LIMITED PARTNER PLEDGE AND SECURITY AGREEMENT
This LIMITED PARTNER PLEDGE AND SECURITY
AGREEMENT, dated July 31, 1996 (this "Agreement"), is made
by PRC II CORPORATION, a Delaware corporation (together with
its successors and assigns, the "Pledgor") and the sole
limited partner of Panda-Rosemary, L.P., a Delaware limited
partnership (together with its successors and assigns, the
"Partnership"), to FLEET NATIONAL BANK, a national banking
association established under the laws of the United States
of America, as collateral agent pursuant to Intercreditor
Agreement (as defined below) (together with its successors
and assigns, the "Collateral Agent") and grantee hereunder
for the benefit of the Secured Parties (as defined in the
Trust Indenture referred to below).
W I T N E S S E T H:
WHEREAS, the Partnership is the legal and
beneficial owner of all of the shares of common stock issued
by Panda-Xxxxxxxx Funding Corporation, a Delaware
corporation (the "Company");
WHEREAS, the Company, the Partnership and Fleet
National Bank, as trustee (the "Trustee"), are parties to
that certain Trust Indenture, dated as of July 31, 1996 (as
the same may be amended, modified or supplemented, the
"Trust Indenture"), providing for the issuance by the
Company of certain debt securities (the "Bonds");
WHEREAS, the Partnership has made that certain
Partnership Guaranty, dated the date hereof (as the same may
be amended, modified or supplemented, the "Partnership
Guaranty"), in favor of the Trustee to guarantee the
performance by the Company of its obligations under the
Bonds and the Trust Indenture;
WHEREAS, the Company and the Partnership are
parties to that certain Loan Agreement, dated as of the date
hereof (as the same may be amended, modified or
supplemented, the "Company Loan Agreement"), pursuant to
which the Company has loaned the proceeds of the Bonds to
the Partnership;
WHEREAS, the Company and the Collateral Agent are
parties to that certain Security Agreement, dated the date
hereof, pursuant to which the Company has assigned to the
Collateral Agent, and created a security interest in, all of
its right, title and interest in, to and under the Company
Loan Agreement and the related promissory note;
WHEREAS, in order to satisfy certain requirements
of the Partnership under the Project Agreements (as defined
in the Trust Indenture) or for other purposes, the
Partnership may incur indebtedness as permitted under the
Trust Indenture in connection with the issuance of letters
of credit by Bayerische Vereinsbank AG or other Credit Banks
(as defined in the Trust Indenture) pursuant to a Credit
Bank Reimbursement Agreement (as defined in the Trust
Indenture);
WHEREAS, the Partnership may incur indebtedness as
permitted under the Trust Indenture in the form of working
capital loans made by the Credit Banks under a Credit Bank
Working Capital Agreement (as defined in the Trust
Indenture);
WHEREAS, the Partnership may also incur additional
debt, as permitted under the Trust Indenture, either
directly or indirectly through the Company, to finance
certain modifications and enhancements to the Project in the
future ("Additional Permitted Debt", as that term is defined
in the Trust Indenture) and may enter into interest rate
protection agreements in connection with the Additional
Permitted Debt of the Partnership;
WHEREAS, the Pledgor will receive direct and
indirect financial and other benefits from the issuance of
the Bonds by the Company pursuant to the Trust Indenture and
the incurrence of any indebtedness pursuant to any Credit
Bank Reimbursement Agreement, any Credit Bank Working
Capital Agreement and the documents relating to any
Additional Permitted Debt or interest rate protection
transactions; and
WHEREAS, the Funding Company, the Partnership,
Bayerische Vereinsbank AG, the Trustee, Fleet National Bank,
as depositary agent, and the Collateral Agent are parties to
that certain Collateral Agency and Intercreditor Agreement,
dated as of the date hereof (the "Intercreditor Agreement"),
providing for the Collateral Agent to act as collateral
agent for the Secured Parties (as defined in the Trust
Indenture); and
WHEREAS, the Collateral Agent and the Secured
Parties are willing to enter into the transactions
contemplated by, among other things, the Trust Indenture and
the Credit Bank Documents (as defined in the Trust
Indenture) only upon the condition, among others, that the
Pledgor executes and delivers this Agreement, in favor of
the Collateral Agent for the benefit of the Secured Parties,
which grants to the Collateral Agent for the benefit of the
Secured Parties a security interest in the Collateral
referred to below, to secure the Obligations (as hereinafter
defined).
NOW, THEREFORE, in consideration of the foregoing
premises and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Unless otherwise
defined herein, terms defined in the Intercreditor Agreement
(including terms defined in the Trust Indenture and
incorporation in the Intercreditor Agreement) shall have
such defined meanings when used herein.
"Additional Pledged Interests" shall mean (i) all
interests of certificates representing a distribution in
connection with any reclassification, increase or reduction
of capital of the Partnership or issued in connection with
any reorganization of the Partnership, whether as an
addition to, in substitution or redemption of or in exchange
for, any other Collateral or otherwise, (ii) any sums paid
upon or in respect of the Collateral as distributions upon
the liquidation or dissolution of the Partnership and
(iii) any distribution of capital made on or in respect of
the Collateral or any property distributed upon or with
respect to the Collateral pursuant to the recapitalization
or reclassification of the capital of the Partnership or
pursuant to the reorganization thereof.
"Collateral" shall have the meaning ascribed
thereto in Section 2.
"Default Notice" shall have the meaning ascribed
thereto in Section 6(c).
"Indemnitee" shall have the meaning ascribed
thereto in Section 21.
"Obligations" means (i) all obligations of the
Pledgor under this Agreement or the Collateral Documents,
(ii) all obligations of the Partnership or the Company to
the Collateral Agent, the Depositary Agent or the Secured
Parties now or hereafter existing under the Bonds, the Trust
Indenture, each Partneship Guarantee the Partnership Notes,
any Additional Permitted Debt, any Credit Bank Working
Capital Agreement, any Credit Bank Reimbursement Agreement,
any Interest Rate Protection Agreement, this Agreement or
the Collateral Documents, whether for principal, interest
(including, without limitation, interest accruing following
the filing by or against the Partnership or the Company of a
bankruptcy petition, whether or not allowed as a claim in a
bankruptcy proceeding), fees, indemnification, expenses or
otherwise, and (iii) all other liabilities, obligations,
covenants and duties owing to the Collateral Agent, the
Depositary Agent or the Secured Parties, from or by the
Pledgor, the Partnership or the Company of any kind or
nature, present or future, whether or not evidenced by any
note, guaranty or other instrument, arising under or in the
connection with the Trust Indenture, each Partnership
Guarantee, the Partnership Notes, any Additional Permitted
Debt, any Credit Bank Working Capital Agreement, any Credit
Bank Reimbursement Agreement, any Interest Rate Protection
Agreement, this Agreement or the Collateral Documents,
whether or not for the payment of money, whether direct or
indirect (including those acquired by assignment), joint or
several, absolute or contingent, liquidated or unliquidated,
due or to become due, now existing or hereafter arising,
renewed or restructured, whether or not from time to time
decreased or extinguished and later increased, created or
incurred, and including, without limitation, all
indebtedness of the Pledgor, the Partnership or the Company
under any instrument now or hereafter evidencing or securing
any of the foregoing and however acquired.
