EXHIBIT 4.09
GUARANTY AGREEMENT
(PIC U.S. Entity Subsidiaries)
By
PANDA INTERHOLDING CORPORATION
in favor of
BANKERS TRUST COMPANY,
as Collateral Agent
for the benefit of the Secured Parties as hereafter defined
Dated as of July 31, 1996
_______________
GUARANTY AGREEMENT
(PIC U.S. Entity Subsidiaries)
THIS GUARANTY AGREEMENT, dated as of July 31, 1996 (this
"Guaranty") is made and entered into by Panda Interholding
Corporation, a Delaware corporation, and each PIC U.S. Entity
that is or shall in the future be organized as a direct
subsidiary of PIC, which PIC U.S. Entity shall become a party
hereto upon its incorporation (collectively the "Guarantors"), in
favor of Bankers Trust Company, a New York banking corporation,
as Collateral Agent pursuant to that certain Collateral Agency
Agreement dated as of even date herewith (the "Collateral Agency
Agreement") by and among Panda Interfunding Corporation, a
Delaware corporation ("PIC"), Panda Funding Corporation, a
Delaware corporation, ("Panda Funding"),and Bankers Trust
Company, a New York banking corporation, as trustee under the
Indenture referred to below (in such capacity, together with its
successors and assigns in such capacity, the "Trustee"), and as
collateral agent for the Trustee in such capacity, the Trustee on
behalf of the Bondholders under the Indenture and the Letter of
Credit Provider (as defined below) (in such capacity together
with its successors and assigns in such capacity, the "Collateral
Agent").
RECITALS
WHEREAS, PIC has formed Panda Funding as a special purpose,
wholly-owned finance subsidiary to issue debt securities
constituting the Bonds described below;
WHEREAS, Panda Funding, PIC and the Trustee (as trustee for
the holders of the Bonds described below) are party to an
Indenture dated as of July 31, 1996 (as amended, supplemented or
otherwise modified and in effect from time to time, the
"Indenture"), providing, subject to the terms and conditions
thereof, for the issuance by Panda Funding from time to time of
certain Pooled Project Bonds (the "Bonds"), including, without
limitation, $105,525,000 initial aggregate principal amount of 11
5/8% Pooled Project Bonds, Series A due 2012 (the "Series A
Bonds");
WHEREAS, Panda Funding will loan the entire proceeds of the
issuance of the Series A Bonds (the "Loan") to PIC, which Loan
will be made under a Loan Agreement dated of even date with the
Indenture by and between Panda Funding and PIC (the "PIC Loan
Agreement") and evidenced by a promissory note (the "Initial PIC
Note") of PIC dated July 31, 1996, and payable to Panda Funding;
WHEREAS, Panda Funding may from time to time loan the
proceeds of subsequent series of Bonds (the "Additional Loans")
to PIC, which Additional Loans will be made under the PIC Loan
Agreement and evidenced by promissory notes (the "Additional PIC
Notes") of PIC payable to Panda Funding;
WHEREAS, one or more Letters of Credit may be substituted
for cash funds in the Debt Service Reserve Fund (as defined in
the Indenture) pursuant to Section 4.5(c) of the Indenture under
a reimbursement agreement to be entered into between PIC or its
controlling affiliate and a financial institution (the "Letter of
Credit Provider") (to the extent so entered into and as amended,
supplemented or modified and in effect from time to time,
together with any substitution or replacement thereof, the
"Reimbursement Agreement"), and in such event this Agreement
shall be amended to admit the Letter of Credit Provider as a
party hereto;
WHEREAS, to induce the purchase of the Bonds and to secure
Panda Funding's obligations to the holders (from time to time) of
such Bonds (the "Holders" and, together with the Trustee, and the
Letter of Credit Provider, if any, the "Secured Parties"), and to
induce the issuance of any letters of credit by the Letter of
Credit Provider and to secure PIC's or PIC's controlling
affiliate's obligations to the Letter of Credit Provider under
the Reimbursement Agreement (if entered into), Panda Funding has,
pursuant to a Security Agreement dated as of July 31, 1996,
between Panda Funding and the Collateral Agent (the "Panda
Funding Security Agreement"), granted to the Collateral Agent for
the benefit of the Secured Parties, a security interest in all of
Panda Funding's assets, including, without limitation, the
Initial PIC Note, the Additional PIC Notes, and Panda Funding's
other personal property;
WHEREAS, PIC has agreed to guarantee Panda Funding's
obligations to the Holders and the Trustee pursuant to certain
terms and covenants in the Indenture (the "PIC Guaranty");
WHEREAS, to induce the purchase of the Bonds, Panda Energy
Corporation, a Texas corporation ("PEC") and corporate parent of
PIC, has, pursuant to a Stock Pledge Agreement dated as of July
31, 1996, between PEC and the Collateral Agent (the "PEC Stock
Pledge Agreement"), pledged to the Collateral Agent for the
benefit of the Secured Parties, all of the capital stock of PIC;
WHEREAS, to induce the purchase of the Bonds by the Holders,
which each Guarantor acknowledges is of substantial benefit to
them (as the ultimate recipient of certain assets to be
transferred to them in connection with the issuance of the Bonds)
and of substantial benefit to their parent, PIC, as the recipient
of the Loan evidenced by the Initial PIC Note and pursuant to the
Additional Loans evidenced by Additional PIC Notes, of the
proceeds of the issuance of the Bonds, each Guarantor has to
execute and deliver this Guaranty in favor of the Collateral
Agent for the benefit of the Secured Parties;
WHEREAS, the Series A Bonds are being sold to the Initial
Purchaser (as defined below) pursuant to the Purchase Agreement
dated as of July 26, 1996 (the "Purchase Agreement") among Panda
Funding, PIC, Panda Energy International, Inc., and Xxxxxxxxx &
Company, Inc. (the "Initial Purchaser"); and
WHEREAS, it is a condition precedent to the purchase of the
Series A Bonds by the Initial Purchaser that each Guarantor shall
have guaranteed the obligations of PIC with respect to the PIC
Guaranty and the obligations of Panda Funding with respect to the
Bonds.
NOW, THEREFORE, to secure the Bonds and the PIC Guaranty,
and the performance by PIC and Panda Funding of the agreements in
the Indenture and in the Reimbursement Agreement (if entered
into) and by PEC of the agreements under the PEC Stock Pledge
Agreement and in consideration of the premises and in order to
induce the Initial Purchaser to purchase the Series A Bonds, and
for other good and valuable consideration, the receipt and the
adequacy of which are hereby acknowledged, each Guarantor hereby
agrees, with and for the benefit of the Collateral Agent on
behalf of the Secured Parties, as follows:
AGREEMENT
1. Defined Terms. Each capitalized term used herein, and
not otherwise defined herein, shall have the meaning ascribed to
such term in the Indenture, or in the Collateral Agency Agreement
if not found in the Indenture. The following capitalized terms
shall have the following meanings:
"Event of Default" shall mean an "Event of Default" as
such term is defined in the Indenture or an "Event of
Default" as such term is defined in the Reimbursement
Agreement (if entered into).
"Guaranteed Obligations" shall mean all indebtedness,
liabilities and other obligations of PIC and Panda Funding
(including, but not limited to, all such obligations in
respect of principal, premiums, interest, fees,
reimbursement obligations, Collateral Agent Claims, Trustee
Claims, penalties, indemnities, costs and other expenses,
whether due after acceleration or otherwise) to the
Collateral Agent or the Secured Parties (of whatsoever
nature and howsoever evidenced) under or pursuant to the
Bonds, the Indenture, this Agreement, the Collateral Agency
Agreement, the other Security Documents and the obligations
of PIC or its controlling affiliate under the Reimbursement
Agreement (if entered into), in each case, direct or
indirect, primary or secondary, fixed or contingent, now or
hereafter arising therefrom or relating thereto.
"Maximum Guaranteed Amount" shall mean, for each
Guarantor, the greater of (a) the "reasonably equivalent
value" or "fair consideration" (or equivalent concept)
received by such Guarantor in exchange for the obligation
incurred hereunder by such Guarantor, within the meaning of
any state or federal fraudulent conveyance or transfer laws
applicable to such Guarantor; or (b) the lesser of (i) the
maximum amount that will not render such Guarantor
insolvent, or (ii) the maximum amount that will not leave
such Guarantor (after giving effect to this Guaranty) with
Property deemed an unreasonably small capital. Clauses (i)
and (ii) are and shall be determined pursuant to and as of
the appropriate date mandated by such applicable state or
federal fraudulent conveyance or transfer laws.
"Subrogation and Contribution Agreement" shall mean
that certain Subrogation and Contribution Agreement dated as
of July 31, 1996 by and among PIC, Panda Funding and the
Guarantors.
2. Guarantee.
(a) Each Guarantor hereby unconditionally and irrevocably
and severally guarantees to the Collateral Agent the prompt and
complete payment when due (whether at the stated maturity, by
acceleration or otherwise) of the Guaranteed Obligations, and
each Guarantor further agrees, severally, to pay any and all
reasonable expenses which may be paid or incurred by the
Collateral Agent in enforcing any rights with respect to, or
collecting, any or all of the Guaranteed Obligations and/or
enforcing any rights with respect to, or collecting against, such
Guarantor under this Guaranty; provided, however, that,
notwithstanding anything herein or in any other Transaction
Document to the contrary, the maximum liability of each
Guarantor hereunder and under the other Transaction Documents
shall in no event exceed the Maximum Guaranteed Amount for such
Guarantor; provided, further, that to the extent that applicable
state or federal fraudulent conveyance or transfer laws would so
permit or require, the Maximum Guaranteed Amount for each
Guarantor (to the extent not previously adjusted for such
amounts) shall be (i) increased by the aggregate fair value of
such Guarantor's rights to contribution, reimbursement, or
subrogation pursuant to the Subrogation and Contribution
Agreement, if any, or applicable laws relating to contribution,
reimbursement or subrogation rights and (ii) decreased by the
aggregate amount of such Guarantor's liabilities with respect to
contribution rights pursuant to the Subrogation and Contribution
Agreement or applicable laws relating to contribution rights and
(iii) multiplied by the Probability Factor (as defined in
subsection (d) below) to reflect the likelihood of a demand being
made hereunder or against the assets of such Guarantor.
(b) Each Guarantor agrees that the Guaranteed Obligations
may at any time and from time to time exceed the Maximum
Guaranteed Amount for such Guarantor without impairing this
Guaranty or affecting the rights and remedies of the Collateral
Agent.
(c) No payment or payments made by PIC or Panda Funding,
any other guarantor or any other Person or received or collected
by the Collateral Agent from PIC, Panda Funding, any other
guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any
time or from time to time in reduction of or in payment of the
Guaranteed Obligations shall be deemed to modify, reduce, release
or otherwise affect the liability of each Guarantor hereunder,
which shall, notwithstanding any such payment or payments, other
than payments made by such Guarantor in respect of the Guaranteed
Obligations or payments received or collected from such Guarantor
in respect of the Guaranteed Obligations, each remain liable for
the Guaranteed Obligations up to the Maximum Guaranteed Amount
for such Guarantor until the Guaranteed Obligations are paid in
full.
(d) It is the intention of each Guarantor that the
obligations and transfers of each Guarantor under this Guaranty
and any other Transaction Documents, if applicable, are not
obligations or transfers that violate the provisions of
applicable federal and state fraudulent conveyance or transfer
laws resulting in such obligations or transfers being subject to
avoidance under any such laws. In that regard each Guarantor
intends that such obligations and transfers be in an amount that
results in the Guarantors guaranteeing the Guaranteed Obligations
in an amount that is equal to the maximum amount that is below
the amount that such applicable fraudulent conveyance or transfer
laws establish as the threshold amount for such Guarantor and for
such obligations and transfers that would not be subject to
avoidance under such laws. Accordingly, due to uncertainties in
calculation and in the status of various judicial decisions and
interpretations of such laws, each Guarantor and the Collateral
Agent have agreed upon the limitation of such Guarantor's
liability hereunder with the good faith intention of complying
with such laws. Under many interpretations of such laws,
contingent claims are deemed to be properly valued at the time of
each relevant determination based on a percentage (the
"Probability Factor") that is reasonably reflective of the
probability at the time of determination that a demand or call on
or against a guaranty obligation or collateral will be made in
light of the financial conditions of Panda Funding, PIC and other
liable parties and other relevant facts that were available at
such time, all as subsequently decided by the appropriate
judicial authority enforcing the rights under this Guaranty or
the other Transaction Documents. For purposes of the limitations
on the maximum liability of each Guarantor in Subparagraph (a)
above, if a court in enforcing the rights of the Collateral Agent
shall determine that the use of such a Probability Factor is
appropriate, then the Probability Factor determined by such court
shall be used to calculate the Maximum Guaranteed Amount. In
light of the expense and difficulty in determining the Maximum
Guaranteed Amount at any particular time, the amount equal to the
product of the Guaranteed Obligations multiplied by each
Guarantor's Contribution Percentage as set forth on Annex I to
the Subrogation and Contribution Agreement, shall be presumed to
be the Maximum Guaranteed Amount for all purposes, including the
filing of a proof of claim in any bankruptcy proceeding with
respect to such Guarantor, or any foreclosure sale or any similar
proceeding with respect to Property of such Guarantor, unless and
until either such Guarantor or the Collateral Agent shall have
demonstrated to the satisfaction of the relevant judicial
authority the fact that the actual calculation of the Maximum
Guaranteed Amount results in a different amount.
(e) It is the intention of the parties hereto that all
intercompany indebtedness either owed to or by any Guarantor not
be included as either an asset or a liability, respectively, in
determining the solvency or capital of any Guarantor.
Accordingly, each Guarantor agrees that in connection with any
determination of the Maximum Guaranteed Amount, such intercompany
indebtedness may be treated in the manner that would achieve the
result intended by the first sentence of this Subsection (e).
(f) Each of PIC, Panda Funding and the Guarantors is
personally obligated and fully liable for the amounts due under
the Bonds. The Collateral Agent shall have the right to xxx on
the Notes and the Bonds and obtain a personal judgment against
PIC, Panda Funding and the Guarantors for satisfaction of the
amounts due under the Bonds either before or after a judicial
foreclosure of any Security Instrument.
(g) The liability of each of Guarantors for the payment of
the Guaranteed Obligations guaranteed hereby shall be primary,
and not secondary, and joint and several with each of the other
Guarantors.
3. Right of Contribution. Each Guarantor hereby agrees
that to the extent that any Guarantor shall have paid more than
its proportionate share of any payments made under any of the
Guaranty, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor who has not
paid its proportionate share of any such payments. Each
Guarantor's right of contribution shall be subject to the terms
and conditions of the Subrogation and Contribution Agreement and
Paragraph 5 hereof. The provisions of this Paragraph 3 shall in
no respect limit the obligations and liabilities of any Guarantor
to the Collateral Agent and each Guarantor shall remain liable to
the Collateral Agent for the full amount guaranteed by such
Guarantor hereunder.
4. Right of Set-off. The Collateral Agent is hereby
irrevocably authorized upon the occurrence of an Event of Default
without notice to the Guarantors, any such notice being expressly
waived by each Guarantor, to set-off and credit against any
credits, indebtedness, or claims, in any currency, in each case
whether direct or indirect or contingent or matured or unmatured,
at any time held or owing by the Collateral Agent for the credit
or the account of any Guarantor, or any part thereof in such
amounts as the Collateral Agent may elect, against and on account
of the obligations and liabilities of the applicable Guarantor to
the Collateral Agent hereunder and claims of every nature and
description of the Collateral Agent against such Guarantor, in
any currency, whether arising hereunder, under the Indenture, the
Loan Agreement, any other Transaction Document or otherwise, as
the Collateral Agent may elect, whether or not the Collateral
Agent has made any demand for payment and although such
obligations, liabilities and claims may be contingent or
unmatured. The Collateral Agent agrees to notify the applicable
Guarantor of any such set-off and the application made by the
Collateral Agent, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
The rights of the Collateral Agent under this paragraph are in
addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Collateral Agent
may have.
5. Limited Right of Subrogation. Notwithstanding any
payment or payments made by any Guarantor hereunder or any
set-off or application of funds of any Guarantor by the
Collateral Agent, such Guarantor shall not be entitled to be
subrogated to any of the rights of the Collateral Agent against
PIC or Panda Funding or any collateral security or guaranty or
right of offset held by the Collateral Agent for the payment of
the Guaranteed Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from PIC or
Panda Funding or any other guarantor in respect of payments made
by such Guarantor hereunder, until all Guaranteed Obligations are
paid in full. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the
Guaranteed Obligations shall not have been paid in full, such
amount shall be held by such Guarantor in trust for the
Collateral Agent, segregated from other funds of such Guarantor,
and shall, forthwith upon receipt by such Guarantor, be turned
over to the Collateral Agent in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Collateral
Agent, if required), to be applied against the Guaranteed
Obligations, whether matured or unmatured in such order as the
Collateral Agent may determine.
6. Amendments, etc. with respect to the Guaranteed
Obligations; Waiver of Rights. Each Guarantor shall remain
obligated hereunder notwithstanding that, without any reservation
of rights against the Guarantors and without notice to or further
assent by the Guarantors, any demand for payment of any of the
Guaranteed Obligations made by the Collateral Agent or the
Trustee may be rescinded and any of the Guaranteed Obligations
continued, and the Guaranteed Obligations, or the liability of
any other party upon or for any part thereof, or any collateral
security or guaranty therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Collateral Agent or the Trustee
and the Indenture, the Bonds, the Loan Agreement, the PIC Notes,
and any collateral security document or other guaranty or
document in connection therewith (including, without limitation,
the other Transaction Documents) may be amended, modified,
supplemented or terminated, in whole or in part, as the
Collateral Agent or the Trustee may deem advisable from time to
time, and any collateral security or guaranty or right of offset
at any time held by the Collateral Agent or the Trustee for the
payment of the Guaranteed Obligations may be sold, exchanged,
waived, surrendered, or released, all without the necessity of
any reservation of rights against the Guarantors and without
notice to or further assent by the Guarantors which will remain
bound hereunder, notwithstanding any such renewal, extension,
modification, acceleration, compromise, amendment, supplement,
termination, sale, exchange, waiver, surrender, or release.
Neither the Collateral Agent or the Trustee shall have an
obligation to protect, secure, perfect, or insure any Lien at any
time held as security for the Guaranteed Obligations or this
Guaranty or any Property subject thereto. When making any demand
hereunder against any Guarantor, the Collateral Agent may, but
shall be under no obligation to, make a similar demand on Panda
Funding or PIC and any failure by the Collateral Agent or the
Trustee to make any such demand or to collect any payments from
Panda Funding or PIC or any release of Panda Funding or PIC shall
not relieve any such Guarantor of its obligations or liabilities
hereunder, and shall not impair or affect the rights and
remedies, express or implied, or as a matter of law, of the
Collateral Agent against each Guarantor. For the purposes hereof
"demand" shall include the commencement and continuance of any
legal proceedings.
7. Guaranty Absolute and Unconditional; Waivers. Each
Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Guaranteed Obligations and
notice of or proof of reliance by the Collateral Agent or the
Trustee upon this Guaranty or acceptance of this Guaranty, and
the Guaranteed Obligations (and any of them) shall conclusively
be deemed to have been created, contracted or incurred and
extended, amended and waived in reliance upon this Guaranty, and
all dealings between Panda Funding, PIC, the Guarantors and
either the Collateral Agent or the Trustee shall likewise be
conclusively presumed to have been had or consummated in reliance
upon this Guaranty. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or
nonpayment, notice of intention to accelerate maturity and notice
of acceleration of maturity to or upon Panda Funding or PIC with
respect to the Guaranteed Obligations. Each Guarantor
understands and agrees that this Guaranty shall be construed as a
continuing, absolute, completed, unconditional (except as
expressly conditioned pursuant to the terms hereof) and
irrevocable guarantee of payment (and not of collection) without
regard to (a) the validity, regularity or enforceability of the
Indenture, the other Transaction Documents, any of the Guaranteed
Obligations or any collateral security or guaranty therefor or
right of offset with respect thereto at any time or from time to
time held by the Collateral Agent, (b) any defense, set-off or
counterclaim which may at any time be available to or be asserted
by Panda Funding, PIC or any other Person liable for the
Guaranteed Obligations against the Collateral Agent or the
Trustee, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of Panda Funding or PIC) which
constitutes, or might be construed to constitute, an equitable or
legal discharge of Panda Funding, PIC or any other Person liable
for the Guaranteed Obligations, under this Guaranty, in
bankruptcy or in any other instance. When pursuing any of its
rights and remedies against Panda Funding and PIC hereunder, the
Collateral Agent may, but shall be under no obligation to, pursue
such rights and remedies as they may have against any Guarantor
or any other Person or against any collateral security or
guaranty for the Guaranteed Obligations or any right of offset
with respect thereto, and any failure by the Collateral Agent to
pursue such other rights or remedies or to collect any payments
from Panda Funding, PIC or any such other Person or to realize
upon any such collateral security or guaranty or to exercise any
such right of offset, or any release of Panda Funding, PIC or any
such other Person or any such collateral security, guaranty or
right of offset, shall not relieve any Guarantor of any liability
hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of
law, of the Collateral Agent against any Guarantor. This
Guaranty shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon each
Guarantor and its successors and assigns, and shall inure to the
benefit of the Collateral Agent and its successors, indorses,
transferees, and assigns, until all the Guaranteed Obligations
and the obligations of the Guarantors under this Guaranty shall
have been satisfied by payment in full.
8. Reinstatement. This Guaranty shall continue to be
effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Guaranteed
Obligations is rescinded or must otherwise be restored or
returned by the Collateral Agent or the Trustee upon the
insolvency, bankruptcy, dissolution, liquidation or
reorganization of Panda Funding or PIC, or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, Panda Funding or PIC or any
substantial part of such Person's property, or otherwise, all as
though such payments had not been made.
9. Maturity of Guaranteed Obligations; Payment. Each
Guarantor agrees that if the maturity of any of the Guaranteed
Obligations is accelerated by bankruptcy or otherwise, such
maturity shall also be deemed accelerated for the purpose of this
Guaranty without demand or notice to any Guarantor, and each
Guarantor shall, upon such acceleration, be obligated to pay to
the Collateral Agent the amount due and unpaid by Panda Funding
or PIC and guaranteed hereby, which payment shall be made
immediately upon demand thereof by the Collateral Agent.
10. Payments. Each Guarantor hereby guarantees that
payments hereunder will be paid, without set-off or counterclaim
and in immediately available funds and in lawful currency of the
United States of America, to the Collateral Agent in New York,
New York at the Collateral Agent's principal trust offices
located at 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, not later
than 11:00 A.M., New York time.
11. Representations and Warranties. Each Guarantor hereby
represents and warrants that:
(a) Corporate Existence. Each Guarantor (i) is a
corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified as a foreign
corporation in all jurisdictions wherein the Property owned
or the business transacted makes such qualification
necessary, except where the failure to be so qualified would
not have a Material Adverse Effect, and (iii) has the
corporate power and authority and the legal right to own and
lease its property and to conduct its business.
(b) Corporate Power; Authorization. Each Guarantor is
duly authorized and empowered to execute, deliver and
perform this Guaranty; and all corporate action on each
Guarantor's part requisite for the due execution, delivery
and performance of this Guaranty has been duly and
effectively taken.
(c) Binding Obligations. This Guaranty constitutes a
legal, valid, and binding obligation of each Guarantor, and,
upon execution and delivery to the Collateral Agent on
behalf of the Secured Parties will be enforceable against
each Guarantor in accordance with its terms, except that
enforcement may be subject to any applicable bankruptcy,
insolvency or similar laws generally affecting the
enforcement of creditors' rights and subject to the
availability of equitable remedies.
12. No Waiver: Cumulative Remedies. The Collateral Agent
shall not by any act, 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
and no delay in exercising, on the part of the Collateral Agent,
any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right,
power or privilege preclude any other or further exercise
thereof, or the exercise of any other power, privilege or right.
A waiver by the Collateral Agent of any right or remedy hereunder
on any one occasion shall not be construed as a bar to any right
or remedy which the Collateral Agent would have on any future
occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently, and are not
exclusive of any rights or remedies provided by law.
13. Notices. All notices, requests and other
communications to any party hereunder shall be in writing
(including bank wire, telecopy or similar teletransmission or
writing) and, in the case of any Guarantor, shall be given to
such Guarantor at the address or telecopy number of PIC now or
hereafter provided for in the Indenture and in the case of the
Collateral Agent, at the address or telecopy number for such
Person now or hereafter provided for in the Collateral Agency
Agreement. Each such notice, request or other communication
shall be effective (i) if given by telecopier during regular
business hours, once such telecopy is transmitted to the telecopy
number specified in the applicable Indenture or Collateral Agency
Agreement, (ii) if given by mail, seventy-two (72) hours after
such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any
other means (including, without limitation, by air courier), when
delivered at the address specified in the Indenture or the
Collateral Agency Agreement, as applicable.
14. Entire Agreement. This Guaranty embodies the entire
agreement and understanding between all Guarantors and the
Collateral Agent and supersede all prior agreements and
understandings between such parties relating to the subject
matter hereof and thereof. There are no unwritten oral
agreements between the parties. Any conflict or ambiguity
between the terms and provisions of this Guaranty and the terms
and provisions in any other Transaction Document shall be
controlled by the terms and provisions hereof.
15. Governing Law; Submission to Jurisdiction, Etc.
(a) This Guaranty and the rights and obligations of the
parties hereunder shall be construed in accordance with and be
governed by the laws of the State of New York (including
Section 5-1401 of the New York General Obligations Law, or any
similar successor provision thereto, but excluding all other
conflict-of-laws rules)and to the extent controlling, laws of the
United States of America.
(b) Any legal action or proceeding with respect to this
Guaranty, the Notes or the other Financing Documents may be
brought in the courts of the State of New York or of the United
States of America for the Southern District of New York, and, by
execution and delivery of this Guaranty, EACH Guarantor hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. EACH
Guarantor hereby irrevocably waives any objection, including, but
not limited to, 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) EACH Guarantor and the Collateral Agent (i)
irrevocably and unconditionally waives, to the fullest extent
permitted by law, trial by jury in any legal action or proceeding
relating to any Transaction Document and for any counterclaim
therein; (ii) irrevocably waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in
any such litigation any special, exemplary, punitive or
consequential damages, or damages other than, or in addition to,
actual damages; (iii) certifies that no party hereto nor any
representative or counsel for any party hereto has represented,
expressly or otherwise, or implied that such party would not, in
the event of litigation, seek to enforce the foregoing waivers;
and (iv) acknowledges that it has been induced to enter into this
Guaranty, the other Transaction Documents and the transactions
contemplated hereby and thereby based upon, among other things,
the mutual waivers and certifications contained in this section.
(d) Each Guarantor hereby irrevocably designates CT
Corporation as the designee, appointee and process agent of such
Guarantor to receive, for and on behalf of such Guarantor,
service of process in such respective jurisdictions in any legal
action or proceeding with respect to this Guaranty. It is
understood that a copy of such process served on such agent will
be promptly forwarded by mail to the Guarantor at its address set
forth opposite its signature below, but the failure of the
Guarantor to receive such copy shall not affect in any way the
service of such process. Each Guarantor further 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
Guarantor at its said address, such service to become effective
on the earlier to occur of (i) actual receipt of such service of
process and (ii) the thirtieth day after such mailing.
(e) 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 any
Guarantor in any other jurisdiction.
16. Severability. Any provision of this Guaranty 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. Paragraph Headings. The Paragraph headings used in
this Guaranty are for convenience of reference only and are not
to affect the construction hereof or be taken into consideration
in the interpretation hereof.
18. Interest. It is the intention of the parties hereto to
conform strictly to usury laws applicable to the Collateral Agent
and the Transactions. Accordingly, if the Transactions would be
usurious as to the Collateral Agent under applicable law, then,
notwithstanding anything to the contrary in the PIC Notes or the
Bonds, this Guaranty, or in any Transaction Document or agreement
entered into in connection with the Transactions or as security
for the Guaranteed Obligations, it is agreed as follows: (i) the
aggregate of all consideration which constitutes interest as to
the Collateral Agent under applicable law that is contracted for,
taken, reserved, charged, or received by the Collateral Agent
under the PIC Notes, this Guaranty or under any of the
Transaction Documents or agreements or otherwise in connection
with the Transactions shall under no circumstances exceed the
maximum amount allowed by such applicable law, (ii) if the
maturity of the PIC Notes or the Bonds is accelerated for any
reason, or in the event of any required or permitted prepayment,
then such consideration that constitutes interest as to the
Collateral Agent under applicable law may never include more than
the maximum amount allowed by such applicable law, and (iii)
excess interest, if any, provided for in this Guaranty or
otherwise in connection with the Transactions shall be canceled
automatically and, if theretofore paid, shall be credited by the
Collateral Agent on the principal amount of the Guaranteed
Obligations (or, to the extent that the principal amount of the
Guaranteed Obligations shall have been or would thereby be paid
in full, refunded by the Collateral Agent to Panda Funding or
PIC, as applicable). The right to accelerate the maturity of the
PIC Notes or the Bonds does not include the right to accelerate
any interest which has not otherwise accrued on the date of such
acceleration, and the Collateral Agent does not intend to collect
any unearned interest in the event of acceleration. All sums
paid or agreed to be paid to the Collateral Agent for the use,
forbearance, or detention of sums included in the Guaranteed
Obligations shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full
term of the PIC Notes or the Bonds until payment in full so that
the rate or amount of interest on account of the Guaranteed
Obligations does not exceed the applicable usury ceiling, if any.
As used in this Section, the term "applicable law" shall mean the
laws of the State of New York (or of any other jurisdiction whose
laws may be mandatorily applicable notwithstanding other
provisions of this Guaranty) or laws of the United States of
America applicable to such Person and the Transactions, which
would permit such Person to contract for, charge, take, reserve,
or receive a greater amount of interest than under New York (or
such other jurisdiction's) law.
18. Counterparts. This Guaranty may be executed in any
number of counterparts and by the different parties hereto on
separate counterparts, which when so executed and delivered
shall be an original but all of which shall together constitute
one and the same instrument.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty
to be duly executed and delivered by its duly authorized officer
on the day and year first above written.
PANDA INTERHOLDING CORPORATION
By:
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
BANKERS TRUST COMPANY,
as Collateral Agent
By:
Name: Xxxxx X. Xxxxx
Title: Vice President
