EXHIBIT 10.123
COMPANY CASH COLLATERAL AGREEMENT
CASH COLLATERAL AGREEMENT dated as of April 22, 1997,
between PANDA GLOBAL HOLDINGS, INC., a Delaware corporation (the
"Pledgor") and BANKERS TRUST COMPANY, as Trustee (in such
capacity, the "Trustee") for the holders of securities (the
"Securities") issued by the Pledgor pursuant to the Trust
Indenture dated as of April 22, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Company Indenture"),
between the Pledgor and the Trustee and any Series Supplemental
Indenture (as described in the Company Indenture).
W I T N E S S E T H:
WHEREAS, pursuant to the Company Indenture, the Pledgor has
issued Securities in the form of a guarantee (the "Guarantee") to
guarantee the senior secured notes ("Senior Secured Notes")
issued by Panda Global Energy Company, a Cayman Islands exempted
company (the "Issuer") in order to facilitate the sale of such
Senior Secured Notes;
WHEREAS, the Issuer is a Wholly-Owned Subsidiary of the
Pledgor and it is to the advantage of the Pledgor to facilitate
the sale of the Senior Secured Notes;
NOW, THEREFORE, in consideration of the premises and to
induce the Trustee to enter into the Company Indenture and to
induce the Initial Purchaser to purchase the Senior Secured Notes
under the Purchase Agreement dated April 11, 1997 (as it may be
amended, supplemented or otherwise modified from time to time,
the "Purchase Agreement") with the Issuer, the Pledgor and Panda
Energy International, Inc., the Pledgor hereby agrees with the
Trustee, for the ratable benefit of the Holders of the
Securities, as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
terms defined in the Company Indenture and used herein shall have
the meanings given to them in the Company Indenture.
(b) The following terms shall have the following meanings:
"Agreement": this Company Cash Collateral Agreement, as the
same may be amended, modified or otherwise supplemented from time
to time.
"Cash Collateral": the Guarantee Holders Cash Collateral
and the Holders Cash Collateral.
"Code": the Uniform Commercial Code from time to time in
effect in the State of New York.
"Collateral": the Guarantee Holders Collateral and the
Holders Collateral.
"Collateral Accounts": the Guarantee Holders Collateral
Accounts and the Holders Collateral Accounts.
"Guarantee Holders": the Holders of the Guarantee.
"Guarantee Holders Cash Collateral": the collective
reference to:
(a) all cash, instruments, securities and funds deposited
from time to time in the Guarantee Holders Collateral Accounts,
including, without limitation, all cash or other money proceeds
of any collateral subject to a security interest for the benefit
of the Trustee under any Transaction Document;
(b) all investments of funds in the Guarantee Holders
Collateral Accounts and all instruments and securities evidencing
such investments; and
(c) all interest, dividends, cash, instruments, securities
and other property received in respect of, or as proceeds of, or
in substitution or exchange for, any of the foregoing.
"Guarantee Holders Collateral": the collective reference to
the Guarantee Holders Cash Collateral and the Guarantee Holders
Collateral Accounts.
"Guarantee Holders Collateral Accounts": the Notes
Guarantee Service Fund and the Notes Guarantee Service Reserve
Fund and Subaccounts.
"Guarantee Obligations": the collective reference to the
unpaid principal, interest and premium, if any (including
Liquidated Damages and Additional Amounts, if any), on the
Guarantee and all other obligations and liabilities of the
Pledgor to the Trustee and the Guarantee Holders (including,
without limitation, interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Pledgor
whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in
connection with, the Company Indenture (as the Company Indenture
relates to the Guarantee), the Series Supplemental Indenture
relating to the Guarantee, the Guarantee, the other Transaction
Documents or any other document relating to the Guarantee made,
delivered or given in connection therewith, in each case whether
on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to the
Trustee or counsel to the Initial Purchaser that are required to
be paid by the Pledgor pursuant to the terms of the Indenture (as
the Indenture relates to the Guarantee), the Series Supplemental
Indenture relating to the Guarantee, the Guarantee or this
Agreement or any other Transaction Document relating to the
Guarantee).
"Holders": the Holders of any Securities, including the
Guarantee.
"Holders Cash Collateral": the collective reference to:
(a) all cash, instruments, securities and funds deposited
from time to time in the Holders Collateral Accounts, including,
without limitation, any and all excess U.S. Permitted Project
Event Proceeds deposited in the Holders Collateral Accounts, and
all cash or other money proceeds of any collateral subject to a
security interest for the benefit of the Trustee under any
Transaction Document;
(b) all investments of funds in the Holders Collateral
Accounts and all instruments and securities evidencing such
investments; and
(c) all interest, dividends, cash, instruments, securities
and other property received in respect of, or as proceeds of, or
in substitution or exchange for, any of the foregoing.
"Holders Collateral": the Holders Cash Collateral, the
Holders Collateral Accounts and any additional securities or
other property pledged, assigned or granted to the Trustee for
the benefit of the Holders from time to time, pursuant to the
Company Indenture and any Series Supplemental Indenture.
"Holders Collateral Accounts": the Company Revenue Fund,
the Company Operating Fund and the Company Equity Distribution
Fund.
"Obligations": the collective reference to the unpaid
principal interest and premium, if any (including Liquidated
Damages and Additional Amounts, if any), on the Securities and
all other obligations and liabilities of the Pledgor to the
Trustee and the Holders (including, without limitation, interest
accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like
proceeding, relating to the Pledgor whether or not a claim for
post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Company
Indenture, any Series Supplemental Indenture, the Securities, the
other Transaction Documents relating to the Securities or any
other document relating to the Securities made, delivered or
given in connection therewith, in each case whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Trustee
or counsel to the Initial Purchaser that are required to be paid
by the Pledgor pursuant to the terms of the Company Indenture,
any Series Supplemental Indenture, the Securities, this Agreement
or any other Transaction Document).
"Secured Guarantee Obligations": the collective reference
to (a) the Guarantee Obligations and (b) all obligations and
liabilities of the Pledgor which may arise under or in connection
with this Agreement or any other Transaction Document relating to
the Securities to which the Pledgor is a party, whether on
account of reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees
and disbursements of counsel to the Trustee or counsel to the
Initial Purchaser that are required to be paid by the Pledgor
pursuant to the terms of this Agreement or any other Transaction
Document to which the Pledgor is a party).
"Secured Obligations": the collective reference to (a) the
Obligations and (b) all obligations and liabilities of the
Pledgor which may arise under or in connection with this
Agreement or any other Transaction Document relating to the
Securities to which the Pledgor is a party, whether on account of
reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and
disbursements of counsel to the Trustee or counsel to the Initial
Purchaser that are required to be paid by the Pledgor pursuant to
the terms of this Agreement or any other Transaction Document to
which the Pledgor is a party).
(c) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
2. Grant of Security Interest. (a) As collateral security
for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of
the Secured Guarantee Obligations, the Pledgor hereby grants to
the Trustee, for the ratable benefit of the Guarantee Holders, a
security interest in the Guarantee Holders Collateral.
(b) As collateral security for the prompt and complete
payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of the Secured Obligations, the
Pledgor hereby grants to the Trustee, for the ratable benefit of
the Holders, a security interest in the Holders Collateral.
3. Maintenance of Collateral Account. (a) The Guarantee
Holders Collateral shall be maintained until the Secured
Guarantee Obligations have been paid and performed in full.
(b) The Holders Collateral shall be maintained until the
Secured Obligations have been paid and performed in full.
(c) The Collateral shall be subject to the exclusive
dominion and control of the Trustee, which shall hold the Cash
Collateral and administer the Collateral Accounts subject to the
terms and conditions of this Agreement and the Company Indenture.
The Pledgor shall have no right of withdrawal from the Collateral
Accounts nor any other right or power with respect to the
Collateral, except as expressly provided herein or therein.
4. Deposit of Funds. The Pledgor shall make deposits into
the Collateral Accounts in accordance with the provisions of the
Company Indenture.
5. Representations and Warranties. The Pledgor represents
and warrants to the Trustee that:
(a) The Pledgor has the corporate power and authority and
the legal right to execute and deliver, to perform its
obligations under, and to grant the security interest in the
Collateral pursuant to, this Agreement and has taken all
necessary corporate action to authorize its execution, delivery
and performance of, and grant of the security interest in the
Collateral pursuant to, this Agreement.
(b) This Agreement constitutes a legal, valid and binding
obligation of the Pledgor enforceable in accordance with its
terms and creates in favor of the Trustee a perfected, first
priority security interest in the Collateral, enforceable in
accordance with its terms, except in each case as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(c) The execution, delivery and performance of this
Agreement will not violate any provision of any Requirement of
Law or Contractual Obligation of the Pledgor and will not result
in the creation or imposition of any Lien on any of the
properties or revenues of the Pledgor pursuant to any Requirement
of Law or Contractual Obligation of the Pledgor, except as
contemplated hereby.
(d) No consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority
and no consent of any other Person (including, without
limitation, any stockholder or creditor of the Pledgor), is
required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement.
(e) No litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of the Pledgor, threatened by or against the Pledgor or
against any of its properties or revenues with respect to this
Agreement or any of the transactions contemplated hereby.
6. Covenants. The Pledgor covenants and agrees with the
Trustee that, except as the Trustee may otherwise consent in
accordance with the terms of the Company Indenture:
(a) The Pledgor will not (1) sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with
respect to, the Collateral, or (2) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person
with respect to, any of the Collateral, or any interest therein,
except for the security interest created by this Agreement.
(b) The Pledgor will maintain the security interest created
by this Agreement as a first, perfected security interest and
defend the right, title and interest of the Trustee in and to the
Collateral against the claims and demands of all Persons
whomsoever. At any time and from time to time, upon the written
request of the Trustee, and at the sole expense of the Pledgor,
the Pledgor will promptly and duly execute and deliver such
further instruments and documents and take such further actions
as the Trustee reasonably may request for the purposes of
obtaining or preserving the full benefits of this Agreement and
of the rights and powers herein granted, including, without
limitation, financing statements under the Code.
7. Investment of Cash Collateral. Collected funds on
deposit in the Collateral Accounts shall be invested by the
Trustee pursuant to the terms of the Company Indenture.
8. Release of Cash Collateral. Collateral shall be
released in accordance with the provisions of the Company
Indenture.
9. Remedies. (a) Upon the occurrence of an Event of
Default under the Company Indenture, the Trustee may, without
notice of any kind, except for notices required by law which may
not be waived, apply (i) the Collateral, after deducting all
reasonable costs and expenses of every kind incurred in respect
thereof or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights
of the Trustee hereunder, including, without limitation,
reasonable attorneys' fees and disbursements of counsel to the
Trustee, to the payment in whole or in part of the Secured
Obligations and (ii) the Guarantee Collateral, after deducting
all reasonable costs and expenses of every kind incurred in
respect thereof or incidental to the care or safekeeping of any
of the Guarantee Collateral or in any way relating to the
Guarantee Collateral or the rights of the Trustee and the
Guarantee Holders hereunder, including, without limitation,
reasonable attorneys' fees and disbursements of counsel to the
Trustee, to the payment in whole or in part of the Secured
Guarantee Obligations, in each case in accordance with the
Company Indenture, and only after such application and after the
payment by the Trustee of any other amount required by any
provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Trustee account for the
surplus, if any, to the Pledgor. In addition to the rights,
powers and remedies granted to it under this Agreement and the
Company Indenture, the Trustee shall have all the rights, powers
and remedies available at law, including, without limitation, the
rights and remedies of a secured party under the Code. To the
extent permitted by law the Pledgor waives presentment, demand,
protest and all notices (except notices specifically provided for
in any agreement securing, evidencing or relating to the Secured
Obligations), of any kind and all claims, damages and demands it
may acquire against the Trustee or any Holder arising out of the
exercise by them of any rights hereunder.
(b) The Pledgor waives and agrees not to assert any rights
or privileges which it may acquire under Section 9-112 of the
Code. The Pledgor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of the Collateral are
insufficient to pay the Secured Obligations and the fees and
disbursements of any attorneys employed by the Trustee to collect
such deficiency.
10. Trustee's Appointment as Attorney-in-Fact. (a) The
Pledgor hereby irrevocably constitutes and appoints the Trustee
and any officer or agent of the Trustee, with full power of
substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the
Pledgor and in the name of the Pledgor or in the Trustee's own
name, from time to time in the Trustee's discretion, for the
purpose of carrying out the terms of this Agreement, to take any
and all appropriate action and to execute any and all documents
and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including, without limitation,
any financing statements, endorsements, assignments or other
instruments of transfer.
(b) The Pledgor hereby ratifies all that said attorneys
shall lawfully do or cause to be done pursuant to the power of
attorney granted in paragraph 10(a). All powers, authorizations and
agencies contained in this Agreement are coupled with an interest
and are irrevocable until this Agreement is terminated and the
security interests created hereby are released.
11. Duty of Trustee. The Trustee's sole duty with respect
to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or
otherwise, shall be to comply with the specific duties and
responsibilities set forth herein and in the Company Indenture.
The powers conferred on the Trustee in this Agreement are solely
for the protection of the Trustee's and the Holders' interests in
the Collateral and shall not impose any duty upon the Trustee or
any Holder to exercise any such powers. Neither the Trustee nor
any Holder nor its or their directors, officers, employees or
agents shall be liable for any action lawfully taken or omitted
to be taken by any of them under or in connection with the
Collateral or this Agreement, except for its or their gross
negligence or willful misconduct.
12. Execution of Financing Statements. Pursuant to Section
9-402 of the Code, the Pledgor authorizes the Trustee to file
financing statements with respect to the Collateral without the
signature of the Pledgor in such form and in such filing offices
as the Trustee reasonably determines appropriate to perfect the
security interests of the Trustee under this Agreement. A
carbon, photographic or other reproduction of this Agreement
shall be sufficient as a financing statement for filing in any
jurisdiction.
13. Authority of Trustee. The Pledgor acknowledges that
the rights and responsibilities of the Trustee under this
Agreement with respect to any action taken by the Trustee or the
exercise or non-exercise by the Trustee of any option, right,
request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the
Trustee and the Holders, be governed by the Company Indenture and
by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Trustee and the
Pledgor, the Trustee shall be conclusively presumed to be acting
as agent for the Holders with full and valid authority so to act
or refrain from acting, and the Pledgor shall not be under any
obligation, or entitlement, to make any inquiry respecting such
authority.
14. Indemnity of Trustee. The Pledgor shall indemnify the
Trustee, its officers, agents, employees and directors for, and
hold each such person harmless against any and all losses,
liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties
under this Agreement, including the costs and expenses of
enforcing this Agreement against the Pledgor or any other Person
and investigating or defending itself against any claim (whether
asserted by the Pledgor or any Holder of Securities or any other
Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall
notify the Pledgor promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Pledgor shall
not relieve the Pledgor of its obligations hereunder. The
Pledgor shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and, if the
Pledgor's counsel is not diligently prosecuting or defending the
matter, or in the event that there may be a conflict between the
positions of the Pledgor and Trustee in conducting the defense,
or in the event that there may be a Conflict between the
positions of the Pledgor and Trustee in conducting the defense,
the Pledgor shall pay the reasonable fees and expenses of such
counsel. The Pledgor need not pay for any settlement made
without their consent, which consent shall not be unreasonably
withheld.
15. Notices. All notices, requests and demands to or upon
the Trustee or the Pledgor to be effective shall be in writing
(or by telex, fax or similar electronic transfer confirmed in
writing) and shall be deemed to have been duly given or made
(a) when delivered by hand or (b) if given by mail, when
deposited in the mails by certified mail, return receipt
requested, or (c) if by telex, fax or similar electronic
transfer, when sent and receipt has been confirmed, addressed as
follows:
(1) if to the Trustee, at its address or transmission
number for notices provided in the recitals of the Company
Indenture; and
(2) if to the Pledgor, at its address or transmission
number for notices set forth under its signature below.
The Trustee and the Pledgor may change their addresses and
transmission numbers for notices by notice in the manner provided
in this Section.
16. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Pledgor and the Trustee,
provided that any provision of this Agreement may be waived by
the Trustee in a letter or agreement executed by the Trustee or
by telex or facsimile transmission from the Trustee.
(b) Neither the Trustee nor any Holder shall by any act
(except by a written instrument pursuant to paragraph 17(a) hereof),
delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any
Default or Event of Default or in any breach of any of the terms
and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Trustee, any right, power or
privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. A waiver by the
Trustee of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the
Trustee would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
18. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in
the interpretation hereof.
19. Successors and Assigns. This Agreement shall be
binding upon the successors and assigns of the Pledgor and shall
inure to the benefit of the Trustee and the Holders and their
successors and assigns.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
21. Submission To Jurisdiction; Waivers. The Pledgor
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement, or for
recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York sitting in the Borough of
Manhattan, the courts of the United States of America for
the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(c) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar
form of mail), postage prepaid, to its address set forth
below or at such other address of which the Trustee shall
have been notified pursuant hereto;
(d) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted
by law or shall limit the right to xxx in any other
jurisdiction; and
(e) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal
action or proceeding referred to in this paragraph any
special, exemplary, punitive or consequential damages.
22. WAIVERS OF JURY TRIAL. THE PLEDGOR AND, BY ITS
ACCEPTANCE HEREOF, THE TRUSTEE HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
IN WITNESS WHEREOF, the Pledgor and the Trustee have caused
this Cash Collateral Agreement to be duly executed and delivered
as of the date first above written.
PANDA GLOBAL HOLDINGS, INC.
By:
Title:
Address: 0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
BANKERS TRUST COMPANY, as Trustee
By:
Title:
