EXHIBIT 10.29
LIMITED PARTNER PLEDGE AGREEMENT
LIMITED PARTNER PLEDGE AGREEMENT, dated as of March 30,
1995 (this "Agreement"), made by PANDA ENERGY CORPORATION, a
Delaware corporation (together with its successors and assigns,
the "Pledgor") and the sole limited partner of Panda-Brandywine,
L.P., a Delaware limited partnership (together with its
successors and assigns, the "Borrower"), to SHAWMUT BANK
CONNECTICUT, NATIONAL ASSOCIATION, a national banking
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, the Pledgor is the legal and beneficial owner
of a 50% limited partnership interest in the Borrower (such
partnership interest, being hereinafter referred to as the
"Partnership Interest");
WHEREAS, the Borrower, Panda Brandywine Corporation,
the general partner of the Borrower, and General Electric Capital
Corporation ("GE Capital") have entered into the Construction
Loan Agreement and Lease Commitment, dated as of the date hereof
(as amended, supplemented or otherwise modified from time to
time, the "Loan Agreement"), pursuant to which GE Capital has
agreed, among other things, to (i) make Loans to the Borrower,
(ii) (acting through the Owner Trustee established for the
benefit of GE Capital) lease the Site from the Borrower and
sublease the Site back to the Borrower and (iii) (acting through
the Owner Trustee established for the benefit of GE Capital) upon
completion of the Project, purchase the Facility from the
Borrower and lease the Facility back to the Borrower pursuant to
the Facility Lease;
WHEREAS, it is a condition precedent to the obligation
of GE Capital to make Loans to the Borrower under the Loan
Agreement that the Pledgor shall have executed and delivered this
Agreement to the Security Agent, for the benefit of GE Capital
and the Owner Trustee;
WHEREAS, the Pledgor desires to execute this Agreement
to satisfy the conditions described in the preceding recital;
NOW, THEREFORE, in consideration of the foregoing
premises and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Defined Terms; Construction.
(a) Unless otherwise defined herein, terms used
herein shall have the meaning set forth in Appendix A to the Loan
Agreement. Defined terms in this Agreement shall include in the
singular number the plural and in the plural number the singular.
(b) The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall,
unless otherwise expressly specified, refer to this Agreement as
a whole and not to any particular provision of this Agreement and
all references to Sections shall be references to Sections of
this Agreement unless otherwise expressly specified.
(c) Unless otherwise expressly specified, any
agreement, contract, or document defined or referred to herein
shall mean such agreement, contract or document in the form
(including all amendments and clarification letters relating
thereto) delivered to GE Capital or the Security Agent on the
Initial Loan Funding Date as the same may thereafter be amended,
supplemented, or otherwise modified from time to time in
accordance with the terms of this Agreement and of the other Loan
Documents.
Section 2. Pledge. As security for the Obligations
and subject to and in accordance with the provisions of this
Agreement, the Pledgor hereby pledges, grants, assigns,
hypothecates, transfers, and delivers to the Security Agent, for
the benefit of GE Capital and the Owner Trustee, a first priority
security interest in the following, whether now owned or
hereafter acquired (the "Collateral"):
(a) all of the Pledgor's limited partnership
interests in the Borrower (including, without limitation,
the Partnership Interest and the Pledgor's right, title and
interest in the Transfer Agreement), and all of the
Pledgor's rights, privileges, authority and powers as
limited partner of the Borrower, whether arising under the
terms of the Partnership Agreement, or at law, or otherwise;
(b) all income, cash flow, revenues, issues,
profits, losses, distributions, payments, and other property
of every kind and variety due, accruing or owing to, or to
be turned over to, or to be disbursed to the Pledgor by the
Borrower in respect of the property described in the
preceding clause (a), including without limitation, all
rights of the Pledgor to allocations of profit and loss,
distributions and all monies and property representing a
distribution in respect of the property described in the
preceding clause (a); and
(c) all proceeds, products and accessions of
and to any of the property described in the preceding
clauses (a) and (b);
provided, however, that notwithstanding any of the foregoing,
neither the Security Agent, the Owner Trustee nor GE Capital
shall acquire any interest in any of Pledgor's obligations
contained in the Partnership Agreement.
Section 3. Security for Obligations. This Agreement
secures, and the Collateral is collateral security for, the
payment and performance in full when due, whether at stated
maturity, by acceleration or otherwise, of all Obligations now or
hereafter existing.
Section 4. Delivery of Collateral. All certificates
or instruments representing or evidencing the Collateral shall be
delivered to and held by or on behalf of the Security Agent
pursuant hereto 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. If the
Pledgor shall become entitled to receive or shall receive any
other Collateral, then the Pledgor shall, except as otherwise
provided in Section 7, accept and hold the same in trust for the
Security Agent and segregated from the other property or funds of
Pledgor, and shall deliver to the Security Agent forthwith all
such other Collateral (except as provided in Section 7 hereof) in
the form received by the Pledgor, to be held by the Security
Agent, subject to the terms hereof, as part of the Collateral.
Upon the occurrence and during the continuance of an Event of
Default or Lease Event of Default, the Security Agent shall have
the right, at any time in its discretion and without notice to
the Pledgor, to transfer to or to register in the name of the
Security Agent, GE Capital or the Owner Trustee or any of their
respective nominees any or all of the Collateral.
Section 5. Representations and Warranties. The
Pledgor represents and warrants as follows:
(a) Due Organization. The Pledgor is a
corporation duly organized and validly existing under the
laws of the State of Delaware, and is qualified to own
property and transact business in every jurisdiction
where the ownership of its property and the nature of its
business as currently conducted requires it to be
qualified.
(b) Power and Authority. The Pledgor has
full corporate power, authority and legal right to enter
into this Agreement and each other Transaction Document
to which it is a party and to perform its obligations
hereunder and thereunder and to pledge all the Collateral
pursuant to this Agreement.
(c) Due Authorization. The pledge of the
Collateral pursuant to this Agreement has been duly
authorized by the Pledgor. This Agreement and each other
Transaction Document to which the Pledgor is a party has
been duly authorized, executed and delivered by the
Pledgor.
(d) Enforceability. This Agreement and
each other Transaction Document to which the Pledgor is a
party constitutes the legal, valid and binding obligation
of the Pledgor enforceable against the Pledgor in
accordance with its terms except as enforceability may be
limited by applicable bankruptcy, insolvency, moratorium
or other similar laws affecting creditors' rights
generally and except as enforceability may be limited by
general principles of equity (whether considered in a
suit at law or in equity).
(e) No Conflicts. The execution and
delivery by Pledgor of this Agreement and each other
Transaction Document to which the Pledgor is a party, the
performance by Pledgor of its obligations hereunder and
thereunder, and the pledge by the Pledgor of the
Collateral pursuant to this Agreement will not (i)
violate the provisions of the Pledgor's Certificate of
Incorporation or By-laws; (ii) violate the provisions of
any Law applicable to the Pledgor; (iii) violate any
Contractual Obligation; or (iv) result in or create any
Lien (other than the Lien created hereby) under, or
require any consent which has not been obtained under any
agreement or instrument, or the provisions of any order
or decree binding upon the Pledgor or any of its
properties.
(f) No Consents. No consent of any other
party (including, without limitation, stockholders or
creditors of the Pledgor) and no Governmental Action is
required which has not been obtained either (i) for the
execution, delivery and performance by Pledgor of this
Agreement and each other Transaction Document to which it
is a party, (ii) for the pledge by the Pledgor of the
Collateral pursuant to this Agreement, or (iii) for the
exercise by the Security Agent of the rights provided for
in this Agreement or the remedies in respect of the
Collateral pursuant to this Agreement (except as may be
required in connection with any disposition of all or any
part of the Collateral under any laws affecting the
offering and sale of securities generally).
(g) Not a Utility. The Pledgor is not,
and will not, as a result of becoming a partner in the
Borrower, be or become: (i) subject to regulation under
Part II or Part III of the Federal Power Act, except for
Sections 202(c), 210, 211, 212, 213, 214 and 305(c) of
the Federal Power Act (16 U.S.C. 824a(c), 824i, 824j,
824k, 824l, 824m and 825d(c), respectively) and the
enforcement provisions of Part III of the Federal Power
Act relating thereto; (ii) an "electric utility company"
for purposes of the Holding Company Act; (iii) subject to
state law or regulation respecting the financial, rate or
organizational regulation of electric utilities; or (iv)
subject to regulation as a "steam heating company" under
Article 78, Public Service Commission Law, of the
Annotated Code of Maryland.
(h) Ownership of Collateral. The Pledgor
is the sole legal and beneficial owner of the Collateral
free and clear of any Lien other than Permitted Liens.
No security agreement, financing statement or other
public notice with respect to all or any part of the
Collateral is on file or of record in any public office,
except such as may have been filed in favor of the
Security Agent pursuant to this Agreement, or in favor of
GE Capital, as agent for the lenders which were parties
to the Development Loan Agreement dated as of March 23,
1994, pursuant to the Amended and Restated Limited
Partner Pledge Agreement dated as of March 23, 1994,
between the Pledgor and GE Capital, as agent.
(i) Perfection. The execution and
delivery of this Agreement concurrently with the filing
of UCC-1 financing statements in the filing offices
listed on Schedule 1 create a valid and perfected first
priority security interest in the Collateral securing the
payment of the Obligations.
(j) Chief Executive Office. The chief
executive office of the Pledgor and the office where the
Pledgor keeps its records concerning the Borrower and the
Project and all contracts relating thereto is located at
the address specified on Schedule 2. The Pledgor shall
not establish a new location for its chief executive
office or change its name until (i) it has given to the
Security Agent and GE Capital not less than 30 days'
prior written notice of its intention so to do, clearly
describing such new location or specifying such new name,
as the case may be, and (ii) with respect to such new
location or such new name, as the case may be, it shall
have taken all action, reasonably satisfactory to the
Security Agent and GE Capital, to maintain the security
interest of the Security Agent, on behalf of the Owner
Trustee and GE Capital, in the Collateral intended to be
granted hereby at all times fully perfected and in full
force and effect.
(k) Sole Limited Partner. The Pledgor is
the sole limited partner of the Borrower. The Pledgor is
not engaged in any transaction or activity unrelated to
the financing of the Borrower and the Project.
(l) No Proceedings. There is no action,
suit or proceeding at law or in equity or by or before
any Governmental Authority or arbitral tribunal now
pending or, to the best knowledge of the Pledgor,
threatened against the Pledgor (i) which questions the
validity or legality of or seeks damages in connection
with this Agreement or any other Transaction Document to
which Pledgor is a party or (ii) which may reasonably be
expected to have a Material Adverse Effect.
(m) Financial Statements. Each of the
financial statements of the Pledgor for the fiscal year
and quarter most recently ended as of the date hereof has
been heretofore furnished to GE Capital, and each of such
financial statements is complete and correct in all
material respects and fairly presents the financial
condition of the Pledgor as at said dates, in conformity
with GAAP applied on a consistent basis, except that the
financial statements were prepared on a cash basis and
that certain expenses have not been capitalized as
required by GAAP. Since the date of such annual
financial statement, there has been no Material Adverse
Effect.
(n) Partnership Agreement. The copy of
the Partnership Agreement delivered to GE Capital on or
prior to the date hereof is a true, complete and correct
copy of the Partnership Agreement.
Section 6. Supplements, Further Assurances.
The Pledgor agrees that at any time and from time to
time, at the expense of the Pledgor, the Pledgor will
promptly execute and deliver all further instruments and
documents, and take all further action that the Security
Agent or GE Capital may reasonably request, in order to
perfect and protect any security interest granted or
purported to be granted hereby or to enable the Security
Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, the Pledgor
will execute and file such financing or continuation
statements, or amendments thereto, and such other
instruments, endorsements or notices, as the Security
Agent or GE Capital may deem necessary or desirable in
order to perfect and preserve the Liens created or
intended to be created hereby. The Pledgor hereby
authorizes the Security Agent to file any such financing
or continuation statement without the signature of such
Pledgor to the extent permitted by applicable law. A
carbon, photographic or other reproduction of this
Agreement shall be sufficient as a financing statement
for filing in any jurisdiction.
Section 7. Rights of Pledgor; etc.
(a) Generally. The Pledgor shall be
entitled to exercise any and all rights pertaining to the
Collateral or any part thereof (including, without
limitation, the right to receive distributions in respect
of its partnership interest) so long as (i) no Event of
Default or Lease Event of Default shall have occurred and
be continuing and (ii) the exercise of such rights would
not otherwise result in an Event of Default or Lease
Event of Default. Upon the occurrence and during the
continuance of an Event of Default or Lease Event of
Default all rights of the Pledgor which it would
otherwise be entitled to exercise pursuant to the
preceding sentence shall cease, and all such rights shall
thereupon become immediately vested in the Security
Agent.
(b) Distributions. Unless an Event of
Default or Lease Event of Default shall have occurred and
be continuing, the Pledgor shall be entitled to receive
and retain any and all distributions paid in respect of
the Collateral in compliance with the terms of the Loan
Agreement and the Security Deposit Agreement; provided,
however, that any and all
(i) distributions paid or
payable in respect of or in exchange for any
Collateral (whether paid in cash, securities or
other property) in connection with a partial or
total liquidation or dissolution of the
Borrower (other than in connection with any
deemed liquidation on account of a termination
of the Borrower under Section 708(b)(1)(B) of
the Code), and
(ii) all property (whether
cash, securities or other property) paid,
payable or otherwise distributed in redemption
of, or in exchange for, the property described
in Section 2(a) above,
shall be, and shall be forthwith delivered to the
Security Agent to hold as, Collateral and shall, if
received by the Pledgor, be received in trust for the
benefit of the Security Agent, be segregated from the
other property or funds of the Pledgor, and be forthwith
delivered to the Security Agent as Collateral in the same
form as so received (with any necessary endorsement).
Upon the occurrence and during the continuance of an
Event of Default or Lease Event of Default, all rights of
the Pledgor to receive the distributions which it would
otherwise be authorized to receive and retain pursuant to
the preceding sentence shall cease, and all such rights
shall thereupon become vested in the Security Agent which
shall thereupon have the sole right to receive and hold
as Collateral such distributions.
(c) Amounts Wrongfully Received Held in
Trust. All distributions and other amounts which are
received by the Pledgor contrary to the provisions of
Section 7(b) above or of the Loan Agreement shall be
received in trust for the benefit of the Security Agent,
shall be segregated from other funds of the Pledgor and
shall be forthwith paid over to the Security Agent as
Collateral in the same form as so received (with any
necessary endorsement).
Section 8. Covenants.
(a) Legal Existence. The Pledgor shall
preserve and maintain (i) its legal existence, as a
corporation in good standing under the laws of the State
of Delaware and (ii) its qualification to do business in
every jurisdiction where the ownership of its property
and the nature of its business require it to be so
qualified.
(b) Books, Records and Inspections. The
Pledgor shall keep proper books of record and account in
which full, true and correct entries in conformity with
GAAP, except that the Pledgor's financial statements may
be prepared on a cash basis and that certain expenses may
be capitalized other than as required by GAAP, and all
requirements of Law shall be made of all dealings and
transactions in relation to its business and activities.
The Pledgor shall permit officers and designated
representatives of the Security Agent and GE Capital to
visit and inspect any of the properties of the Pledgor,
and to examine the books of record and account of the
Pledgor, and discuss the affairs, finances and accounts
of the Pledgor with, and be advised as to the same by,
its and their officers and independent accountants, all
upon reasonable notice and at such reasonable times as
the Security Agent or GE Capital may desire.
(c) Taxes and Claims. The Pledgor shall
pay or cause to be paid when due, all Taxes and all
charges, betterments, or other assessments relating to
the Collateral, and all other lawful claims required to
be paid by the Pledgor, except to the extent any of the
same are subject to a Contest.
(d) Compliance with Law. The Pledgor
shall comply with all Laws, except for such noncompliance
as could not, individually or in the aggregate, have a
Material Adverse Effect.
(e) Governmental Actions. The Pledgor
shall obtain, maintain and comply with all Governmental
Actions applicable to the Pledgor, except for such
failure or noncompliance as could not, individually or in
the aggregate, have a Material Adverse Effect.
(f) Remain as Limited Partner. The
Pledgor shall remain as the sole limited partner of the
Borrower and shall not withdraw as a limited partner in
the Borrower. The Pledgor shall not engage in any
business other than being the limited partner of the
Borrower.
(g) No Sale of Collateral; No Liens. The
Pledgor agrees that it will not (i) sell or otherwise
dispose of, or grant any option or warrant with respect
to, the Collateral or any interest therein without the
prior written consent of the Security Agent and (ii)
except for the Lien created hereby, create or permit to
exist any Lien (other than Permitted Liens) upon or with
respect to any of the Collateral or any interest therein
or any of its other property or assets.
(h) Fundamental Changes. The Pledgor
shall not enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation
or dissolution) or discontinue its business.
(i) Partnership Agreement; Transfer
Agreement. The Pledgor shall not agree to or permit (i)
the cancellation or termination of the Partnership
Agreement or the Transfer Agreement or (ii) without the
prior written consent of GE Capital or the Security
Agent, any amendment, supplement, or modification of, or
waiver with respect to any of the provisions of, the
Partnership Agreement or the Transfer Agreement.
(j) Agent for Receipt of Service of
Process. The Pledgor shall appoint and continuously
retain a Person acceptable to the Security Agent as its
agent in the State of New York for receipt of service of
process and shall pay all costs, fees and expenses in
connection therewith.
(k) Bankruptcy of the Borrower. The
Pledgor shall not authorize, seek to cause or permit the
Borrower 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 its creditors.
Section 9. Security Agent Appointed Attorney-
In-Fact. Upon the occurrence of an Event of Default or
Lease Event of Default, the Pledgor hereby appoints the
Security Agent or any Person or agent whom the Security
Agent may designate the Pledgor's attorney-in-fact with
full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, at the Pledgor's
cost and expense, at any time and from time to time in
the Security Agent's reasonable discretion to take any
action and to execute any instrument which the Security
Agent may deem necessary or advisable to enforce its
rights under this Agreement, including, without
limitation, authority to receive, endorse and collect all
instruments made payable to the Pledgor representing any
distribution, interest payment or other payment in
respect of the Collateral or any part thereof and to give
full discharge for the same.
Section 10. Security Agent May Perform. If
the Pledgor fails to perform any agreement contained
herein after receipt of a written request to do so from
the Security Agent, the Security Agent may itself
perform, or cause performance of, such agreement, and the
reasonable expenses of the Security Agent, including the
reasonable fees and expenses of its counsel, incurred in
connection therewith shall be payable by the Pledgor
under Section 19.
Section 11. Reasonable Care. The Security
Agent shall be deemed to have exercised reasonable care
in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment
substantially equivalent to that which the Security Agent
accords its own property of the type of which the
Collateral consists, it being understood that the
Security Agent shall have no responsibility for (i)
ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other
matters relative to any Collateral, whether or not the
Security Agent has or is deemed to have knowledge of such
matters, or (ii) taking any necessary steps to preserve
rights against any parties with respect to any
Collateral.
Section 12. No Liability. Neither the
Security Agent, GE Capital nor the Owner Trustee nor any
of their respective directors, officers, employees or
agents shall be deemed to have assumed any of the
liabilities or obligations of a partner of the Borrower
as a result of the pledge and security interest granted
under or pursuant to this Agreement. Neither the
Security Agent, GE Capital, nor the Owner Trustee nor any
of their respective directors, officers, employees or
agents shall be liable for any failure to collect or
realize upon the Obligations or any collateral security
or guarantee therefor, or any part thereof, or for any
delay in so doing nor shall it be under any obligation to
take any action whatsoever with regard thereto.
Section 13. Remedies Upon Default. If an
Event of Default or Lease Event of Default shall have
occurred and be continuing:
(a) The Security Agent (i) may become a
substitute or additional limited partner in the Borrower
or designate another Person to become such substitute or
additional limited partner and/or (ii) may exercise the
power of attorney described in Section 9.
(b) (i) The Security Agent may exercise
in respect of the Collateral, in addition to other rights
and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party
upon a default under the Uniform Commercial Code then in
effect in the State of New York, or unless prohibited by
applicable law, the Uniform Commercial Code then in
effect in any other applicable jurisdiction. The
Security Agent may also in its sole discretion, without
notice except as specified below, sell the Collateral or
any part thereof in one or more parcels at public or
private sale or at any of the Security Agent's offices or
elsewhere, for cash, on credit or for future delivery,
and at such price or prices and upon such other terms as
the Security Agent may, in accordance with applicable
Law, deem commercially reasonable, irrespective of the
impact of any such sales on the market price of the
Collateral at any such sale. Each purchaser at any such
sale shall hold the property sold absolutely, free from
any claim or right on the part of the Pledgor, and the
Pledgor hereby waives (to the extent permitted by law)
all rights of redemption, stay and/or appraisal which it
now has or may at any time in the future have under any
rule of law or statute now existing or hereafter enacted.
The Pledgor agrees that, to the extent notice of sale
shall be required by law, at least ten days' notice to
the Pledgor of the time and place of any public sale or
the time after which any private sale is to be made shall
constitute reasonable notification. The Security Agent
shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The
Security Agent may adjourn any public or private sale
from time to time by announcement at the time and place
fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so
adjourned. The Security Agent shall not incur liability
as a result of the sale of the Collateral, or any part
thereof, at any public or private sale. The Pledgor
hereby waives any claims against the Security Agent
arising by reason of the fact that the price at which any
Collateral may have been sold at such a private sale, if
commercially reasonable, was less than the price which
might have been obtained at a public sale, even if the
Security Agent accepts the first offer received and does
not offer such Collateral to more than one offeree.
(ii) The Pledgor recognizes that the
Security Agent may elect in its sole discretion to sell
all or a part of the Collateral to one or more purchasers
in privately negotiated transactions in which the
purchasers will be obligated to agree, among other
things, to acquire the Collateral for their own account,
for investment and not with a view to the distribution or
resale thereof. The Pledgor acknowledges that any such
private sales may be at prices and on terms less
favorable than those obtainable through a public sale
(including, without limitation, a public offering made
pursuant to a registration statement under the Securities
Act of 1933, as amended (the "Securities Act")), and the
Pledgor and the Security Agent agree that such private
sales shall be made in a commercially reasonable manner
and that the Security Agent has no obligation to engage
in public sales and no obligation to delay sale of any
Collateral to permit the issuer thereof to register the
Collateral for a form of public sale requiring
registration under the Securities Act.
(c) Any cash held by the Security Agent
as Collateral and all cash proceeds received by the
Security Agent in respect of any sale of, collection
from, or other realization upon all or any part of the
Collateral shall, as soon as reasonably practicable, be
applied (after payment of any amounts payable to the
Security Agent pursuant to Section 19 and 20) by the
Security Agent first to the payment of the costs and
expenses of such sale, collection or other realization,
if any, including reasonable compensation to the Security
Agent and its agents and counsel, and all expenses,
liabilities and advances made or incurred by the Security
Agent in connection therewith; and second to the payment
of the Obligations in accordance with the terms of the
Loan Agreement, the Deed of Trust and Security Agreement
and the Security Agreement. The Borrower shall be liable
for any deficiency remaining after any application of
funds pursuant hereto. Any surplus of such cash or cash
proceeds held by the Security Agent after payment in full
of such amounts shall be paid over to the Pledgor, or its
successors or assigns, or to whomsoever may be lawfully
entitled to receive such surplus or as a court of
competent jurisdiction may direct.
Section 14. Purchase of the Collateral. The
Security Agent, GE Capital or the Owner Trustee or any of
their respective Affiliates may be a purchaser of the
Collateral or any part thereof or any right or interest
therein at any sale thereof, whether pursuant to
foreclosure, power of sale or otherwise hereunder and the
Security Agent may apply the purchase price to the
payment of the Obligations secured hereby. Any such
purchaser of all or any part of the Collateral shall,
upon any such purchase, acquire good title to the
Collateral so purchased, free of the security interests
created by this Agreement.
Section 15. Notices. All notices, requests
and demands to or upon the respective parties hereto to
be effective shall be in writing (including by telecopy),
and shall be deemed to have been duly given or made when
delivered by hand, or five days after being deposited in
the United States mail, postage prepaid, or, in the case
of telecopy notice, when confirmation is received, or, in
the case of a nationally recognized overnight courier
service, one Business Day after delivery to such courier
service, addressed, in the case of each party hereto, at
its address specified below its name on Schedule 2
hereto, or to such other address as may be designated by
any party in a written notice to the other parties
hereto.
Section 16. Continuing Security Interest.
This Agreement shall create a continuing Lien in the
Collateral until the release thereof pursuant to Section
18. GE Capital may assign or otherwise transfer any
indebtedness held by it secured by this Agreement to any
other person or entity in accordance with subsection 9.6
of the Loan Agreement, and such other person or entity
shall thereupon become vested with all the benefits in
respect thereof granted herein or otherwise.
Section 17. Security Interest Absolute. All
rights of the Security Agent and security interests
hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(i) any lack of validity or
enforceability of any of the Transaction
Documents or any other agreement or instrument
relating thereto;
(ii) any change in the time,
manner or place of payment of, or in any other
term of, all or any of the Obligations, or any
other amendment or waiver of or any consent to
any departure from the Transaction Documents or
any other agreement or instrument relating
thereto;
(iii) any exchange, release or
non-perfection of any other collateral, or any
release or amendment or waiver of or consent to
any departure from any guaranty, for all or any
of the Obligations; or
(iv) any other circumstance
which might otherwise constitute a defense
available to, or a discharge of, the Pledgor.
Section 18. Release. Upon the indefeasible
payment in full of the Obligations, the Security Agent,
upon the request and at the expense of the Pledgor, shall
execute and deliver all such documentation necessary to
release the liens created pursuant to this Agreement.
Section 19. Expenses. The Pledgor will upon
demand pay to the Security Agent the amount of any and
all reasonable expenses, including the reasonable fees
and expenses of its counsel and of any experts and
agents, and any transfer taxes which the Security Agent
may incur in connection with (i) the custody or
preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral pursuant to
the exercise or enforcement of any of the rights of the
Security Agent hereunder or (ii) the failure by the
Pledgor to perform or observe any of the provisions
hereof. Any amount payable by the Pledgor pursuant to
this Section shall be payable on demand and shall
constitute Obligations secured hereby.
Section 20. Indemnity.
(a) The Pledgor agrees to indemnify,
reimburse and hold the Security Agent, the Owner Trustee
and GE Capital, their respective successors and assigns
and their respective officers, directors, employees, and
agents (each individually, an "Indemnitee," and
collectively, "Indemnitees") harmless from any and all
liabilities, obligations, damages, injuries, penalties,
claims, demands, actions, suits, judgments and any and
all costs and expenses (including reasonable attorneys'
fees and disbursements) (such expenses, for purposes of
this Section, hereinafter "expenses") of whatsoever kind
and nature imposed on, asserted against or incurred by
any of the Indemnitees in any way relating to or arising
out of (i) this Agreement or the documents executed in
connection herewith or in any other way connected with
the administration of the Lien or the security interest
granted hereby, or the enforcement of any of the terms
hereof, or the preservation of any rights hereunder, (ii)
any failure of the Pledgor to comply with its obligations
under this Agreement, or any misrepresentation by the
Pledgor in this Agreement, or in any statement or writing
contemplated by or made or delivered pursuant to or in
connection with this Agreement, or (iii) the ownership,
purchase, delivery, control, acceptance, financing,
possession, condition, sale, return or other disposition,
or use of, the Collateral, excluding (x) those finally
judicially determined to have arisen, with respect to any
Indemnitee, solely from the gross negligence or willful
misconduct of such Indemnitee or (y) unless specifically
provided for elsewhere in this Agreement, those arising
out of the actions of any Indemnitee while in possession
or control of the Collateral.
(b) Without limiting the application of
subsection (a), the Pledgor agrees to pay, or reimburse
the Security Agent for any and all fees, costs and
expenses of whatever kind or nature incurred in
connection with the preservation, protection or
validation of the Security Agent's Liens on, and security
interest in, the Collateral, including, without
limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in
public offices, payment or discharge of any taxes or Lien
upon or in respect of the Collateral, premiums for
insurance with respect to the Collateral and all other
fees, costs and expenses in connection with protecting,
maintaining or preserving the Collateral and the Security
Agent's interest therein, whether through judicial
proceedings or otherwise, or in defending or prosecuting
any actions, suits or proceedings arising out of or
relating to the Collateral.
Section 21. Obligations Secured by Collateral.
Any amounts paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement, and any
amounts paid by the Security Agent in preservation of any
of its rights or interest in the Collateral, together
with interest on such amounts from the date paid until
reimbursement in full at a rate per annum equal at all
times to the Overdue Rate shall constitute Obligations
secured by the Collateral.
Section 22. Reinstatement. This Agreement
shall continue to be effective or be reinstated, as the
case may be, if at any time any amount received by the
Security Agent, the Owner Trustee or GE Capital
hereunder, under any other Loan Document or Lease
Document or pursuant hereto or thereto is rescinded or
must otherwise be restored or returned by the Security
Agent, the Owner Trustee or GE Capital upon the
insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Pledgor or the Borrower or upon the
appointment of any intervenor or conservator of, or
trustee or similar official for, Pledgor or the Borrower
or any substantial part of their respective assets, or
upon the entry of an order by a bankruptcy court avoiding
the payment of such amount, or otherwise, all as though
such payments had not been made.
Section 23. Amendments, etc. No waiver,
amendment, modification or termination of any provision
of this Agreement, or consent to any departure by the
Pledgor therefrom, shall in any event be effective (x)
without the written concurrence of the Security Agent and
(y) unless made in accordance with subsection 9.1 of the
Loan Agreement and none of the Collateral shall be
released without the written consent of the Security
Agent. Any such waiver or consent shall be effective
only in the specific instance and for the specific
purpose for which given.
Section 24. Successors and Assigns. This
Agreement shall be binding upon the Pledgor and its
successors and assigns and shall inure to the benefit of
the Security Agent, the Owner Trustee and GE Capital and
their respective successors and assigns.
Section 25. Survival.
(a) All agreements, statements,
representations and warranties made by the Pledgor herein
or in any certificate or other instrument delivered by
the Pledgor or on its behalf under this Agreement shall
be considered to have been relied upon by the Security
Agent and shall survive the execution and delivery of
this Agreement and the other Transaction Documents
regardless of any investigation made by or on behalf of
the Security Agent.
(b) The indemnity obligations of Pledgor
contained in Section 20 shall continue in full force and
effect notwithstanding the full payment of the
Obligations and notwithstanding the discharge thereof.
Section 26. No Waiver; Remedies Cumulative.
No failure or delay on the part of the Security Agent in
exercising any right, power or privilege hereunder and no
course of dealing between the Pledgor and the Security
Agent shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or
privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right,
power or privilege hereunder or thereunder. The rights
and remedies herein expressly provided are cumulative and
not exclusive of any rights or remedies which the
Security Agent (or the Owner Trustee or GE Capital) would
otherwise have.
Section 27. Counterparts. This Agreement may
be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an
original, but all of which shall together constitute one
and the same instrument.
Section 28. Headings Descriptive. The
headings of the several Sections and subsections of this
Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any
provision of this Agreement.
Section 29. Severability. In case any
provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any
way be affected or impaired thereby.
Section 30. Consent to Pledge by Limited
Partner. Notwithstanding anything to the contrary
contained in the Partnership Agreement, Panda Brandywine
Corporation, a Delaware corporation, as holder of the
Borrower general partnership interest, hereby consents to
(i) the execution, delivery, and performance by the
Limited Partner of this Agreement, (ii) the grant of the
pledge by the Limited Partner to the Security Agent, for
the benefit of GE Capital and the Owner Trustee, of its
partnership interests in the Borrower pursuant to this
Agreement, (iii) the sale, transfer, assignment or other
disposition (whether through foreclosure, deed-in-lieu of
foreclosure, or otherwise) of such partnership interests
to the Security Agent, its designee, or any purchaser of
such partnership interests pursuant to the exercise by
the Security Agent of its rights and remedies under this
Agreement and (iv) the admission to the Borrower of the
Security Agent, such designee, or such purchaser as a
limited partner of the Borrower in connection with the
exercise of such rights and remedies.
Section 31. Conflict with Loan Agreement. In
case of a conflict between any provision of this
Agreement and any provision of the Loan Agreement, the
provisions of the Loan Agreement shall control and
govern. No such conflict shall be deemed to exist merely
because this Agreement imposes greater obligations on the
Pledgor than the Loan Agreement.
Section 32. Recourse Limited to Collateral.
The Security Agent acknowledges and agrees that, except
in the case of fraud, willful misconduct or knowing
misrepresentation on the part of Pledgor, its sole
recourse for payment and performance of the obligations
of the Pledgor hereunder shall be to the Collateral.
This provision shall not be deemed to waive any cause of
action the Security Agent, the Owner Trustee or GE
Capital may have against any Person for fraud, willful
misconduct or knowing misrepresentation by such Person.
Section 33. GOVERNING LAW; SUBMISSION TO
JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED
IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW EXCEPT
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(b) ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT
IN RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE PLEDGOR HEREBY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF.
THE PLEDGOR IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO THE PLEDGOR AT ITS ADDRESS REFERRED TO IN SECTION 15.
THE PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT BROUGHT IN THE COURTS REFERRED TO
ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES
NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED IN ANY OTHER
JURISDICTION.
(c) EACH OF THE PLEDGOR AND THE SECURITY
AGENT HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT OR ANY MATTER ARISING HEREUNDER OR
THEREUNDER.
Section 34. Leveraged Lease. If, upon the
sale of the Facility by the Borrower to the Owner
Trustee, GE Capital exercises its option under subsection
5.8 of the Loan Agreement to cause the Owner Trustee to
borrow funds to finance (or refinance) a portion of the
purchase price of the Facility, the parties hereto agree
to execute an amendment or supplement hereto to provide
for such provisions as are customary and appropriate in
respect of leveraged lease transactions.
Section 35. Certain Rights of Power Purchaser.
Nothing in this Limited Partner Pledge Agreement shall be
deemed to limit the provisions of the Consent of the
Power Purchaser, which provisions are solely for the
benefit of the Power Purchaser and not the Pledgor.
Without limiting the scope of the foregoing, the Security
Agent agrees, for the exclusive benefit of the Power
Purchaser and not the Pledgor, that the exercise of
remedies or any similar action under this Limited Partner
Pledge Agreement is subject to, and shall be conducted in
a manner consistent with, the Power Purchaser's rights
under (i) the Consent of the Power Purchaser and (ii) the
Power Purchase Agreement and the Transfer Agreement (to
the extent such rights under the Power Purchase Agreement
and the Transfer Agreement are not explicitly waived by
the Power Purchaser in accordance with the terms of the
Consent of the Power Purchaser).
IN WITNESS WHEREOF, the parties hereto have
caused their duly authorized officers to execute and
deliver this Agreement as of the date first above
written.
PANDA ENERGY CORPORATION,
a Delaware corporation,
as Pledgor
By:
Name: Xxxxxx X. Xxxxxx
Title: President
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION,
as Security Agent
By:
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
With Respect to Section 30 only:
PANDA BRANDYWINE CORPORATION,
as general partner
By:_______________________
Name: Xxxxxx X. Xxxxxx
Title: President