"Prime Rate" means, as of any day, the interest
rate per annum established by the Collateral Agent from time
to time as its "Prime Rate".
SECTION 2. Pledge. As security for the
Obligations and subject to and in accordance with the
provisions of this Agreement, including without limitation
Section 6 hereof, the Pledgor hereby pledges, grants,
assigns, hypothecates, transfers and delivers to the
Collateral Agent, for its benefit and the benefit of the
Secured Parties, a first priority security interest in the
following whether now owned or existing or hereafter
acquired or arising and wherever located (the "Collateral"):
(a) all of the Pledgor's limited partnership
interests in the Partnership and all of the Pledgor's
rights, privileges, authority and powers as a limited
partner of the Partnership under the Partnership Agreement,
but excluding all rights of the Pledgor to
(i) indemnification from (x) the Partnership for any claims,
liabilities, damages, losses, costs or other amounts
incurred in connection with the performance of its
responsibilities as a limited partner of the Partnership or
otherwise or (y) any Partner pursuant to the provisions of
the Partnership Agreement in respect of any claim
thereunder, or (ii) any liability insurance maintained by
the Pledgor or any Person for the benefit of the Pledgor;
provided, that the foregoing exclusion shall not exclude the
Collateral Agent (or a Person designated by the Collateral
Agent to exercise the remedies provided herein) from the
benefits of such indemnification and liability insurance
upon the exercise of any the remedies provided herein;
(b) subject to Section 6(b), all monies and
property representing a distribution in respect of the
property described in the preceding clause (a), including,
without limitation, (i) all income, cash flow, revenues,
issues, profits, losses, distributions, payments, proceeds
and other property of every kind and variety due, accruing
or owing to, or to be turned over to, or disbursed to the
Pledgor by the Partnership in connection with, the Pledgor's
limited partnership interests therein, and (ii) all
Additional Pledged Interests;
(c) all of the Pledgor's right, title and
interest to the Governmental Approvals; provided, that any
Governmental Approval which by its terms or by operation of
law would become void, voidable, terminable or revocable if
mortgaged, pledged or assigned hereunder or if a security
interest therein were granted hereunder is expressly
excepted and excluded from the Lien and the terms of this
Agreement to the extent necessary so as to avoid such
voidness, voidability, terminability or revocability;
(d) the Pledgor's interest under any agreement,
now or hereafter in effect, with any other Partner in the
Partnership providing for the right of the Pledgor to
acquire or exercise the partnership interest in the
Partnership now or hereafter owned or held by any such other
Partner in the Partnership;
(e) any other claim which the Pledgor now has or
may in the future acquire in the Pledgor's capacity as a
limited partner of the Partnership against the Partnership
and its property; and
(f) all proceeds, products and accessions of and
to any of the property described in the preceding clauses
(a), (b), (c), (d) and (e).
SECTION 3. Security for Obligations.
(a) This Agreement secures, and the Collateral is
collateral security for, the payment and performance in full
when due, whether at stated maturity, by acceleration or
otherwise (including the payment of amounts which would
become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. E362(a)),
of all Obligations now or hereafter existing.
(b) This Agreement and the grant of the security
interest contained herein is for collateral purposes only
and neither the Collateral Agent nor any Secured Party
shall, by virtue of this Agreement, their receipt of
distributions from the Partnership or their exercise of any
right hereunder, be deemed to (i) have acquired any interest
in or responsibility for the Pledgor's obligations contained
in the Partnership Agreement, (ii) be liable for any
contribution to the Partnership under the Partnership
Agreement or the applicable limited partnership act or
(iii) have any other liability for the debts, obligations or
liabilities of the Partnership or the Pledgor, except in the
event of foreclosure upon the Collateral (and only to the
extent of such foreclosure on the particular Collateral).
SECTION 4. Representations and Warranties. On
and as of the date hereof, the Pledgor represents and
warrants to the Collateral Agent and the Secured Parties as
follows:
(a) The Pledgor is the owner of, and has good and
marketable title to, the limited partnership interest and
the other Collateral pledged pursuant to this Agreement,
free and clear of any Lien except for the pledge and
security interest granted to the Collateral Agent for the
benefit of the Secured Parties hereunder and Liens for Taxes
not yet due or which are subject to a Good Faith Contest.
Such general partnerhship interest is not evidenced by a
certificate. No financing statement covering the
Collateral is on file in any public office other than
terminated financing statements and the financing statements
filed pursuant to this Agreement or in connection with the
transactions contemplated by the Trust Indenture. The
Collateral is not subject to any law (except as may be
required in connection with any disposition of the
Collateral by laws affecting the offering and sale of
securities generally) or contractual obligation that would
be violated by or that would prohibit the grant of the
security interest in the Collateral granted pursuant hereto
or the disposition of the Collateral by or to the Collateral
Agent upon the occurrence and continuance of an Event of
Default or a Trigger Event.
(b) The Pledgor is a corporation duly organized
and validly existing under the laws of the State of Delaware
and is qualified to own property and transact business in
the State of Texas and in every other jurisdiction where the
ownership of its property and the nature of its business as
currently conducted and as contemplated to be conducted
under each Project Document to which the Pledgor or the
Partnership is a party requires it to be qualified.
(c) The Pledgor has full power, authority and
legal right to enter into this Agreement and each other
Project Document to which it is a party and to perform its
obligations hereunder and thereunder and to pledge all of
the Collateral pursuant to this Agreement. The pledge of
the Collateral pursuant to this Agreement has been duly
authorized by the Pledgor. This Agreement and each other
Project Document to which the Pledgor is a party have been
duly authorized, executed and delivered by the Pledgor and
constitute legal, valid and binding obligations of the
Pledgor enforceable against the Pledgor in accordance with
their terms except as enforceability may be limited by
applicable bankruptcy, insolvency, moratorium or other
similar laws affecting creditors' rights generally and
except as enforceability may be limited by general
principles of equity (whether considered in a suit at law or
in equity).
