EXHIBIT 10.114
ACCOUNT AGREEMENT
ACCOUNT AGREEMENT dated as of April 22, 1997, among
Panda Interfunding Corporation, a Delaware corporation ("PIC"),
Panda Energy Corporation, a Texas corporation ("PEC") and Panda
Global Holdings, Inc., a Delaware corporation (the "Company")
(each of PIC, PEC and the Company referred to individually as a
"Party"), (as amended, supplemented and modified from time to
time, this "Agreement").
W I T N E S S E T H:
WHEREAS, Panda Global Energy Company, a Cayman Islands
exempted company (the "Issuer") has issued notes (the "Senior
Secured Notes") pursuant to a Trust Indenture dated as of April
22, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Indenture") between the Issuer and Bankers
Trust Company, as trustee thereunder;
WHEREAS, in order to facilitate the sale of the Senior
Secured Notes the Company has issued a guarantee with respect to
the Senior Secured Notes (the "Guarantee") pursuant to a Trust
Indenture dated as of the date hereof (as amended, supplemented
or otherwise modified from time to time, the "Company
Indenture"), between the Company and Bankers Trust Company as
trustee thereunder (the "Trustee");
WHEREAS, the Company Indenture provides that the Company
may issue other securities (collectively with the Guarantee, the
"Securities") pursuant to the Company Indenture and one or more
Series Supplemental Indentures as described therein;
WHEREAS, PEC is a wholly-owned subsidiary of the
Company and PIC is a wholly-owned subsidiary of PEC, and it is to
the advantage of PEC and PIC that the Company has issued the
Guarantee and that the Company may issue additional Securities
from time to time pursuant to the Company Indenture and one or
more Series Supplemental Indentures;
NOW, THEREFORE, in consideration of the premises and to
induce the Trustee to enter into the Company Indenture and to
facilitate the sale of the Guarantee and any additional
Securities, PEC, PIC and the Company hereby agree as follows:
Section 1. Defined Terms. Unless otherwise defined
herein, terms defined in the Company Indenture and used herein
shall have the meanings given to them in the Company Indenture.
Section 2. PIC Transfer of Funds. PIC agrees that it
shall cause all cash, instruments, securities and funds deposited
from time to time in the U.S. Distribution Fund and any proceeds
thereof to be transferred in same day funds to the PEC Revenue
Fund.
Section 3. Instruction Letter. PIC further agrees
that in order to facilitate the transfer of funds described in
Section 2, PIC shall cause the entity where the account is
maintained (the "Account Manager") to execute an instruction
letter substantially in the form of Exhibit A hereto.
Section 4. PEC Transfer of Funds. PEC agrees that it
shall cause all cash, instruments, securities and funds deposited
from time to time in the PEC Revenue Account and any proceeds
thereof to be transferred in same day funds to the Company
Revenue Fund.
Section 5. Further Assurances. The Company agrees
that it will cause PIC and PEC to take all action necessary to
fulfill the terms of this Agreement.
Section 6. Representations and Warranties. Each Party
represents and warrants to each other (in each case as to itself
only) that:
(1) Such Party is a corporation, duly organized,
validly existing and in good standing, under the laws of its
jurisdiction of organization.
(2) None of the execution and delivery of this
Agreement, the consummation of the transactions herein
contemplated or compliance with the terms and provisions
hereof by such Party will (i) conflict with or result in a
breach of, or require any consent which has not been
obtained under, the charter, by-laws, formation documents or
other organizational instrument of such Party, or any
applicable provision or term of any material law or
regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or any material
agreement or instrument to which such Party is a party or by
which such Party or any of its property is bound or to which
it is subject, (ii) constitute a default under any such
agreement or instrument or (iii) (except for the Liens
created pursuant to the Transaction Documents) result in the
creation or imposition of any Lien upon any property of such
Party pursuant to the terms of any such agreement or
instrument.
(3) Such Party has all necessary corporate power,
authority and legal right to execute, deliver and perform
the obligations of such Party under this Agreement, and the
execution, delivery and performance by such Party of this
Agreement have been duly authorized by all necessary
corporate or other action on the part of such Party
(including, without limitation, any required shareholder
approvals).
(4) This Agreement has been duly and validly executed
and delivered by such Party and constitutes the legal, valid
and binding obligation of such Party, enforceable against
such Party in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance,
fraudulent transfer or similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(5) No authorizations, approvals or consents of, and
no filings or registrations with, any governmental or
regulatory authority or agency, or any securities exchange,
are necessary for the execution, delivery or performance by
such Party of this Agreement or for the legality, validity
or enforceability hereof.
Section 7. Miscellaneous.
(1) No Waiver. No failure on the part of any Party to
exercise, and no course of dealing with respect to, and no delay
in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise by
any Party of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies herein are cumulative and
are not exclusive of any remedies provided by law.
(2) Notices. All notices, requests, demands, waivers
or other communications to or upon the respective parties hereto
shall be in writing, delivered by certified mail, return receipt
requested, postage prepaid, by nationally recognized overnight
courier or by telex, telecopy and (except as otherwise specified
herein to be effective upon receipt) shall be deemed to have been
duly given or made when received, if mailed or delivered by
courier, or when personally delivered or transmitted by telex or
telecopy, addressed to the party to which such notice, request,
demand, waiver or other communication is required or permitted to
be given or made hereunder at the "Address for Notices" specified
below the name of such party on the signature pages hereof; or
such other address of which such party shall have notified in
writing the party giving such notice.
(3) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective heirs,
executors, administrators, successors and assigns of each Party,
provided, however, that no Party shall assign or transfer any of
its rights or obligations hereunder without the prior written
consent of each other Party.
(4) Captions. The captions and section headings
appearing herein are included solely for convenience of reference
and are not intended to affect the interpretation of any
provision of this Agreement.
(5) Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such
counterpart.
(6) Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by, and construed in accordance with,
the law of the State of New York. Each Party hereby submits to
the nonexclusive jurisdiction of the United States District Court
for the Southern District of New York and of the Supreme Court of
the State of New York sitting in New York County (including its
Appellate Division), and of any other appellate court in the
State of New York, for the purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions
contemplated hereby. Each Party irrevocably waives, to the
fullest extent permitted by applicable law, any objection that
such Party may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in
an inconvenient forum.
(7) Waiver of Jury Trial. EACH OF THE PARTIES HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
(8) Severability. If any provision hereof is invalid
and unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (a) the other provisions hereof shall
remain in full force and effect in such jurisdiction and shall be
liberally construed in order to carry out the intentions of the
parties hereto as nearly as may be possible and (b) the
invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed by their officers or partners
thereunto duly authorized as of the day and year first above
written.
PANDA ENERGY CORPORATION
By:
Name:
Title:
PANDA INTERFUNDING CORPORATION
By:
Name:
Title:
PANDA GLOBAL HOLDINGS, INC.
By:
Name:
Title:
Address for Notices, in each case:
c/o Panda Energy International, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
EXHIBIT A
[FORM OF INSTRUCTION LETTER]
[NAME OF ACCOUNT MANAGER]
________________
________________
Ladies and Gentlemen:
As we have discussed, the undersigned, Panda
Interfunding Corporation ("PIC") has entered into an agreement
(the "Account Agreement") dated as of April 22, 1997 among PIC,
Panda Energy Corporation and Panda Global Holdings, Inc.
Pursuant to the Account Agreement, PIC has agreed to
transfer all cash, instruments, securities and funds deposited
from time to time in the [described U.S. Distribution Fund] (the
"U.S. Distribution Fund" and any proceeds thereof to be
transferred in same day funds to Account No. __________
(designated "_______________") with [Name and Address of location
of Account] (ABA No._____________)(the "PEC Revenue Account").
This Account Agreement was necessary in order to
facilitate the sale of securities by an indirect affiliate of PIC
which sale of securities was of indirect benefit to PIC.
Pursuant to the Account Agreement, PIC is required to
(and hereby does) instruct the Account Manager to transfer all
cash, instruments, securities and funds deposited from time to
time in the U.S. Distribution Fund and any proceeds thereof by
wire to the PEC Revenue Account.
The instructions contained in this letter are
irrevocable and cannot be changed without the prior written
consent of Panda Energy Corporation and Panda Global Holdings,
Inc.
Please acknowledge your agreement to make the transfers
referred to above and to comply with reasonable information
requests by signing in the space provided below.
Very truly yours,
PANDA INTERFUNDING CORPORATION
By:
Name:
Title:
Acknowledged and agreed as of
the date first above written:
[NAME OF ACCOUNT MANAGER]
By: ________________________
Title: _____________________
Address: ___________________
___________________
Facsimile: _________________
