EXHIBIT 10.13
COLLATERAL AGENCY AND
INTERCREDITOR AGREEMENT
Dated as of July 31, 1996
among
PANDA-XXXXXXXX FUNDING CORPORATION,
PANDA-ROSEMARY, L.P.,
THE L/C ISSUER,
THE TRUSTEE UNDER THE TRUST INDENTURE,
THE DEPOSITARY AGENT,
THE COLLATERAL AGENT,
and
THE OTHER SECURED PARTIES NAMED HEREIN
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
Section 1.1. Capitalized Terms 3
Section 1.2 Definitions; Construction 3
ARTICLE II
Priority and Administration of Collateral
Section 2.1 Priority of Security Interests 5
Section 2.2 Controlling Provisions 5
Section 2.3 Exercise of Rights 6
Section 2.4 Actions Upon a Trigger Event 7
Section 2.5 Instructions to Depositary Agent 7
Section 2.6 Receipt of Money or Proceeds 8
Section 2.7 Additional Secured Parties 8
ARTICLE III
Right and Duties of Collateral Agent
Section 3.1 Appointment and Duties of Collateral Agent 8
Section 3.2 Rights of Collateral Agent 9
Section 3.3 Lack of Reliance on the Collateral Agent 11
Section 3.4 Indemnification 12
Section 3.5 Resignation or Removal of the Collateral Agent 13
Section 3.6 Court Orders 13
ARTICLE IV
General
Section 4.1 Agreement for Benefit of Parties Hereto 14
Section 4.2 Severability 14
Section 4.3 Notices 14
Section 4.4 Successors and Assigns 15
Section 4.5 Counterparts 15
Section 4.6 Governing Law 15
Section 4.7 No Impairments of Other Rights 15
Section 4.8 Amendment; Waiver 15
Section 4.9 Headings 15
Section 4.10 Termination 16
Section 4.11 Entire Agreement 16
Section 4.12 Limitation of Liability 16
Section 4.13 Execution in Lieu of Agent 17
Section 4.14 Representations 17
Section 4.15 Conflicts With Other Security Documents 17
Schedule 1 Form of Designation Letter
COLLATERAL AGENCY AND
INTERCREDITOR AGREEMENT
This COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT, dated
as of July 31, 1996 (this "Agreement"), among Panda-Xxxxxxxx
Funding Corporation, a Delaware corporation (together with its
successors and assigns, the "Company"), Panda-Rosemary, L.P.,
a Delaware limited partnership (together with its successors
and assigns, the "Partnership," the Partnership collectively
with the Company referred to as the "Borrowers"), Bayerische
Vereinsbank AG, the agent or issuer under a Credit Bank
Reimbursement Agreement (as defined in the Indenture (referred
to below)) (together with its successors and assigns, the "L/C
Issuer"), Fleet National Bank, a national banking association
established under the laws of the United States, the trustee
under the Denture (together with its successors and assigns,
the "Trustee") on behalf of the holders of the Bonds (as
defined in the Indenture), Fleet National Bank, the agent
under the Depositary Agreement (as defined in the Indenture)
(together with its successors and assigns, the "Depositary
Agent"), any trustees, agents or creditors under any other
Financing Documents (as defined below) that becomes a party
hereto pursuant to Section 2.7 hereof, and Fleet National
Bank, the collateral agent appointed hereunder for the Secured
Parties (as defined below) (together with its successors and
assigns, the "Collateral Agent").
W I T N E S S E T H:
WHEREAS, the Partnership owns a natural gas-fired 180
megawatt electrical generating facility in Roanoke Rapids,
North Carolina (the "Project");
WHEREAS, the Company is a wholly-owned subsidiary of the
Partnership, formed for the purposes of facilitating the
refinancing of the Project;
WHEREAS, the Company has duly authorized the creation and
issuance of its bonds to be issued in one or more series from
time to time (the "Bonds") pursuant to the Trust Indenture,
dated as of July 31, 1996 (the "Indenture"), among the
Company, the Partnership and the Trustee;
WHEREAS, the Company will lend all of the proceeds of the
sale of the Bonds of the initial series to the Partnership to
decease another indenture pursuant to which bonds were issued
to finance the cost of constructing the Project and for the
purpose of, among other things, finding certain reserve funds,
redeeming the limited partnership interests in the Partnership
owned by Ford Motor Credit Company, and paying closing costs;
WHEREAS, all of the Company's obligations under the Bonds
will be unconditionally guaranteed by the Partnership under
one or more guarantees (the "Partnership Guarantees");
WHEREAS, in order to satisfy certain requirements of the
Partnership under the Project Agreements (as defined in the
Indenture), the Partnership may incur indebtedness as
permitted under the Indenture in connection with the issuance
of letters of credit by the Credit Banks (as defined in the
Indenture) pursuant to a Credit Bank Reimbursement Agreement;
WHEREAS, in that connection, pursuant to Section 13.4 of
the Vepco Power Purchase Agreement referred to in the
Indenture, the Partnership is required to post a letter of
credit in the amount of $4,950,000 for the benefit of Virginia
Electric and Power Company and the L/C Issuer has agreed to
provide such letter of credit for the account of the
Partnership under a Credit Bank Reimbursement Agreement;
WHEREAS, in order to pay Operating Expenses (as defined
in the Indenture), the Partnership may incur indebtedness as
permitted under the Indenture in the form of working capital
loans made by the Credit Banks under a Credit Bank Working
Capital Agreement;
WHEREAS, the Partnership may incur additional debt,
including, without limitation, any bonds, debenture,
promissory notes or other evidences of such indebtedness, as
permitted under the Indenture, either directly or indirectly
through the Company, to finance certain modifications and
enhancements to the Project in the fixture ("Additional
Permitted Debt," as that term is defined In the Indenture);
WHEREAS, the Partnership may enter into Interest Rate
Protection Agreements (as defined in the Indenture) with a
Permitted Counterparty (as defined in the Indenture), either
directly or indirectly through the Company, in connection with
the Additional Permitted Debt of the Partnership;
WHEREAS, the Partnership, the Company, the Depositary
Agent and the Collateral Agent have entered into the
Depositary Agreement in order to, among other things, appoint
the Depositary Agent to hold and administer the proceeds of
insurance and revenues generated by the Project and other
amounts;
WHEREAS, all obligations of the Partnership and the
Company under a Credit Bank Reimbursement Agreement, a Credit
Bank Working Capital Agreement, the Indenture, the Company
Loan Agreement (as defined in the Depositary Agreement), the
Partnership Guarantees, the Interest Rate Protection
Agreements, and the Additional Permitted Debt documents will
be secured as set forth in the Security Documents (as
hereinafter defined); and
WHEREAS, the parties hereto desire to enter into this
Agreement to set forth their mutual understanding with respect
to (a) the exercise of certain rights, remedies and options by
the respective parties hereto under the above described
documents, (b) the priority of their respective security
interests created by the Security Documents and (c) the
appointment of the Collateral Agent.
NOW, THEREFORE, for and in consideration of the premises
and mutual covenants herein contained and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto, intending to be
legally bound, do hereby covenant and agree as follows:
ARTICLE I
Definitions
Section 1.1 Capitalized Terms. Each capitalized term used
herein and not otherwise defined herein shall have the
definition assigned to such term in the Indenture, as such
definition exists on the Closing Date.
Section 1.2 Definitions; Construction. For all purposes
of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them In this Article, and include
the plural as well as the singular;
(b) all references in this Agreement to designate
"Articles," "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of
this Agreement;
(c) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Agreement as
a whole and not to any particular Article, Section or
other subdivision;
(d) unless otherwise expressly specified, any
agreement, contract or document defined or referred to
herein shall mean such agreement, contract or document
(including any classification letters relating thereto)
as in effect as of the date hereof, as the same may
thereafter be amended, supplemented or otherwise modified
from time to time in accordance with the terms of the
Indenture, the other Project Documents and any other
Financing Documents and including any agreement, contract
or document in substitution or replacement of any of the
foregoing;
(e) unless the context clearly intends to the
contrary, pronouns having a masculine or feminine gender
shall be deemed to include the other; and
(f) any reference to any Person shall include its
successors and assigns.
"Agreement" shall have the meaning specified in the first
paragraph of this Agreement.
"Authorized Representative" of any entity means the
person or persons authorized to act on behalf of such entity
by its or its general partner's Board of Directors, as the
case may be, or any other governing body of such entity.
"Borrowers", shall have the meaning specified in the
first paragraph of this Agreement.
"Collateral Agent Claims" means all obligations of the
Secured Parties and the Borrowers, now or hereafter existing,
to pay fees, costs and expenses to the Collateral Agent
pursuant to Sections 3.2(g) and 3.4 hereof and the Security
Documents.
"Combined Exposure" means, as of any date of calculation,
the sum of (i) the aggregate principal amount of all Bonds
Outstanding and Additional Permitted Debt (if any) outstanding
as of such calculation date, (ii) the aggregate principal
amount of all loans outstanding and any other amounts owed as
of such calculation date under the Credit Bank Working Capital
Agreement, (iii) the aggregate amount of all undrawn Financing
Commitments as of such calculation date under the Credit Bank
Working Capital Agreement, if any, which, as of such
calculation date, the Credit Banks have no right to terminate;
(iv) the maximum amount available to be drawn as of such
calculation date under the letter of credit issued pursuant to
a Credit Bank Reimbursement Agreement; (v) the aggregate amount
of the reimbursement obligation outstanding, and the aggregate
principal amount of all loans made and still outstanding and
any other amounts owed, in each case as of such calculation
date pursuant to a Credit Bank Reimbursement Agreement in
connection with drawings made, or available to be made, on
letters of credit issued under a Credit Bank Reimbursement
Agreement; and (vi) the termination payment due and owing as of
such calculation date or which the Permitted Counterparty
thereunder has a right to cause to be due and owing as of such
calculation date under any Interest Rate Protection Agreements.
"Debt Termination Date" means the date on which all
Financing Liabilities, other than contingent liabilities and
obligations which are unassorted at such date, have been paid
and satisfied in full and all Financing Commitments have been
terminated.
"Designation Lender" means any lender executed and
delivered pursuant to Section 2.7 hereof and substantially in
the form of Schedule I hereto.
"Event of Default" shall mean an "event of default" (or
correlative term) under any Financing Document.
"Financing Commitment" means any commitment pursuant to
the Financing Documents to provide credit to the Borrowers or
either of them.
"Financing Documents" means all agreements, documents and
instruments evidencing and/or securing the Financing
Liabilities.
"Financing Liabilities" means all indebtedness
liabilities and obligations of the Borrowers (including, but
not limited to, principal, interest, fees, reimbursement
obligations, penalties, indemnities and legal and other
expenses, whether due after acceleration or otherwise) to the
Secured Parties (of whatsoever nature and howsoever evidenced)
under or pursuant to the Indenture, the Partnership
Guarantees, the Partnership Notes, the Bonds, any Credit Bank
Working Capital Agreement, any Credit Bank Reimbursement
Agreement, any Additional Permitted Debt Documents, any
Interest Rate Protection Agreements and the Security
Documents, to the extent arising on or prior to the Debt
Termination Date, in each case, direct or indirect, primary or
secondary, fixed or contingent, now or hereafter arising out
of or relating to any such agreements.
"Required Creditors" means, at any time, Persons that at
such time hold (or act as a trustee, agent or other
representative for Persons that hold) at least 50.1% of the
Combined Exposure.
"Responsible Officer", when used with respect to the
Collateral Agent, shall mean any officer the Corporate Trust
Office (or any successor group of the Collateral Agent)
including any vice president, assistant vice president,
assistant secretary, assistant treasurer or any other officer
of the Collateral Agent customarily performing functions
similar to those performed by the persons who at the time shall
be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge and familiarity
with the particular subject.
"Secured Parties" means, subject to the second sentence
of Section 4.10, the Trustee (as agent for and representative
of the Holders of the Bonds), the L/C Issuer (for itself as a
Credit Bank), and any trustee, agent or creditor under any of
the other Financing Documents that becomes a party to this
Agreement pursuant to Section 2.7.
"Secured Party" means, as appropriate, any one of the
Secured Parties.
"Security Documents" means, collectively, the Collateral
Documents (not including this Agreement) and any other
document or agreement evidencing a Security Interest.
"Security Interest" means any perfected and enforceable
Lien on Collateral granted to the Collateral Agent pursuant to
the requirements of any applicable Financing Document.
"Trigger Event" means at least 50.1% of the Combined
Exposure shall have been declared to be, or shall
automatically have become, due and payable (and shall not have
been rescinded) under the Financing Documents, as determined
by the Collateral Agent based upon the written notices
provided to the Collateral Agent by the Secured Parties
pursuant to Section 2.4 hereof.
"Trigger Event Date" shall have the meaning set forth in
Section 2.5 hereof.
ARTICLE II
Priority and Administration of Collateral
Section 2.1 Priority of Security Interests. Each Secured
Party agrees that the Security Interest of each Secured Party
in any Collateral ranks and will rank equally in priority with
the Security Interest of the other Secured Parties in the same
Collateral.
Section 2.2 Controlling Provisions. Notwithstanding
anything to the contrary in Section 2.1, the priorities
specified in this Agreement and in the Depositary Agreement
with respect to (i) the Collateral, (ii) all proceeds of the
Collateral (including without limitation all Casualty
Proceeds, Eminent Domain Proceeds and Title Insurance
Proceeds) and (iii) all amounts and funds retained in
accordance with the Depositary Agreement, in each case are
applicable irrespective of any statement to the contrary in
any Financing Document, Security Document or any other
agreement, the time or order or method of attachment or
perfection of Liens, the time or order of filing of financing
statements, or the giving or failure to give notice of the
acquisition or expected acquisition of purchase money or other
security interests and, to the extent not provided for in this
Agreement, the rights and priorities of the Secured Parties
shall be determined in accordance with applicable law.
Section 2.3 Exercise of Rights. So long as any Financing
Liabilities remain outstanding in respect of more than one
Secured Party, each of the Secured Parties hereby acknowledges
and agrees as follows:
(a) The Collateral shall administer the Collateral in the
manner contemplated by the Security Documents and this
Agreement and, upon the occurrence and continuance of a
Trigger Event, the Collateral Agent shall exercise, upon the
written instruction of the Required Creditors in accordance
with Sections 2.3, 2.4 and 2.5 hereof, such rights and
remedies with respect to the Collateral as are granted to it
under the Security Documents, this Agreement and applicable
law; provided, however, that, in exercising such rights and
remedies, the Collateral Agent shall not amend, modify or
supplement (or agree or consent to any such amendment,
modification or supplement), directly or indirectly or in the
name of the Borrowers, any Project Agreement if such
amendment, modification or supplement shall adversely affect
any Secured Party in any material respect unless the
Collateral Agent shall have obtained the prior written consent
of such Secured Party to such amendment, modification or
supplement. The Partnership or the Company shall provide
written notice of any such proposed amendment, modification,
or supplement of any Project Agreement that is to be made
after a Trigger Event to the Collateral Agent (other than
those initiated by the Collateral Agent) at least 20 days
prior to the effective date of the same and the Collateral
Agent shall provide each Secured Party with at least 15 days
prior written notice of all such proposed amendments,
modification or supplements to the Project Agreements. No
Secured Party shall be required to respond to any request for
a proposed amendment, modification or supplement of a Project
Agreement prior to the 15th day after the giving of such
written notice.
(b) No Secured Party and no class or classes of Secured
Parties shall have any right, other than in accordance with
Sections 2.3, 2.4 and 2.5 hereof, to (i) sell, exchange,
release, not perfect and otherwise clear with any property at
any time pledged, assigned or mortgaged to secure the
Financing Liabilities in accordance with the Security
Documents, (ii) exercise or refrain from exercising any rights
to direct the Collateral Agent to take any action in respect
of the Collateral, or (iii) to take any other 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 Sections 2.3, 2.4 and 2.5 hereof.
Any of the Secured Parties or the Collateral Agent may, at any
time and from time to time, (i) amend in any manner any
outstanding Financing Documents to which they are a party in
accordance with the terms thereof, (ii) release anyone liable
in any manner under or in respect of such Secured Party's
Financing Liabilities in accordance with the terms of the
Financing Documents to which they are a party, (iii) sell,
exchange, assign, redeem or transfer all or any part of its
interest in the Financing Documents to which it is a party and
(iv) apply any sums from time to time received for payment or
satisfaction of such Secured Party's Financing Liabilities
except as otherwise provided in Section 2.5 hereof.
(c) Each Secured Party hereby agrees that, upon the
request of the Collateral Agent, it will give the Collateral
Agent notice of the outstanding Debt amount owed by the
Partnership or the Company to such Secured Party under the
Financing Documents and any other information that the
Collateral Agent may reasonably request. The Partnership and
the Company agree that, whenever this Agreement requires the
calculation of the amount of the Combined Exposure and
whenever requested by the Collateral Agent, the Partnership
shall deliver to the Collateral Agent a certificate setting
forth in reasonable detail a calculation of the amount of the
Combined Exposure.
Section 2.4 Actions Upon a Trigger Event. So long as any
Financing Liabilities remain outstanding in respect of more
than one Secured Party, the following provisions shall apply:
(a) Each Secured Party hereby agrees to give each
other Secured Party and the Collateral Agent written
notice of the occurrence of an Event of Default under
such Secured Party's Financing Documents and of the
occurrence of an acceleration under such Secured Party's
Financing Documents wherein such Secured Party's
Financing Liabilities have been declared to be or have
automatically become due and payable earlier than the
scheduled maturity thereof and setting forth the
aggregate amount of Financing liabilities that have been
so accelerated under such Financing Documents, in each
case as soon as practicable after the occurrence thereof;
provided, however, that the failure to provide such
notice shall not limit or impair the rights of the
Secured Parties hereunder or under the Financing
Documents or the Security Documents. No Secured Party
shall be deemed to have knowledge or notice of the
occurrence of any Event of Default for the purpose of
this Agreement until such Secured Party has received a
written notice of such Event of Default from the
Borrowers or any other Person for whom such Secured Party
is acting as agent or trustee.
(b) Each of the Borrowers hereby agrees that if a
Trigger Event shall have occurred and is continuing, the
Collateral Agent is hereby irrevocably authorized and
empowered to act as the attorney-in-fact for the
Borrowers with respect to the giving of any instructions
or notices under the Depositary Agreement. The Collateral
Agent hereby agrees that, upon the written request of the
Required Creditors, it shall give such notices and
instructions under the Depositary Agreement to the
Depositary Agent. The Depositary Agent hereby agrees that
it shall accept such notices and instructions from the
Collateral Agent.
Section 2.5 Instructions to Depositary Agent. So long as
any Financing Liabilities remain outstanding, the following
provisions shall apply:
(a) If a Trigger Event shall have occurred, upon the
written request of the Required Creditors, the Collateral
Agent, on behalf of the Secured Parties, shall give the
Depositary Agent a written notice that a Trigger Event
has occurred (the date of such notice, the "Trigger Event
Date") and direct the Depositary Agent to render an
accounting of the current balance of each Fund and of any
other monies of the Borrowers administered by such
Depositary Agent.
(b) At any time on and after the Trigger Event Date,
upon the written request of the Required Creditors, the
Collateral Agent shall deliver a written notice to the
Depositary Agent directing the Depositary Agent to
distribute monies then held in the Project Revenue Fund
in accordance with Section 3.16(c) of the Depositary
Agreement and to distribute monies then held in any or
all of the other Funds in accordance with Section 3.16(c)
of the Depositary Agreement; provided that (i) all
distributions pursuant to Section 3.16(c)(ii) shall be
ratable among the Secured Parties, and (ii) monies held
in the Project Revenue Fund shall not be applied to any
withdrawal, transfer or payment in accordance with
Section 3.1(b)(i) of the Depositary Agreement unless all
the Secured Parties shall direct the Collateral Agent to
deliver the notice to the Depositary Agent referred
to in Section 3.16(c)(A) of the Depositary Agreement.
(c) If a Trigger Event shall have occurred, upon the
written request of the Required Creditors, the Collateral
Agent shall realize and foreclose upon the Collateral
(other than the Funds and any monies of the Borrowers
administered by the Depositary Agent, which shall be
governed exclusively by Sections 2.5(a), 2.5(b) and
2.5(d) hereof and Section 3.16 of the Depositary
Agreement) and take any and all other actions and
exercise any and all rights, remedies and options which
it may have under the Security Documents and which the
Required Creditors direct it to take under this
Agreement.
(d) The proceeds of any sale, disposition or other
realization or foreclosure by the Collateral Agent upon
the Collateral or any portion thereof pursuant to the
Security Documents shall be governed by this Section
2.5(d). Any noncash proceeds resulting from such
liquidation of the Collateral shall be held by the
Collateral Agent for the benefit of the Secured Parties
until later sold or otherwise converted into cash, at
which time the Collateral Agent shall apply such cash in
accordance with the next sentence of this Section 2.5(d).
The Collateral Agent shall transfer any cash proceeds
resulting from liquidation of the Collateral to the
Depositary Agent for application of such proceeds in
accordance with Section 3.16(d) of the Depositary
Agreement.
Section 2.6 Receipt of Money or Proceeds. The Secured
Parties and the Depositary Agent hereby agree that if, at any
time during the term of this Agreement, any Secured Party
receives any payment or distribution of assets of the
Borrowers of any kind or character, whether monies or cash
proceeds resulting from liquidation of the Collateral, other
than in accordance with the terms of this Agreement and the
Depositary Agreement, the Secured Party shall hold such
payment or distribution in trust for the benefit of the
Secured Parties and shall immediately remit such payment or
distribution to the Depositary Agent and the Depositary Agent
shall deposit such monies or proceeds in the Project Revenue
Fund for application or distribution, as the case may be, in
accordance with the terms of this Agreement and the Depositary
Agreement.
Section 2.7 Additional Secured Parties. Any person which
executes and delivers a counterpart to this Agreement and is
designated as a Secured Party pursuant to the terms of the
Designation Letter, shall become a party hereto, shall be
bound by and subject to the term and conditions hereof and the
covenants stipulations and agreements contained herein.
ARTICLE III
Right and Duties of Collateral Agent
Section 3.1 Appointment and Duties of Collateral Agent.
(a) The Secured Parties hereby designate and appoint
Fleet National Bank to act as the Collateral Agent under the
Security Documents and this Agreement, and each of the Secured
Parties hereby authorizes Fleet National Bank, as the
Collateral Agent, to take such actions on its behalf under the
provisions of the Security Documents and this Agreement 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 this Agreement, together with such other powers
as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in the Security Documents
and this Agreement, the Collateral Agent's duties and
responsibilities under this Agreement shall be entirely
administrative and not discretionary and it shall not have any
duties or responsibilities, except those expressly set forth
in the Security Documents and this Agreement, or any fiduciary
relationship with any Secured Party, and no implied covenants,
functions or responsibilities shall be read into the Security
Documents, this Agreement or otherwise exist against the
Collateral Agent. The Collateral Agent shall not be liable for
any action taken or omitted to be taken by it hereunder or
under any Security Document, or in connection herewith or
therewith, or in connection with the Collateral, unless caused
by its gross negligence or willful misconduct.
(b) The Secured Parties hereby authorize the Collateral
Agent to appoint Fleet National Bank to act as the Depositary
Agent under the Depositary Agreement. The Secured Parties
hereby authorize and empower the Collateral Agent to remove
and replace the Depositary Agent pursuant to the terms and
conditions of Article IV of the Depositary Agreement and to
direct such Depositary Agent according to the terms of this
Agreement.
(c) Notwithstanding anything to the contrary in this
Agreement or any Security Document, the Collateral Agent shall
not exercise any rights or rights under any of the Security
Documents or this Agreement or give any consent (except
consents given in conjunction with partial releases of
Collateral expressly permitted by the Security Documents)
under any of the Security Documents or this Agreement or enter
into any agreement amending, modifying, supplementing or
waiving any provision of any Security Document or this
Agreement unless it shall have been directed to do so in
writing by the Required Creditors.
Section 3.2 Rights of Collateral Agent.
(a) The Collateral Agent may execute any of its duties
under the Security Documents or this Agreement by or through
agents or attorneys-in-fact and shall be entitled to advice of
counsel, accountants and experts concerning all matters
pertaining to such duties and it shall not be liable for any
action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or
experts.
(b) Neither the Collateral Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates
shall (i) be liable for any action lawfully taken or omitted
to be taken by it under or in connection with any Security
Document or this Agreement (except for its gross negligence or
willful misconduct) or (ii) be responsible in any manner to
any of the Secured Parties for any recitals, statements,
representations or warranties made by the Borrowers or any
representative thereof contained in any Security Document or
this Agreement 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 or this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of
the Security Documents or this Agreement or for any failure of
the Borrowers 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 to inspect the
properties, books or records of the Borrowers.
(c) The Collateral Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing,
resolution, notice, consent certificate, 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 the Borrowers), independent accountants and other
experts selected by the Collateral Agent. In connection with
any request of the Required Creditors, the Collateral Agent
shall be fully protected in relying on a certificate of any
Person, signed by an Authorized Representative of such Person,
setting forth the Combined Exposure held by such Person as of
the date of such certificate, which certificate shall state
that the Person signing such certificate is an Authorized
Representative of such Person and shall state specifically the
Security 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 this Agreement (i) if such
action would, in the opinion of the Collateral Agent, be
contrary to law or the terms of this Agreement or the other
Security Documents, (ii) if such action is not specifically
provided for in such Security Document or this Agreement, it
shall not have received any such advice or concurrence of the
Required Creditors as it deems appropriate, (iii) if, in
connection with the taking of any such action that would
constitute an exercise of remedies under such Security
Document or this agreement, it shall not first be indemnified
to its satisfaction by the Borrowers or the Secured Parties
(other than the Trustee (in its individual capacity), the
Collateral Agent (in its individual capacity), the Depositary
Agent (in its individual capacity) or any other agent or
trustee under any of the Financing Documents (in their
individual capacity)) against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action, or (iv) if,
notwithstanding anything to the contrary contained in Section
3.2(e) of this Agreement, in connection with the taking of any
such action that would constitute a payment due under any
Project Agreement pursuant to the terms of any Consent, it
shall not first have received from the Secured Parties funds
equal to the amount payable. The Collateral Agent shall in all
cases be fully protected in acting, or in refraining from
acting, under any Security Document or this Agreement in
accordance with a request of the Required Creditors (to the
extent that the Required Creditors are expressly authorized to
direct the Collateral Agent to take or refrain from taking
such action), 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 in its
sole discretion that the provisions of any Security Document
or this Agreement relating to the functions or
responsibilities or powers of the Collateral Agent are or may
be ambiguous or inconsistent or would require the Collateral
Agent to exercise its own judgment, 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 shall not perform such function or
responsibility or exercise such discretionary power unless it
has received the written confirmation of the Secured Parties
constituting the Required Creditors that the Secured Parties
concur in the circumstances that the action proposed to be
taken by the Collateral Agent is consistent with the terms of
this Agreement or such Security Document or is otherwise
appropriate. The Collateral Agent shall be fully protected
in acting or refraining from acting upon the
confirmation of the Secured Parties in this respect, and such
confirmation shall be binding upon the Collateral Agent.
(e) The Collateral shall not be deemed to have actual,
constructive direct or indirect knowledge or notice of the
occurrence of any Event of Default or Trigger Event unless and
until a Responsible Officer of the Collateral Agent has
received a written notice or a certificate from a Secured
Party stating that an Event of Default has occurred under its
Financing Documents. The Collateral Agent shall have no
obligation whatsoever either prior to or after receiving such
notice or certificate to inquire whether a Trigger Event has
in fact occurred and shall be entitled to rely conclusively,
and shall be fully protected in so relying, on any such notice
or certificate so furnished to it. No provision of this
Agreement, any Financing Document or any Security Document
shall require the Collateral Agent 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 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. In the
event that the Collateral Agent receives such a notice of or
certificate regarding the occurrence of any Trigger Event, the
Collateral Agent shall give notice thereof to the Secured
Parties. The Collateral Agent shall take such action with
respect to such Trigger Event as so requested pursuant to
Sections 2.3, 2.4 and 2.5 hereof.
(f) The Collateral Agent shall be under no obligation or
duty to take any action under this Agreement or the other
Security Documents if taking such action (i) would subject the
Collateral Agent to a tax in any jurisdiction where it is not
then subject to a tax or (ii) would require the Collateral
Agent to qualify to do business in any jurisdiction where it
is not then so qualified, unless in the case of (i) or (ii)
the Collateral Agent receives security or indemnity
satisfactory to it against such tax (or equivalent liability),
or any liability resulting from such lack of qualification, in
each case as results from the taking of such action under this
Agreement or the Security Documents.
(g) The Borrowers will pay, no later than 30 days
following a request and invoice therefor, to the Collateral
Agent the amount of any and all reasonable out-of-pocket
expenses, including the reasonable fees and expenses of its
counsel (and any local counsel) and of any experts and agents,
which the Collateral Agent may incur in connection with (i)
the administration of this Agreement and the other Security
Documents, (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
hereunder or under the other Security Documents or (iv) the
failure by the Borrowers to perform or observe any of the
provisions hereof or of any of the other Security Documents.
Section 3.3 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, including, without
limitation, any review of the Project or of the affairs of the
Borrowers, shall be deemed to constitute any representation or
warranty the Collateral Agent to any Secured Party. Each
Secured Party also acknowledges that it (or the lenders
represented by the Secured Party) will independently and
without reliance upon the Collateral Agent, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or
not taking any action under the Security Documents. Except for
notices, reports and other documents expressly required to be
furnished to the Secured Parties 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
the Project and the Borrowers which may come into the
possession of the Collateral Agent or any of its officers,
directors, employees, agents or attorneys-in-fact.
Section 3.4 Indemnification.
(a) The Secured Parties jointly and severally agree to
indemnify the Collateral Agent and its directors, officers,
employees and agents (collectively, an "Indemnified Party") as
such (to the extent not reimbursed by the Borrowers and
without limiting the obligation of the Borrowers to do so),
from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind whatsoever which may at any time
be imposed on, incurred by or asserted against the Indemnified
Party in any way relating to or arising out of the Security
Documents or this Agreement, or the performance by the
Collateral Agent of its duties hereunder or thereunder or any
action taken or omitted by the Collateral Agent in its
capacity as such under or in connection with any of the
foregoing (including, but not limited to, any claim that the
Collateral Agent is the owner or operator of the Project and
liable as such pursuant to the Comprehensive Environmental
Response Compensation Liability Act or any other Environmental
[Laws); provided that the Secured Parties shall not be liable
for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements to the extent that any
of the foregoing result from an Indemnified Party's gross
negligence or willful misconduct. If a Secured Party pays more
than its pro rata (based on the respective Financing
Liabilities outstanding on the date of payment) share of the
amount payable to an Indemnified Party pursuant to this
Section 3.4(a), such Secured Party shall be entitled to
contribution from the Secured Party or Parties that have paid
less than its or their pro rata share.
(b) Each of the Borrowers jointly and severally
indemnifies the Collateral Agent and each Secured Party and,
in their capacity as such, their officers, directors,
shareholders, controlling persons, employees, agents and
servants (each an "Indemnified Party") from and against any
and all claims, damages, losses, liabilities, obligations,
penalties, actions, causes of action, judgments, suits, costs,
expenses or disbursements (including, without limitation,
reasonable attorneys' and consultants' fees and expenses)
(collectively "Damages") of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted
against any Indemnified Party (or which may be claimed against
any Indemnified Party by any Person) by reason of, in
connection with or any way relating to or arising out of any
Project Document, Collateral Documents, Financing Documents,
any Collateral, the Site, the Project, or any other documents
or transactions in connection with or relating thereto
(including, without limitation, Damages in connection with the
presence, Release or threatened Release of Hazardous Materials
at, on, under, to or from the Site, the Project or any
disposal sites to which wastes from the Project have been
taken), unless due to the gross negligence or willful
misconduct of such Indemnified Party. Each Borrower further
shall, within 30 days following demand by any Indemnified
Party, pay to such Indemnified Party all reasonable costs and
expenses incurred by such Indemnified Party in enforcing any
rights under the Project Documents, Financing Documents and
Collateral Documents including reasonable fees and expenses of
counsel.
(c) The agreements in this entire Section 3.4 shall
survive the payment or satisfaction in full of the Financing
Liabilities and the resignation or removal of the Collateral
Agent or the termination of this Agreement.
Section 3.5 Resignation or Removal of the Collateral
Agent. The Collateral Agent may resign as Collateral Agent
upon thirty (30) days' notice to the Secured Parties and may
be removed at any time with or without cause by the Required
Creditors, with any such resignation or removal to become
effective only upon the appointment of a successor Collateral
Agent under this Section 3.5, provided, however, that if no
successor Collateral Agent shall have been so appointed within
thirty (30) days, the resigning Collateral Agent may petition
any court of competent jurisdiction for the appointment of a
new Collateral Agent; and provided, further, however, that if
at any time the Collateral Agent is the same Person as the
Trustee, the holders of 25% or more of the Combined Exposure
shall have the right to remove the Collateral Agent upon
thirty (30) days' notice to the Secured Parties with or
without cause, effective upon the appointment of a successor
Collateral Agent under this Section 3.5 by the Required
Creditors. If the Collateral Agent shall resign or be removed
as Collateral Agent by the Required Creditors or by such
holders, as applicable, then the Required Creditors shall (and
if no such successor shall have been appointed within thirty
(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 Borrowers, 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 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. After
any retiring Collateral Agent's resignation or removal
hereunder as Collateral Agent, the provisions of this
Agreement shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Collateral Agent.
Section 3.6 Court Orders. The Collateral Agent is hereby
authorized, in its exclusive discretion, to obey and comply
with all writs, orders, judgments, or decrees issued by any
court or administrative agent affecting any money, documents
or things held by the Collateral Agent. The Collateral Agent
shall not be liable to any of the parties hereto, their
successors, heirs or personal representatives by reason of the
Collateral Agent's compliance with such writs, orders,
judgments or decrees, notwithstanding such writ, order,
judgment or decree is later reversed, modified, set aside or
vacated.
ARTICLE IV
General
Section 4.1 Agreement for Benefit of Parties Hereto.
Nothing in this Agreement, express or implied, is intended or
shall be construed to confer upon, or to give to, any Person
other than the parties hereto and their respective successors
and assigns and Persons for whom the parties hereto are acting
as agents or representatives, any right, remedy or claim under
or by reason of this Agreement or any covenant, condition or
stipulation hereof; and the covenants, stipulations and
agreements contained in this Agreement are and shall be for
the sole and exclusive benefit of the parties hereto and their
respective successors and assigns and Persons, if any, for
whom the parties hereto are acting as agents or
representatives.
Section 4.2 Severability. In case any one or more of the
provisions contained in this Agreement shall be invalid,
illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions
contained herein shall not in any way be affected and/or
impaired thereby.
Section 4.3 Notices. All notices, demands, certificates
or other communications hereunder shall be in writing and
shall be deemed sufficiently given or served for all purposes
when delivered personally, when sent by certified or
registered mail, postage prepaid, return receipt requested, or
by private courier service, or, if followed and confirmed by
mail or courier service notice, when telecopied, in each case,
with the proper address as indicated below or as set forth in
any elective Designation Letter. Each party may, by written
notice given to the other parties, designate any other address
or addresses to which notices, certificates or other
communications to them shall be sent as contemplated by this
Agreement. Notices shall be deemed to have been given if and
when received by an officer, manager or supervisor in the
department of the addressee specified for attention (unless
the addressee refuses to accept delivery, in which case they
shall be deemed to have been given when first presented to the
addressee for acceptance); provided, however, that notices to
the Collateral Agent must be received by a Responsible
Officer. Until otherwise so provided by the respective
parties, all notices, certificates and communications to each
of them shall be addressed as follows:
Company: Panda-Xxxxxxxx Funding Corporation
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier Number: (000) 000-0000
Partnership: Panda-Xxxxxxxx,L.P.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier Number: (000) 000-0000
Trustee, Collateral Fleet National Bank
Agent or Depositary Corporate Trust Department
Agent: 000 Xxxx Xxxxxx
XXX00000
Xxxxxxxx, Xxxxxxxxxxx 00000
Ref: Panda-Xxxxxxxx 1996
Telecopier Number: (000) 000-0000
L/C Issuer: Bayerische Vereinsbank AG
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier Number: (000) 000-0000
Section 4.4 Successors and Assigns. Whenever in
this Agreement any of the parties hereto is named or referred to, the
successors and assigns of such party shall be deemed to be
included and all covenants, promises and agreements in this
Agreement by or on behalf of the respective parties hereto shall bind
and inure to the benefit of the respective successors and assigns
of such parties, whether so expressed or not.
Section 4.5 Counterparts. This Agreement may be executed
in any number of counterparts, each executed counterpart
constituting an original but all counterparts together
constituting only one instrument.
Section 4.6 Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
CONTLICTS OF LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW OF NEW YORK) THAT MIGHT CAUSE
THIS AGREEMENT TO BE GOVERNED BY OR CONSTRUED OR ENFORCED IN
ACCORDANCE WITH THE LAWS OF ANY OTHER JURISDICTION.
Section 4.7 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
Secured Parties may have or may obtain against the Borrowers.
Section 4.8 Amendment; Waiver. No amendment or waiver of
any provision of this Agreement shall be effective unless the
same shall be in writing and signed by all the Secured
Parties, and any such waiver or consent shall be effective
only in the specific instance and for the specific 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 thereof, nor shall any single or partial waiver by
such Secured Party of any right, power or remedy preclude any
further exercise thereof, or the exercise of any other right,
power or remedy.
Section 4.9 Headings. Headings herein are for
convenience only and shall not be relied upon in interpreting
or enforcing this Agreement.
Section 4. 10 Termination. This Agreement shall remain in
full force and effect until the Debt Termination Date.
Following the Debt Termination Date, Sections 3.4(a) and 3.4(b)
of this Agreement shall continue in full force and effect.
Notwithstanding anything to the contrary contained herein, upon
the payment in full by the Borrowers of all principals interest
and other amounts owed to a Secured Party, (i) all references
herein to such Secured Party, automatically and without further
action or amendment, shall be null and void and without effect
and (ii) such Secured Party shall have no rights or duties
(other than under Section 3.4(a)) hereunder and shall not be
deemed to be a Secured Party or a party to this Agreement.
Section 4.11 Entire Agreement. This Agreement, including
the documents referred to herein, embodies the entire
agreement and understanding of the parties hereto and
supersedes all prior agreements and understandings of the
parties hereto relating to the subject matter herein
contained.
Section 4.12 Limitation of Liability. Notwithstanding
anything to the contrary contained in this Agreement, the
liability and obligation of the Partnership or the Company to
perform and observe and make good the obligations contained in
this Agreement and the Collateral Documents shall not be
enforced by any action or proceeding wherein damages or any
money judgment or any deficiency judgment or any judgment
establishing any personal obligation or liability shall be
sought, collected or otherwise obtained against any Partner,
any past, present or future partner, officer, director or
shareholder or related Person of any Partner or the Company
(other than the Partnership and the Company) or any Secured
Party, and the Collateral Agent, for itself and its successors
and assigns, irrevocably waives any and all right to xxx for,
seek or demand any such damages, money judgment, deficiency
judgment or personal judgment against any Partner or any past,
present or future partner, officer, director or shareholder or
related Person of any Partner or the Company (other than the
Partnership and the Company) under or by reason of or in
connection with this Agreement and agrees to look solely to
the Company and the Partnership and the security and
Collateral held under or in connection with the Collateral
Documents for the enforcement of such liability and obligation
of the Company or the Partnership. Nothing contained in this
paragraph shall be construed (i) as preventing the Collateral
Agent from naming the Company or the Partnership, any Partner
or any past, present or future partner, officer, director or
shareholder or related Person of any Partner or the Company in
any action or proceeding brought by the Collateral Agent to
enforce and to realize upon the security and Collateral
provided under or in connection with the Collateral Documents
so long as no judgment, order, decree or other relief in the
nature of a personal or deficiency judgment or otherwise
establishing any personal obligation shall be asked for,
taken, entered or enforced against any Partner any past,
present or future partner, officer, director or shareholder or
related Person of any Partner or the Company (other than the
Partnership and the Company), in any such action or
proceeding, (ii) as modifying, qualifying or affecting in any
manner whatsoever the lien and security interests created by
this Agreement and the Collateral Documents and the other
Project Documents or the enforcement thereof by the Collateral
Agent, (iii) as modifying, qualifying or affecting in any
manner whatsoever the personal recourse undertakings,
obligations and liabilities of any person, party or entity
under any guaranty of payment, completion guaranty, other
guaranty or indemnification agreement now or hereafter
executed and delivered to the Collateral Agent in connection
with the Collateral Documents or (iv) as modifying, qualifying
or affecting in any manner whatsoever the personal recourse
liability of any Partner, any past, present or future partner,
officer, director or shareholder or related Person of any
Partner or the Company or any other person, party or entity
for fraud or willful misrepresentation or any wrongful
misappropriation or diversion of any portion of the
Collateral.
Section 4. 13 Execution in Lieu of Agent. To the extent
that any of the Credit Banks or the holders of Additional
Permitted Debt are not represented by any agent or trustee,
such Credit Bank or holder of Additional Permitted Debt shall
be permitted to execute this Agreement and the Designation
Letter on its own behalf in lieu of any agent or trustee on
its behalf.
Section 4.14 Representations. Each of the parties hereto,
including any party that executes and delivers a counterpart
of this Agreement and is designated as a Secured Party
pursuant to the Designation Letter, represents and warrants
that this Agreement has been duly executed and delivered by
it, and constitutes the valid and binding obligation of it,
enforceable against it in accordance with the terms hereof,
except as such enforceability (i) may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the enforcement of creditors, rights
and remedies generally and (ii) is subject to general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
Section 4.15 Conflicts With Other Security Documents.
Notwithstanding any other provision hereof, in the event of
any conflict between the terms of this Agreement and the
other Security Documents, the provisions of this Agreement
shall control.
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed by their duly authorized officers, all as of the
date first written above.
PANDA-XXXXXXXX FUNDING
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
PANDA-XXXXXXXX, L.P.
By: Panda-Xxxxxxxx Corporation, its
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
FLEET NATIONAL BANK, as the Trustee
By: /s/ X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK, as the Depositary Agent
By: /s/ X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK, as the Collateral Agent
By: /s/ X. Xxxxxxxx
Title: Assistant Vice President
Schedule I
to Collateral Agency and
Intercreditor Agreement
[FORM OF DESIGNATION LETTER]
[Date]
Fleet National Bank
Corporate Trust Department
000 Xxxx Xxxxxx
XXX00000
Xxxxxxxx, Xxxxxxxxxxx 00000
Ref. Panda-Xxxxxxxx 1996
Re: Panda-Xxxxxxxx, L. P.
Ladies and
Gentlemen:
Reference is made to (i) the Collateral Agency and
Intercreditor Agreement, dated as of July 3l, 1996 (the
"Intercreditor Agreement") among Panda-Xxxxxxxx Funding
Corporation (the "Company"), Panda-Xxxxxxxx, L.P. (the
"Partnership" Bayerische Vereinsbank AG, the Depositary Agent
(as defined in the Indenture referred to below), any trustees
or agents under any other Financing Documents (as defined in
the Intercreditor Agreement) and the Collateral Agent (as
defined in the Intercreditor Agreement) and (ii) [Describe
New Credit Documents]. Capitalized terms used herein and not
defined herein shall have the meanings set forth in the Trust
Indenture, dated as of July 31, 1996 (the "Indenture"), among
the Partnership, the Company and Fleet National Bank.
The undersigned is the [Bank/Lender] [Agent for the
[Banks] [Lenders]] under the [New Credit Document].
The undersigned is delivering this Designation Letter
pursuant to Section 2.7 of the Intercreditor Agreement in
order to permit the undersigned [and the [Banks] [Lenders]]
under the New Credit Document] to become Secured Parties
under the Intercreditor Agreement and the Collateral
Documents and to benefit from the Collateral under the
Collateral Documents in accordance with the terms of the
Intercreditor Agreement and the Collateral Documents.
Attached hereto is a copy of the certificate to be
delivered by the Partnership.
The undersigned [on behalf of itself and the Bank]
[Lenders]] accedes to and agrees to be bound by all of the
terms and provisions of the Intercreditor Agreement and the
Collateral Documents. in furtherance thereof, the undersigned
[on behalf of itself and the [Bank] [Lenders]] agrees to
execute a counterpart of the Intercreditor Agreement.
Our address for notices is:
(Insert Information]
We agree that any extensions of credit under the [New
Credit Documents] shall be deposited with the Depositary
Agent, to the extent required by the Depositary Agreement.
This Designation Letter may be executed in any number of
counterparts, each executed counterpart constituting an
original but all counterparts together constituting only one
instrument.
THIS DESIGNATION LETTER SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CONFLICTS OF
LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF NEW YORK) THAT MIGHT CAUSE THIS DESIGNATION
LETTER TO BE GOVERNED BY OR CONSTRUED OR ENFORCED IN
ACCORDANCE WITH THE LAWS OF ANY OTHER JURISDICTION.
The undersigned officer executing the documents on behalf
of it undersigned is duly authorized to do so.
[CREDITOR]
By:
Name:
Title:
Acknowledged
By:
FLEET NATIONAL BANK
as Collateral Agent
By:
Name:
Title:
CERTIFICATE OF PANDA-XXXXXXXX, L.P.
I, [Name], [Title] of Panda-Xxxxxxxx Corporation (the
"Company"), the general partner of Panda-Rosemary, L.P., a
Delaware limited partnership (the "Partnership"), DO HEREBY
CERTIFY on behalf of the Partnership in its capacity as
general partner of the Partnership that:
1. The debt incurred pursuant to [New Credit
Document] is permitted to be incurred in accordance with
Section 6.16(a) of the Indenture referred to below and
Section _____ of the Credit Bank Reimbursement Agreement of
the L/C Issuer referred to in the Intercreditor Agreement.
[2. No event or condition has occurred and is
continuing which constitutes a Default or an Event of
Default.]
[3. A title search report and a UCC financing
statement report have been prepared and such reports
identify no Liens other than Permitted Liens.]
[4. The Partnership has obtained the title insurance
required by Section 6.4(a)(viii) of the Indenture with
respect to the Debt incurred pursuant to [New Credit
Document]. ]
Capitalized terms used herein and not defined herein shall
have the meaning assigned thereto in the Trust Indenture (as
amended, modified and supplemented and in effect on the date
hereof, the "Indenture") dated as of July 3l, 1996 among the
Partnership, Panda-Xxxxxxxx Funding Corporation and Fleet
National Bank, as trustee:
WITNESS my hand this _____ day of ______________________.
PANDA-XXXXXXXX, L.P.
By: Panda-Xxxxxxxx Corporation, its General Partner
Name:
Title:
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed by their duly authorized officers, all as
of the date first written above.
PANDA-XXXXXXXX FUND1NG
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
PANDA-XXXXXXXX, L.P.
By: Panda-Xxxxxxxx Corporation, its
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
FLEET NATIONAL BANK, as the Trustee
By: /s/ X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK, as the Depositary Agent
By: /s/ X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK, as the Collateral Agent
By: /s/ X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
