EXHIBIT 10.01
PIC LOAN AGREEMENT
by and between
PANDA FUNDING CORPORATION,
as Lender
and
PANDA INTERFUNDING CORPORATION,
as Borrower
Dated
as of
July 31, 1996
TABLE OF CONTENTS
(The Table of Contents is not a part of the Loan Agreement
but for convenience of reference only.)
Page
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Preliminary Recitals . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS AND INTERPRETATIONS
Section 1.1. Definitions 2
Section 1.2. Interpretations 4
ARTICLE II SALE OF THE BONDS; LOAN; DISPOSITION OF LOAN PROCEEDS
Section 2.1. Issuance of the Bonds 4
Section 2.2. Loans 4
Section 2.3. Redemption of Bonds 5
ARTICLE III LOAN PAYMENTS
Section 3.1. Loan Payments 5
Section 3.2. Debt Service Fund 6
Section 3.3. Excess Funds 6
Section 3.4. Nature of Obligations of the Borrower 6
Section 3.5. Usury 7
ARTICLE IV PREPAYMENT OF THE LOAN PAYMENTS
Section 4.1. Prepayment and Payment of Loan 7
ARTICLE V SPECIAL COVENANTS
Section 5.1. Representations of Borrower; Maintenance of
Corporate Existence 8
Section 5.2. Representations of Panda Funding 8
Section 5.3. Special Covenants 8
Section 5.4 Net Agreement 9
ARTICLE VI ASSIGNMENT
Section 6.1. Consolidation, Merger and Assignment by
the Borrower 9
Section 6.2. Panda Funding's Rights of Assignment 9
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES
Section 7.1. Enumeration of "Events of Default" 9
Section 7.2. Remedies 10
Section 7.3. No Remedy Exclusive 10
ARTICLE VIII GENERAL
Section 8.1 Waiver of Rights 10
Section 8.2. The Trustee; Paying Agent 11
Section 8.3. Third Party Beneficiaries 11
Section 8.4. Notices and Communications 11
Section 8.5. Counterparts, Amendments, Governing
Law, Etc. 11
Section 8.6. Term of Agreement 12
Signatures . . . . . . . . . . . . . . . . . [Signature Page -1]
Exhibit A - Form of PIC Note
PIC LOAN AGREEMENT
THIS PIC LOAN AGREEMENT, dated as of July 31, 1996 (together
with any amendments or supplements hereto, this "Agreement"), is
by and between PANDA FUNDING CORPORATION (together with any
permitted successor or assign under the Indenture referred to
below, "Panda Funding"), a Delaware corporation, as lender, and
PANDA INTERFUNDING CORPORATION (together with any permitted
successor or assign under the Indenture, the "Borrower"), a
Delaware corporation.
W I T N E S S E T H:
WHEREAS, Panda Funding has determined to issue its
$105,525,000 aggregate principal amount of 11 5/8% Pooled Project
Bonds, Series A due 2012 (the "Series A Bonds") pursuant to a
Trust Indenture dated as of July 31, 1996, together with any
amendments or supplements permitted under the Indenture (the
"Master Indenture") among Panda Funding, the Borrower and Bankers
Trust Company, a New York banking corporation, as trustee, as
supplemented by a first supplemental indenture dated as of July
31, 1996 (the "Series A Supplemental Indenture") (collectively,
the "Indenture"). Terms used but not defined herein shall have
the meanings ascribed thereto in the Indenture; and
WHEREAS, Panda Funding proposes hereby to lend the proceeds
of the Series A Bonds to the Borrower and the Borrower desires to
borrow the proceeds of the Series A Bonds upon the terms and
conditions set forth herein; and
WHEREAS, Panda Funding may, from time to time, determine to
issue additional Series of Pooled Project Bonds (collectively
with the Series A Bonds, the "Bonds") pursuant to the Indenture
and Series Supplemental Indentures relating to such additional
Bonds; and
WHEREAS, Panda Funding proposes to lend the proceeds of any
additional Series of Bonds to the Borrower and the Borrower
desires to borrow the proceeds of such additional Series of Bonds
upon the terms and conditions set forth herein; and
WHEREAS, the conditions precedent to the obligations of the
Initial Purchaser to purchase the Series A Bonds include the
execution and delivery of this Agreement; and
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein contained and of the loans, extensions of
credit and commitments hereinafter referred to, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
Section 1.1. Definitions. The following terms shall have
the meanings assigned to them below whenever they are used in
this Agreement, unless the context clearly otherwise requires.
Except where the context otherwise requires, words imparting the
singular number shall include the plural number and vice versa.
"Additional Note" means each additional promissory
note issued by the Borrower to Panda Funding evidencing
a Loan relating to an additional Series of Bonds made on
behalf of Panda Funding to the Borrower under this
Agreement pursuant to Section 2.2(b) , substantially in
the form of the note attached hereto as Exhibit A.
"Agreement" is defined on page 1 of this Agreement.
"Authorized Representative" has the meaning ascribed
thereto in the Indenture.
"Bondholder" or "holder" has the meaning ascribed
thereto in the Indenture.
"Bonds" has the meaning ascribed thereto in the
Indenture.
"Borrower" is defined in the recitals of this
Agreement.
"Collateral Agent" has the meaning ascribed thereto
in the Indenture.
"Debt Service Fund" has the same meaning as that
specified in the Indenture.
"event of default" or "default" is defined in Section
10.1 of this Agreement.
"Financing Documents" means this Agreement, the
Series A Bonds, the Bonds, the Indenture, the Notes,
the PIC Guaranty, the Security Documents, and the all
other agreements, certificates, documents and
instruments ever delivered in connection with any of
such documents.
"Governmental Authority" has the meaning ascribed
thereto in the Indenture.
"Indenture" is defined in the recitals of this
Agreement.
"Initial Note" means the promissory note issued by
the Borrower to Panda Funding evidencing the Loan
relating to the Series A Bonds made on behalf of Panda
Funding to the Borrower under this Agreement pursuant to
Section 2.2(a), substantially in the form of the note
attached hereto as Exhibit A.
"Interest Payment Date" means, with respect to the
Initial Note, each date upon which an interest payment
on the Series A Bonds becomes due and payable under the
Indenture, and with respect to each Additional Note,
each date upon which an interest payment on the
applicable Series of Bonds becomes due and payable under
the Series Supplemental Indenture authorizing such
Series of Bonds.
"Loan or Loans" means each loan made by Panda
Funding to the Borrower under this Agreement.
"Loan Payments" means the payments to be made by the
Borrower pursuant to Section 3.1 of this Agreement.
"Material Adverse Change" has the meaning ascribed
thereto in the Indenture.
"Notes" means the promissory notes issued by the
Borrower payable to the order of Panda Funding
evidencing the Loans relating to the Bonds made on
behalf of Panda Funding to the Borrower under this
Agreement, substantially in the form of the note
attached hereto as Exhibit A. "Notes" shall include the
Initial Note and each Additional Note.
"outstanding" when used with respect to the Bonds
has the same meaning as that specified in the Indenture
when used with respect to the Notes has a corollary
meaning.
"Panda Funding" means the party defined as such on
page 1 of this Agreement.
"Paying Agent" has the meaning ascribed thereto in
the Indenture.
"person" means any individual, sole proprietorship,
corporation, partnership, joint venture, limited
liability company, trust, estate, unincorporated
association, institution, Governmental Authority, or
other organization or entity.
"PIC Guaranty" has the meaning ascribed thereto in
the Indenture.
"Projects" has the meaning ascribed thereto in the
Indenture.
"Series A Bonds" means the Bonds defined as such in
the recitals of this Agreement, which are issued, sold
and delivered pursuant to Article II of the Indenture.
"Trustee" means Bankers Trust Company, as trustee, a
New York banking corporation, having the powers of a
trust company, serving as trustee pursuant to the
Indenture, or any successor trustee.
"U.S. Government Obligations" has the meaning
ascribed thereto in the Indenture.
Section 1.2. Interpretations. The table of contents and
article and section headings of this Agreement are for reference
purposes only and shall not affect its interpretation in any
respect.
ARTICLE II
SALE OF THE BONDS; LOAN; DISPOSITION OF LOAN PROCEEDS
Section 2.1. Issuance of the Bonds. (a) Panda Funding
agrees that immediately following the delivery of this Agreement,
it will execute and deliver the Series A Supplemental Indenture
and issue, sell and deliver the Series A Bonds in the aggregate
principal amount of $105,525,000. The Series A Bonds shall be
limited obligations of Panda Funding and shall be payable by
Panda Funding solely as provided in the Indenture.
(b) Upon the conditions and as permitted or required by the
terms of the Indenture, Panda Funding agrees that it will, from
time to time, execute and deliver Series Supplemental Indentures
and issue, sell and deliver additional Series of Bonds. Such
additional Series of Bonds shall be the limited obligations of
Panda Funding and shall be payable by Panda Funding solely as
provided in the Indenture.
Section 2.2. Loans. (a) The proceeds of the sale of the
Series A Bonds (which proceeds shall be disbursed in accordance
with the Indenture) are hereby lent by Panda Funding to the
Borrower as the initial Loan hereunder. The initial Loan shall
be evidenced by the Borrower's creation and issuance of the
Initial Note dated as of the date of the Series A Bonds and
payable to the order of Panda Funding.
(b) The proceeds of the sale of any additional Series of
Bonds (which proceeds shall be disbursed in accordance with the
Indenture and the applicable Series Supplemental Indenture) shall
be lent by Panda Funding to the Borrower as Loans hereunder.
Such Loans shall be evidenced by the Borrower's creation and
issuance of Additional Notes dated the date of the related Series
of Bonds and payable to the order of Panda Funding.
Section 2.3. Redemption of Bonds. Panda Funding agrees
that, at the request at any time of the Borrower and if permitted
by the Indenture, it will forthwith take all steps that may be
necessary under the applicable redemption provisions of the
Indenture to effect redemption of all or part of the then
outstanding Series of Bonds, as may be specified by the Borrower,
on the redemption date designated by the Borrower and on which
such redemption may be made under such applicable provisions, and
if for any reason Panda Funding shall fail promptly to take such
steps upon the request of the Borrower, the Borrower may take
such steps on behalf and in the name of Panda Funding.
ARTICLE III
LOAN PAYMENTS
Section 3.1. Loan Payments. To repay the Loans evidenced
by the Notes, the Borrower shall, subject to the limitations of
Section 3.5 hereof, make Loan Payments in installments, so as to
provide amounts for the timely payment of the principal of and
premium, if any, and interest on the related Series of Bonds in
the amounts and at or before the opening of business on the dates
as follows: (a) on each Interest Payment Date, an aggregate
amount equal to the accrued interest coming due on such date on
all outstanding Bonds of such Series, (b) on each Principal
Payment Date, the principal amount of all outstanding Bonds of
such Series maturing on such date; (c) on each date on which any
of the Bonds of such Series are to be redeemed, the principal
amount of and premium, if any, and interest (including interest
accrued or to be accrued to such date) on the related Series of
Bonds to be redeemed on such date in accordance with the
provisions of the Indenture; and (d) on any date on which all the
Bonds or all the Bonds of any Series shall be declared to be and
shall become due and payable prior to their stated maturities
pursuant to the provisions of the Indenture, the aggregate amount
of principal, premium, if any, and interest so becoming due and
payable on all the Bonds or all the Bonds of any Series in
accordance with the terms of the Indenture. Any amount in cash
held in or concurrently paid to the Debt Service Fund or
otherwise held by the Trustee which may, pursuant to the
provisions of the Indenture, be applied to the payment of the
principal of and interest and premium, if any, on the related
Series of Bonds and which is in excess of the amount, if any,
required for payment of any past due principal of (whether by
maturity or redemption) and premium, if any, on any Bonds of such
Series theretofore matured or called for redemption and any past
due interest, if any, on the Bonds of such Series shall be
credited against the installment of the Loan Payments then
required to be made by the Borrower. If on any date of payment
referred to in clause (a), (b), (c) or (d) of this Section 3.1,
the amount in cash held in the Debt Service Fund or otherwise
held by the Trustee and available in accordance with the
provisions of the Indenture for the payment of the principal of
and interest and premium, if any, on the related Series of Bonds
shall not be sufficient to pay all principal, interest and
premium, if any, then due or overdue, the Borrower forthwith
shall also pay the amount of such deficiency on such date to the
Trustee in immediately available funds.
Section 3.2. Debt Service Fund. The Borrower shall pay
the Loan Payments required of it under this Agreement by
remitting the same directly to the Trustee for deposit in the
Debt Service Fund or by causing a transfer to be made to the Debt
Service Fund from the other Accounts and Funds (as defined in the
Indenture) as provided in the Indenture.
Section 3.3. Excess Funds. After all of the Bonds have
been retired and all interest and applicable premiums, if any,
due thereon have been paid or provision for such retirement and
payment has been made, and all compensation and expenses of the
Trustee, the Collateral Agent and any Paying Agent have been paid
or provision for such payment has been made, any excess moneys
remaining in the Accounts and Funds (other than the International
Accounts and Funds) shall forthwith be paid by the Trustee to the
Borrower in the manner prescribed by the last sentence of Section
6.1 of the Indenture.
Section 3.4. Nature of Obligations of the Borrower.
Until all of the Bonds shall be deemed to have been paid within
the meaning of Section 6.1 of the Indenture, the obligations of
the Borrower to pay the Loan Payments as provided in this
Agreement and to make all other payments required herein shall be
absolute and unconditional, irrespective of any rights of
set-off, recoupment or counterclaim the Borrower might otherwise
have against Panda Funding, the Trustee or any other person or
persons, and the Borrower will not suspend or discontinue any
such payment or (except in accordance with Article IV of this
Agreement) terminate this Agreement for any cause including,
without limiting the generality of the foregoing, any event
constituting force majeure, any acts or circumstances that may
constitute an eviction or constructive eviction, failure of
consideration, failure of title, or commercial frustration of
purpose, or any damage to or destruction of all or part of the
Projects, or the failure to obtain any permit or order from any
governmental agency which is required to be obtained in
connection with the operation of the Projects or the taking or
condemnation of title to or the use or possession of all or any
part of the Projects, or any change in the laws of the United
States, or any state, or any political subdivision thereof, or
any failure of Panda Funding to perform and observe any agreement
or covenant, whether express or implied, or to discharge any
duty, liability or obligation arising out of or connected with
this Agreement or any other agreement between the Borrower and
Panda Funding. The preceding sentence shall not be construed to
release Panda Funding from the performance of any of its
agreements contained in this Agreement, or except to the extent
provided in this Section 3.4, prevent or restrict the Borrower
from asserting any rights which it may have against Panda
Funding, the Trustee or any other persons under this Agreement or
under any provision of law or prevent or restrict the Borrower,
at its own cost and expense, from prosecuting or defending any
action or proceeding against or by third parties or taking any
other action to secure or protect its rights of purchase,
acquisition, possession and use of the Projects and its rights
under this Agreement.
Section 3.5. Usury. Notwithstanding any provision of
this Agreement to the contrary, it is hereby agreed by and
between Panda Funding and the Borrower that in no event shall the
interest contracted for, charged, received, reserved or taken in
connection with the Loans (including interest on the Notes
pursuant to Section 3.1 of this Agreement together with any other
costs or considerations that constitute interest under the law of
the State which are contracted for, charged, received, reserved
or taken pursuant to this Agreement) exceed the maximum rate of
nonusurious interest allowed under applicable law as presently in
effect and to the extent allowed by such laws as such laws may be
amended from time to time to increase such rate; and in the event
that the maturity of any Note is accelerated pursuant to Section
7.1 hereof, or redeemed in accordance with the provisions hereof
requiring mandatory redemption, then such amounts that constitute
payments of interest on the Notes, together with any costs or
considerations which constitute interest under applicable law,
may never exceed an amount which would result in payment of
interest at a rate in excess of the maximum rate of nonusurious
interest allowed by applicable law as presently in effect and to
the extent allowed by such laws as such laws may be amended from
time to time to increase such rate, and excess interest, if any,
provided for in this Agreement, the Notes or otherwise, shall be
canceled automatically as of the date of such acceleration or, if
theretofore paid, shall be credited on the principal amount of
the Notes.
ARTICLE IV
PREPAYMENT OF THE LOAN PAYMENTS
Section 4.1. Prepayment and Payment of Loan. The
Borrower may at any time deliver monies or U.S. Government
Obligations to the Trustee with instructions to the Trustee to
hold such monies or U.S. Government Obligations in the special
segregated fund referred to in Article VI of the Indenture in
connection with a discharge of the Indenture.
No payment of or on account of the Loan Payments need be
made during the term of this Agreement or thereafter when and so
long as the amount in the Debt Service Fund, together with any
other amounts then held by the Trustee and available for the
purpose, is sufficient to retire all of the Bonds then
outstanding in accordance with the Indenture, including any
applicable redemption premium on such Bonds and the amount of
interest due and thereafter to become due on the Bonds on and
prior to such retirement. However, if, subsequent to a date on
which the Borrower is not obligated to pay the Loan Payments or
any installment thereof pursuant to the preceding sentence,
losses (net of gains) shall be incurred in respect of the in
vestments in Permitted Investments as defined in the Indenture
and such net losses or any other event shall have reduced the
amounts in the Debt Service Fund, together with any other amounts
then held by the Trustee and available for the purpose, below the
amount sufficient at the time of such occurrence or other event
to redeem or pay, in accordance with the provisions of the
Indenture, on the next date on which redemption or payment is to
be effected, the principal amount of the Bonds, and the amount of
interest and premium, if any, due or to become due on the Bonds
on and prior to such redemption or payment, the Trustee shall
notify the Borrower of such fact and thereafter, the Borrower, as
and when required for purposes of such Debt Service Fund, shall
pay to the Trustee for deposit in the Debt Service Fund the
amount of any such reduction below such sufficient amount.
ARTICLE V
SPECIAL COVENANTS
Section 5.1. Representations of Borrower; Maintenance of
Corporate Existence. The Borrower represents that it is duly
incorporated and existing under the laws of the State of
Delaware, that it has duly accomplished all conditions precedent
necessary to be accomplished by it prior to issuance and delivery
of the Series A Bonds and execution and delivery of this
Agreement, that it is not in default under any agreement, in
denture or other instrument in any manner which would impair the
Borrower's ability to carry out its obligations hereunder, that
it has power to enter into the transactions contemplated by this
Agreement, that it has been duly authorized to execute and
deliver this Agreement and that it will not, except as provided
in this Section, voluntarily take any action that would result in
a Material Adverse Change.
Until all of the Bonds shall be deemed to have been paid
within the meaning of Section 6.1 of the Indenture, the Borrower
or its successor hereunder shall maintain its legal existence and
except to the extent otherwise permitted under Section 7.12 of
the Indenture.
Section 5.2. Representations of Panda Funding. Panda
Funding represents that it is duly incorporated and existing
under the laws of the State of Delaware, that it has duly
accomplished all conditions precedent necessary to be
accomplished by it prior to issuance and delivery of the Series A
Bonds and execution and delivery of this Agreement, that it is
not in default under any agreement, indenture or other instrument
in any manner which would impair the Panda Funding's ability to
carry out its obligations hereunder, that it has power to enter
into the transactions contemplated by this Agreement, that it has
been duly authorized to execute and deliver this Agreement and
that it will not, except as provided in the Section 7.12 of the
Indenture, voluntarily take any action that would result in a
Material Adverse Change.
Section 5.3. Special Covenants. Panda Funding and the
Borrower agree that all proceeds received from the sale of the
Series A Bonds or any additional Series of Bonds, as well as all
Loan Payments paid by the Borrower and other monies received by
Panda Funding pursuant to this Agreement, shall be applied solely
in the manner and for the purposes specified in this Agreement
and the Indenture. Each of Panda Funding and the Borrower
further agrees that it will observe the covenants made by it in
the Indenture.
Section 5.4 Net Agreement. This Agreement shall be
deemed and construed to be a "net agreement", and the Borrower
shall during its term pay absolutely net the Loan Payments and
all other payments required hereunder, free of any deductions,
without abatement, deduction or setoff other than those herein
expressly provided.
ARTICLE VI
ASSIGNMENT
Section 6.1. Consolidation, Merger and Assignment by the
Borrower. The Borrower shall not enter into any transaction of
merger, consolidation sale, lease, transfer or other disposition
of all or substantially all of its assets (including the Project
Portfolio, as such term is defined in the Indenture) change its
form or organization or its business or liquidate or dissolve
itself (or suffer any liquidation or dissolution) except as
provided in the Indenture.
Section 6.2. Panda Funding's Rights of Assignment. Panda
Funding may, only in accordance with the Indenture and the
Security Documents, assign this Agreement and the Notes as
security for payment of the principal of and premium, if any, and
interest on the Series A Bonds and additional Series of Bonds.
The Borrower hereby assents to such assignments and agrees that
the Trustee may exercise and enforce in accordance with the
Indenture any of the rights of Panda Funding under this Agreement
or the Notes.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.1. Enumeration of "Events of Default". The
terms "event of default" or "default" shall mean, whenever they
are used in this Agreement, any one or more of the following
events:
(a) Failure by the Borrower to pay when due in
accordance with Section 3.1 of this Agreement the
portion of the Loan Payments representing payment of the
principal of and premium, if any, on the Bonds, and the
continuation of such failure for 15 or more days;
(b) Failure by the Borrower to pay when due in
accordance with Section 3.1 of this Agreement the
portion of the Loan Payments representing payment of
interest on the Bonds, and the continuation of such
failure for 15 or more days; or
(c) The occurrence of one or more of the events
specified in Section 9.1 of the Indenture.
Section 7.2. Remedies. Upon any acceleration of the
principal of the related Series of Bonds under the Indenture, all
Loan Payments with respect to the related Loan shall be
immediately due and payable under this Agreement. In addition,
whenever any event of default referred to in Section 7.1 shall
have occurred and be continuing, the Trustee, or Panda Funding
with the prior written consent of the Trustee, may take any
action at law or in equity to collect amounts then due and
thereafter to become due, or to enforce performance and
observance of any obligation, agreement or covenant of the
Borrower under this Agreement. Any amounts collected pursuant to
action taken under this Section 7.2 shall be applied in
accordance with the provisions of the Indenture.
A waiver by the Trustee of any "events of default" as that
term is defined in the Indenture, in accordance with the terms
and provisions of Section 9.7 of the Indenture, shall also
constitute a waiver of the corresponding event of default and its
consequences hereunder.
Section 7.3. No Remedy Exclusive. No remedy conferred
upon or reserved to Panda Funding or the Trustee by this
Agreement is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in
equity or by statute. No delay or omission to exercise any right
or power accruing hereunder shall impair any such right or power
or shall be construed to be a waiver thereof, nor shall any
single or partial exercise of any other right, power or
privilege, but every such right and power may be exercised from
time to time and as often as may be deemed expedient. In order
to entitle the Trustee to exercise any remedy reserved to it in
this Article, it shall not be necessary to give any notice other
than such notices as may be herein expressly required.
ARTICLE VIII
GENERAL
Section 8.1 Waiver of Rights. Failure by Panda Funding,
the Borrower or the Trustee to insist upon the strict performance
of any of the covenants and agreements contained in this Agreement
or to exercise any rights or remedies upon default shall not be
considered a waiver or relinquishment of the right to insist upon
and to enforce by any appropriate legal remedy a strict
compliance by the defaulting party with all of the covenants and
conditions binding on it, or of the right to exercise any such
rights or remedies if such default be continued or repeated.
Section 8.2. The Trustee; Paying Agent. For so long as
any of the Bonds and the Notes shall remain outstanding, the
Borrower covenants and agrees to pay to the Trustee (all
references in this Section 8.2 to the Trustee shall be deemed to
apply to the Trustee in its capacities as Trustee, Paying Agent
and Security Registrar) from time to time, and the Trustee shall
be entitled to, compensation for all its services rendered by it
under the Indenture and such other costs and expenses as agreed
to by the Borrower under the Indenture. Each reference herein to
the Trustee shall include any successor Trustee.
Section 8.3. Third Party Beneficiaries. This instrument
is executed in part to induce the purchase by others of the
Series A Bonds, and for the further securing of the Series A
Bonds and additional Series of Bonds, and accordingly, so long as
any Bonds are outstanding, all respective covenants and
agreements of the parties herein contained are hereby declared to
be for the benefit of the holders from time to time of the Bonds,
and may be enforced by or on behalf of such holders only by the
Trustee in accordance with the provisions of the Indenture. This
Agreement shall not be deemed to create any right of subrogation
or otherwise in any person who is not a party hereto (other than
the permitted successors and assigns of a party) and shall not be
construed in any respect to be a contract in whole or in part for
the benefit of any third party (other than the permitted
successors or assigns of a party hereto), except in each case the
holders from time to time of the Bonds and the Trustee, but such
rights shall be enforceable only as provided in the Indenture.
Section 8.4. Notices and Communications. Any request,
demand, authorization, direction, notice, consent or waiver
provided or permitted under this Agreement to be made upon, given
or furnished to, or filed with the Borrower or Panda Funding
shall be so made upon, given or furnished to, or filed with, such
parties hereto in accordance with Section 1.5 of the Indenture.
Section 8.5. Counterparts, Amendments, Governing Law,
Etc. This Agreement (a) may be executed in several counterparts,
each of which shall be deemed an original, and all of which shall
constitute one and the same instrument; (b) except as otherwise
provided in this Agreement or in the Indenture, may be modified
or amended only by an instrument in writing signed by an
Authorized Representatives of all parties (or their respective
successors or assigns) and, so long as any Series of Bonds are
outstanding, only with the consent of the Trustee given in
accordance with the applicable provisions of the Indenture; and
(c) shall be governed, in all respects including validity,
interpretation and effect by, and shall be enforceable in
accordance with, the law of the State of New York. The parties
agree that they will appropriately amend this Agreement to
increase the payments to be made by the Borrower hereunder if for
any reason such payments, if made, are not sufficient to pay the
principal of and interest and premium, if any, on the Bonds as
the same become due but, in no event shall the Borrower be
obligated to pay interest on the principal amount of the Loan in
excess of the maximum amount allowed by law.
The section and other headings contained in this Agreement
are for reference purposes only and shall not control or affect
its interpretation in any respect. In the event that any clause
or provision of this Agreement shall be held to be invalid by any
court of competent jurisdiction, the invalidity of such clause or
provision shall not affect any of the remaining provisions
hereof.
Section 8.6. Term of Agreement. Except as provided in
Article IV of this Agreement, this Agreement shall remain in full
force and effect from the date of execution and delivery hereof
until the Indenture has been discharged in accordance with the
provisions thereof; provided, however, that the provisions of
Sections 8.2 and the last paragraph of Section 4.1 of this
Agreement shall survive any expiration or termination of this
Agreement.
IN WITNESS WHEREOF, Panda Funding and the Borrower have
caused this Agreement to be signed in their behalf by their duly
authorized representatives as of the date set forth above.
PANDA FUNDING CORPORATION
By:_____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board,
President and Chief
Executive Officer
PANDA INTERFUNDING CORPORATION
By:________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board,
President and Chief
Executive Officer
Exhibit A
FORM OF NOTE
NOTICE: This Note has been endorsed, pledged and assigned by
PANDA FUNDING CORPORATION to BANKERS TRUST COMPANY, as trustee,
in its capacity as the Collateral Agent under the Collateral
Agency Agreement (as defined in the Indenture referred to below),
and this Note is held in trust by such Collateral Agent.
$___________________ [Date of issuance]
FOR VALUE RECEIVED, PANDA INTERFUNDING CORPORATION, a
Delaware corporation (the "Borrower"), does hereby promise to pay
to the order of the PANDA FUNDING CORPORATION (hereinafter called
the "Panda Funding") at the principal corporate trust office of
BANKERS TRUST COMPANY, as trustee, a New York banking corporation
(hereinafter called the "Trustee"), or any successor trustee
acting as such under that certain Trust Indenture (the
"Indenture") dated as of July 31, 1996, among Panda Funding, the
Borrower and the Trustee in lawful money of the United States of
America, the principal sum of ____________________________
DOLLARS ($____________), and to pay interest on the unpaid
principal amount hereof, in like money, at such office in the
amounts specified in Section 3.1 of the Loan Agreement
hereinafter referenced.
ALL SUMS paid hereon shall be applied first to the
satisfaction of accrued interest and the balance to the unpaid
principal.
Principal on this Note is due and payable on each Principal
Payment Date and at maturity in the amounts and on the dates
specified in Section 3.1 of the Loan Agreement. Interest on this
Note is due and payable on each Interest Payment Date and at
maturity in the amounts and at the rate specified in Section 3.1
of the Loan Agreement.
THIS NOTE is [the Initial Note] [an Additional Note]
referred to in that certain Loan Agreement dated as of July 31,
1996 by and between the Borrower and Panda Funding, and is
subject to, and is executed in accordance with, all of the terms,
conditions and provisions thereof, including those respecting
prepayment and the acceleration of maturity and is further
subject to all of the terms, conditions and provisions of the
Indenture, all as provided in the Loan Agreement.
THIS NOTE is a contract made under and shall be construed in
accordance with and governed by the laws of the State of New
York.
PANDA INTERFUNDING CORPORATION
By:________________________________
Name:
Title:
FORM OF ENDORSEMENT
(To be set forth on back of PIC Note)
Pay to the order of Bankers Trust Company, as Collateral
Agent, without recourse or warranty, except warranty of good
title and warranty that Panda Funding has not assigned this Note
to any person other than the Collateral Agent and that the
principal amount of $_______________ remains unpaid under this
Note.
PANDA FUNDING CORPORATION
By_______________________________
Name:
Title:
