencing, relating to, securing or
guaranteeing any of the Obligations, or the liability of any
party to any of the foregoing or for any part thereof or any
collateral security therefor or guaranty thereof;
(c) the validity, legality or enforceability of
any of the Obligations or of the Indenture or any other
instrument or agreement evidencing, relating to, securing or
guaranteeing any of the Obligations at any time or from time
to time held by the Trustee;
(d) any failure by the Trustee to protect,
secure, perfect, record, insure or enforce any security
document or collateral subject thereto at any time
constituting security for the Obligations;
(e) any act or omission of the Trustee relating
in any way to the Obligations or to the Company, including,
without limitation, any failure to bring an action against
any party liable on the Obligations, or any party liable on
any guaranty of the Obligations, or any party that has
furnished security for the Obligations, or to apply any
funds of any such party held by the Trustee, or to resort to
any collateral or collateral of any other guarantor;
(f) any defense, set-off or counterclaim which
may at any time be available to or be asserted by or on
behalf of the Company or the Partnership against the Trustee
or any circumstance that constitutes, or might be construed
to constitute, an equitable or legal discharge of the
Company or any other guarantor for any of the Obligations,
in bankruptcy or in any other instance;
(g) any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership,
reorganization, liquidation or arrangement of the Company or
any other guarantor or any defense which the Company or any
other guarantor may have by reason of the order, decree or
decision of any court or administrative body resulting from
any such proceeding;
(h) any change, whether direct or indirect, in
the Partnership's relationship to the Company, including,
without limitation, any such change by reason of any merger
or any sale, transfer, issuance, or other disposition of any
stock of or other equity interest in the Company, the
Partnership or any other entity; or
(i) the absence of any notice to, or knowledge
by, the Partnership of the existence or occurrence of any of
the matters or events set forth in this Section 2.03.
2.04 Continuing Guaranty. The Partnership
further agrees that this Guaranty constitutes a present,
absolute, and continuing guaranty of prompt, punctual and
complete payment and performance when due of the
Obligations, and not of collection only, and waives any
right to require that any resort be had by the Trustee or
the Holders from time to time of the Bonds, after demand for
such payment being made upon the Company by the Trustee, to
the Trustee's or any Holder's rights against any other
Person, or any other right or remedy available to the
Trustee or any Holder from time to time of the Bonds by
contract, applicable law or otherwise. The obligations of
the Partnership under this Guaranty are unconditional,
direct and completely independent of the obligations of any
other Person and shall not be conditioned or contingent upon
the pursuit by the Trustee at any time of any right or
remedy against the Company or against any other Person that
may be or become liable in respect of all or any part of the
Obligations or against any collateral security or guaranty
therefor. A separate cause of action or separate causes of
action may be brought and prosecuted against the
Partnership, after demand for payment being made upon the
Company by the Trustee, without the necessity of joining the
Company or any other party or previously proceeding with or
exhausting any other remedy against any other Person who
might have become liable for the Obligations or any part
thereof or of realizing upon any security held by or for the
benefit of the Holders from time to time of the Bonds.
2.05 Obligations Unconditional. The obligations
of the Partnership under this Guaranty shall be absolute and
unconditional irrespective of (i) any lack of validity of
the Obligations or any other agreement or instrument
relating thereto or (ii) any other circumstance that might
otherwise constitute a defense to the Guaranty, and shall
remain in full force and effect until the Obligations shall
have been satisfied by payment and performance in full, or
release by the Trustee, notwithstanding any defeasance under
the Indenture, and, to the extent permitted by law, such
Obligations shall not be affected, modified, released, or
impaired by any state of facts or the happening from time to
time of any event, whatsoever, whether or not with notice
to, or the consent of, the Partnership.
2.06 Reinstatement of Guaranty. This Guaranty
shall continue in full force and effect, or be reinstated,
as the case may be, until the Partnership shall have made
payment or performance of the Obligations to the Trustee, if
at any time any payment or performance hereunder, or any
part thereof, of the Obligations is subsequently
invalidated, declared to be fraudulent or preferential,
avoided, rescinded, set aside and/or must otherwise be
restored or returned by the Trustee to the Company or its
representative or to a trustee, receiver, assignee for the
benefit of creditors or any other party under any bankruptcy
act or code, state or federal law or common law or equitable
doctrine, for any reason including as a result of any
insolvency, bankruptcy or reorganization proceeding with
respect to the Company or the Partnership, all as though
such payment had not been made.
2.07 Subordination of Other Indebtedness. Any
indebtedness of the Company for borrowed money now or
hereafter held by the Partnership is hereby subordinated in
right of payment to the prior indefeasible payment in full
in cash hereunder of the Obligations.
2.08 Financial Condition of the Company has no
Effect on Guaranty. The sale of Bonds under the Indenture
may be made by the Company without notice to or
authorization from the Partnership regardless of the
financial or other condition of the Company at the time of
any such sale. The Trustee shall not have any obligation to
disclose or discuss with the Partnership its assessment of
the financial or other condition of the Company.
2.09 No Waiver or Set-off. No act of commission
or omission of any kind or at any time upon the part of the
Company, its successors and assigns or the Trustee in
respect of any matter whatsoever shall in any way impair the
rights of the Trustee to enforce any right, power or benefit
under this Guaranty, and no set-off, counterclaim,
reduction, or diminution of any obligation, or any defense
of a surety or guarantor that the Partnership has or may
have against the Company, the Trustee or any holder of the
Bonds or any assignee or successor thereof shall be
available hereunder to the Partnership.
2.10 Demands for Payment; Payment. Demands by
the Trustee for payment hereunder may be made on any number
of occasions and without any demand for payment given to the
Company. Each demand shall be in writing, shall state the
amount owing and shall be effective as of the date given in
accordance with Section 4.07 hereof. Within five Business
Days of giving such a demand in accordance with Section 4.07
hereof, dated and signed by an authorized officer of the
Trustee setting forth the amount of the Obligations at the
time owing to the Trustee, the Partnership shall make such
payment to the Trustee and such payment shall not be
withheld for any reason.
3. Security and Recourse
3.01 Security. As security for the obligations
of the Partnership under this Guaranty, the Company, the
Partnership and its Partners have entered into the
Collateral Documents to pledge, assign, hypothecate,
bargain, sell, convey, mortgage and grant to the Collateral
Agent a security interest in and general lien upon all of
the Collateral. The pledge and assignment by the Company,
the Partnership and the Partners of the Collateral is
collateral and security for the prompt payment and
performance of the obligations of the Partnership under this
Guaranty.
3.02 No Recourse Against Partners.
Notwithstanding anything to the contrary contained in this
Guaranty, the liability and obligation of the Partnership or
the Company to perform and observe and make good the
obligations contained in this Guaranty and the Collateral
Documents and to pay the Debt issued under the Indenture and
the Bonds in accordance with the provisions of this Guaranty
shall not be enforced by any action or proceeding wherein
damages or any money judgment or any deficiency judgment or
any judgment establishing any personal obligation or
liability shall be sought, collected or otherwise obtained
against any Partner, any past, present or future partner,
officer, director or shareholder or related Person of any
Partner or the Company (other than the Partnership), and the
Trustee, for itself and its successors and assigns,
irrevocably waives any and all right to xxx for, seek or
demand any such damages, money judgment, deficiency judgment
or personal judgment against any Partner or any past,
present or future partner, officer, director or shareholder
or related Person of any Partner or the Company (other than
the Partnership) under or by reason of or in connection with
this Guaranty and agrees to look solely to the Company and
the Partnership and the security and Collateral held under
or in connection with the Collateral Documents for the
enforcement of such liability and obligation of the Company
or the Partnership. Nothing contained in this paragraph
shall be construed (i) as preventing the Trustee from naming
the Company or the Partnership, any Partner or any past,
present or future partner, officer, director or shareholder
or related Person of any Partner or the Company in any
action or proceeding brought by the Trustee to enforce and
to realize upon the security and Collateral provided under
or in connection with the Collateral Documents so long as no
judgment, order, decree or other relief in the nature of a
personal or deficiency judgment or otherwise establishing
any personal obligation shall be asked for, taken, entered
or enforced against any Partner or any past, present or
future partner, officer, director or shareholder or related
Person of any Partner or the Company (other than the
Partnership), in any such action or proceeding, (ii) as
modifying, qualifying or affecting in any manner whatsoever
the Lien and security interests created by this Guaranty and
the Collateral Documents and the other Project Documents or
the enforcement thereof by the Trustee, (iii) as modifying,
qualifying or affecting in any manner whatsoever the
personal recourse undertakings, obligations and liabilities
of any Person, party or entity under any guaranty of
payment, completion guaranty, other guaranty or
indemnification agreement now or hereafter executed and
delivered to the Trustee in connection with the Collateral
Documents, or (iv) as modifying, qualifying or affecting in
any manner whatsoever the personal recourse liability of any
Partner, any past, present or future partner, officer,
director or shareholder or related Person of any Partner or
the Company (other than the Partnership) or any other
person, party or entity for fraud or willful
misrepresentation or any wrongful misappropriation or
diversion of any portion of the Collateral.
3.03 Right of Set-off by Trustee. Upon the
occurrence of any Event of Default specified in the
Indenture, the Trustee is hereby authorized to set off and
apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other
indebtedness at any time owing by the Trustee to or for the
credit or the account of the Partnership against any and all
of the obligations of the Partnership now or hereafter
existing under this Guaranty, irrespective of whether or not
the Trustee shall have made any demand under this Guaranty
and although such deposits, indebtedness, or obligations may
be unmatured or contingent. The Trustee shall notify the
Partnership promptly of any such set-off and the application
thereof, provided that the failure to give such notice shall
not affect the validity of such set-off and application.
4. Miscellaneous
4.01 Costs and Expenses. The Partnership
covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable
compensation for, and, except as herein otherwise expressly
provided, the Partnership will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements,
fees, costs and commissions incurred or made by the Trustee
(including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and of persons not
regularly in its employ) in connection with, (i) the
enforcement of or attempt to enforce, or collection of or
attempt to collect any amounts due under, this Guaranty,
(ii) any waiver, extension, amendment or modification of any
provision of this Guaranty, or (iii) the administration of
this Guaranty.
4.02 Indemnity. The Partnership covenants and
agrees to indemnify the Trustee and its officers, directors,
employees, representatives and agents for, and to hold the
Trustee, its officers, directors, employees, representatives
and agents harmless against, any loss, liability, claim,
damage or expense incurred without gross negligence or bad
faith on the part of the Trustee or its officers, directors,
employees, representatives and agents, arising out of or in
connection with this Guaranty (including the costs and
expenses referred to in Section 4.01 hereof). The
obligation of the Partnership under this Section 4.02 shall
survive payment in full of the Obligations, the resignation
or removal of the Trustee and the termination of the
Guaranty.
4.03 Election of Remedies. Each and every right,
power and remedy herein given to the Trustee, or otherwise
existing, shall be cumulative and not exclusive, and shall
be in addition to all other rights, powers and remedies now
or hereafter granted or otherwise existing. Each and every
right, power and remedy, whether specifically herein given
or otherwise existing, may be exercised, from time to time
and as often and in such order as may be deemed expedient by
the Trustee.
4.04 Effect of Delay or Omission to Pursue
Remedy. No single or partial waiver by the Trustee of any
right, power or remedy, or delay or omission by the Trustee
in the exercise of any right, power or remedy that it may
have shall impair any such right, power or remedy or operate
as a waiver thereof or of any other right, power or remedy
then or thereafter existing. Any waiver given by the
Trustee of any right, power or remedy in any one instance
shall only be effective in that specific instance and only
for the purpose for which given, and will not be construed
as a waiver of any right, power or remedy on any future
occasion.
4.05 Partnership's Waivers. The Partnership
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 the Holders from time
to time of the Bonds upon this Guaranty or acceptance of
this Guaranty or any action taken or omitted in reliance
hereon. The Obligations, and any of them, shall
conclusively be deemed to have been created, contracted,
incurred, renewed, extended, amended or waived in reliance
upon this Guaranty, and all dealings between the Partnership
and the Trustee shall likewise be conclusively presumed to
have been had or consummated in reliance upon this Guaranty.
The Partnership further waives diligence, presentment,
demand for payment or performance, notice, any requirement
that any right or power be exhausted or any action be taken
against the Company or the Partnership or against any
Collateral, protest of all promissory notes or other
instruments included in or evidencing any of the Obligations
or Collateral, and all other demands in connection with the
delivery, acceptance, performance, default or enforcement of
any such promissory note or other instrument or this
Guaranty.
4.06 Amendment. This Guaranty may not be
modified, amended, terminated or revoked, in whole or in
part, except by an agreement in writing signed by the
Trustee and the Partnership. No waiver of any term,
covenant or provision of this Guaranty, or consent given
hereunder, shall be effective unless given in writing by the
Trustee.
4.07 Notices. All notices and other
communications required or permitted hereunder shall be in
writing and shall be deemed to have been sufficiently given
to any party hereto if personally delivered or if sent by
fax, telegram, telecopy or telex, or by registered or
certified mail, return receipt requested, or by recognized
courier service, postage or other charges prepaid, addressed
as follows:
If to the Partnership:
Panda-Xxxxxxxx, L.P.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxxxxx & Xxxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxxxx X. Xxxxxx, Xx., Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Trustee:
Fleet National Bank of Connecticut
Corporate Trust Xxxxxx
000 Xxxx Xxxxxx
XXX00000
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Corporate Trust Office
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx and Xxxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or to such other address or fax number as may be specified
from time to time by the Partnership or the Trustee in a
notice to the other party given as herein provided. Such
notice or communication will be deemed to have been given as
of the date so personally delivered, telegraphed,
telecopied, telexed, mailed or sent by courier.
4.08 Successors and Assigns. This Guaranty shall
be binding upon and shall inure to the benefit of the
Partnership and the Trustee and their respective successors
and permitted assigns. Notwithstanding the foregoing, the
Partnership shall not have the right to assign its rights or
obligations hereunder (whether by operation of law or
otherwise) without the prior written consent of the Trustee,
and any purported transfer without such prior written
consent shall be void. No assignment by the Partnership of
any rights or obligations under this Guaranty shall release
the Partnership therefrom unless the Trustee shall have
consented to such release in a writing specifically
referring to the obligation from which the Partnership is to
be released.
4.09 Section Headings. The section headings used
in this Guaranty are for convenience of reference only and
are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
4.10 CONSENT TO JURISDICTION. ALL LEGAL ACTIONS
OR PROCEEDINGS BROUGHT AGAINST THE PARTNERSHIP WITH RESPECT
TO THIS GUARANTY MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK,
AND BY EXECUTION AND DELIVERY OF THIS GUARANTY THE
PARTNERSHIP ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, THE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS GUARANTY. THE PARTNERSHIP
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR DEFENSE
IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED LACK
OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS OR ANY SIMILAR BASIS. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE TRUSTEE TO BRING PROCEEDINGS AGAINST
THE PARTNERSHIP IN THE COURTS OF ANY OTHER JURISDICTION OR
TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
4.11 GOVERNING LAW. THIS GUARANTY SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
4.12 WAIVER OF JURY TRIAL. THE PARTNERSHIP
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM
ARISING IN CONNECTION WITH THIS GUARANTY.
4.13 AGENT FOR SERVICE OF PROCESS. THE
PARTNERSHIP HEREBY AGREES TO DESIGNATE, APPOINT AND EMPOWER
CT CORPORATION SYSTEM AS ITS AUTHORIZED AGENT TO RECEIVE FOR
AND ON ITS BEHALF SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
LEGAL PROCESS IN ANY ACTION, SUIT OR PROCEEDING IN THE STATE
OF NEW YORK. AS LONG AS THIS GUARANTY REMAINS IN FORCE, THE
PARTNERSHIP SHALL MAINTAIN A DULY APPOINTED AGENT FOR THE
SERVICE OF SUMMONS, COMPLAINT AND OTHER LEGAL PROCESS IN NEW
YORK, NEW YORK FOR PURPOSES OF ANY LEGAL ACTION, SUIT OR
PROCEEDING THE TRUSTEE MAY BRING IN RESPECT OF THIS
GUARANTY. THE PARTNERSHIP SHALL KEEP THE TRUSTEE ADVISED OF
THE IDENTITY AND LOCATION OF SUCH AGENT. THE PARTNERSHIP
ALSO IRREVOCABLY CONSENTS, IF FOR ANY REASON THE
PARTNERSHIP'S AUTHORIZED AGENT FOR SERVICE OF PROCESS OF
SUMMONS, COMPLAINT AND OTHER LEGAL PROCESS IN ANY SUCH
ACTION, SUIT OR PROCEEDING IS NOT PRESENT IN NEW YORK, NEW
YORK, THAT SERVICE OF SUCH PAPERS MAY BE MADE OUT OF THOSE
COURTS BY MAILING COPIES OF THE PAPERS BY DELIVERY THEREOF
TO IT BY HAND OR BY MAIL TO THE ADDRESS SET FORTH IN SECTION
4.07 HEREOF. SERVICE IN THE MANNER PROVIDED IN THIS SECTION
4.13 IN ANY SUCH ACTION, SUIT OR PROCEEDING WILL BE DEEMED
PERSONAL SERVICE, WILL BE ACCEPTED BY THE PARTNERSHIP AS
SUCH AND WILL BE VALID AND BINDING UPON THE PARTNERSHIP FOR
ALL PURPOSES OF ANY SUCH ACTION, SUIT OR PROCEEDING.
4.14 Severability. If any provision hereof or of
any promissory note or other instruments evidencing part or
all of the Obligations is invalid or unenforceable in any
jurisdiction, the other provisions hereof or thereof shall
remain in full force and effect in such jurisdiction and the
remaining provisions hereof shall be liberally construed in
favor of the Trustee in order to carry out the provisions
hereof. The invalidity or unenforceability of any provision
of this Guaranty in any jurisdiction shall not affect the
validity or enforceability of any such provision in any
other jurisdiction.
4.15 Entire Agreement. This Guaranty constitutes
the entire agreement and understanding of the Partnership
with respect to the subject matter hereof and supersedes any
and all prior and contemporaneous contracts, negotiations,
agreements and understandings of the Partnership relating to
the subject matter herein contained, whether oral or
written. The Partnership hereby expressly acknowledges that
it has not relied, in making this Guaranty, upon any
statement or representation, not contained herein, made by
any other party, including, without limitation, the Trustee,
the Collateral Agent and the Company.
IN WITNESS WHEREOF, the Partnership has caused
this Guaranty to be executed and delivered on its behalf on
the date first written above.
PANDA-XXXXXXXX, L.P.
By: Panda - Xxxxxxxx
Corporation, as its
General Partner
By:
Name:
Title:
