EXHIBIT 10.32
AMENDMENT NO. 2 dated as of July 31, 1996 (the
"Amendment") to the Stock Pledge Agreement referred to below
between PANDA INTERHOLDING CORPORATION, a Delaware corporation
("Panda"), PANDA ENERGY CORPORATION, a Texas corporation ("PEC"),
and FLEET NATIONAL BANK, a national banking association, formerly
known as Shawmut Bank Connecticut, National Association, in its
capacity as Security Agent (the "Security Agent") under the
Security Deposit Agreement (as defined in the Loan Agreement
referred to below).
W I T N E S S E T H :
WHEREAS, in connection with the Construction Loan
Agreement and Lease Commitment dated as of March 30, 1995 among
General Electric Capital Corporation ("GE Capital"), Panda-
Brandywine, L.P. and Panda Brandywine Corporation (as the same
may be amended, supplemented or otherwise modified from time to
time, the "Loan Agreement"; capitalized terms used herein and not
otherwise defined having the meanings set forth in the Loan
Agreement), Panda Holdings, Inc., a Delaware corporation
("Holdings") entered into a Stock Pledge Agreement dated as of
March 30, 1995 with the Security Agent (the "Stock Pledge
Agreement"), pursuant to which Holdings pledged the Pledged
Shares;
WHEREAS, on October 27, 1995 Holdings merged with and
into PEC (the "Merger") and pursuant to the Merger, PEC assumed
and succeeded to all of Holdings' rights, obligations and
liabilities, including, without limitation, Holdings' rights,
obligations and liabilities under the Loan Agreement, the Stock
Pledge Agreement (as evidenced by Amendment No. 1 to the Stock
Pledge Agreement dated as of October 27, 1995) and the other
Transaction Documents to which Holdings is a party;
WHEREAS, PEC desires to transfer to Panda, its indirect
wholly-owned subsidiary, 100% of the capital stock of the General
Partner, the Limited Partner and Brandywine Water Company (the
"Transfer"); and
WHEREAS, the Security Agent and GE Capital are willing
to agree to the Transfer on the condition that PEC and Panda
execute and deliver this Amendment to the Security Agent, for the
benefit of GE Capital and the Owner Trustee.
NOW, THEREFORE, in consideration of the foregoing
premises and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, PEC and
Panda hereby agree with the Security Agent, for the benefit of GE
Capital and the Owner Trustee, as follows:
1. Substitution of Pledgor. For all purposes of the
Stock Pledge Agreement, from and after the execution and delivery
hereof and the consummation of the Transfer, the Pledgor referred
to in the Stock Pledge Agreement shall be Panda, and PEC shall
have no further obligations or liabilities as "Pledgor"
thereunder (except with respect to the period occurring prior to
the execution and delivery hereof and the consummation of the
Transfer) and provided that the foregoing shall not limit any
other obligations of PEC in any other capacity thereunder
(including pursuant to Section 8(g) thereof).
2. Amendment to Section 5(a) of the Stock Pledge
Agreement. The reference in Section 5(a) of the Stock Pledge
Agreement to the State of Texas is hereby amended to be a
reference to the State of Delaware.
3. Amendment to Section 5(e) of the Stock Pledge
Agreement. Clause (i) of Section 5(e) of the Stock Pledge
Agreement is hereby amended to read as follows: "(i) violate the
provisions of the Pledgor's Certificate of Incorporation or By-
laws;".
4. Amendment to Section 7(b) of the Stock Pledge
Agreement. Section 7(b) of the Stock Pledge Agreement is hereby
amended to insert, after the words "receive and retain", the
words "and distribute, by dividend or otherwise, to its
stockholders".
5. Amendment to Section 8(a) of the Stock Pledge
Agreement. Clause (i) of Section 8(a) of the Stock Pledge
Agreement is hereby amended to read as follows: "(i) its legal
existence as a corporation in good standing under the laws of the
State of Delaware and".
6. Amendment to Section 8(e) of the Stock Pledge
Agreement. Section 8(e) of the Stock Pledge Agreement is hereby
amended to read in its entirety as follows:
"(e) Subsidiaries. All Subsidiaries (including
partnerships) incorporated or formed in the United States
(whether now existing or hereafter acquired or formed) of
the Pledgor which are engaged in the financing, development,
construction or operation of independent power production or
energy transmission projects located in the United States
(collectively, "US Cogen Subsidiaries"), other than Panda-
Xxxxxxxx, L.P. (the "Xxxxxxxx Partnership"), Panda-Xxxxxxxx
Corporation ("Panda-Xxxxxxxx Corp."), the general partner of
the Xxxxxxxx Partnership, and Panda/Live Oak Corporation
("Panda/Live Oak"), the limited partner of the Xxxxxxxx
Partnership (the Xxxxxxxx Partnership, Panda-Xxxxxxxx Corp.
and Panda/Live Oak hereinafter referred to as the "Xxxxxxxx
Subsidiaries"), are and shall continue to be Subsidiaries of
the Pledgor; provided that the Xxxxxxxx Subsidiaries are and
shall continue to be Subsidiaries of PEC and provided
further that PEC shall cause the Xxxxxxxx Subsidiaries to
become Subsidiaries of the Pledgor within one hundred eighty
(180) days following the date of Financial Closing, if any,
or the date of Commercial Operations, if any (whichever
first occurs), with respect to the cogeneration facility
being developed by the Xxxxxxxx Partnership (the "Xxxxxxxx
Facility"). For the purposes hereof, "Financial Closing"
shall mean the closing of the initial construction or long-
term project financing for the Xxxxxxxx Facility, whichever
first occurs. "Commercial Operations" shall mean (i) the
completion of construction and testing and the functioning
of the Xxxxxxxx Facility, and (ii) the satisfaction and
discharge of all completion requirements of, and
commencement of regular capacity or reservation payments
under, the purchase, transportation or other off-take or use
contracts for the Xxxxxxxx Project. The foregoing
notwithstanding, but subject to the provisions of Section
8(b) hereof and the provisions of the Loan Agreement, the
Pledgor shall be permitted to sell all or any of the stock
of any US Cogen Subsidiary to any Person who is not an
Affiliate of Panda."
7. Amendment to Section 8(g) of the Stock Pledge
Agreement. Section 8(g) of the Stock Pledge Agreement is hereby
amended to read in its entirety as follows:
"(g) Bankruptcy of Pledgor. PEC shall not
authorize, seek to cause or permit Pledgor to commence a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property or to
consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary
case or other proceeding commenced against it, or to make a
general assignment for the benefit of the creditors."
8. Amendment to Schedule 1 to the Stock Pledge
Agreement. Schedule 1 to the Stock Pledge Agreement is hereby
amended to read in its entirety as set forth in Exhibit A hereto.
9. Amendment to Schedule 2 to the Stock Pledge
Agreement. Schedule 2 to the Stock Pledge Agreement is hereby
amended to read in its entirety as set forth in Exhibit B hereto.
10. Conditions Precedent. This Amendment shall not
become effective until the following conditions precedent are
satisfied:
(a) Delivery of Collateral. All certificates or
instruments representing or evidencing the Collateral shall
have been delivered to and held by or on behalf of the
Security Agent, pursuant to the terms of the Stock Pledge
Agreement, and shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed undated
instruments of transfer or assignment in blank, all in form
and substance reasonably satisfactory to the Security Agent.
(b) Representations and Warranties. The
representations and warranties of the Pledgor contained in
Section 5 of the Stock Pledge Agreement shall be true and
correct on and as of the Effective Date as if made on and as
of the Effective Date; provided that all references to the
"Agreement" shall be and be deemed to mean this Amendment as
well as the Stock Pledge Agreement amended hereby.
(c) No Default. No Default or Event of Default has
occurred and is occurring as of the Effective Date.
(d) Transfer. The Security Agent and GE Capital shall
have received evidence that the Transfer has occurred.
11. Effect of Amendment. Except as expressly amended
hereby, all of the terms and provisions of the Stock Pledge
Agreement shall remain in full force and effect and are hereby
ratified and confirmed. The amendments provided herein shall be
limited precisely as drafted and shall not constitute a waiver or
an amendment of any other term, condition or provision of the
Stock Pledge Agreement.
12. Expenses. PEC and Panda jointly and severally
agree to pay and reimburse GE Capital and the Security Agent for
all of its out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of
this Amendment, including the fees and expenses of counsel to GE
Capital and the Security Agent.
13. Definition of Effective Date. As used in this
Amendment, the term "Effective Date" shall mean the date on which
each of the conditions precedent shall have been satisfied in
accordance with Section 10 hereof.
14. Governing Law. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK.
15. Counterparts. This Amendment may be executed in
any number of counterparts by the parties hereto, each of which
counterpart when so executed shall be an original, but all
counterparts together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
PANDA INTERHOLDING CORPORATION
By:
Name: Xxxxx X. Xxxxxx
Title:
PANDA ENERGY CORPORATION,
a Texas corporation
By:
Name: Xxxxx X. Xxxxxx
Title:
FLEET NATIONAL BANK, as Security Agent
By:
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
Accepted and Agreed:
PANDA-BRANDYWINE, L.P.
By Panda Brandywine Corporation,
its General Partner
By:
Name: Xxxxx X. Xxxxxx
Title:
PANDA BRANDYWINE CORPORATION
By:
Name: Xxxxx X. Xxxxxx
Title:
PANDA ENERGY CORPORATION, a
Delaware Corporation
By:
Name: Xxxxx X. Xxxxxx
Title:
BRANDYWINE WATER COMPANY
By:
Name: Xxxxx X. Xxxxxx
Title:
Acknowledged and Accepted:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Manager of Operations
EXHIBIT A
Schedule 1 to
Stock Pledge Agreement
Pledged Shares
No. of Par Value of Certificate
Shares Shares Number
Panda Brandywine 1000 $.01 004
Corporation
Panda Energy 1000 $.01 004
Corporation, a
Delaware corporation
Brandywine Water 1000 $.01 004
Company
EXHIBIT B
Schedule 2 to
Stock Pledge Agreement
Notice Addresses
Panda Interholding Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: President and General Counsel
telephone: 000-000-0000
telecopy: 000-000-0000
Fleet National Bank, as Security Agent
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Administration
telephone: (000) 000-0000
telecopy: (000) 000-0000
