EXHIBIT 4.07
COLLATERAL AGENCY AGREEMENT
Dated as of July 31, 1996
among
PANDA INTERFUNDING CORPORATION,
PANDA FUNDING CORPORATION
and
BANKERS TRUST COMPANY,
as Trustee under the Indenture,
dated as of July 31, 1996,
and as Collateral Agent
___________________
TABLE OF CONTENTS
Page
SECTION 1. Definitions 3
SECTION 2. Subordination 5
SECTION 3. Exercise of Rights Under Security Documents 9
SECTION 4. Distribution of Proceeds 10
SECTION 5 Appointment and Duties of Collateral Agent 11
SECTION 6. Rights of Collateral Agent 11
SECTION 7. Lack of Reliance on the Collateral Agent 13
SECTION 8. Indemnification 14
SECTION 9. Resignation or Removal of the Collateral Agent 14
SECTION 10. Representations and Warranties 14
SECTION 11. No Warranties 15
SECTION 12. Amendments, Etc. 15
SECTION 13. Addresses for Notices 15
SECTION 14. Counterparts 15
SECTION 15. Severability 15
SECTION 16. Reinstatement 16
SECTION 17. No Impairments of Other Rights 16
SECTION 18. LIMITATION ON LIABILITY 16
SECTION 19. Governing Law; Terms 16
SECTION 20. Submission to Jurisdiction 16
SECTION 21. No Third Party Beneficiaries 16
SECTION 22. WAIVER OF JURY TRIAL 17
SECTION 23. Headings 17
SECTION 24. Admission of Letter of Credit Provider 17
COLLATERAL AGENCY AGREEMENT
COLLATERAL AGENCY AGREEMENT dated as of July 31, 1996 (this
"Agreement") 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 and the Letter of Credit Provider (as defined
below) (in such capacity together with its successors and assigns
in such capacity, the "Collateral Agent").
W I T N E S S E T H :
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 (as defined in the
Indenture) 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 PIC's 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 by the Holders,
which PIC acknowledges is of substantial benefit to it (as
ultimate recipient, pursuant to the Loan evidenced by the Initial
PIC Note and pursuant to Additional Loans evidenced by Additional
PIC Notes, of the proceeds of the issuance of the Bonds), PIC
has, pursuant to the Security Agreement dated as of July 31,
1996, between PIC and the Collateral Agent (the "PIC Security
Agreement"), granted to the Collateral Agent for the benefit of
the Secured Parties a security interest in (i) the U.S. Accounts
and Funds (as defined in the Indenture) and all balances therein,
(ii) PIC's interest in the Additional Projects Contract, and
(iii) PIC's interest in U.S. Project Distributions, and pursuant
to the Stock Pledge Agreement dated as of July 31, 1996, between
PIC and the Collateral Agent (the "PIC Stock Pledge Agreement"),
pledged to the Collateral Agent for the benefit of the Secured
Paries (i) all of the capital stock of Panda Funding and of each
PIC U.S. Entity and (ii) 60% of the capital stock of each PIC
International Entity, all such assets to secure (A) Panda
Funding's obligations to the Holders and the Trustee under the
Indenture, (B) PIC's guarantee of Panda Funding's obligations to
the Holders and the Trustee under the PIC Guaranty and (C) PIC's
or PIC's controlling affiliate's obligations, if any, to the
Letter of Credit Provider under any Reimbursement Agreement;
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, 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");
WHEREAS, it is a condition precedent to the purchase of the
Series A Bonds by the Initial Purchaser that PIC shall have
pledged the Collateral as defined in, and granted the assignment
and security interest contemplated by, the PIC Stock Pledge
Agreement and the PIC Security Agreement, and that Panda Funding
shall have pledged the Collateral as defined in, and granted the
assignment and security interest contemplated by, the Panda
Funding Security Agreement and that PEC shall have pledged the
Collateral as defined in, and granted the assignment and security
interest contemplated by, the PEC Stock Pledge Agreement; and
WHEREAS, in connection with the Indenture, and any
Reimbursement Agreement entered into by PIC or a controlling
affiliate of PIC with a Letter of Credit Provider, the parties
hereto desire to enter into this Agreement to provide for, among
other things, (a) the exercise by the Collateral Agent of certain
rights and remedies under this Agreement and the other Security
Documents (as defined in the Indenture) on behalf of the Secured
Parties, (b) the priority of payments and application of funds
received by the Collateral Agent, (c) the priority of their
respective security interests created by the Security Documents
and (d) the appointment of the Collateral Agent to act as
collateral agent for the Secured Parties.
NOW, THEREFORE, to secure the Bonds, the PIC Guaranty and
the performance of the agreements in the Indenture and in the
Reimbursement Agreement (if entered into) 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, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used herein
and not defined in this Agreement shall have the respective
meanings assigned thereto in the Indenture, whether specifically
set forth therein or by reference to another document. Each such
definition shall be equally applicable to both the singular and
the plural forms of each such term so defined. Unless the
context otherwise requires, any reference in this Agreement to
any agreement, contract or document shall mean such agreement,
contract or document and all schedules, exhibits and attachments
thereto as amended, supplemented or otherwise modified and in
effect from time to time. Unless otherwise stated, any reference
in this Agreement to any Person shall include its successors and
permitted assigns and, in the case of any Government Authority,
any Person succeeding to its functions and capacities. Unless
otherwise specified herein, (i) all references to Sections,
paragraphs or other subdivisions herein are to this Agreement and
(ii) the words "include", "includes", and "including" are deemed
to be followed by "without limitation" whether or not they are,
in fact, followed by such words or words of like import.
(a) In addition, as used herein:
"Bond Obligations" shall mean all Senior Obligations at any
time owing to the Holders.
"Collateral" shall mean, collectively, the "Collateral" as
defined in the Panda Funding Security Agreement, the PIC Stock
Pledge Agreement, the PIC Security Agreement and the PEC Stock
Pledge Agreement.
"Collateral Agent Claims" shall mean, at any time, all
obligations of PIC or Panda Funding, now or hereafter existing,
to pay fees, costs, expenses, indemnities and other amounts to
the Collateral Agent pursuant to Sections 6(f), 8 or 16 hereof or
pursuant to any Security Document or Transaction Document.
"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).
"Responsible Officer" when used with respect to the Trustee
or to the Collateral Agent, shall mean any officer in the
corporate trust and agency group (or any successor group) of the
Trustee or the Collateral Agent including without limitation, any
vice president, assistant vice president, assistant secretary or
any other officer of the Trustee or the Collateral Agent
customarily performing functions similar to those performed by
any of the above designated officers and also means with respect
to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Secured 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 other
Security Documents and 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.
"Secured Party Direction" shall mean a written direction
from the Trustee (acting in accordance with the requirements of
the Indenture) or the Letter of Credit Provider, if any, to the
Collateral Agent.
"Security Interest" shall mean any Lien on the Collateral
granted to the Collateral Agent for the benefit of a Secured
Party pursuant to any Security Document or the Indenture.
"Senior Obligations" shall mean all Secured Obligations,
except in respect of the Reimbursement Agreement (if entered
into).
"Subordinated Obligations" shall mean all Secured
Obligations in respect of any Reimbursement Agreement.
"Transaction Documents" shall mean all agreements, documents
and instruments evidencing and/or securing any of the Secured
Obligations.
"Transfer Restrictions" shall have the meaning ascribed
thereto in the PIC Security Agreement.
"Trustee Claims" shall mean, at any time, all obligations of
PIC and Panda Funding, now or hereafter existing, to pay fees,
costs, expenses, indemnities or other amounts to the Trustee
pursuant to the Indenture.
(b) Each of PIC and Panda Funding agrees that (i) any
Reimbursement Agreement shall provide for the issuance of letters
of credit with an aggregate available amount not in excess of an
amount equal to the Debt Service Reserve Requirement as it may
exist from time to time for the sole purpose of substituting for
all or a portion of the monies otherwise required by the
Indenture to be maintained in the Debt Service Reserve Fund,
(ii) any Reimbursement Agreement (or any replacement or
substitute Reimbursement Agreement) shall be on terms reasonably
acceptable to the Secured Parties (other than the Letter of
Credit Provider), PIC and Panda Funding and shall provide that
all parties thereto agree to be bound by the terms of this
Agreement and the Letter of Credit Provider thereunder shall
execute an amendment to this Agreement in accordance with
Section 24 hereof, on behalf of itself and any other financial
institution party to the Reimbursement Agreement then in effect,
which amendment shall state the address for notices hereunder to
such Person and (iii) immediately upon the substitution or
replacement of a Letter of Credit Provider (or any successor
thereto) as a result of a replacement of a Reimbursement
Agreement or otherwise, such substitute or replacement Letter of
Credit Provider shall execute an amendment to this Agreement in
accordance with Section 24 hereof pursuant to which it, on behalf
of itself and any other financial institution party to the
Reimbursement Agreement then in effect, agrees to be bound by
this Agreement and, together with PIC and Panda Funding, deliver
a written notice to the Collateral Agent stating the address for
notices hereunder to such Person. PIC and Panda Funding shall
deliver to the Trustee an incumbency certificate with specimen
signatures for designated Authorized Representatives.
(c) The Letter of Credit Provider, upon its execution of
this Agreement, shall deliver to the Trustee an incumbency
certificate with specimen signatures for its designated
Authorized Representatives.
SECTION 2. Subordination.
(a) General. To the extent and in the manner set forth
herein, any payment of the Subordinated Obligations (except for
(i) any payment from assets of PIC other than the Collateral,
(ii) amounts on deposit in the U.S. Distribution Fund and
(iii) with respect to payments to be made to the Letter of Credit
Provider, fees from amounts on deposit in the PIC Expense Fund)
is expressly made subordinate and subject in right of payment to
the prior payment in full of all Senior Obligations due to the
Secured Parties, other than the Letter of Credit Provider, in
cash or cash equivalents (including, for all purposes of these
subordination terms, all interest accruing on Senior Obligations
after the filing of a petition in bankruptcy or the commencement
of any insolvency or bankruptcy proceedings with respect to PIC
or Panda Funding, and all commissions, fees, indemnities and
other amounts payable under the Transaction Documents to the
Collateral Agent and the Secured Parties other than the Letter of
Credit Provider). The Letter of Credit Provider agrees that it
will not take or receive from PIC, by set-off or in any other
manner, or retain, or, ask, demand or xxx for, payment (in whole
or in part) of the Subordinated Obligations, or any security
therefor (except for (i) any payment from assets of PIC other
than the Collateral, (ii) amounts on deposit in the U.S.
Distribution Fund and (iii) with respect to payments to be made
to the Letter of Credit Provider, fees from amounts on deposit in
the PIC Expense Fund) unless and until all of the Senior
Obligations due to the Secured Parties other than the Letter of
Credit Provider have been paid in full in cash or cash
equivalents. The Letter of Credit Provider shall direct PIC and
Panda Funding to make, and PIC and Panda Funding have agreed to
make, such prior payment of the Senior Obligations due to the
Secured Parties other than the Letter of Credit Provider.
(b) Payment Upon Dissolution, Etc. In the event of (i) any
insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding
in connection therewith, relating to PIC or Panda Funding or its
creditors as such, or to its assets, or (ii) any liquidation,
dissolution (other than dissolution of PIC that is cured within
15 days and which, prior to such cure, would not reasonably be
expected to result in a Material Adverse Change) or other winding
up of PIC or Panda Funding, whether partial or complete and
whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy or (iii) any assignment for the benefit
of creditors or any other marshalling of assets and liabilities
of PIC or Panda Funding, then and in any such event the
Collateral Agent, for the equal and ratable benefit of the
holders of the Senior Obligations, shall be entitled to receive
payment in full of all amounts due or to become due on or in
respect of all Senior Obligations before the Letter of Credit
Provider shall be entitled to receive any payment on account of
the Subordinated Obligations, and to that end, any payment or
distribution of any kind or character (except for (A) any payment
from assets of PIC other than the Collateral, (B) amounts on
deposit in the U.S. Distribution Fund and (C) with respect to
payments to be made to the Letter of Credit Provider, fees from
amounts on deposit in the PIC Expense Fund), whether in cash,
property or securities which may be payable or deliverable in
respect of the Subordinated Obligations in any such case,
proceeding, dissolution, liquidation or other winding up or event
shall instead be paid or delivered directly to the Collateral
Agent for application to the Senior Obligations, whether or not
due, until the Senior Obligations shall have first been fully
paid and satisfied in cash or cash equivalents.
(c) No Proceedings; No Collateral. Whether or not any
default in payment of any Senior Obligation shall exist or any
Default shall have occurred and be continuing, the Letter of
Credit Provider shall not, without prior written consent of the
Trustee (acting at the direction of the Holders under the
Indenture), (i) commence any action or proceeding against PIC or
Panda Funding to demand or enforce the payment of any principal
of, interest or premium on or other amount payable in respect of
the Subordinated Obligations, or exercise any right of set off in
respect thereof, (ii) commence any insolvency or bankruptcy case
or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding in connection therewith
relating to PIC or Panda Funding or its assets or creditors or
(iii) request, demand or accept any collateral security for the
Subordinated Obligations, other than as provided herein and in
the other Security Documents; provided that the Letter of Credit
Provider may, if it is otherwise permitted to take such action
under the Reimbursement Agreement, take any action against PIC
described in clauses (i) and (iii) above if such action is
restricted to the assets of PIC not constituting Collateral.
(d) Payment to Collateral Agent of Certain Amounts Received
by the Letter of Credit Provider. If , notwithstanding the terms
hereof, the Letter of Credit Provider receives on account or in
respect of the Subordinated Obligations any distribution of
assets by PIC or Panda Funding or payment by or on behalf of PIC
or Panda Funding of any kind or character (except for (i) any
payment from assets of PIC other than the Collateral,
(ii) amounts on deposit in the U.S. Distribution Fund and
(iii) with respect to payments to be made to the Letter of Credit
Provider, fees from amounts on deposit in the PIC Expense Fund),
whether in cash, securities or other property, prior to the
payment in full in cash or cash equivalents of all Senior
Obligations due to the Secured Parties other than the Letter of
Credit Provider, the Letter of Credit Provider shall hold such
distribution or payment in trust as property of the Collateral
Agent for the benefit of the holders of the Senior Obligations,
and shall, immediately upon receipt thereof, pay over or deliver
to the Collateral Agent such distribution or payment in precisely
the form received (except for the endorsement or assignment by
the Letter of Credit Provider where necessary) for application
pursuant to Section 4 hereof. In the event of failure of the
Letter of Credit Provider to make any such endorsement or
assignment, the Collateral Agent is irrevocably authorized to
make the same.
(e) Authorization of the Collateral Agent. Each of the
Trustee (acting at the direction of the Holders) and the Letter
of Credit Provider hereby (i) irrevocably authorizes and empowers
(without imposing any obligation on) the Collateral Agent to
demand, xxx for, collect and receive all payments and
distributions (except for (A) any payment from assets of PIC
other than the Collateral, (B) amounts on deposit in the U.S.
Distribution Fund and (C) with respect to payments to be made to
the Letter of Credit Provider, fees from amounts on deposit in
the PIC Expense Fund) on or in respect of the Secured Obligations
which are required to be paid or delivered to the Collateral
Agent, as provided herein, and to file and prove all claims
therefor and take all such other action, in the name of the
Trustee and/or the Letter of Credit Provider or otherwise, as the
Collateral Agent may be directed by the Trustee acting pursuant
to Article IX of the Indenture, (ii) irrevocably authorizes and
empowers (without imposing any obligation on) the Collateral
Agent, after the occurrence of any event described in clause (i),
(ii) or (iii) of Section 2(b) hereof and after the Collateral
Agent has been directed to do so by the Trustee acting pursuant
to Article IX of the Indenture, to vote the Senior Obligations
and the Subordinated Obligations (except to the extent, if any,
that such Subordinated Obligations are secured by assets of PIC
other than the Collateral) during the pendency of any insolvency
or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding
in connection therewith or relating to PIC or Panda Funding in
such manner as the Trustee acting pursuant to Article IX of the
Indenture shall instruct and (iii) agree to execute and deliver
to the Collateral Agent all such further instruments confirming
the above authorization, and all such powers of attorney, proofs
of claim, assignments of claim and other instruments, and to take
all such other action, as may be requested by the Collateral
Agent in order to enable the Collateral Agent to enforce all
claims upon or in respect of the Secured Obligations whenever the
Collateral Agent is authorized and permitted to do so under the
Security Documents.
(f) Notice; Legend. The Letter of Credit Provider agrees,
for the benefit of the Collateral Agent, the Trustee and each
Holder, that it will give the Collateral Agent and the Trustee
prompt written notice of any default by PIC or Panda Funding in
respect of the Subordinated Obligations. The Letter of Credit
Provider agrees that any note, bond or other instrument held by
it evidencing the Subordinated Obligations shall bear a prominent
legend specifying that payment of principal of, interest on or
other amount in respect of such note, bond or other instrument
(except for (i) any payment from assets of PIC other than the
Collateral, (ii) amounts on deposit in the U.S. Distribution Fund
and (iii) with respect to payments to be made to the Letter of
Credit Provider, fees from amounts on deposit in the PIC Expense
Fund) is subordinated to the Senior Obligations on the terms and
conditions set forth herein.
(g) No Waiver; Modification of Senior Obligations. No
failure on the part of the Collateral Agent, the Trustee or the
Holders, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof by the Collateral
Agent or the Trustee or the Holders, nor shall any single or
partial exercise by the Collateral Agent or the Trustee of any
right, remedy or power hereunder preclude any other or future
exercise of any other right, remedy or power. Each and every
right, remedy and power hereby granted to the Collateral Agent or
the Trustee or allowed to the Collateral Agent, the Trustee or
the Holders by law or other agreement shall be cumulative and not
exclusive, and may be exercised by the Collateral Agent or the
Trustee, for the equal and ratable benefit of the holders of the
Senior Obligations, from time to time.
Without in any way limiting the generality of the foregoing
paragraph, the Trustee, acting at the direction of the Holders as
provided in the Indenture, may, at any time and from time to
time, without the consent of or notice to the Letter of Credit
Provider, without incurring responsibility to the Letter of
Credit Provider, and without impairing or releasing the
subordination provided herein or the obligations hereunder of the
Letter of Credit Provider, do any one or more of the following:
(i) change the manner, place or terms of payment of or extend the
time of payment of, or renew or alter, any Senior Obligation, or
otherwise amend or supplement in any manner any Senior Obligation
or any instrument evidencing the same or any agreement under
which any Senior Obligation is outstanding or the Indenture or
the Bonds to the extent permitted by the terms of such documents
or instruments; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing any
Senior Obligation; (iii) release any Person liable in any manner
for any Senior Obligation; and (iv) exercise or refrain from
exercising any right against PIC, Panda Funding or any other
Person. The Letter of Credit Provider unconditionally waives
notice of the incurring of the Senior Obligations or any part
thereof. Notwithstanding the foregoing, the Trustee shall not
reduce the order of priority of the PIC Expense Fund in
Section 4.2 of the Indenture without the prior written consent of
the Letter of Credit Provider.
(h) Subrogation. The Letter of Credit Provider shall be
subrogated to the rights of the holders of the Senior Obligations
against PIC and Panda Funding and their respective Property in
respect of the Senior Obligations; provided that the Letter of
Credit Provider shall not be entitled to enforce or to receive
any payments arising out of, or based upon, such right of
subrogation until all Senior Obligations have been paid in full.
(i) Benefit of Subordination Provisions. These
subordination provisions are intended solely to define the
relative rights of the Letter of Credit Provider and its
successors and permitted assigns on the one hand and the holders
of the Senior Obligations and each of their respective successors
and permitted assigns on the other hand.
(j) Further Assurances. The Letter of Credit Provider, at
its own cost, shall take all further action as the Collateral
Agent or the Trustee may reasonably request in order more fully
to carry out the intent and purpose of these subordination
provisions.
(k) Priority of Security Interests. The priorities
specified herein are applicable irrespective of any statement in
any Security Document or in any other agreement to the contrary,
the time or order or method of attachment or perfection of any of
the Security Interests or the time or order of filing of
financing statements or the giving or failure to give notice of
the acquisition or expected acquisition of any type of security
interest. The parties hereto hereby agree that, as among the
Secured Parties, the Security Interest of the Secured Parties
other than the Letter of Credit Provider shall constitute a first
priority security interest in the Collateral and the Security
Interest of the Letter of Credit Provider shall constitute a
second priority Security Interest in the Collateral.
(l) Demand of Specific Performance. The Trustee, acting at
the direction of the Holders pursuant to the Indenture, hereby
authorizes and directs the Collateral Agent on its behalf to
demand specific performance of these terms of subordination,
whether or not PIC or Panda Funding shall have complied with any
of the provisions hereof applicable to PIC or Panda Funding at
any time when the Letter of Credit Provider shall have failed to
comply with any of such provisions applicable to the Letter of
Credit Provider. The Letter of Credit Provider hereby
irrevocably waives any defense based on the adequacy of a remedy
at law which might be asserted as a bar to such remedy of
specific performance.
SECTION 3. Exercise of Rights Under Security Documents.
So long as any Secured Obligation remains outstanding, the
following provisions shall apply:
(a) If any Event of Default shall have occurred and be
continuing, upon the written request of the Trustee acting
pursuant to Article IX of the Indenture, the Collateral Agent, on
behalf of the Secured Parties, shall be permitted and is hereby
authorized to take any and all actions and to exercise any and
all rights, remedies and options which it may have under this
Agreement or any of the other Security Documents (as directed in
such request).
(b) Each of the Trustee, the Letter of Credit Provider and
the Collateral Agent hereby agrees to give to the others written
notice of the occurrence of any Event of Default promptly after a
Responsible Officer of such Person receives written notice of the
occurrence thereof, provided, however, that the failure to
provide such notice shall not limit or impair the rights of any
of the Collateral Agent or the Secured Parties hereunder or under
the Transaction Documents or result in any liability to the
Secured Party failing to do so.
(c) The Trustee, on behalf of and at the direction of the
Bondholders pursuant to the Indenture, hereby acknowledges and
agrees that all U.S. Accounts and Funds held by the Trustee in
accordance with Article IV of the Indenture are held for the
benefit of the Secured Parties and that the Trustee shall hold
such U.S. Accounts and Funds as agent for the Collateral Agent
(and each of the Letter of Credit Provider and the Collateral
Agent agrees that the provisions of this Section 3 (to the extent
applicable) and of Sections 5, 6, 7 and 8 hereof shall inure to
the benefit of the Trustee as to any actions taken or omitted to
be taken by it as such agent with respect to the U.S. Accounts
and Funds). If any Event of Default shall have occurred and be
continuing, the Trustee, when required to do so pursuant to the
Indenture, shall deliver all (or any portion of, as so directed)
the monies, instruments or other property in such U.S. Accounts
and Funds to the Collateral Agent to be distributed by the
Collateral Agent in accordance with Section 4 hereof. The
Trustee hereby acknowledges and agrees (acting as agent of the
Collateral Agent) that it shall make all payments to the other
Secured Parties required to be made by it under the Indenture and
shall take all actions for the benefit of the other Secured
Parties required to be taken by it pursuant to the Indenture in
accordance with the terms and provisions of the Indenture.
(d) Each of the Secured Parties hereby acknowledges and
agrees that the Collateral Agent shall administer the Collateral
in the manner contemplated by this Agreement and the other
Security Documents and the Collateral Agent shall take and
exercise, as directed by the Trustee in accordance with
Section 3(a) hereof, such actions, rights, remedies and options
with respect to the Collateral as are granted or permitted to it
under this Agreement, the other Security Documents and applicable
law. No Secured Party shall have any right (i) to direct the
Collateral Agent to take any action in respect of the Collateral
other than in accordance with this Section 3 or (ii) to take any
action with respect to the Collateral (A) independently of the
Collateral Agent or (B) other than to direct the Collateral Agent
to take action in accordance with this Section 3.
SECTION 4. Distribution of Proceeds.
(a) Subject to Section 4(b) hereof, the proceeds of any
sale, disposition or other realization by the Collateral Agent or
by any other Secured Party upon the Collateral (or any portion
thereof), or other receipt by the Collateral Agent of cash,
securities or other property, pursuant to the Security Documents
shall be distributed in the following order of priority:
first, to the Collateral Agent and Trustee, ratably, in
an amount equal to the amounts due in respect of the
Collateral Agent Claims and the Trustee Claims due and
payable as of the date of such distribution; provided that,
prior to any such distribution to the Trustee, the
Collateral Agent shall have received a certificate signed by
the Trustee, in form and substance satisfactory to the
Collateral Agent, setting forth the amount of unpaid Trustee
Claims as of the date of such distribution;
second, to the Trustee for distribution in accordance
with the Indenture, an amount equal to the unpaid amount of
Bond Obligations (whether or not then due);
third, to the Letter of Credit Provider, an amount
equal to the unpaid amount of Subordinated Obligations (if
any) (whether or not then due); and
fourth, to the applicable grantors, pledgors or
mortgagors under the applicable Security Documents as their
interest may appear or their successors or assigns or to
whomever may be lawfully entitled to receive the same or as
a court of competent jurisdiction may direct, any surplus
then remaining from such proceeds,
it being understood that Panda Funding (and PIC pursuant to the
PIC Guaranty), subject to the limitations on recourse contained
in the Indenture and the Reimbursement Agreement (if entered
into) shall remain liable to the extent of any deficiency between
the amount of the proceeds of the Collateral and the aggregate of
the sums referred to in clauses first through third of this
Section 4. As used in this Section 4(a), "proceeds" of
Collateral shall mean cash, securities and other property
realized in respect of, and distribution in kind of, Collateral,
including any thereof received under any reorganization,
liquidation or adjustment of debt of PIC or Panda Funding or any
issuer of or obligor on any of the Collateral.
(b) Notwithstanding Section 4(a) above, if the Collateral
Agent receives any proceeds resulting from a Mandatory Redemption
Event, after deducting the amount of any outstanding Collateral
Agent Claims, the Collateral Agent shall pay such proceeds to the
Trustee for application in accordance with the terms of the
Indenture.
SECTION 5. Appointment and Duties of Collateral Agent.
(a) Each of the Trustee and the Letter of Credit Provider
hereby designates and appoints Bankers Trust Company, as Trustee,
to act as the Collateral Agent hereunder, under the Security
Documents and the other Transaction Documents to which it is a
party, and authorizes the Collateral Agent to take such actions
on the Secured Parties' behalf under the provisions of the
Security Documents and the other Transaction Documents to which
it is a party and to exercise such powers and perform such duties
as are expressly delegated to the Collateral Agent by the terms
of the Security Documents and the other Transaction Documents to
which it is a party. Notwithstanding any provision to the
contrary elsewhere in the Security Documents and the other
Transaction Documents to which it is a party, the Collateral
Agent shall not have any duties or responsibilities, except those
expressly set forth in the Security Documents and the other
Transaction Documents to which it is a party, or any fiduciary
relationship with any Secured Party, and no implied covenants,
functions or responsibilities shall be read into the Security
Documents or the other Transaction Documents to which it is a
party or otherwise exist against the Collateral Agent.
(b) The Collateral Agent will give notice to the Secured
Parties of any action taken by it under any Security Document or
any other Transaction Document to which it is a party; such
notice shall be given prior to the taking of such action unless
the Collateral Agent determines upon advice of counsel that
failure to take immediate action would be detrimental to the
interests of the Secured Parties, in which event such notice
shall be given promptly after the taking of such action.
(c) Notwithstanding anything to the contrary in any
Security Document or any other Transaction Document to which it
is a party, the Collateral Agent shall not be required to
exercise any discretionary rights or remedies under any of the
Security Documents or the other Transaction Documents to which it
is a party or give any consent under any of the Security
Documents or the other Transaction Documents to which it is a
party or enter into any agreement amending, modifying,
supplementing or waiving any provision of any Security Document
or any other Transaction Document to which it is a party unless
it shall have been directed to do so by the Trustee acting
pursuant to the Indenture.
SECTION 6. Rights of Collateral Agent.
(a) The Collateral Agent may execute any of its duties
under the Security Documents and the other Transaction Documents
to which it is a party by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters
pertaining to such duties.
(b) Neither the Collateral Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates
shall be (i) liable for any action lawfully taken or omitted to
be taken by it under or in connection with any Security Document
or any other Transaction Document to which it is a party (except
for its gross negligence or willful misconduct), or
(ii) responsible in any manner to any of the Secured Parties for
any recitals, statements, representations or warranties (other
than those made by the Collateral Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates)
contained in any Security Document or any other Transaction
Document to which it is a party or in any certificate, report,
statement or other document referred to or provided for in, or
received by the Collateral Agent under or in connection with, any
Security Document for any other Transaction Document to which it
is a party or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of the Security
Documents or any other Transaction Document to which it is a
party or for any failure of PIC or Panda Funding to perform their
obligations thereunder. The Collateral Agent shall not be under
any obligation to any Secured Party to ascertain or to inquire as
to the observance or performance of any of the agreements
contained in, or conditions of, any Security Document or any
other Transaction Document to which it is a party, or to inspect
the properties, books or records of PIC or Panda Funding.
(c) The Collateral Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Secured Party
Direction, note, writing, resolution, notice, consent,
certificate, direction, affidavit, letter, cablegram, telegram,
telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to PIC or Panda Funding),
independent accountants and other experts selected by the
Collateral Agent. In connection with any request of the Trustee,
the Collateral Agent shall be fully protected in relying on a
certificate of the Trustee, signed by an authorized
representative of the Trustee, stating specifically the Security
Document or the Transaction Document and provision thereof
pursuant to which the Collateral Agent is being directed to act.
The Collateral Agent shall be entitled to rely, and shall be
fully protected in relying, on such certificate. The Collateral
Agent shall be fully justified in failing or refusing to take any
action under any Security Document or any other Transaction
Document if (i) such action would, in the opinion of the
Collateral Agent, be contrary to law or the terms of the Security
Documents or the other Transaction Documents, (ii) such action is
not specifically provided for in such Security Document or other
Transaction Document or any other Security Document or other
Transaction Document, and it shall not have received an Officers'
Certificate and an Opinion of Counsel, or (iii) it shall not
first be indemnified to its satisfaction by the Secured Parties
(other than the Trustee) against any and all liabilities and
expenses that may be incurred by it by reason of taking or
continuing to take any such action. The Collateral Agent shall
in all cases be fully protected in acting, or in refraining from
acting, under any Security Document or any other Transaction
Document in accordance with a request of the Trustee, and such
request and any action taken or failure to act pursuant thereto
shall be binding upon all the Secured Parties.
(d) If, with respect to a proposed action to be taken by
it, the Collateral Agent shall determine in good faith that the
provisions of any Security Document or any other Transaction
Document relating to the functions or responsibilities or
discretionary powers of the Collateral Agent are or may be
ambiguous or inconsistent, the Collateral Agent shall notify the
Secured Parties, identifying the proposed action and the
provisions that it considers are or may be ambiguous or
inconsistent, and may decline either to perform such function or
responsibility or to exercise such discretionary power unless it
has received the written confirmation of the Trustee that the
Trustee (acting pursuant to the Indenture) concurs in the
circumstances that the action proposed to be taken by the
Collateral Agent is consistent with the terms of this Agreement
or such other Security Document or such other Transaction
Document or is otherwise appropriate. The Collateral Agent shall
be fully protected in acting or refraining from acting upon the
confirmation of the Trustee in this respect, and such
confirmation shall be binding upon the Collateral Agent and all
the Secured Parties.
(e) The Collateral Agent shall not be deemed to have
actual, constructive, direct or indirect knowledge or notice of
the occurrence of any Event of Default unless and until a
Responsible Officer (as such term is defined in the Indenture
with respect to the Trustee) of the Collateral Agent has received
a written notice or a certificate from a Responsible Officer of
the Trustee, or an Authorized Representative of the Letter of
Credit Provider, PIC or Panda Funding stating that an Event of
Default has occurred. The Collateral Agent shall have no
obligation whatsoever either prior to or after receiving such
notice or certificate to inquire whether an Event of Default has
in fact occurred and shall be entitled to rely conclusively, and
shall be fully protected in so relying, on any notice or
certificate so furnished to it. Notwithstanding any provision
hereof or of any Security Document or any other Transaction
Document to which it is a party, the Collateral Agent shall not
be required to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder or under any Security Document or any other Transaction
Document to which it is a party or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
If the Collateral Agent receives a notice of the occurrence of
any Event of Default, the Collateral Agent shall forward a copy
of such notice to the Trustee and the Letter of Credit Provider.
The Collateral Agent shall take such action with respect to such
Event of Default as directed pursuant to Section 3(a) hereof.
(f) PIC and Panda Funding jointly and severally agree to
pay to the Collateral Agent all reasonable fees, costs and
expenses of the Collateral Agent (including without limitation,
reasonable fees and expenses of legal counsel, accountants,
agents or other persons not regularly in its employ), in
connection with or incident to (i) the acceptance and
administration of this Agreement, the Security Documents and the
other Transaction Documents to which it is a party, (ii) the
custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral, (iii) the exercise
or enforcement (whether through negotiations, legal proceedings
or otherwise) of any of the rights of the Collateral Agent or the
Secured Parties under the Security Documents and the other
Transaction Documents to which it is a party or (iv) the failure
by either PIC or Panda Funding to perform or observe any of the
provisions of the Security Documents or any Transaction Documents
to which it is a party.
(g) The Collateral Agent hereby designates and appoints the
Trustee to hold all U.S. Accounts and Funds as agent for the
Collateral Agent for the benefit of the Secured Parties.
SECTION 7. Lack of Reliance on the Collateral Agent.
Each of the Secured Parties expressly acknowledges that neither
the Collateral Agent nor any of its officers, directors,
employees, agents or attorneys-in-fact has made any
representations or warranties to it and that no act by the
Collateral Agent hereinafter taken shall be deemed to constitute
any representation or warranty by the Collateral Agent to any
Secured Party. Except for notices, reports and other documents
expressly required to be furnished to any Secured Party by the
Collateral Agent hereunder, the Collateral Agent shall not have
any duty or responsibility to provide any Secured Party with any
credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of
any Project, PIC or Panda Funding which may come into the
possession of the Collateral Agent or any of its officers,
directors, employees, agents or attorneys-in-fact.
SECTION 8. Indemnification. PIC and Panda Funding
jointly and severally agree to indemnify the Collateral Agent and
each Secured Party from and against any and all claims, losses,
liabilities and damages of any kind or nature whatsoever
(including indirect, incidental and consequential damages)
arising out of or resulting from (i) this Agreement, any Security
Document and any other Transaction Document to which it is a
party, but excluding any such claims, losses, liabilities or
damages arising out of or resulting from the Collateral Agent's
or such Secured Party's gross negligence or willful misconduct or
(ii) any refund or adjustment of any amount paid or payable to
the Collateral Agent or any Secured Party under or in respect of
any Collateral, or any interest thereon, which may be ordered or
otherwise required by any Person. The provisions of this
Section 8 and of Sections 6(f) and 16 shall survive the
resignation or removal of the Collateral Agent and the
termination of this Agreement.
SECTION 9. Resignation or Removal of the Collateral
Agent. The Collateral Agent may resign as Collateral Agent upon
ten days' notice to the Trustee, the Letter of Credit Provider
(if any), PIC and Panda Funding and may be removed at any time
with or without cause by the Trustee, with any such resignation
or removal to become effective only upon the appointment of a
successor Collateral Agent under this Section 9. If the
Collateral Agent shall resign or be removed as Collateral Agent,
then the Trustee (acting at the direction of the Bondholders
pursuant to the Indenture) shall (and if no such successor shall
have been appointed within 30 days of the Collateral Agent's
resignation or removal, the Collateral Agent may) appoint a
successor agent for the Secured Parties, which successor agent
shall be reasonably acceptable to the Bondholders, the Letter of
Credit Provider (if any), PIC and Panda Funding (and which
successor agent shall meet the standards required for successors
to the Trustee, as provided in the Indenture) whereupon such
successor agent shall succeed to the rights, powers and duties of
the "Collateral Agent", and the term "Collateral Agent" shall
mean such successor agent effective upon its appointment, and,
except as expressly provided herein, the former Collateral
Agent's rights, powers and duties as Collateral Agent shall be
terminated, without any other or further act or deed on the part
of such former Collateral Agent (except that the resigning
Collateral Agent shall deliver all Collateral then in its
possession to the successor Collateral Agent) or any of the other
Secured Parties. If no successor is appointed within 60 days,
the Collateral Agent (at the expense of Panda Funding and PIC)
may petition any court of competent jurisdiction to appoint a
successor.
After resignation or removal hereunder as Collateral Agent,
the provisions of this Agreement shall inure to the former
Collateral Agent's benefit as to any actions taken or omitted to
be taken by it while it was Collateral Agent.
SECTION 10. Representations and Warranties. Each of PIC
and Panda Funding hereby makes the following representations and
warranties with respect to itself for the benefit of the Secured
Parties:
(i) Each of PIC and Panda Funding has all necessary
corporate power and authority to execute, deliver and
perform under this Agreement. All action on the part of PIC
and Panda Funding that is required for the authorization,
execution, delivery and performance of this Agreement, in
each case has been duly and effectively taken; and the
execution, delivery and performance of this Agreement does
not require the approval or consent of any holder or trustee
of any debt or other obligations of PIC and Panda Funding
which has not been obtained.
(ii) This Agreement has been duly executed and
delivered by PIC and Panda Funding. This Agreement
constitutes a legal, valid and binding obligation of each of
PIC and Panda Funding enforceable against such Person in
accordance with its terms, except as such enforceability
(A) may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights and remedies generally
and (B) is subject to the application of general principles
of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
SECTION 11. No Warranties. Except as otherwise expressly
provided herein, the Secured Parties have not made any warranty,
express or implied, or assumed any liability with respect to the
enforceability, validity, value or collectability of the
Collateral (or any portion thereof). No Secured Party shall be
liable to any other Secured Party for any action or failure to
act or any error of judgment, negligence, or mistake, or
oversight whatsoever on the part of any Secured Party or any
Secured Party's agents, officers, employees or attorneys with
respect to any transaction relating to any of the Security
Documents or the Collateral.
SECTION 12. Amendments. Etc. No amendment or waiver of
any provision of this Agreement nor consent to any departure
herefrom shall in any event be effective unless the same shall be
in writing and duly executed by the Trustee, the Letter of Credit
Provider (if any) and the Collateral Agent, and then such waiver
or consent shall be effective only in the specific instance and
for the specified purpose for which given. No delay on the part
of any Secured Party in the exercise of any right, power or
remedy shall operate as a waiver by such Secured Party of any
right, power or remedy or preclude any further exercise thereof,
or the exercise of any other right, power or remedy.
SECTION 13. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing
(including telecopy communication) and shall be mailed,
telecopied or delivered to PIC, Panda Funding, the Trustee, the
Letter of Credit Provider (if any) and the Collateral Agent at
its address specified on the signature page hereof or as to any
party at such other address as shall be designated by such party
in a written notice to each other party complying as to delivery
with the terms of this Section 13. All such notices and other
communication shall, when mailed or telecopied, respectively, be
effective when deposited in the mails or telecopied,
respectively, addressed as aforesaid.
SECTION 14. Counterparts. This Agreement may be executed
in any number of counterparts, all of which together shall
constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such
counterpart.
SECTION 15. Severability. If any provision hereof is
invalid and unenforceable in any jurisdiction, then, to the
fullest extent permitted by law, (i) the other provisions hereof
shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Collateral Agent and
the Trustee in order to carry out the intentions of the parties
hereto as nearly as may be possible and (ii) the invalidity or
unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision
in any other jurisdiction.
SECTION 16. Reinstatement. This Agreement shall
automatically be reinstated if and to the extent that for any
reason payment in respect of the Secured Obligations is rescinded
or must otherwise be restored by any holder of the Secured
Obligations, whether as a result of any proceeding in bankruptcy
or reorganization or otherwise, and PIC and Panda Funding shall
jointly and severally indemnify the Collateral Agent and each
Secured Party on demand for all reasonable fees, costs and
expenses (including reasonable counsel's fees) incurred by the
Collateral Agent or such Secured Party in connection with such
rescission or restoration.
SECTION 17. No Impairments of Other Rights. Nothing in
this Agreement is intended or shall be construed to impair,
diminish or otherwise adversely affect any other rights the
Collateral Agent or Secured Parties may have or may obtain
against PIC or Panda Funding.
SECTION 18. LIMITATION ON LIABILITY. Notwithstanding
anything herein to the contrary, recourse to PIC and Panda
Funding (and any affiliate of PIC or Panda Funding or any
incorporator, partner, stockholder, agent, officer, employee or
director of PIC, Panda Funding or any such affiliate) for the
payment and performance of the Secured Obligations (including,
without limitation, all costs and expenses to be borne by PIC or
Panda Funding hereunder) shall be limited to the extent provided
in section 5.1 of the Indenture, which provisions are hereby
incorporated into this Agreement in their entirety.
SECTION 19. Governing Law; Terms. This Agreement shall
be governed by, and construed in accordance with, the laws of the
State of New York, except as required by mandatory provisions of
law and except to the extent that the validity of remedies
provided hereunder are governed by the laws of any jurisdiction
other than the State of New York. Unless otherwise defined
herein or in the Indenture, terms used in Article 9 of the UCC
are used herein as therein defined.
SECTION 20. Submission to Jurisdiction. Each of PIC,
Panda Funding, the Trustee, the Letter of Credit Provider (upon
its execution of this Agreement) and the Collateral Agent hereby
submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of any
New York State court sitting in New York County for the purposes
of all legal proceedings arising out of or relating to this
Agreement or any of the transactions contemplated hereby. Each
of PIC, Panda Funding, the Trustee, the Letter of Credit Provider
(upon its execution of this Agreement) and the Collateral Agent
hereby irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a
court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
SECTION 21. No Third Party Beneficiaries. The agreements
of the parties hereto are solely for the benefit of the
Collateral Agent and the Secured Parties, and no Person (other
than the parties hereto, and their successors and assigns
permitted hereunder) shall have any rights hereunder.
SECTION 22. WAIVER OF JURY TRIAL. Each of PIC, Panda
Funding, the Trustee, the Letter of Credit Provider (upon its
execution of this Agreement) and the Collateral Agent hereby
irrevocably waives, to the fullest extent permitted by law, any
and all right to trial by jury in any legal proceeding arising
out of or relating to this agreement or the transactions
contemplated hereby.
SECTION 23. Headings. Headings used in this Agreement
are for convenience of reference only and are not intended to
affect the interpretation of any provision of this Agreement.
SECTION 24. Admission of Letter of Credit Provider. Upon
written notice from PIC that it will, pursuant to Section 4.5(c)
of the Indenture, exercise its right to substitute a Letter of
Credit for all or a portion of the funds in the Debt Service
Reserve Fund under the terms of a Reimbursement Agreement with a
Letter of Credit Provider, in each case reasonably acceptable to
the Trustee and in accordance with the Indenture, the parties
hereto will amend this Agreement to admit the Letter of Credit
Provider as a party hereto in such capacity with the rights and
obligations set forth herein.
IN WITNESS WHEREOF, the parties hereto, by their officers
duly authorized, have caused this Agreement to be duly executed
and delivered as of the date first above written.
PANDA FUNDING CORPORATION
By:
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
Address: 0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
PANDA INTERFUNDING CORPORATION
By:
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
Address: 0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
BANKERS TRUST COMPANY,
as Trustee and as Collateral Agent
By:
Name: Xxxxx X. Xxxxx
Title: Vice President
Address: 0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