(d) No consent of any other party (including,
without limitation, stockholders or creditors of the
Pledgor) and no Governmental Approval is required which has
not been obtained (i) for the execution, delivery and
performance by the Pledgor of this Agreement and each other
Project Document to which the Pledgor is a party, (ii) for
the pledge by the Pledgor of the Collateral pursuant to this
Agreement or (iii) for the exercise by the Collateral Agent
of the rights provided for in this Agreement or the remedies
in respect of the Collateral pursuant to this Agreement
(except as may be required (x) in connection with any
disposition of all or any part of the Collateral under any
laws affecting the offering and sale of securities
generally, (y) under federal and state laws, rules and
regulations and applicable interpretations thereof providing
for the supervision or regulation of the banking or trust
businesses generally and applicable to the Collateral Agent
or any Secured Party and (z) with respect to the Collateral
Agent or any Secured Party as a result of any relationship
which such Person may have with Persons not parties to, or
any activity or business such Person may conduct other than
pursuant to, any of the Financing Documents).
(e) The execution and delivery of this Agreement
concurrently with the filing of Form UCC-1 financing
statements with the Secretary of State of the State of
Texas, the Secretary of State of the State of Delaware, the
Secretary of State of the State of North Carolina, the
appropriate officer of Halifax County, North Carolina, and
the appropriate officer of Northampton County, North
Carolina create a valid and perfected first priority
security interest in the Collateral securing the payment of
the Obligations subject to no Liens other than those created
by this Agreement.
(f) The execution, delivery and performance of
this Agreement and each other Project Document to which the
Pledgor is a party will not (i) require any consent or
approval of the Board of Directors or stockholders of the
Pledgor which has not been obtained; (ii) violate the
provisions of the Pledgor's Certificate of Incorporation or
By-Laws; (iii) violate the provisions of any law (including,
without limitation, any usury law), regulation or order of
any Governmental Authority applicable to the Pledgor or the
Partnership; (iv) conflict with, result in a breach of or
constitute a default under the Partnership Agreement or any
other material agreement relating to the management or
affairs of the Pledgor or the Partnership, or any indenture
or loan or credit agreement or any other material agreement,
lease or instrument to which the Pledgor or the Partnership
is a party or by which the Pledgor or the Partnership or any
of their material properties may be bound (which default or
breach has not been permanently waived by the other party to
such document); or (v) result in or create any Lien (other
than Permitted Liens) under, or require any consent which
has not been obtained under, any indenture or loan or credit
agreement or any other material agreement, instrument or
document, or the provisions of any order, writ, judgment,
injunction, decree, determination or award of any
Governmental Authority binding upon the Pledgor or the
Partnership or any of their properties.
(g) There is no action, suit or proceeding at law
or in equity or by or before any Governmental Authority,
arbitral tribunal or other body now pending or, to the best
knowledge of the Pledgor, threatened against the Pledgor or
the Partnership which questions the validity or legality of
or seeks damages in connection with this Agreement or any
other Project Document to which the Pledgor or the
Partnership is a party or which could reasonably be expected
to have a material adverse effect on the Pledgor or the
Partnership, other than those actions, suits or proceedings
which have been previously disclosed in the Offering
Circular, dated July 26, 1996, relating to the Bonds.
(h) Each of the financial statements of the
Pledgor for its most recently ended fiscal year and quarter
heretofore furnished to the Collateral Agent 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.
(i) The chief executive office of the Pledgor is
located at 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000.
(j) All contributions currently required to be
paid to the Partnership by the Pledgor have been paid.
(k) The copy of the Partnership Agreement
delivered to the Collateral Agent on the date hereof is a
true, complete and correct copy of the Partnership
Agreement. After giving effect to the redemption on the
date hereof by the Partnership of the limited partnership
interest in the Partnership of Ford Motor Credit Company,
the Pledgor is the sole limited partner of the Partnership.
(l) The Pledgor has not changed its name or done
business under any other name within the last five years,
except that the Pledgor is registered to do business in the
State of Texas under thename "Xxxxxxxx XX Corporation."
(m) The Pledgor is not (i) an "investment
company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of
1940, as amended, or (ii) a "holding company" or a
"subsidiary company" of a "holding company" or an
"affiliate" of a "holding company" or a "subsidiary company"
within the meaning of PUHCA or (iii) a "registered holding
company" or a "subsidiary company" of a "registered holding
company" or an "affiliate" of a "registered holding company"
or a "subsidiary company" of a "registered holding company"
within the meaning of PUHCA.
(n) The Pledgor has derived and will continue to
derive direct and indirect benefits from the incurrence of
its obligations under this Agreement and from the incurrence
by the Partnership of its obligations under the Partnership
Guaranty, the Trust Indenture, the Company Loan Agreement
and the other Financing Documents.
SECTION 5. Supplements; Further Assurances.
(a) The Pledgor agrees that, at any time and from
time to time, the Pledgor will at its expense promptly
execute and deliver all further instruments and documents,
and take all further action, that may be necessary or
desirable, or that the Collateral Agent may reasonably
request, in order to perfect and protect any security
interest granted or purported to be granted hereby or to
enable the Collateral Agent to exercise and enforce its
rights and remedies hereunder with respect to any
Collateral.
(b) All Additional Pledged Interests shall be
pledged and, to the extent such Additional Pledged Interests
constitute certificates, instruments or monies, delivered to
the Collateral Agent to be held by it as additional
collateral security for the prompt and complete payment and
performance when due of the Obligations. All Additional
Pledged Interests which are received by the Pledgor shall,
until pledged, paid or delivered to the Collateral Agent, be
held by the Pledgor in trust for the benefit of the
Collateral Agent and shall be segregated from the other
funds and property of the Pledgor and the Pledgor agrees to
pledge and deliver the same forthwith to the Collateral
Agent in the exact form received (if applicable), with the
endorsement of the Pledgor when necessary and/or appropriate
undated stock powers duly executed in blank, to be held by
the Collateral Agent subject to the terms hereof.
SECTION 6. Rights of Pledgor; Etc.
(a) Generally. The Pledgor shall be entitled to
exercise any and all rights pertaining to the Collateral or
any part thereof (including, without limitation, the right
to receive distributions in respect of its partnership
interests) so long as (i) no Event of Default or Trigger
Event shall have occurred and be continuing and no Default
Notice (as defined in Section 6(c) below) shall have been
delivered to it and (ii) the exercise of such rights would
not otherwise result in an Event of Default or Trigger
Event.
(b) Distributions. Unless an Event of Default or
Trigger Event shall have occurred and be continuing, the
Pledgor shall be entitled to receive and retain any and all
distributions paid in respect of the Collateral in
compliance with the terms of the Intercreditor Agreement;
provided, that any and all
(i) distributions paid or payable in respect
of any Collateral (whether paid in cash, securities or
other property) in connection with a partial or total
liquidation or dissolution of the Partnership (other
than in connection with any deemed liquidation on
account of a termination of the Partnership under
Section 708(b)(1)(B) of the Code), and
(ii) distributions of all property (whether
cash, securities or other property) paid, payable or
otherwise distributed in redemption of, or in exchange
for, the property described in Section 2(a) above,
shall be, and shall be forthwith delivered to the Collateral
Agent to hold as, Collateral and shall, if received by the
Pledgor, be received in trust for the benefit of the
Collateral Agent, be segregated from the other property or
funds of the Pledgor and be forthwith delivered to the
Collateral Agent as Collateral in the same form as so
received (with any necessary endorsement). Upon the
occurrence and during the continuance of an Event of Default
or Trigger Event, all rights of the Pledgor to receive the
distributions which it would otherwise be authorized to
receive and retain pursuant to the preceding sentence shall
cease and all such rights shall thereupon become vested in
the Collateral Agent which shall thereupon have the sole
right to receive and hold as Collateral such distributions;
provided, that if and when an Event of Default or a Trigger
Event is cured in accordance with the applicable provisions
of the Financing Documents, all rights of the Pledgor shall
be restored and the Collateral Agent shall promptly turn
over to the Pledgor all distributions so received during the
period of the continuance of the applicable Event of Default
or Trigger Event (less the amount thereof applied by the
Collateral Agent in accordance with Section 12(c) below).
(c) Other Rights. Upon the occurrence and during
the continuance of an Event of Default or a Trigger Event,
after the Collateral Agent delivers a notice to the Pledgor
indicating its determination to exercise the Pledgor's
rights with respect to the Pledgor's limited partnership
interest in the Partnership (the "Default Notice"), all
rights of the Pledgor as a limited partner of the
Partnership which it would otherwise be entitled to exercise
pursuant to Section 6(a) above shall cease and all such
rights shall thereupon become vested in the Collateral Agent
(subject to the provisions of the Partnership Agreement and
applicable law); provided, that if after the delivery of the
Default Notice the Event of Default or Trigger Event giving
rise thereto is cured in accordance with the applicable
provisions of the Financing Documents, all rights of the
Pledgor shall be restored.
SECTION 7. Covenants.
(a) Without the prior written consent of the
Collateral Agent, or as otherwise permitted under the
Intercreditor Agreement, the Pledgor shall not (i) vote to
enable, or take any other action to permit, the Partnership
(x) to issue any additional limited partnership interests of
any nature, (y) to issue any other securities convertible
into or exchangeable for any limited partnership interests
of the Partnership or (z) to issue any other securities that
grant the right to purchase any partnership interests of the
Partnership, (ii) sell, assign, transfer, exchange or
otherwise dispose of, or grant any option with respect to,
the Collateral or (iii) create, incur or permit to exist any
Liens or options in favor of, or any claims of any Person
with respect to, any of the Collateral or any interest
therein, except for Permitted Liens and the Liens provided
for by this Agreement; provided, that, subject to Section
7(i) hereof, the issuance, transfer, conversion or sale of
any of the Collateral may occur notwithstanding the
foregoing if such issuance, transfer, conversion or sale
would not result in an Event of Default or Trigger Event
(such issuance, transfer, conversion or sale being herein
referred to as a "Permitted Transfer") and (x) the purchaser
or transferee of such Collateral (including, without
limitation, any Partner of the Partnership to whom the
partnership interests of the Pledgor are transferred
following the withdrawal of the Pledgor as a Partner of the
Partnership) shall pledge such Collateral pursuant to a
pledge agreement substantially similar hereto and take such
additional actions as the Collateral Agent may reasonably
request in connection therewith (including, without
limitation, executing and delivering such agreements,
certificates, legal opinions, instruments or other documents
as may be reasonably requested by the Collateral Agent),
(y) no Default or Event of Default or Trigger Event would
result therefrom and (z) none of the representations and
warranties set forth in the Trust Indenture shall be untrue
or incorrect in any material respect solely as a result of
the occurrence of a Permitted Transfer.
(b) The Pledgor agrees that it will pledge
hereunder, immediately upon its acquisition (directly or
indirectly) thereof, any and all additional limited
partnership interests issued to it by the Partnership.
(c) The Pledgor shall preserve and maintain its
legal existence as a corporation in good standing under the
laws of the State of Delaware and (ii) its qualification to
do business in the State of Texas and in every other
jurisdiction where the ownership of its property and the
nature of its business require it to be so qualified.
(d) The Pledgor shall obtain, maintain and comply
with all Governmental Approvals as shall now or hereafter be
necessary under applicable law, rule or regulation, in each
case in connection with the making and performance by the
Pledgor of any material provision of the Project Documents
to which it is a party. The Pledgor shall comply in all
material respects with all applicable laws with respect to
which noncompliance could reasonably be expected to have a
material adverse affect on the Collateral or the Pledgor's
ability to perform its obligations under any Project
Document.
(e) The Pledgor shall pay and discharge all
taxes, assessments and governmental charges or levies
imposed on it or on its income or profits or on any of its
property prior to the date on which penalties attach thereto
and all lawful claims which, if unpaid, could reasonably be
expected to become a Lien (other than Permitted Liens) upon
the Collateral. The Pledgor shall have the right, however,
to contest in good faith the validity or amount of any such
tax, assessment, charge, levy or claim by proper proceedings
timely instituted, and may permit the taxes, assessments,
charges, levies or claim so contested to remain unpaid
during the period of such contest if (i) the Pledgor
diligently prosecutes such contest, (ii) the Pledgor sets
aside on its books adequate reserves in accordance with GAAP
plus an amount equal to 50% of the difference between the
amount being contested and the amount required to be
reserved by GAAP and (iii) during the period of such contest
the enforcement of any contested item is effectively stayed.
The Pledgor will promptly pay or cause to be paid any valid,
final judgment enforcing any such tax, assessment, charge,
levy or claim and cause the same to be satisfied of record.
(f) The Pledgor shall furnish to the Collateral
Agent the following documents:
(i) unaudited financial statements of the
Pledgor within one hundred twenty (120) days of the
close of each fiscal year of the Pledgor; and
(ii) from time to time, such further
information (whether or not of the kind mentioned
above) regarding the business, affairs, operations and
financial condition of the Pledgor as the Collateral
Agent may reasonably request.
(g) The Pledgor shall keep proper books of record
and account in which full, true and correct entries in
accordance with GAAP are made and permit representatives of
the Collateral Agent, upon the giving of reasonable notice,
to visit and inspect its properties, to examine its books of
record and account and to discuss its affairs, finances and
accounts with its principal officers, engineers and
independent accountants, all at such reasonable times during
business hours and at such intervals as the Collateral Agent
may desire.
(h) The Pledgor shall perform and observe all of
its covenants and agreements contained in any of the Project
Documents to which it is a party.
(i) The Pledgor shall remain a limited partner of
the Partnership and shall not withdraw from the Partnership.
(j) The Pledgor shall not (i) merge or
consolidate with or into any other Person, (ii) sell, lease,
transfer or otherwise dispose of all or substantially all of
its assets, (iii) create, acquire or operate any Subsidiary
(other than the Partnership and the Company), (iv) be a
partner in any partnership or a participant in any cost
sharing arrangement or joint venture except for the
Partnership, (v) directly or indirectly purchase or acquire
any stock, obligations or securities of, or any other
interests in any Person other than the Partnership and
Permitted Investments, (vi) create or become or be liable
with respect to any Guaranty or (vii) lend money or credit
or make advances or any capital contribution to any Person
other than contributions to the Partnership.
(k) The Pledgor shall not create, incur, assume
or suffer to exist any Debt other than up to Two Hundred
Fifty Thousand Dollars ($250,000) aggregate principal amount
of Debt outstanding at any time.
(l) The Pledgor shall not engage in any business
other than holding a limited partnership interest in the
Partnership.
(m) The Pledgor shall not, without the prior
written consent of the Trustee, agree to or permit (i) the
cancellation or termination of the Partnership Agreement,
except upon the expiration of the stated term thereof, or
(ii) any amendment, supplement, modification or waiver with
respect to any of the provisions of the Partnership
Agreement if such amendment, supplement, modification or
waiver would have a material adverse effect on the value of
the Collateral, on the rights of the Collateral Agent or
Secured Parties or on the financial condition of the
Partnership.
(n) The Pledgor shall not enter into or carry out
any transaction with any Affiliate on a basis less favorable
than the Pledgor would obtain in a comparable arm's-length
transaction unless such transaction has been approved by the
Collateral Agent in writing, except that the Pledgor may
carry out transactions with the Partnership on terms less
favorable to the Pledgor than arm's-length terms.
(o) The Pledgor shall not establish a new
location for its chief executive office or change its name
until (i) it has given to the Collateral Agent no less than
sixty (60) days' prior written notice of its intention so to
do, clearly describing such new location or specifying such
new name, as the case may be, and (ii) with respect to such
new location or such new name, as the case may be, it shall
have taken all action, satisfactory to the Collateral Agent,
to maintain the security interest of the Collateral Agent in
the Collateral intended to be granted hereby at all times
fully perfected and in full force and effect.
(p) The Pledgor shall pay or cause to be paid,
and shall hold the Collateral Agent and the Secured Parties
harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp,
excise, sales or other taxes which may be payable or
determined to be payable with respect to any of the
Collateral.
(q) Except as permitted under Section 7(a)
hereof, the Pledgor shall cause the Partnership not to issue
any partnership interests or other securities in addition to
or in substitution for the Collateral or any warrants,
options or other rights to acquire its partnership interests
or other Collateral to any Person other than the Pledgor.
SECTION 8. Collateral Agent Appointed Attorney-In-
Fact.
(a) Upon the occurrence and during the
continuance of an Event of Default or a Trigger Event,
subject to the Pledgor's rights under Section 6 hereof, the
Pledgor hereby appoints the Collateral Agent as the
Pledgor's attorney-in-fact, with full authority in the place
and stead of the Pledgor and in the name of the Pledgor or
otherwise (i) to exercise all voting, consent, managerial
and other rights related to the Collateral, (ii) to execute
and deliver, at any time and from time to time, any
instrument or instruments providing for the approval of the
identity and admission to the Partnership of any person or
entity who becomes a substituted or additional partner in
the Partnership pursuant to the exercise by the Collateral
Agent of its rights and remedies hereunder, under the Trust
Indenture or any of the other Project Documents and (iii)
from time to time in the Collateral Agent's discretion, to
take any action and to execute any instrument which the
Collateral Agent may deem necessary or advisable to enforce
its rights under this Agreement, including, without
limitation, authority to receive, endorse and collect all
instruments made payable to the Pledgor representing any
distribution, interest payment or other payment in respect
of the Collateral or any part thereof and to give full
discharge for the same. The Pledgor hereby ratifies all
that such attorney shall lawfully do or cause to be done by
virtue hereof. This power of attorney is coupled with an
interest and shall be irrevocable for the term of this
Agreement. Nevertheless, the Pledgor shall, if so requested
by the Collateral Agent, ratify and confirm all that the
Collateral Agent shall lawfully do or cause to be done by
virtue hereof as the Pledgor's attorney-in-fact by executing
and delivering to the Collateral Agent, or to such other
Person as the Collateral Agent shall direct, all documents
and instruments as may be necessary or, in the judgment of
the Collateral Agent, advisable for such purpose.
(b) The Pledgor further authorizes the Collateral
Agent, at any time and from time to time, (i) to execute, in
connection with any sale provided for hereunder, any
endorsements, assignments or other instruments of conveyance
or transfer with respect to the Collateral and (ii) to the
full extent permitted by applicable law, to file one or more
financing or continuation statements, and amendments
thereto, relative to all or any part of the Collateral
without the signature of the Pledgor.
SECTION 9. Collateral Agent May Perform. If the
Pledgor fails to perform any agreement contained herein
after receipt of a written request to do so from the
Collateral Agent, the Collateral Agent may itself perform,
or cause performance of, such agreement, and the reasonable
expenses of the Collateral Agent, including the reasonable
fees and expenses of its counsel, incurred in connection
therewith shall be payable by the Pledgor pursuant to
Section 14 hereof.
SECTION 10. Reasonable Care. The Collateral
Agent shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment
substantially equivalent to that which the Collateral Agent
accords its own property of the type of which the Collateral
consists, it being understood that subject to the exercise
of such reasonable care the Collateral Agent shall have no
responsibility for (i) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Collateral, whether
or not the Collateral Agent has or is deemed to have
knowledge of such matters or (ii) taking any necessary steps
to preserve rights against any parties with respect to any
Collateral.
SECTION 11. No Liability.
(a) Until such time as the Collateral Agent shall
deliver a Default Notice pursuant to Section 6(c) above,
none of the Collateral Agent or the Secured Parties or any
of their directors, officers, employees or agents shall be
deemed to have assumed any of the liabilities or obligations
of a partner of the Partnership as a result of the pledge
and security interest granted under or pursuant to this
Agreement. None of the Collateral Agent or the Secured
Parties or any of their directors, officers, employees or
agents shall be liable for any failure to collect or realize
upon the Obligations or any collateral security or guarantee
therefor, or any part thereof, or for any delay in so doing,
nor shall any of them be under any obligation to take any
action whatsoever with regard thereto.
(b) Anything herein to the contrary
notwithstanding, the Pledgor shall remain liable under the
Partnership Agreement and any other Project Document to
which it is a party to the extent set forth therein to
perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed. The
exercise by the Collateral Agent of any of the rights or
remedies hereunder shall not release the Pledgor from any of
its duties or obligations under the Partnership Agreement or
any other Project Document to which it is a party.
SECTION 12. Remedies Upon Default. If an Event
of Default or a Trigger Event shall have occurred and be
continuing:
(a) The Collateral Agent may (i) as provided in
and in accordance with the terms of the Partnership
Agreement and applicable law, become a substitute or
additional limited partner in the Partnership or designate
another Person to become such substitute or additional
limited partner, (ii) exercise the Pledgor's rights as a
limited partner of the Partnership as provided in Section
6(c), (iii) exercise the power of attorney described in
SectionE8, (iv) grant an option or options to purchase all
or any part of the Collateral and/or (v) exercise any other
right or remedy available hereunder, at law or in equity.
(b) (i) The Collateral Agent may exercise
in respect of the Collateral, in addition to all
other rights and remedies provided for herein or
otherwise available to it, all of the rights and
remedies of a secured party on default under the
Uniform Commercial Code then in effect in the
State of New York, or unless prohibited by
applicable law, the Uniform Commercial Code then
in effect in any other applicable jurisdiction,
and the Collateral Agent may also in its sole
discretion, without advertisement or notice except
as specified below, sell the Collateral or any
part thereof in one or more parcels at public or
private sale or at any of the Collateral Agent's
offices or elsewhere, for cash, on credit or for
future delivery, and at such price or prices and
upon such other terms as the Collateral Agent may
reasonably deem commercially reasonable,
irrespective of the impact of any such sales on
the market price of the Collateral at any such
sale. The Collateral Agent may, in its sole
discretion, at any such sale, restrict the
prospective bidders or purchasers as to their
number, nature of business and investment
intention. Upon any such sale the Collateral
Agent shall have the right to deliver, assign and
transfer to the purchaser thereof (including the
Collateral Agent or any Secured Party) the
Collateral. Each purchaser at any such sale shall
hold the property sold free from any claim or
right on the part of the Pledgor and the Pledgor
hereby waives (to the extent permitted by law) all
rights of redemption, stay and/or appraisal which
it now has or may at any time in the future have
under any rule of law or statute now existing or
hereafter enacted. The Pledgor agrees that, to
the extent notice of sale shall be required by
law, at least ten (10) days' notice to the Pledgor
of the time and place of any public sale or the
time after which any private sale is to be made
shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make
any sale of Collateral regardless of notice of
sale having been given. The Collateral Agent may
adjourn any public or private sale from time to
time by announcement at the time and place fixed
therefor, and such sale may, without further
notice, be made at the time and place to which it
was so adjourned. At any such sale, the
Collateral may be sold in one lot, as an entirety
or in separate units. Assuming that such sales
are made in compliance with federal and state
securities laws, the Collateral Agent shall incur
no liability as a result of the sale of the
Collateral, or any part thereof, at any public or
private sale. The Pledgor hereby waives any
claims against the Collateral Agent arising by
reason of the fact that the price at which any
Collateral may have been sold at such a private
sale, if commercially reasonable, was less than
the price which might have been obtained at a
public sale, even if the Collateral Agent accepts
the first offer received and does not offer such
Collateral to more than one offeree.
(ii) The Pledgor recognizes that the
Collateral Agent may elect in its sole discretion
to sell all or a part of the Collateral to one or
more purchasers in privately negotiated
transactions in which the purchasers will be
obligated to agree, among other things, to acquire
the Collateral for their own account, for
investment and not with a view to the distribution
or resale thereof. The Pledgor acknowledges that
any such private sales may be at prices and on
terms less favorable than those obtainable through
a public sale (including, without limitation, a
public offering made pursuant to a registration
statement under the Securities Act of 1933, as
amended (the "Securities Act")) and the Pledgor
and the Collateral Agent agree that such private
sales shall be made in a commercially reasonable
manner and that the Collateral Agent has no
obligation to engage in public sales and no
obligation to delay sale of any Collateral to
permit the issuer thereof to register the
Collateral for a form of public sale requiring
registration under the Securities Act.
(iii) In case of any sale of all or any
part of the Collateral on credit or for future
delivery, the Collateral so sold may be retained
by the Collateral Agent until the full selling
price is paid by the purchaser thereof, but the
Collateral Agent shall not incur any liability in
case of the failure of such purchaser to take up
and pay for the Collateral so sold and, in case of
any such failure, such Collateral may again be
sold pursuant to the provisions hereof.
(iv) The receipt by the Collateral Agent
of the purchase money paid at any such sale made
by it shall be a sufficient discharge of all
obligations of the purchaser thereof. No
purchaser (or the representatives or assigns of
any purchaser), after paying such purchase money
and receiving such receipt, shall be bound to see
to the application of such purchase money or any
part thereof or in any manner whatsoever be
answerable for any loss, misapplication or
nonapplication of any such purchase money, or any
part thereof, or be bound to inquire as to the
authorization, necessity, expediency or regularity
of any such sale.
(v) Instead of exercising the power of
sale provided in Section 12b(i) hereof, the
Collateral Agent may proceed by a suit or suits at
law or in equity to foreclose the security
interest under this Agreement and sell the
Collateral or any portion thereof under a judgment
or decree of a court or courts of competent
jurisdiction.
(vi) No sale or other disposition of all
or any part of the Collateral by the Collateral
Agent pursuant to this Section 12 shall be deemed
to relieve the Partnership, the Company or the
Pledgor of any Obligation except to the extent the
proceeds thereof are applied by the Collateral
Agent to the payment of such Obligations.
(vii) The Pledgor hereby waives
presentment, demand, protest or notice (to the
extent permitted by applicable law) of any kind in
connection with this Agreement or any Collateral.
(c) The proceeds of any Collateral obtained or
disposed of hereunder shall be applied as set forth in the
Intercreditor Agreement and the Depositary Agreement.
SECTION 13. Purchase of the Collateral. The
Pledgor may be a purchaser of the Collateral or any part
thereof or any right or interest therein at any sale
thereof, whether pursuant to foreclosure, power of sale or
otherwise hereunder. Any purchaser of all or any part of
the Collateral shall, upon any such purchase, acquire good
title to the Collateral so purchased, free of the security
interests created by this Agreement.
SECTION 14. Expenses. The Pledgor will upon
demand pay to the Collateral Agent and the Secured Parties
the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any
experts and agents, and any transfer taxes which the
Collateral Agent or the Secured Parties may incur in
connection with (i) the custody or preservation of, or the
sale of, collection from or other realization upon, any of
the Collateral pursuant to the exercise or enforcement of
any of the rights of the Collateral Agent hereunder or
(ii) the failure by the Pledgor to perform or observe any of
the provisions hereof, together with interest thereon at the
rate per annum equal to the Prime Rate plus two percent
(2%). Any amount payable by the Pledgor pursuant to this
SectionE14 shall be payable on demand and shall constitute
Obligations secured hereby.
SECTION 15. No Waiver. No failure or delay on
the part of the Collateral Agent to exercise, and no course
of dealing with respect to, and no delay in exercising, any
right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by the
Collateral Agent of any right, power or remedy hereunder
preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies
herein provided are to the fullest extent permitted by law
cumulative and are not exclusive of any remedies provided by
law. No notice to or demand on the Pledgor in any case
shall entitle the Pledgor to any other or further notice or
demand in similar or other circumstances.
SECTION 16. Amendments; Etc. No waiver,
amendment, modification or termination of any provision of
this Agreement, or consent to any departure by the Pledgor
therefrom, shall in any event be effective without the
written concurrence of the Collateral Agent and none of the
Collateral shall be released without the written consent of
the Collateral Agent. Any such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given.
SECTION 17. Release. Subject to Section 25
hereof, upon the indefeasible payment in full or performance
of the Obligations and the occurrence of the Debt
Termination Date, the Collateral Agent, upon request by the
Pledgor, shall execute and deliver all such documentation
necessary to release the Liens created pursuant to this
Agreement.
SECTION 18. Notices. Any notice to the
Collateral Agent shall be deemed effective only if sent to
and received at the office of the Collateral Agent at
000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 or sent by
confirmed telecopy to telecopy number (000) 000-0000. Any
notice to the Pledgor hereunder shall be deemed to have been
duly given only if sent to and received at the office of the
Pledgor at 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000, Attention: President, or sent by confirmed
telecopy to telecopy number (000) 000-0000, or at such other
address of which such Person shall have notified in writing
the other party hereto.
SECTION 19. Continuing Security Interest. This
Agreement shall create a continuing Lien on the Collateral
until the release thereof pursuant to Section 17 hereof.
SECTION 20. Security Interest Absolute. All
rights of the Collateral Agent and security interests
hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability
of any of the Project Documents or any other
agreement or instrument relating thereto (other
than against the Collateral Agent);
(b) any change in the time, manner or place
of payment of, or in any other term of, all or any
of the Obligations, or any other amendment or
waiver of or any consent to any departure from the
Project Documents or any other agreement or
instrument relating thereto; provided, that the
aggregate amount of the Obligations shall not be
increased other than in accordance with the Trust
Indenture without the consent of the Pledgor;
(c) any exchange, release or non-perfection
of any other collateral, or any release or
amendment or waiver of or consent to any departure
from any guaranty, for all or any of the
Obligations; or
(d) any other circumstance which might
otherwise constitute a defense available to, or a
discharge of, the Pledgor.
SECTION 21. Indemnity.
(a) The Pledgor agrees to indemnify, reimburse
and hold the Collateral Agent and the Secured Parties and
their respective officers, directors, employees and agents
(each individually, an "Indemnitee", and collectively,
"Indemnitees") harmless from any and all liabilities,
obligations, damages, injuries, penalties, claims, demands,
actions, suits, judgments and any and all costs and expenses
(including reasonable attorneys' fees and disbursements)
(such expenses, for purposes of this Section 21, hereinafter
"expenses") of whatsoever kind and nature imposed on,
asserted against or incurred by any Indemnitee in any way
relating to or arising out of (i) this Agreement or the
documents executed in connection herewith or in any other
way connected with the administration of the transactions
contemplated hereby, or the enforcement of any of the terms
hereof, or the preservation of any rights hereunder or
(ii) the ownership, purchase, delivery, control, acceptance,
financing, possession, condition, sale, return or other
disposition, or use of, the Collateral (including, without
limitation, latent or other defects, whether or not
discoverable). Each Indemnitee agrees to use its best
efforts promptly to notify the Pledgor of any assertion of
any such liability, damage, injury, penalty, claim, demand,
action, judgment or suit of which such Indemnitee has
knowledge.
(b) Without limiting the application of
Section 21(a), the Pledgor agrees to pay or reimburse the
Collateral Agent for any and all reasonable fees, costs and
expenses of whatever kind or nature incurred in connection
with the creation, preservation, protection or validation of
the Collateral Agent's Liens on, and security interest in,
the Collateral, including, without limitation, all fees and
taxes in connection with the recording or filing of
instruments and documents in public offices, payment or
discharge of any taxes or Liens upon or in respect of the
Collateral, premiums for insurance with respect to the
Collateral and all other fees, costs and expenses in
connection with protecting, maintaining or preserving the
Collateral and the Collateral Agent's interest therein,
whether through judicial proceedings or otherwise, or in
defending or prosecuting any actions, suits or proceedings
arising out of or relating to the Collateral.
(c) Without limiting the application of
Section 21(a), the Pledgor agrees to pay, indemnify and hold
each Indemnitee harmless from and against any loss, costs,
damages and expenses which such Indemnitee may suffer,
expend or incur in consequence of or growing out of any
failure of the Pledgor to comply with its obligations under
this Agreement or any misrepresentation by the Pledgor in
this Agreement or in any statement or writing contemplated
by or made or delivered pursuant to or in connection with
this Agreement.
(d) If and to the extent that the obligations of
the Pledgor under this Section 21 are unenforceable for any
reason, the Pledgor hereby agrees to make the maximum
contribution to the payment and satisfaction of such
obligations permissible under applicable law.
SECTION 22. Obligations Secured by Collateral.
Any amount paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement, and any amount
paid by the Collateral Agent in preservation of any of its
rights or interest in the Collateral, together with interest
on such amounts from the date paid until reimbursement in
full at a rate per annum equal at all times to the Prime
Rate plus two percent (2%), shall constitute Obligations
secured by the Collateral.
SECTION 23. Severability. Any provision of this
Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision
in any other jurisdiction. Where provisions of any law or
regulation resulting in such prohibition or unenforceability
may be waived, they are hereby waived by the parties hereto
to the full extent permitted by law so that this Agreement
shall be deemed a valid and binding agreement in accordance
with its terms.
SECTION 24. Counterparts; Effectiveness. This
Agreement and any amendment, waiver, consent or supplement
may be executed in counterparts, each of which when so
executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective upon
the execution and delivery of a counterpart hereof by each
of the parties hereto.
SECTION 25. Reinstatement. This Agreement shall
continue to be effective or be reinstated, as the case may
be, if at any time any amount received by the Collateral
Agent or any Secured Party hereunder or pursuant hereto is
rescinded or must otherwise be restored or returned by the
Collateral Agent or such Secured Party, as the case may be,
upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Pledgor or the Partnership or upon the
appointment of any intervenor or conservator of, or trustee
or similar official for, the Pledgor or the Partnership or
any substantial part of their respective assets, or upon the
entry of an order by a bankruptcy court avoiding the payment
of such amount, or otherwise, all as though such payments
had not been made.
SECTION 26. WAIVER OF SUBROGATION; SUBMISSION TO
JURISDICTION; WAIVER OF JURY TRIAL.
(a) THE PLEDGOR IRREVOCABLY WAIVES ALL RIGHTS OF
SUBROGATION (WHETHER CONTRACTUAL, UNDER SECTION 000 XX
XXXXXX00 XX XXX XXXXXX XXXXXX CODE, 11 U.S.C. 101, ET SEQ.
(THE "BANKRUPTCY CODE"), UNDER COMMON LAW OR OTHERWISE) TO
THE CLAIMS OF THE COLLATERAL AGENT AND THE SECURED PARTIES
AGAINST THE PLEDGOR WHICH ARISE IN CONNECTION WITH, OR AS A
RESULT OF, THIS AGREEMENT.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK AND THE PLEDGOR HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. THE
PLEDGOR AND THE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVE
TRIAL BY JURY, AND THE PLEDGOR HEREBY IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
(c) THE PLEDGOR IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE PLEDGOR AT ITS ADDRESS SPECIFIED IN SECTIONE18, SUCH
SERVICE TO BECOME EFFECTIVE FOUR (4) BUSINESS DAYS AFTER
SUCH MAILING.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
COLLATERAL AGENT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE PLEDGOR IN ANY OTHER
JURISDICTION.
SECTION 27. GOVERNING LAW; TERMS. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW EXCEPT
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)
EXCEPT TO THE EXTENT THE VALIDITY OR PERFECTION OF THE
SECURITY INTEREST HEREUNDER, OR THE REMEDIES HEREUNDER, ARE
GOVERNED BY THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK. UNLESS OTHERWISE DEFINED HEREIN OR IN
THE TRUST INDENTURE, TERMS DEFINED IN ARTICLEE8 OR ARTICLEE9
OF THE NEW YORK UNIFORM COMMERCIAL CODE ARE USED HEREIN AS
THEREIN DEFINED.
SECTION 28. Recourse Limited to Collateral.
Notwithstanding anything to the contrary contained herein,
the liability and obligation of the Pledgor or any past,
present or future partner, officer, director or stockholder
of the Pledgor under or by reason of this Agreement shall be
limited as provided in Section 4.12 or the Intercreditor
Agreement, and the provisions of said Section 4.12 are
incorporated herein by reference.
Section 29. Exculpatory Provisions. None of the
Collateral Agent or any Secured Party, or any of their
respective officers, employees, servants, controlling
persons, executives, directors, agents, authorized
representatives, attorneys-in-fact or affiliates shall be
liable to the Pledgor for any action taken or omitted to be
taken by it or them (other than actions arising from or
relating to any gross negligence or willful misconduct of
any such Person) under or in connection with this Agreement
or any other Project Document to which the Pledgor is a
party, or responsible in any manner to any Person for any
recital, statement, representation or warranty made by the
Pledgor or any officer thereof contained in this Agreement
or any other Project Document to which the Pledgor is a
party or in any certificate, report, statement or other
document referred to or provided for in, or received by the
Collateral Agent or any Secured Party under or in connection
with, this Agreement or any other Project Document to which
the Pledgor is a party or for the value, effectiveness,
genuineness, enforceability or sufficiency of this Agreement
or any other Project Document or for any failure of the
Pledgor to perform any of the Obligations.
Section 30. Waiver. To the fullest extent it may
lawfully so agree, the Pledgor agrees that it will not at
any time insist upon, claim, plead or take any benefit or
advantage of any appraisement, valuation, stay, extenuation,
moratorium, redemption or similar law now or hereafter in
force in order to prevent, delay or hinder the enforcement
hereof or the absolute sale of any part of the Collateral.
The Pledgor, for itself and all who claim through it, so far
as it or they now or hereafter lawfully may do so, hereby
waives the benefit of all such laws and all right to have
the Collateral marshaled upon any foreclosure hereof, and
agrees that any court having jurisdiction to foreclose this
Agreement may order the sale of the Collateral as an
entirety. Without limiting the generality of the foregoing,
the Pledgor hereby (i) authorizes the Collateral Agent, in
its sole discretion and without notice to or demand upon the
Pledgor and without otherwise affecting the obligations of
the Pledgor hereunder, from time to time to take and hold
other collateral (in addition to the Collateral) for payment
of any Obligations, or any part thereof, and to exchange,
enforce or release such other collateral or any part thereof
and to enforce or release such other collateral or any part
thereof and to accept and hold any endorsement or guarantee
of payment of the Obligations or any part thereof and to
release or substitute any endorser or guarantor or any other
Person granting security for or in any other way obligated
upon any Obligations or any part thereof and (ii) waives and
releases any and all right to require the Collateral Agent
to collect any of the Obligations from any specific item or
items of the Collateral or from any other party liable as a
guarantor or in any other manner in respect of any of the
Obligations or from any other security for any of the
Obligations.
Section 31. Consent. By its execution hereof,
the Pledgor hereby consents to the transfer of the
Collateral to any designee of the Collateral Agent in
accordance with this Agreement and the admission to the
Partnership of such designee as a limited partner in
accordance with this Agreement.
Section 32. Conflicts with the Intercreditor
Agreement or the Depositary Agreement. In the event of any
conflict between the terms of this Agreement and the
Intercreditor Agreement or the Depositary Agreement, the
provisions of the Intercreditor Agreement or the Depositary
Agreement, as the case may be, will apply.
IN WITNESS WHEREOF, each party hereto has caused
this Limited Partner Pledge and Security Agreement to be
duly executed and delivered by its officer thereunto duly
authorized on the date first above written.
PRC II CORPORATION
By
Name:
Title:
FLEET NATIONAL BANK,
as collateral agent
By
Name:
Title:
ACKNOWLEDGMENT AND CONSENT
The Partnership referred to in the foregoing
Agreement hereby acknowledges receipt of a copy thereof and
agrees to be bound thereby and to comply with the terms
thereof insofar as such terms are applicable to it. The
Partnership agrees to notify the Collateral Agent promptly
in writing of the issuance of any Additional Pledged
Interests.
PANDA-ROSEMARY, L.P.,
a Delaware limited partnership
By: Panda - Xxxxxxxx Corporation,
a Delaware corporation,
its general partner
By
Name:
Title:
CONSENT
The undersigned corporation, being the sole
general partner of the Partnership referred to in the
foregoing Agreement, hereby consents to the pledge of the
limited partner interest in the Partnership owned by PRC II
Corporation pursuant to such Agreement.
PANDA - XXXXXXXX CORPORATION
a Delaware corporation
By
Name:
Title:
