EXHIBIT 10.119
ISSUER CASH COLLATERAL AGREEMENT
CASH COLLATERAL AGREEMENT dated as of April 22, 1997 between
PANDA GLOBAL ENERGY COMPANY, a Cayman Islands company, (the
"Pledgor") and BANKERS TRUST COMPANY, as Trustee (in such
capacity, the "Trustee") for the Holders of 12-1/2% Senior Secured
Notes due 2004 (the "Senior Secured Notes") of the Pledgor issued
pursuant to the terms and subject to the conditions of the Trust
Indenture dated as of April 22, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Indenture") between
the Pledgor and the Trustee and any additional securities
("Securities") as may be issued by the Pledgor from time to time
pursuant to one or Series Supplemental Indentures (as described
in the Indenture).
W I T N E S S E T H:
WHEREAS, pursuant to the Indenture, the Trustee has agreed
to act on behalf of the Holders of the Senior Secured Notes upon
the terms and subject to the conditions set forth therein;
WHEREAS, the Senior Secured Notes are fully and
unconditionally guaranteed by Panda Global Holdings, Inc. (the
"Company") pursuant to the terms and subject to the conditions of
the guarantee dated as of April 22, 1997 (the "Guarantee") issued
pursuant to the Trust Indenture dated as of April 22, 1997 (as
amended, supplemented or otherwise modified from time to time,
the "Company Indenture") between the Company and the Bankers
Trust Company as trustee thereunder;
WHEREAS, the Pledgor is the issuer of the Securities, and it
is to the advantage of the Pledgor to facilitate this sale of the
Senior Secured Notes by entering into this Agreement;
NOW, THEREFORE, in consideration of the premises and to
induce the Trustee to enter into the Indenture and to induce the
Initial Purchaser to purchase the Senior Secured Notes under the
Purchase Agreement dated April 11, 1997 (as it may be amended,
supplemented or otherwise modified from time to time, the
"Purchase Agreement"), the Pledgor hereby agrees with the
Trustee, for the ratable benefit of the Holders of the
Securities, as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
terms defined in the Indenture and used herein shall have the
meanings given to them in the Indenture.
(b) The following terms shall have the following meanings:
"Agreement": this Cash Collateral Agreement, as the same
may be amended, modified or otherwise supplemented from time to
time.
"Cash Collateral": the Note Holders Cash Collateral and the
Holders Cash Collateral.
"Code": the Uniform Commercial Code from time to time in
effect in the State of New York.
"Collateral": the Note Holders Collateral and the Holders
Collateral.
"Collateral Accounts": the Note Holders Collateral Accounts
and the Holders Collateral Accounts.
"Holders": the Holders of any Securities, including the
Senior Secured Notes.
"Holders Cash Collateral": the collective reference to:
(a) all cash, instruments, securities and funds deposited
from time to time in the Holders Collateral Accounts, including,
without limitation, any and all excess Non-U.S. Permitted Project
Event Proceeds deposited in the Holders Collateral Accounts and
all cash or other money proceeds of any collateral subject to a
security interest for the benefit of the Trustee under any
Transaction Document;
(b) all investments of funds in the Holders Collateral
Accounts and all instruments and securities evidencing such
investments; and
(c) all interest, dividends, cash, instruments, securities
and other property received in respect of, or as proceeds of, or
in substitution or exchange for, any of the foregoing.
"Holders Collateral": the Holders Cash Collateral, the
Holders Collateral Accounts and any additional securities or
other property pledged, assigned or granted to the Trustee for
the benefit of the Holders from time to time, pursuant to the
Indenture and any Series Supplemental Indenture.
"Holders Collateral Accounts": the Issuer Revenue Fund, the
Issuer Operating Fund and the Issuer Equity Distribution Fund.
"Note Holders": the Holders of the Senior Secured Notes.
"Note Holders Cash Collateral": the collective reference
to:
(a) all cash, instruments, securities and funds deposited
from time to time in the Note Holders Collateral Accounts,
including, without limitation, all cash or other money proceeds
of any collateral subject to a security interest for the benefit
of the Trustee under any Transaction Document;
(b) all investments of funds in the Note Holders Collateral
Accounts and all instruments and securities evidencing such
investments; and
(c) all interest, dividends, cash, instruments, securities
and other property received in respect of, or as proceeds of, or
in substitution or exchange for, any of the foregoing.
"Note Holders Collateral": the collective reference to the
Note Holders Cash Collateral, the Note Holders Collateral
Accounts and all of the Pledgor's right under the Issuer Loan
Agreement.
"Note Holders Collateral Accounts": the Capitalized
Interest Fund, the Luannan Facility Construction Fund, the Debt
Service Fund, the Debt Service Reserve Fund and the Luannan
Facility Restoration Fund.
"Note Obligations": the collective reference to the unpaid
principal, interest and premium, if any (including Liquidated
Damages and Additional Amounts, if any), on the Senior Secured
Notes and all other obligations and liabilities of the Issuer to
the Trustee and the Note Holders (including, without limitation,
interest accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like
proceeding, relating to the Issuer or the Pledgor whether or not
a claim for post-filing or post-petition interest is allowed in
such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with,
the Indenture (as the Indenture relates to the Senior Secured
Notes), the Series Supplemental Indenture relating to the Senior
Secured Notes, the Senior Secured Notes, the other Transaction
Documents or any other document relating to the Senior Secured
Notes made, delivered or given in connection therewith, in each
case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of
counsel to the Trustee or counsel to the Initial Purchaser that
are required to be paid by the Issuer or the Pledgor pursuant to
the terms of the Indenture (as the Indenture relates to the
Senior Secured Notes), the Series Supplemental Indenture relating
to the Senior Secured Notes, this Agreement or any other
Transaction Document relating to the Senior Secured Notes).
"Obligations": the collective reference to the unpaid
principal, interest and premium, if any (including Liquidated
Damages and Additional Amounts, if any), on the Securities and
all other obligations and liabilities of the Issuer or the
Pledgor to the Trustee and the Holders (including, without
limitation, interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Issuer or the Pledgor whether
or not a claim for post-filing or post-petition interest is
allowed in such proceeding), whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with,
the Indenture, any Series Supplemental Indenture, the Securities,
the other Transaction Documents relating to the Securities, or
any other document made, delivered or given in connection
therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees
and disbursements of counsel to the Trustee or counsel to the
Initial Purchaser that are required to be paid by the Issuer or
the Pledgor pursuant to the terms of the Indenture, any Series
Supplemental Indenture, the Securities, this Agreement or any
other Transaction Document relating to the Securities).
"Secured Note Obligations": the collective reference to (a)
the Note Obligations and (b) all obligations and liabilities of
the Pledgor which may arise under or in connection with this
Agreement or any other Transaction Document relating to the
Senior Secured Notes to which the Pledgor is a party, whether on
account of reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees
and disbursements of counsel to the Trustee or counsel to the
Initial Purchaser that are required to be paid by the Pledgor
pursuant to the terms of this Agreement or any other Transaction
Document to which the Pledgor is a party).
"Secured Obligations": the collective reference to (a) the
Obligations and (b) all obligations and liabilities of the
Pledgor which may arise under or in connection with this
Agreement or any other Transactions Document to which the Pledgor
is a party, whether on account of reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to the
Trustee or counsel to the Initial Purchaser that are required to
be paid by the Pledgor pursuant to the terms of this Agreement or
any other Transaction Document to which the Pledgor is a party).
(c) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
2. Grant of Security Interest. (a) As collateral security
for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of
the Secured Note Obligations, the Pledgor hereby grants to the
Trustee, for the ratable benefit of the Note Holders, a security
interest in the Note Holders Collateral.
(b) As collateral security for the prompt and complete payment
and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Secured Obligations, the
Pledgor hereby grants to the Trustee, for the ratable benefit of
the Holders, a security interest in the Holders Collateral.
3. Maintenance of Collateral Accounts. (a) The Note
Holders Collateral shall be maintained until the Secured Note
Obligations have been paid and performed in full.
(b) The Holders Collateral shall be maintained until the
Secured Obligations have been paid and performed in full.
(c) The Collateral shall be subject to the exclusive
dominion and control of the Trustee, which shall hold the Cash
Collateral and administer the Collateral Accounts subject to the
terms and conditions of this Agreement and the Indenture. The
Pledgor shall have no right of withdrawal from the Collateral
Accounts nor any other right or power with respect to the
Collateral, except as expressly provided herein and therein.
4. Deposit of Funds. The Pledgor shall make deposits into
the Collateral Accounts in accordance with the provisions of the
Indenture.
5. Representation and Warranty. The Pledgor represents and
warrants to the Trustee that this Agreement creates in favor of
the Trustee a perfected, first priority security interest in the
Collateral, enforceable in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
6. Covenants. The Pledgor covenants and agrees with the
Trustee that, except as the Trustee may otherwise consent in
accordance with the terms of the Indenture:
(a) The Pledgor will not (1) sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with
respect to, the Collateral, or (2) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person
with respect to, any of the Collateral, or any interest therein,
except for the security interest created by this Agreement.
(b) The Pledgor will maintain the security interest created
by this Agreement as a first, perfected security interest and
defend the right, title and interest of the Trustee and the
Holders in and to the Collateral against the claims and demands
of all Persons whomsoever. At any time and from time to time,
upon the written request of the Trustee, and at the sole expense
of the Pledgor, the Pledgor will promptly and duly execute and
deliver such further instruments and documents and take such
further actions as the Trustee reasonably may request for the
purposes of obtaining or preserving the full benefits of this
Agreement and of the rights and powers herein granted, including,
without limitation, financing statements under the Code.
7. Investment of Cash Collateral. Collected funds on
deposit in the Collateral Accounts shall be invested by the
Trustee pursuant to the terms of Indenture.
8. Release of Cash Collateral. Collateral shall be
released in accordance with the provisions of the Indenture.
9. Remedies. (a) Upon the occurrence of an Event of
Default under the Indenture, the Trustee may, without notice of
any kind, except for notices required by law which may not be
waived, apply (i) the Collateral, after deducting all reasonable
costs and expenses of every kind incurred in respect thereof or
incidental to the care or safekeeping of any of the Collateral or
in any way relating to the Collateral or the rights of the
Trustee hereunder, including, without limitation, reasonable
attorneys' fees and disbursements of counsel to the Trustee, to
the payment in whole or in part of the Secured Obligations and
(ii) the Guarantee Collateral, after deducting all reasonable
costs and expenses of every kind incurred in respect thereof or
incidental to the care or safekeeping of any of the Guarantee
Collateral or in any way relating to the Guarantee Collateral or
the rights of the Trustee and the Guarantee Holders hereunder,
including, without limitation, reasonable attorneys' fees and
disbursements of counsel to the Trustee, to the payment in whole
or in part of the Secured Guarantee Obligations, in each case in
accordance with the Indenture, and only after such application
and after the payment by the Trustee of any other amount required
by any provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Trustee account for the
surplus, if any, to the Pledgor. In addition to the rights,
powers and remedies granted to it under this Agreement and the
Indenture, the Trustee shall have all the rights, powers and
remedies available at law, including, without limitation, the
rights and remedies of a secured party under the Code. To the
extent permitted by law, the Pledgor waives presentment, demand,
protest and all notices (except notices specifically provided for
in any agreement securing, evidencing or relating to the Secured
Obligations), of any kind and all claims, damages and demands it
may acquire against the Trustee or any Holder arising out of the
exercise by them of any rights hereunder.
(b) The Pledgor shall remain liable for any deficiency if
the proceeds of any sale or other disposition of the Collateral
are insufficient to pay the Obligations and the fees and
disbursements of any attorneys employed by the Trustee to collect
such deficiency.
10. Trustee's Appointment as Attorney-in-Fact. (a) The
Pledgor hereby irrevocably constitutes and appoints the Trustee
and any officer or agent of the Trustee, with full power of
substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the
Pledgor and in the name of the Pledgor or in the Trustee's own
name, from time to time in the Trustee's discretion, for the
purpose of carrying out the terms of this Agreement, to take any
and all appropriate action and to execute any and all documents
and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including, without limitation,
any financing statements, endorsements, assignments or other
instruments of transfer.
(b) The Pledgor hereby ratifies all that said attorneys
shall lawfully do or cause to be done pursuant to the power of
attorney granted in paragraph 10(a). All powers, authorizations
and agencies contained in this Agreement are coupled with an in-
terest and are irrevocable until this Agreement is terminated and
the security interests created hereby are released.
11. Indemnity of Trustee. The Pledgor shall indemnify the
Trustee, its officers, agents, employees and directors for, and
to hold each such person harmless against any and all losses,
liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties
under this Agreement, including the costs and expenses of
enforcing this Agreement against the Pledgor or any other Person
and investigating or defending itself against any claim (whether
asserted by the Pledgor or any Holder of Senior Secured Notes or
any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall
notify the Pledgor promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Pledgor shall
not relieve the Pledgor of its obligations hereunder. The
Pledgor shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and, if the
Pledgor's counsel is not diligently prosecuting or defending the
matter, or in the event that there may be a conflict between the
positions of the Pledgor and Trustee in conducting the defense,
the Pledgor shall pay the reasonable fees and expenses of such
counsel. The Pledgor need not pay for any settlement made
without their consent, which consent shall not be unreasonably
withheld.
12. Duty of Trustee. The Trustee's sole duty with respect
to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or
otherwise, shall be to comply with the specific duties and
responsibilities set forth herein and in the Indenture. The
powers conferred on the Trustee in this Agreement are solely for
the protection of the Trustee's and the Holders' interests in the
Collateral and shall not impose any duty upon the Trustee or any
Holder to exercise any such powers. Neither the Trustee nor any
Holder nor its or their directors, officers, employees or agents
shall be liable for any action lawfully taken or omitted to be
taken by any of them under or in connection with the Collateral
or this Agreement, except for its or their gross negligence or
willful misconduct.
13. Execution of Financing Statements. Pursuant to Section
9-402 of the Code, the Pledgor authorizes the Trustee to file
financing statements with respect to the Collateral without the
signature of the Pledgor in such form and in such filing offices
as the Trustee reasonably determines appropriate to perfect the
security interests of the Trustee under this Agreement. A
carbon, photographic or other reproduction of this Agreement
shall be sufficient as a financing statement for filing in any
jurisdiction.
14. Authority of Trustee. The Pledgor acknowledges that
the rights and responsibilities of the Trustee under this
Agreement with respect to any action taken by the Trustee or the
exercise or non-exercise by the Trustee of any option, right,
request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the
Trustee and the Holders, be governed by the Indenture and by such
other agreements with respect thereto as may exist from time to
time among them, but, as between the Trustee and the Pledgor, the
Trustee shall be conclusively presumed to be acting as agent for
the Holders with full and valid authority so to act or refrain
from acting, and the Pledgor shall not be under any obligation,
or entitlement, to make any inquiry respecting such authority.
15. Notices. All notices, requests and demands to or upon
the Trustee or the Pledgor to be effective shall be in writing
(or by telex, fax or similar electronic transfer confirmed in
writing) and shall be deemed to have been duly given or made
(1) when delivered by hand or (2) if given by mail, when
deposited in the mails by certified mail, return receipt
requested, or (3) if by telex, fax or similar electronic
transfer, when sent and receipt has been confirmed, addressed to
the Trustee or the Pledgor at its address or transmission number
for notices provided in the recitals of the Indenture. The
Trustee and the Pledgor may change their addresses and
transmission numbers for notices by notice in the manner provided
in this paragraph.
16. 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.
17. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Pledgor and the Trustee,
provided that any provision of this Agreement may be waived by
the Trustee in a letter or agreement executed by the Trustee or
by telex or facsimile transmission from the Trustee.
(b) Neither the Trustee nor any Holder shall by any act
(except by a written instrument pursuant to paragraph 17(a) hereof),
delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any
Default or Event of Default or in any breach of any of the terms
and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Trustee any right, power or
privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. A waiver by the
Trustee of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the
Trustee would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
18. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in
the interpretation hereof.
19. Successors and Assigns. This Agreement shall be
binding upon the successors and assigns of the Pledgor and shall
inure to the benefit of the Trustee and the Holders and their
successors and assigns.
20. Governing Law. This Agreement shall be governed by,
and construed and interpreted in accordance with, the law of the
State of New York.
21. Submission To Jurisdiction; Waivers. The Pledgor
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement, or for
recognition and enforcement of any judgment in respect thereof,
to the non-exclusive general jurisdiction of the Courts of the
State of New York sitting in the Borough of Manhattan, the courts
of the United States of America for the Southern District of New
York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now
or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought
in an inconvenient court and agrees not to plead or claim the
same;
(c) designates, appoints and empowers CT Corporation
Systems, at 0000 Xxxxxxxx, Xxx Xxxx, X.X. 00000 as its authorized
agent to receive for an on its behalf service of any summons,
complaint or other legal process in any such action, suit or
proceeding in the State of New York;
(d) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by law
or shall limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal
action or proceeding referred to in this paragraph any special,
exemplary, punitive or consequential damages.
22. WAIVERS OF JURY TRIAL. THE PLEDGOR AND, BY ITS
ACCEPTANCE HEREOF, THE TRUSTEE HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
IN WITNESS WHEREOF, the Pledgor and the Trustee have caused
this Cash Collateral Agreement to be duly executed and delivered
as of the date first above written.
PANDA GLOBAL ENERGY COMPANY
By:
Title:
Address: Panda Global Energy Company
c/x Xxxxxx and Calder
Xxxxxx House
P.O. Box 309
South Church Street
Xxxxxx Town, Grand Cayman
Cayman Islands, British West Indies
with a copy to: Panda Energy International Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
BANKERS TRUST COMPANY, as
Trustee
By:
Title:
