EXHIBIT 10.33
AMENDED AND RESTATED
GENERAL PARTNER PLEDGE AGREEMENT
AMENDED AND RESTATED GENERAL PARTNER PLEDGE AGREEMENT,
dated as of December 18, 1996 (this "Agreement"), made by PANDA
BRANDYWINE CORPORATION, a Delaware corporation (together with its
successors and assigns, the "Pledgor") and the sole general
partner of Panda-Brandywine, L.P., a Delaware limited partnership
(together with its successors and assigns, the "Partnership"), to
FLEET NATIONAL BANK (formerly known as Shawmut Bank Connecticut,
National Association), a national banking association, in its
capacity as Security Agent (the "Security Agent") under the
Security Deposit Agreement (as defined in the Participation
Agreement referred to below).
W I T N E S S E T H :
WHEREAS, the Pledgor is the legal and beneficial owner
of a 50% general partnership interest in the Partnership (such
partnership interest being hereinafter referred to as the
"Partnership Interest");
WHEREAS, the Partnership, the Pledgor and General
Electric Capital Corporation, a New York corporation ("GE
Capital" or the "Owner Participant"), entered into the
Construction Loan Agreement and Lease Commitment dated as of
March 30, 1995 (the "Construction Loan Agreement") pursuant to
which GE Capital (i) provided construction financing for the
Project and (ii) issued the Letters of Credit as collateral
security for certain obligations of the Partnership under the
Power Purchase Agreement;
WHEREAS, the Pledgor entered into the General Partner
Pledge Agreement dated as of March 30, 1995 (as amended,
supplemented or otherwise modified prior to the date hereof, the
"Existing Pledge Agreement"), providing for the collateral
assignment by the Pledgor to the Security Agent of its interest
in the Partnership to secure the Partnership's obligations to GE
Capital and the Owner Trustee (as defined below);
WHEREAS, as contemplated by the Construction Loan
Agreement, the Partnership and the Owner Trustee (as defined
below) are entering into the Facility Lease and the other Lease
Documents pursuant to which, among other things, the Owner
Trustee will lease the Facility to the Partnership;
WHEREAS, the Owner Participant has elected to fund the
Facility Lease with non-recourse indebtedness as a leveraged
lease, and pursuant to Section 34 of the Existing Pledge
Agreement, the parties hereto have agreed to amend and restate
the Existing Pledge Agreement subject to the terms and conditions
provided herein;
WHEREAS, the Partnership and GE Capital are entering
into the Reimbursement Agreement to provide for the continued
issuance by GE Capital of the Letters of Credit;
WHEREAS, in order to set forth the rights and
obligations of the Owner Participant, the Owner Trustee, the
Partnership, the Loan Participants, the Administrative Agent, the
Indenture Trustee and the other parties in connection with the
foregoing transactions and to describe and provide for the
transactions contemplated hereby, (i) the parties hereto are
entering into the Participation Agreement, (ii) the Owner Trustee
and the Indenture Trustee are entering into the Indenture, (iii)
certain of the Lessee Security Documents are being amended and
restated pursuant to the Amended and Restated Agreements and (iv)
the Construction Loan Agreement is being terminated;
WHEREAS, it is a condition precedent to the performance
of certain obligations on the Lease Closing Date that the Pledgor
shall have executed and delivered this Agreement to the Security
Agent, for the benefit of the Owner Trustee and GE Capital (and
by collateral assignment, the Indenture Trustee);
WHEREAS, the Pledgor desires to execute this Agreement
to satisfy the condition described in the preceding recital;
NOW, THEREFORE, in consideration of the foregoing
premises and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Defined Terms; Construction.
(a) Unless otherwise defined herein, terms used
herein shall have the meaning set forth in Annex A to the
Participation Agreement dated as of December 18, 1996 (the
"Participation Agreement"), among the Partnership, the General
Partner, the Owner Participant, Fleet National Bank (formerly
known as Shawmut Bank Connecticut, National Association), a
national banking association, not in its individual capacity but
solely as owner trustee (in such capacity, the "Owner Trustee")
under the Trust Agreement and as Security Agent, First Security
Bank, National Association, a national banking association, not
in its individual capacity but solely as indenture trustee (in
such capacity, the "Indenture Trustee") under the Indenture,
Credit Suisse, a bank organized and existing under the laws of
Switzerland, acting by and through its New York branch ("Credit
Suisse"), as administrative agent (in such capacity, the
"Administrative Agent"), and the other entities listed on
Schedule I thereto (the "Loan Participants"). Defined terms in
this Agreement shall include in the singular number the plural
and in the plural number the singular.
(b) The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall,
unless otherwise expressly specified, refer to this Agreement as
a whole and not to any particular provision of this Agreement and
all references to Sections shall be references to Sections of
this Agreement unless otherwise expressly specified.
(c) Unless otherwise expressly specified, any
agreement, contract, or document defined or referred to herein
shall mean such agreement, contract or document in the form
(including all amendments and clarification letters relating
thereto) delivered on the Lease Closing Date as the same may
thereafter be amended, supplemented, or otherwise modified from
time to time in accordance with the terms of such agreement and
the Participation Agreement.
Section 2. Pledge. As security for the Lessee
Obligations and subject to and in accordance with the provisions
of this Agreement, the Pledgor hereby pledges, grants, assigns,
hypothecates, transfers, and delivers to the Security Agent, for
the benefit of GE Capital and the Owner Trustee, a first priority
security interest in the following, whether now owned or
hereafter acquired (the "Collateral"):
(a) all of the Pledgor's general partnership interests
in the Partnership (including, without limitation, the
Partnership Interest and all right, title and interest of
the Pledgor in and to the Transfer Agreement), and all of
the Pledgor's rights (including, without limitation, all
voting rights in or rights to control or direct the affairs
of the Partnership), privileges, authority and powers as
general partner of the Partnership, whether arising under
the terms of the Partnership Agreement, or at law, or
otherwise;
(b) all income, cash flow, revenues, issues, profits,
losses, distributions, payments, and other property of every
kind and variety due, accruing or owing to, or to be turned
over to, or to be disbursed to the Pledgor by the
Partnership in respect of the property described in the
preceding clause (a), including without limitation, all
rights of the Pledgor to allocations of profit and loss,
distributions and all monies and property representing a
distribution in respect of the property described in the
preceding clause (a); and
(c) all proceeds, products and accessions of and to
any of the property described in the preceding clauses (a)
and (b);
provided, however, that notwithstanding any of the foregoing,
none of the Security Agent, the Owner Trustee nor GE Capital
shall acquire any interest in any of Pledgor's obligations
contained in the Partnership Agreement.
Section 3. Security for Lessee Obligations. This
Agreement secures, and the Collateral is collateral security for,
the payment and performance in full when due, whether at stated
maturity, by acceleration or otherwise, of all Lessee Obligations
now or hereafter existing.
Section 4. Delivery of Collateral. All certificates
or instruments representing or evidencing the Collateral have
been or shall be delivered to and shall be held by or on behalf
of the Security Agent pursuant hereto and shall be in suitable
form for transfer by delivery, or shall be accompanied by duly
executed undated instruments of transfer or assignment in blank,
all in form and substance reasonably satisfactory to the Security
Agent. If the Pledgor shall become entitled to receive or shall
receive any other Collateral, then the Pledgor shall, except as
otherwise provided in Section 7, accept and hold the same in
trust for the Security Agent and segregated from the other
property or funds of Pledgor, and shall deliver to the Security
Agent forthwith all such other Collateral (except as provided in
Section 7 hereof) in the form received by the Pledgor, to be held
by the Security Agent, subject to the terms hereof, as part of
the Collateral. Upon the occurrence and during the continuance
of a Reimbursement Event of Default or a Lease Event of Default,
the Security Agent shall have the right, at any time in its
discretion and without notice to the Pledgor, to transfer to or
to register in the name of the Security Agent, the Owner Trustee
or GE Capital or any of their respective nominees any or all of
the Collateral.
Section 5. Representations and Warranties. The
Pledgor represents and warrants as follows:
(a) Due Organization. The Pledgor is a
corporation duly organized and validly existing under the laws of
the State of Delaware, and is qualified to own property and
transact business in every jurisdiction where the ownership of
its property and the nature of its business as currently
conducted requires it to be qualified.
(b) Power and Authority. The Pledgor has full
corporate power, authority and legal right to enter into this
Agreement and each other Transaction Document to which it is a
party and to perform its obligations hereunder and thereunder and
to pledge all the Collateral pursuant to this Agreement.
(c) Due Authorization. The pledge of the
Collateral pursuant to this Agreement has been duly authorized by
the Pledgor. This Agreement and each other Transaction Document
to which the Pledgor is a party has been duly authorized,
executed and delivered by the Pledgor.
(d) Enforceability. This Agreement and each
other Transaction Document to which the Pledgor is a party
constitutes the legal, valid and binding obligation of the
Pledgor enforceable against the Pledgor in accordance with its
terms except as enforceability may be limited by applicable
bankruptcy, insolvency, moratorium or other similar laws
affecting creditors' rights generally and except as
enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(e) No Conflicts. The execution and delivery by
Pledgor of this Agreement and each other Transaction Document to
which the Pledgor is a party, the performance by Pledgor of its
obligations hereunder and thereunder, and the pledge by the
Pledgor of the Collateral pursuant to this Agreement will not (i)
violate the provisions of the Pledgor's Certificate of
Incorporation or By-laws; (ii) violate the provisions of any Law
applicable to the Pledgor; (iii) violate any Contractual
Obligation; or (iv) result in or create any Lien (other than the
Lien created hereby) under, or require any consent which has not
been obtained under any agreement or instrument, or the
provisions of any order or decree binding upon the Pledgor or any
of its properties.
(f) No Consents. No consent of any other party
(including, without limitation, stockholders or creditors of the
Pledgor) and no Governmental Action is required which has not
been obtained either (i) for the execution, delivery and
performance by Pledgor of this Agreement and each other
Transaction Document to which it is a party, (ii) for the pledge
by the Pledgor of the Collateral pursuant to this Agreement, or
(iii) except as otherwise set forth in Section 34 hereof, for the
exercise by the Security Agent of the rights provided for in this
Agreement or the remedies in respect of the Collateral pursuant
to this Agreement (except as may be required in connection with
any disposition of all or any part of the Collateral under any
laws affecting the offering and sale of securities generally).
(g) Not a Utility. The Pledgor is not, and will
not, as a result of becoming a partner in the Partnership, be or
become, or cause the Partnership to be or become: (i) subject to
regulation under Part II or Part III of the Federal Power Act,
except for Sections 202(c), 210, 211, 212, 213, 214 and 305(c) of
the Federal Power Act (16 U.S.C. 824a(c), 824i, 824j, 824k,
824l, 824m and 825d(c), respectively) and the enforcement
provisions of Part III of the Federal Power Act relating thereto;
(ii) an "electric utility company" for purposes of the Holding
Company Act; (iii) subject to state law or regulation respecting
the financial, rate or organizational regulation of electric
utilities; or (iv) subject to regulation as a "steam heating
company" under Article 78, Public Service Commission Law, of the
Annotated Code of Maryland.
(h) Ownership of Collateral. The Pledgor is the
sole legal and beneficial owner of the Collateral free and clear
of any Lien other than Permitted Liens. No security agreement,
financing statement or other public notice with respect to all or
any part of the Collateral is on file or of record in any public
office, except such as may have been filed in favor of the
Security Agent pursuant to this Agreement.
(i) Perfection. The execution and delivery of
this Agreement concurrently with the filing of UCC-1 financing
statements in the filing offices listed on Schedule 1 create a
valid and perfected first priority security interest in the
Collateral securing the payment of the Lessee Obligations.
(j) Chief Executive Office. The chief executive
office of the Pledgor and the office where the Pledgor keeps its
records concerning the Partnership and the Project and all
contracts relating thereto is located at the address specified on
Schedule 2. The Pledgor shall not establish a new location for
its chief executive office or change its name until (i) it has
given the Security Agent, GE Capital and, so long as the
Indenture shall be in effect, the Indenture Trustee, not less
than 30 days' prior written notice of its intention so to do,
clearly describing such new location or specifying such new name,
as the case may be, and (ii) with respect to such new location or
such new name, as the case may be, it shall have taken all
action, reasonably satisfactory to the Security Agent, GE Capital
and, so long as the Indenture shall be in effect, the Indenture
Trustee, to maintain the security interest of the Security Agent,
on behalf of the Owner Trustee, GE Capital and the Indenture
Trustee, in the Collateral intended to be granted hereby at all
times fully perfected and in full force and effect.
(k) Sole Business. The Pledgor is the sole
general partner of the Partnership. The Pledgor is not engaged
in any transaction or activity unrelated to the management,
development, financing, operation and/or maintenance of the
Partnership and the Project.
(l) No Proceedings. There is no action, suit or
proceeding at law or in equity or by or before any Governmental
Authority or arbitral tribunal now pending or, to the best
knowledge of the Pledgor, threatened against the Pledgor (i)
which questions the validity or legality of or seeks damages in
connection with this Agreement or any other Transaction Document
to which Pledgor is a party or (ii) which may reasonably be
expected to have a Material Adverse Effect.
(m) Financial Statements. Each of the financial
statements of the Pledgor for the fiscal year and quarter most
recently ended as of the date hereof has been heretofore
furnished to the Owner Participant and the Administrative Agent,
and each of such financial statements is complete and correct in
all material respects and fairly presents the financial condition
of the Pledgor as at said dates, in conformity with GAAP applied
on a consistent basis, except that the financial statements were
prepared on a cash basis and that certain expenses have not been
capitalized as required by GAAP. Since the date of such annual
financial statement, there has been no Material Adverse Effect.
(n) Partnership Agreement. The copy of the
Partnership Agreement delivered to the Owner Participant and the
Administrative Agent on or prior to the Lease Closing Date is a
true, complete and correct copy of the Partnership Agreement on
the date hereof.
Section 6. Supplements, Further Assurances. The
Pledgor agrees that at any time and from time to time, at the
expense of the Pledgor, the Pledgor will promptly execute and
deliver all further instruments and documents, and take all
further action that the Security Agent may reasonably request, in
order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Security Agent to
exercise and enforce its rights and remedies hereunder with
respect to any Collateral. Without limiting the generality of
the foregoing, the Pledgor will execute and file such financing
or continuation statements, or amendments thereto, and such other
instruments, endorsements or notices, as the Security Agent may
deem necessary or desirable in order to perfect and preserve the
Liens created or intended to be created hereby. The Pledgor
hereby authorizes the Security Agent to file any such financing
or continuation statement without the signature of the Pledgor to
the extent permitted by applicable law. A carbon, photographic
or other reproduction of this Agreement shall be sufficient as a
financing statement for filing in any jurisdiction.
Section 7. Rights of Pledgor; etc.
(a) Generally. The Pledgor shall be entitled to
exercise any and all rights pertaining to the Collateral or any
part thereof (including, without limitation, the right to manage
and direct the affairs of the Partnership and the right to
receive distributions in respect of its partnership interest) so
long as (i) no Reimbursement Event of Default or Lease Event of
Default shall have occurred and be continuing and (ii) the
exercise of such rights would not otherwise result in a
Reimbursement Event of Default or a Lease Event of Default. Upon
the occurrence and during the continuance of a Reimbursement
Event of Default or a Lease Event of Default, all rights of the
Pledgor to manage and direct the affairs of the Partnership which
it would otherwise be entitled to exercise pursuant to the
preceding sentence shall cease, and all such rights shall
thereupon become immediately vested in the Security Agent, which
shall thereupon have the sole right (subject to the provisions of
Applicable Law and the Security Deposit Agreement) to manage and
direct the affairs of the Partnership.
(b) Distributions. Unless a Reimbursement Event
of Default or a Lease Event of Default shall have occurred and be
continuing, the Pledgor shall be entitled to receive and retain
any and all distributions paid in respect of the Collateral in
compliance with the terms of the Participation Agreement and the
Security Deposit Agreement; provided, however, that any and all
(i) distributions paid or payable in respect
of or in exchange for any Collateral (whether paid in
cash, securities or other property) in connection with
a partial or total liquidation or dissolution of the
Partnership (other than in connection with any deemed
liquidation on account of a termination of the
Partnership under Section 708(b)(1)(B) of the Code),
and
(ii) all property (whether cash, securities
or other property) paid, payable or otherwise
distributed in redemption of, or in exchange for, the
property described in Section 2(a) above,
shall be, and shall be forthwith delivered to the Security Agent
to hold as, Collateral and shall, if received by the Pledgor, be
received in trust for the benefit of the Security Agent, be
segregated from the other property or funds of the Pledgor, and
be forthwith delivered to the Security Agent as Collateral in the
same form as so received (with any necessary endorsement). Upon
the occurrence and during the continuance of a Reimbursement
Event of Default or a Lease Event of Default, all rights of the
Pledgor to receive the distributions which it would otherwise be
authorized to receive and retain pursuant to the preceding
sentence shall cease, and all such rights shall thereupon become
vested in the Security Agent which shall thereupon have the sole
right to receive and hold as Collateral such distributions.
(c) Amounts Wrongfully Received Held in Trust.
All distributions and other amounts which are received by the
Pledgor contrary to the provisions of Section 7(b) above or the
Participation Agreement shall be received in trust for the
benefit of the Security Agent, shall be segregated from other
funds of the Pledgor and shall be forthwith paid over to the
Security Agent as Collateral in the same form as so received
(with any necessary endorsement).
Section 8. Covenants.
(a) Legal Existence. The Pledgor shall preserve
and maintain (i) its legal existence, as a corporation in good
standing under the laws of the State of Delaware and (ii) its
qualification to do business in every jurisdiction where the
ownership of its property and the nature of its business require
it to be so qualified.
(b) Books, Records and Inspections. The Pledgor
shall keep proper books of record and account in which full, true
and correct entries in conformity with GAAP, except that the
Pledgor's financial statements may be prepared on a cash basis
and that certain expenses may be capitalized other than as
required by GAAP, and all requirements of Law shall be made of
all dealings and transactions in relation to its business and
activities. The Pledgor shall permit officers and designated
representatives of the Security Agent, the Administrative Agent
and the Owner Participant to visit and inspect any of the
properties of the Pledgor, and to examine the books of record and
account of the Pledgor, and discuss the affairs, finances and
accounts of the Pledgor with, and be advised as to the same by,
its and their officers and independent accountants, all upon
reasonable notice and at such reasonable times as the Security
Agent, the Administrative Agent or the Owner Participant may
desire.
(c) Taxes and Claims. The Pledgor shall pay or
cause to be paid when due, all Taxes and all charges,
betterments, or other assessments relating to the Collateral, and
all other lawful claims required to be paid by the Pledgor,
except to the extent any of the same are subject to a Contest.
(d) Compliance with Law. The Pledgor shall
comply with all Laws, except for such noncompliance as could not,
individually or in the aggregate, have a Material Adverse Effect.
(e) Governmental Actions. The Pledgor shall
obtain, maintain and comply with all Governmental Actions
applicable to the Pledgor or the Partnership, except for such
failure or noncompliance as could not, individually or in the
aggregate, have a Material Adverse Effect.
(f) Performance Under Other Agreements. The
Pledgor shall duly perform and observe all of the covenants,
agreements and conditions on its part to be performed and
observed hereunder and under the Participation Agreement and,
unless the Administrative Agent and GE Capital otherwise consent
in writing, duly perform and observe in all respects all of the
covenants, agreements and conditions on its part to be performed
and observed under the other Transaction Documents to which it is
a party.
(g) Remain as General Partner; Nature of
Business. The Pledgor shall remain as the sole general partner
of the Partnership and shall not withdraw as a general partner in
the Partnership. The Pledgor shall not engage in any business
other than being the general partner of the Partnership.
(h) Purchases of Assets. The Pledgor shall not
purchase or acquire any assets other than the purchase of assets
in the ordinary course of business of the Partnership required in
connection with the operation and maintenance of the
Partnership's business in accordance with the Transaction
Documents.
(i) Indebtedness. The Pledgor shall not create,
incur, assume or suffer to exist any Indebtedness other than
Indebtedness of the Partnership that the Partnership is permitted
to incur under the Participation Agreement and on which the
Pledgor is liable solely by virtue of being the general partner
of the Partnership.
(j) Contingent Obligations. The Pledgor shall
not create or become or be liable with respect to any Contingent
Obligation.
(k) No Sale of Collateral; No Liens. The Pledgor
agrees that it will not (i) sell, assign, transfer, exchange or
otherwise dispose of, or grant any option or warrant with respect
to, the Collateral or any interest therein without the prior
written consent of the Security Agent and (ii) except for the
Lien created hereby, create, incur or permit to exist any Lien
(other than Permitted Liens) upon or with respect to any of the
Collateral or any interest therein or any of its other property
or assets. The Pledgor will defend the right, title and interest
of the Security Agent in and to the Collateral against the claims
and demands of all Persons whomsoever.
(l) Fundamental Changes. The Pledgor shall not:
(i) enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any liquidation or dissolution),
discontinue its business or convey, lease, sell, transfer or
otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business or property,
whether now or hereafter acquired, except sales of obsolete
and/or replaced equipment; (ii) acquire by purchase or otherwise
any property or assets of, or stock or other evidence of
beneficial ownership of, any Person; (iii) create or acquire any
Subsidiary; (iv) enter into any partnership or joint venture; or
(v) engage in any business other than (x) holding a general
partnership interest in the Partnership and (y) managing and
directing the affairs of the Partnership as the general partner
of the Partnership.
(m) Advances, Investments and Loans. The Pledgor
shall not lend money or credit or make advances or contributions
to any Person other than the Partnership, or directly or
indirectly purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital
contribution to any Person other than the Partnership.
(n) Partnership Agreement; Transfer Agreement.
The Pledgor shall not agree to or permit (i) the cancellation or
termination of the Partnership Agreement or the Transfer
Agreement or (ii) without the prior consent of the Owner
Participant and the Administrative Agent, any amendment,
supplement, or modification of, or waiver with respect to any of
the provisions of, the Partnership Agreement or the Transfer
Agreement.
(o) Agent for Receipt of Service of Process. The
Pledgor shall appoint and continuously retain a Person acceptable
to the Security Agent as its agent in the State of New York for
receipt of service of process and shall pay all costs, fees and
expenses in connection therewith.
(p) Bankruptcy of the Partnership. The Pledgor
shall not authorize, seek to cause or permit the Partnership to
commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property or to
consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or to make a general assignment
for the benefit of the creditors.
Section 9. Security Agent Appointed Attorney-In-Fact.
Upon the occurrence of a Reimbursement Event of Default or a
Lease Event of Default, the Pledgor hereby appoints the Security
Agent or any Person or agent whom the Security Agent may
designate the Pledgor's attorney-in-fact with full authority in
the place and stead of the Pledgor and in the name of the Pledgor
or otherwise, at the Pledgor's cost and expense, at any time and
from time to time in the Security Agent's reasonable discretion
to take any action and to execute any instrument which the
Security Agent may deem necessary or advisable to enforce its
rights under this Agreement, including, without limitation,
authority to receive, endorse and collect all instruments made
payable to the Pledgor representing any distribution, interest
payment or other payment in respect of the Collateral or any part
thereof and to give full discharge for the same.
Section 10. Security Agent May Perform. If the
Pledgor fails to perform any agreement contained herein after
receipt of a written request to do so from the Security Agent,
the Security Agent may itself perform, or cause performance of,
such agreement, and the reasonable expenses of the Security
Agent, including the reasonable fees and expenses of its counsel,
incurred in connection therewith shall be payable by the Pledgor
under Section 19.
Section 11. Reasonable Care. The Security Agent shall
be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the
Collateral is accorded treatment substantially equivalent to that
which the Security Agent accords its own property of the type of
which the Collateral consists, it being understood that the
Security Agent shall have no responsibility for (i) ascertaining
or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral,
whether or not the Security Agent has or is deemed to have
knowledge of such matters, or (ii) taking any necessary steps to
preserve rights against any parties with respect to any
Collateral.
Section 12. No Liability. None of the Security Agent,
the Owner Trustee, GE Capital, the Administrative Agent, the
Indenture Trustee, any Holder nor any of their respective
directors, officers, employees or agents shall be deemed to have
assumed any of the liabilities or obligations of a partner of the
Partnership as a result of the pledge and security interest
granted under or pursuant to this Agreement. None of the
Security Agent, the Owner Trustee, GE Capital, the Administrative
Agent, the Indenture Trustee, any Holder nor any of their
respective directors, officers, employees or agents shall be
liable for any failure to collect or realize upon the Lessee
Obligations or any collateral security or guarantee therefor, or
any part thereof, or for any delay in so doing nor shall it be
under any obligation to take any action whatsoever with regard
thereto.
Section 13. Remedies Upon Default. If a Reimbursement
Event of Default or a Lease Event of Default shall have occurred
and be continuing:
(a) The Security Agent (i) may become a
substitute or additional general partner in the Partnership or
designate another Person to become such substitute or additional
general partner and/or (ii) may manage the business and affairs
of the Partnership as provided in Section 7(a) and/or (iii)
exercise the power of attorney described in Section 9.
(b)(i) The Security Agent may exercise in respect
of the Collateral, in addition to other rights and remedies
provided for herein or otherwise available to it, all the rights
and remedies of a secured party upon a default under the Uniform
Commercial Code then in effect in the State of New York, or
unless prohibited by Applicable Law, the Uniform Commercial Code
then in effect in any other applicable jurisdiction. The
Security Agent may also in its sole discretion, without notice
except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale or at
any of the Security Agent's offices or elsewhere, for cash, on
credit or for future delivery, and at such price or prices and
upon such other terms as the Security Agent may, in accordance
with Applicable Law, deem commercially reasonable, irrespective
of the impact of any such sales on the market price of the
Collateral at any such sale. Each purchaser at any such sale
shall hold the property sold absolutely, free from any claim or
right on the part of the Pledgor, and the Pledgor hereby waives
(to the extent permitted by law) all rights of redemption, stay
and/or appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or
hereafter enacted. The Pledgor agrees that, to the extent notice
of sale shall be required by law, at least ten days' notice to
the Pledgor of the time and place of any public sale or the time
after which any private sale is to be made shall constitute
reasonable notification. The Security Agent shall not be
obligated to make any sale of Collateral regardless of notice of
sale having been given. The Security Agent may adjourn any
public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so
adjourned. The Security Agent shall not incur liability as a
result of the sale of the Collateral, or any part thereof, at any
public or private sale. The Pledgor hereby waives any claims
against the Security Agent arising by reason of the fact that the
price at which any Collateral may have been sold at such a
private sale, if commercially reasonable, was less than the price
which might have been obtained at a public sale, even if the
Security Agent accepts the first offer received and does not
offer such Collateral to more than one offeree.
(ii) The Pledgor recognizes that the Security
Agent may elect in its sole discretion to sell all or a part of
the Collateral to one or more purchasers in privately negotiated
transactions in which the purchasers will be obligated to agree,
among other things, to acquire the Collateral for their own
account, for investment and not with a view to the distribution
or resale thereof. The Pledgor acknowledges that any such
private sales may be at prices and on terms less favorable than
those obtainable through a public sale (including, without
limitation, a public offering made pursuant to a registration
statement under the Securities Act of 1933, as amended (the
"Securities Act")), and the Pledgor and the Security Agent agree
that such private sales shall be made in a commercially
reasonable manner and that the Security Agent has no obligation
to engage in public sales and no obligation to delay sale of any
Collateral to permit the issuer thereof to register the
Collateral for a form of public sale requiring registration under
the Securities Act.
(c) Any cash held by the Security Agent as
Collateral and all cash proceeds received by the Security Agent
in respect of any sale of, collection from, or other realization
upon all or any part of the Collateral shall, as soon as
reasonably practicable, be applied (after payment of any amounts
payable to the Security Agent pursuant to Section 19 and 20) by
the Security Agent first to the payment of the costs and expenses
of such sale, collection or other realization, if any, including
reasonable compensation to the Security Agent and its agents and
counsel, and all expenses, liabilities and advances made or
incurred by the Security Agent in connection therewith; and
second to the payment of the Lessee Obligations in accordance
with the terms of the Security Deposit Agreement. The
Partnership shall be liable for any deficiency remaining after
any application of funds pursuant hereto. Any surplus of such
cash or cash proceeds held by the Security Agent after payment in
full of such amounts shall be paid over to the Pledgor, or its
successors or assigns, or to whomsoever may be lawfully entitled
to receive such surplus or as a court of competent jurisdiction
may direct.
Section 14. Purchase of the Collateral. The Security
Agent, the Owner Trustee, GE Capital, the Administrative Agent,
the Indenture Trustee, any Loan Participant or the Owner
Participant or any of their respective Affiliates may be a
purchaser of the Collateral or any part thereof or any right or
interest therein at any sale thereof, whether pursuant to
foreclosure, power of sale or otherwise hereunder and the
Security Agent may apply the purchase price to the payment of the
Lessee Obligations secured hereby. Any such purchaser of all or
any part of the Collateral shall, upon any such purchase, acquire
good title to the Collateral so purchased, free of the security
interests created by this Agreement.
Section 15. Notices. All notices, requests and demands
to or upon the respective parties hereto to be effective shall be
in writing (including by telecopy), and shall be deemed to have
been duly given or made when delivered by hand, or five days
after being deposited in the United States mail, postage prepaid,
or, in the case of telecopy notice, when confirmation is
received, or, in the case of a nationally recognized overnight
courier service, one Business Day after delivery to such courier
service, addressed, in the case of each party hereto, at its
address specified below its name on Schedule 2 hereto, or to such
other address as may be designated by any party in a written
notice to the other parties hereto.
Section 16. Continuing Security Interest. This
Agreement shall create a continuing Lien in the Collateral until
the release thereof pursuant to Section 18.
Section 17. Security Interest Absolute. All rights of
the Security Agent and security interests hereunder, and all
obligations of the Pledgor hereunder, shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability
of any of the Transaction Documents or any other
agreement or instrument relating thereto;
(ii) any change in the time, manner or place
of payment of, or in any other term of, all or any of
the Lessee Obligations, or any other amendment or
waiver of or any consent to any departure from the
Transaction Documents or any other agreement or
instrument relating thereto;
(iii) any exchange, release or non-
perfection of any other collateral, or any release or
amendment or waiver of or consent to any departure from
any guaranty, for all or any of the Lessee Obligations;
or
(iv) any other circumstance which might
otherwise constitute a defense available to, or a
discharge of, the Pledgor.
Section 18. Release. Upon the indefeasible payment in
full of the Lessee Obligations, the Security Agent, upon the
request and at the expense of the Pledgor, shall execute and
deliver all such documentation necessary to release the liens
created pursuant to this Agreement.
Section 19. Expenses. The Pledgor will upon demand pay
to the Security Agent the amount of any and all reasonable
expenses, including the reasonable fees and expenses of its
counsel and of any experts and agents, and any transfer taxes,
which the Security Agent may incur in connection with (i) the
custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral pursuant to the
exercise or enforcement of any of the rights of the Security
Agent hereunder or (ii) the failure by the Pledgor to perform or
observe any of the provisions hereof. Any amount payable by the
Pledgor pursuant to this Section shall be payable on demand and
shall constitute Lessee Obligations secured hereby.
Section 20. Indemnity.
(a) The Pledgor agrees to indemnify, reimburse
and hold the Security Agent, the Owner Trustee, in its individual
and trust capacities, GE Capital, the Administrative Agent, the
Indenture Trustee, the Loan Participants, their respective
successors and assigns and their respective officers, directors,
employees, and agents (each individually, an "Indemnitee," and
collectively, "Indemnitees") harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims,
demands, actions, suits, judgments and any and all costs and
expenses (including reasonable attorneys' fees and disbursements)
(such expenses, for purposes of this Section, hereinafter
"expenses") of whatsoever kind and nature imposed on, asserted
against or incurred by any of the Indemnitees in any way relating
to or arising out of (i) this Agreement or the documents executed
in connection herewith or in any other way connected with the
administration of the Lien or the security interest granted
hereby, or the enforcement of any of the terms hereof, or the
preservation of any rights hereunder, (ii) any failure of the
Pledgor to comply with its obligations under this Agreement, or
any misrepresentation by the Pledgor in this Agreement, or in any
statement or writing contemplated by or made or delivered
pursuant to or in connection with this Agreement, or (iii) the
ownership, purchase, delivery, control, acceptance, financing,
possession, condition, sale, return or other disposition, or use
of, the Collateral, excluding (x) those finally judicially
determined to have arisen, with respect to any Indemnitee, solely
from the gross negligence or willful misconduct of such
Indemnitee or (y) unless specifically provided for elsewhere in
this Agreement, those arising out of the actions of any
Indemnitee while in possession or control of the Collateral.
(b) Without limiting the application of
subsection (a), the Pledgor agrees to pay, or reimburse the
Security Agent for any and all fees, costs and expenses of
whatever kind or nature incurred in connection with the
preservation, protection or validation of the Security Agent's
Liens on, and security interest in, the Collateral, including,
without limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in public
offices, payment or discharge of any taxes or Lien upon or in
respect of the Collateral, premiums for insurance with respect to
the Collateral and all other fees, costs and expenses in
connection with protecting, maintaining or preserving the
Collateral and the Security Agent's interest therein, whether
through judicial proceedings or otherwise, or in defending or
prosecuting any actions, suits or proceedings arising out of or
relating to the Collateral.
Section 21. Lessee Obligations Secured by Collateral.
Any amounts paid by any Indemnitee as to which such Indemnitee
has the right to reimbursement, and any amounts paid by the
Security Agent in preservation of any of its rights or interest
in the Collateral, together with interest on such amounts from
the date paid until reimbursement in full at a rate per annum
equal at all times to the Overdue Rate shall constitute Lessee
Obligations secured by the Collateral.
Section 22. Reinstatement. This Agreement shall
continue to be effective or be reinstated, as the case may be, if
at any time any amount received by the Security Agent, the Owner
Trustee, GE Capital, the Administrative Agent, any Holder or the
Indenture Trustee hereunder, under any other Transaction Document
or pursuant hereto or thereto is rescinded or must otherwise be
restored or returned by the Security Agent, the Owner Trustee, GE
Capital, the Administrative Agent, any Holder or the Indenture
Trustee upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Pledgor or the Partnership or upon the
appointment of any intervenor or conservator of, or trustee or
similar official for, Pledgor or the Partnership or any
substantial part of their respective assets, or upon the entry of
an order by a bankruptcy court avoiding the payment of such
amount, or otherwise, all as though such payments had not been
made.
Section 23. Amendments, etc. No waiver, amendment,
modification or termination of any provision of this Agreement,
or consent to any departure by the Pledgor therefrom, shall in
any event be effective (x) without the written concurrence of the
Security Agent and (y) unless made in accordance with section
13.1 of the Participation Agreement and none of the Collateral
shall be released without the written consent of the Security
Agent. Any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 24. Successors and Assigns. This Agreement
shall be binding upon the Pledgor and its successors and assigns
and shall inure to the benefit of the Security Agent, the Owner
Trustee, GE Capital and, so long as the Indenture shall be in
effect, the Indenture Trustee and their respective successors and
assigns.
Section 25. Survival.
(a) All agreements, statements, representations
and warranties made by the Pledgor herein or in any certificate
or other instrument delivered by the Pledgor or on its behalf
under this Agreement shall be considered to have been relied upon
by the Security Agent and shall survive the execution and
delivery of this Agreement and the other Transaction Documents
regardless of any investigation made by or on behalf of the
Security Agent.
(b) The indemnity obligations of Pledgor
contained in Section 20 shall continue in full force and effect
notwithstanding the full payment of the Lessee Obligations and
notwithstanding the discharge thereof.
Section 26. No Waiver; Remedies Cumulative. No failure
or delay on the part of the Security Agent in exercising any
right, power or privilege hereunder and no course of dealing
between the Pledgor and the Security Agent shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies
herein expressly provided are cumulative and not exclusive of any
rights or remedies which the Security Agent, the Owner Trustee or
GE Capital would otherwise have.
Section 27. Counterparts. This Agreement may be
executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
Section 28. Headings Descriptive. The headings of the
several Sections and subsections of this Agreement are inserted
for convenience only and shall not in any way affect the meaning
or construction of any provision of this Agreement.
Section 29. Severability. In case any provision in or
obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not
in any way be affected or impaired thereby.
Section 30. Consent to Pledge by General Partner.
Notwithstanding anything to the contrary contained in the
Partnership Agreement, Panda Energy Corporation, a Delaware
corporation, as holder of the Partnership limited partnership
interest, hereby consents to (i) the execution, delivery, and
performance by the Pledgor of this Agreement, (ii) the grant of
the pledge by the Pledgor to the Security Agent, for the benefit
of the Owner Trustee (and, by collateral assignment, the
Indenture Trustee) and GE Capital of its partnership interests in
the Partnership pursuant to this Agreement, (iii) the sale,
transfer, assignment or other disposition (whether through
foreclosure, deed-in-lieu of foreclosure, or otherwise) of such
partnership interests to the Security Agent, its designee, or any
purchaser of such partnership interests pursuant to the exercise
by the Security Agent of its rights and remedies under this
Agreement and (iv) the admission to the Partnership of the
Security Agent, such designee, or such purchaser as a general
partner of the Partnership in connection with the exercise of
such rights and remedies.
Section 31. Conflict with Participation Agreement. In
case of a conflict between any provision of this Agreement and
any provision of the Participation Agreement, the provisions of
the Participation Agreement shall control and govern. No such
conflict shall be deemed to exist merely because this Agreement
imposes greater obligations on the Pledgor than the Participation
Agreement.
Section 32. Recourse Limited to Collateral. The
Security Agent acknowledges and agrees that, except in the case
of fraud, willful misconduct or knowing misrepresentation on the
part of Pledgor, its sole recourse for payment and performance of
the obligations of the Pledgor hereunder shall be to the
Collateral. This provision shall not be deemed to waive any
cause of action the Security Agent may have against any Person
for fraud, willful misconduct or knowing misrepresentation by
such Person.
Section 33. GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF
LAW EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT AND ANY
ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE PLEDGOR HEREBY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS AND APPELLATE COURTS FROM ANY THEREOF. THE PLEDGOR
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE PLEDGOR AT ITS ADDRESS REFERRED TO IN
SECTION 15. THE PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT
BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH
COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED IN ANY OTHER JURISDICTION.
(c) EACH OF THE PLEDGOR AND THE SECURITY AGENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT
OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
Section 34. Certain Rights of Power Purchaser.
Nothing in this Agreement shall be deemed to limit the provisions
of the Consent of the Power Purchaser, which provisions are
solely for the benefit of the Power Purchaser and not the
Pledgor. Without limiting the scope of the foregoing, the
Security Agent agrees, for the exclusive benefit of the Power
Purchaser and not the Pledgor, that the exercise of remedies or
any similar action under this Agreement is subject to, and shall
be conducted in a manner consistent with, the Power Purchaser's
rights under (i) the Consent of the Power Purchaser and (ii) the
Power Purchase Agreement and the Transfer Agreement (to the
extent such rights under the Power Purchase Agreement and the
Transfer Agreement are not explicitly waived by the Power
Purchaser in accordance with the terms of the Consent of the
Power Purchaser).
Section 35. Assignment to Indenture Trustee.
In order to secure the indebtedness evidenced by the
Loan Certificates and certain other obligations as provided in
the Indenture, the Indenture provides, among other things, for
the assignment by the Owner Trustee to the Indenture Trustee of
all of its right, title and interest in, to and under this
Agreement, to the extent set forth in the Indenture, and for the
creation of a Lien on and security interest in the Lessor's
Estate in favor of the Indenture Trustee, and in furtherance
thereof, the Lessee and the Owner Trustee have entered into the
Security Deposit Agreement with the Security Agent. The Pledgor
hereby acknowledges and consents to such assignment and such
security interest and hereby acknowledges that to the extent set
forth in the Indenture, the Indenture Trustee shall have the
right in its own name (in certain cases together with the Owner
Trustee and in other cases to the exclusion of the Owner Trustee,
all as set forth in Section 3.10 of the Indenture) to direct the
Security Agent to take or refrain from taking action under this
Agreement, including the right (i) of the Security Agent to
exercise any election or option, and to make any decision or
determination, and to give any notice, consent, waiver or
approval under this Agreement or in respect thereof, (ii) to
exercise any and all of the rights, powers and remedies of the
Security Agent hereunder and (iii) to receive all moneys payable
to the Security Agent under this Agreement. The Pledgor agrees
that it will make all payments hereunder in accordance with the
provisions of the Security Deposit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
their duly authorized officers to execute and deliver this
Agreement as of the date first above written.
PANDA BRANDYWINE CORPORATION,
as Pledgor
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
FLEET NATIONAL BANK (formerly known as
Shawmut Bank Connecticut, National
Association), as Security Agent
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
With Respect to Section 30 only:
PANDA ENERGY CORPORATION,
as limited partner
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
Exhibit A to
General Partner
Pledge Agreement
ACKNOWLEDGMENT AND CONSENT
Panda-Brandywine, L.P., the Partnership
referred to in the foregoing Amended and Restated General
Partner Pledge Agreement, hereby acknowledges receipt of
a copy thereof and agrees to be bound thereby and to
comply with the terms thereof insofar as such terms are
applicable to it.
Panda-Brandywine, L.P. also agrees to make all
payments due to Panda Brandywine Corporation, in its
capacity as general partner of Panda-Brandywine, L.P, in
compliance with the terms of the Participation Agreement
and the Security Deposit Agreement and (i) in the event
that a Reimbursement Event of Default or a Lease Event of
Default shall have occurred and be continuing or (ii) in
connection with a partial or total liquidation or
dissolution of the Partnership (other than in connection
with any deemed liquidation on account of a termination
of the Partnership under Section 708(b)(1)(B) of the
Code, to Fleet National Bank, as Security Agent (the
"Security Agent"), for the benefit of General Electric
Capital Corporation ("GE Capital") and the Owner Trustee
(as defined in the Participation Agreement). Panda-
Brandywine, L.P. further agrees that none of the Security
Agent, the Owner Trustee nor GE Capital will have any of
the obligations of either a general partner or a limited
partner of Panda-Brandywine, L.P. unless such person
affirmatively elects to undertake such obligations in
accordance with the terms of the foregoing General
Partner Pledge Agreement and the Consent of the Power
Purchaser.
December __, 1996
PANDA-BRANDYWINE, L.P.
By Panda Brandywine Corporation,
its general partner
By:________________________________
Name:
Title:
Exhibit B to
General Partner
Pledge Agreement
December __, 1996
Panda-Brandywine, L.P.
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Gentlemen:
Panda Brandywine Corporation hereby instructs Panda-
Brandywine, L.P. to register the pledge of its general
partnership interest in Panda-Brandywine, L.P. in favor of
Fleet National Bank, as Security Agent (the "Security Agent")
pursuant to the Amended and Restated General Partner Pledge
Agreement, dated as of December __, 1996, between Panda
Brandywine Corporation and the Security Agent.
Very truly yours,
PANDA BRANDYWINE CORPORATION
By___________________________
Title:
FLEET NATIONAL BANK,
as Security Agent
By____________________________
Title:
Exhibit C to
General Partner
Pledge Agreement
December __, 1996
To: Fleet National Bank,
as Security Agent
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Administration
This statement is to advise you that a pledge of the
following uncertificated security has been registered in the name
of Fleet National Bank, as Security Agent (the "Security Agent"),
as follows:
1. Uncertificated Security:
The entire general partnership interest of Panda
Brandywine Corporation in the undersigned partnership.
2. Registered Owner:
Panda Brandywine Corporation
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
3. Registered Pledgee:
Fleet National Bank, as Security Agent
Taxpayer Identification Number: 000000000
4. There are no liens or restrictions on the
undersigned partnership and no adverse claims to which
such uncertificated security is or may be subject known
to the undersigned partnership, except as set forth in
the Amended and Restated General Partner Pledge
Agreement dated as of December __, 1996 between the
undersigned and the Security Agent.
5. The pledge was registered on December __, 1996.
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE
ADDRESSEE AS OF THE TIME OF ITS ISSUANCE. DELIVERY OF THIS
STATEMENT, OF ITSELF, CONFERS NO RIGHTS ON THE RECIPIENT. THIS
STATEMENT IS NEITHER A NEGOTIABLE INSTRUMENT NOR A SECURITY.
Very truly yours,
PANDA-BRANDYWINE, L.P.
By Panda Brandywine Corporation,
its general partner
By:______________________________
Name:
Title:
