STOCK PLEDGE AND SECURITY AGREEMENT
This STOCK PLEDGE AND SECURITY AGREEMENT (this
"Agreement"), dated July 31, 1996, is made by PANDA-
ROSEMARY, L.P., a Delaware limited partnership (together
with its successors and assigns, the "Pledgor"), to FLEET
NATIONAL BANK, a national banking association established
under the laws of the United States of America, as
collateral agent pursuant to the Intercreditor Agreement (as
defined below) (together with its successors and assigns,
the "Collateral Agent") and grantee hereunder for the
benefit of the Secured Parties (as defined in the Trust
Indenture referred to below).
W I T N E S S E T H:
WHEREAS, the Pledgor is the legal and beneficial
owner of all of the shares of common stock described in
Schedule I annexed hereto issued by Panda-Xxxxxxxx Funding
Corporation, a Delaware corporation (the "Company")(such
shares of common stock, together with any additional shares,
stock options or rights received pursuant to Section 4
hereof, the "Pledged Shares");
WHEREAS, the Company, the Pledgor and Fleet
National Bank, as trustee (the "Trustee") are parties to
that certain Trust Indenture, dated as of July 31, 1996 (as
the same may be amended, modified or supplemented, the
"Trust Indenture"), providing for the issuance by the
Company of certain debt securities (the "Bonds");
WHEREAS, the Pledgor has made that certain
Partnership Guaranty, dated the date hereof (as the same may
be amended, modified or supplemented, the "Partnership
Guaranty"), in favor of the Trustee to guarantee the
performance by the Company of its obligations under the
Bonds and the Trust Indenture;
WHEREAS, the Company and the Pledgor are parties
to that certain Loan Agreement, dated as of the date hereof
(as the same may be amended, modified or supplemented, the
"Company Loan Agreement"), pursuant to which the Company has
loaned the proceeds of the Bonds to the Pledgor;
WHEREAS, the Company and the Collateral Agent are
parties to that certain Security Agreement, dated the date
hereof, pursuant to which the Company has assigned to the
Collateral Agent, and created a security interest in, all of
its right, title and interest in, to and under the Company
Loan Agreement and the related promissory note;
WHEREAS, in order to satisfy certain requirements
of the Pledgor under the Project Agreements (as defined in
the Trust Indenture) or for other purposes, the Pledgor may
incur indebtedness as permitted under the Trust Indenture in
connection with the issuance of letters of credit by
Bayerische Vereinsbank AG or other Credit Banks (as defined
in the Trust Indenture) pursuant to a Credit Bank
Reimbursement Agreement (as defined in the Trust Indenture);
WHEREAS, the Pledgor may incur indebtedness as
permitted under the Trust Indenture in the form of working
capital loans made by the Credit Banks under a Credit Bank
Working Capital Agreement (as defined in the Trust
Indenture);
WHEREAS, the Pledgor may also incur additional
debt, as permitted under the Trust Indenture, either
directly or indirectly through the Company, to finance
certain modifications and enhancements to the Project in the
future ("Additional Permitted Debt", as that term is defined
in the Trust Indenture) and may enter into interest rate
protection agreements in connection with the Additional
Permitted Debt of the Pledgor;
WHEREAS, the Pledgor will receive direct and
indirect financial and other benefits from the issuance of
the Bonds by the Company pursuant to the Trust Indenture and
the incurrence of any indebtedness pursuant to any Credit
Bank Reimbursement Agreement, any Credit Bank Working
Capital Agreement and the documents relating to any
Additional Permitted Debt or interest rate protection
transactions;
WHEREAS, the Company, the Pledgor, Bayerische
Vereinsbank AG, the Trustee, Fleet National Bank, as
depositary agent, and the Collateral Agent are parties to
that certain Collateral Agency and Intercreditor Agreement,
dated as of the date hereof (the "Intercreditor Agreement"),
providing for the Collateral Agent to act as collateral
agent for the Secured Parties (as defined in the Trust
Indenture); and
WHEREAS, the Collateral Agent and the Secured
Parties are willing to enter into the transactions
contemplated by, among other things, the Trust Indenture and
the Credit Bank Documents (as defined in the Trust
Indenture) only upon the condition, among others, that the
Pledgor executes and delivers this Agreement, in favor of
the Collateral Agent for the benefit of the Secured Parties,
which grants to the Collateral Agent for the benefit of the
Secured Parties a security interest in the Collateral
referred to below, to secure the Obligations (as hereinafter
defined).
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 hereby agree as follows:
SECTION 1. Defined Terms. Unless otherwise
defined herein, terms defined in the Intercreditor Agreement
(including terms in the Trust Indenture and incorporated in
the Intercreditor Agreement) shall have such defined
meanings when used herein.
"Additional Collateral" shall mean (i) all stock
certificates representing a stock dividend in respect of any
Collateral or a distribution in connection with any
reclassification, increase or reduction of capital of the
Company, or issued in connection with any reorganization of
the Company, whether as an addition to, in substitution or
redemption of, or in exchange for any shares of any other
Collateral, or otherwise, (ii) any sums paid upon or in
respect of the other Collateral as dividends or other
distributions upon the liquidation or dissolution of the
Company and (iii) any distribution of capital made on or in
respect of the other Collateral or any property distributed
upon or with respect to the other Pledged Shares pursuant to
the recapitalization or reclassification of the capital of
the Company or pursuant to the reorganization thereof.
"Collateral" shall have the meaning provided that
term in Section 2.
"Indemnitee" shall have the meaning provided that
term in Section 22.
"Obligations" means (i) all obligations of the
Pledgor under this Agreement, (ii) all obligations of the
Pledgor or the Company to the Collateral Agent, the
Depositary Agent or the Secured Parties now or hereafter
existing under the Bonds, the Trust Indenture, each
Partnership Guarantee, the Partnership Notes, any Additional
Permitted Debt, any Credit Bank Working Capital Agreement,
any Credit Bank Reimbursement Agreement, any Interest Rate
Protection Agreement, this Agreement or the Collateral
Documents, whether for principal, interest (including,
without limitation, interest accruing following the filing
by or against the Pledgor or the Company of a bankruptcy
petition, whether or not allowed as a claim in a bankruptcy
proceeding), fees, indemnification, expenses or otherwise,
and (iii) all other liabilities, obligations, covenants and
duties owing to the Collateral Agent, the Depositary Agent
or the Secured Parties, from or by the Pledgor, the Pledgor
or the Company of any kind or nature, present or future,
whether or not evidenced by any note, guaranty or other
instrument, arising under or in the connection with the
Trust Indenture, each Partnership Guarantee, the Partnership
Notes, any Additional Permitted Debt, any Credit Bank
Working Capital Agreement, any Credit Bank Reimbursement
Agreement, any Interest Rate Protection Agreement, this
Agreement or the Collateral Documents, whether or not for
the payment of money, whether direct or indirect (including
those acquired by assignment), joint or several, absolute or
contingent, liquidated or unliquidated, due or to become
due, now existing or hereafter arising, renewed or
restructured, whether or not from time to time decreased or
extinguished and later increased, created or incurred, and
including, without limitation, all indebtedness of the
Pledgor or the Company under any instrument now or hereafter
evidencing or securing any of the foregoing and however
acquired.
"Pledged Shares" shall have the meaning provided
that term in the first recital hereto.
"Proceeds" means all proceeds paid or payable,
directly or indirectly, to or for the account of the Pledgor
in respect of the Collateral and, in any event, shall
include, but not be limited to, (i) any and all proceeds of
any insurance, indemnity, warranty or guaranty payable to
the Collateral Agent or the Pledgor from time to time with
respect to any of the Collateral, (ii) any and all payments
(in any form whatsoever) made or due and payable to the
Pledgor from time to time in connection with any
requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any
Governmental Authority (or any Person acting under color of
Governmental Authority), (iii) any and all other amounts
from time to time paid or payable under or in connection
with any of the Collateral and (iv) any proceeds of
proceeds.
"Prime Rate" means, as of any day, the interest
rate per annum established by the Collateral Agent from time
to time as its "Prime Rate".
SECTION 2. Pledge. As security for the
Obligations and subject to and in accordance with the
provisions of this Agreement, including without limitation
Section 7 hereof, the Pledgor hereby pledges, grants,
assigns, hypothecates, transfers and delivers to the
Collateral Agent, for its benefit and the benefit of the
Secured Parties, a first priority security interest in the
following, whether now owned or existing or hereafter
acquired or arising or wherever located (the "Collateral"):
(a) the Pledged Shares and each certificate
representing the Pledged Shares and any interest of the
Pledgor in the entries on the books of any financial
intermediary pertaining to the Pledged Shares, and, subject
to Section 7 hereof, all dividends, cash, options, warrants,
rights, instruments and other property or proceeds from time
to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged
Shares;
(b) all additional shares of stock of the Company
from time to time acquired by the Pledgor in any manner
(which shares shall be deemed to be part of the Pledged
Shares) and each certificate representing such additional
shares and any interest of the Pledgor in the entries on the
books of any financial intermediary pertaining to such
additional shares, and, subject to Section 7 hereof, all
dividends, cash, options, warrants, rights, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any
or all of such shares;
(c) all Additional Collateral acquired by the
Pledgor; and
(d) subject to Section 7 hereof, all Proceeds of
the items described in clauses (a), (b) and (c) above.
SECTION 3. Security for Obligations. This
Agreement secures, and the Pledged Shares and the other
Collateral are collateral security for, the payment and
performance in full when due, whether at stated maturity, by
acceleration or otherwise (including the payment of amounts
which would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. 362(a)), 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 Collateral 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 Collateral 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 hereof, accept and hold the same in
trust for the Collateral Agent and segregated from the other
property or funds of Pledgor, and shall deliver to the
Collateral 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 Collateral Agent, subject to the
terms hereof, as part of the Collateral. Upon the
occurrence and during the continuance of an Event of Default
or a Trigger Event, the Collateral 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 Collateral Agent or any of its nominees any or all of
the Collateral. Subject to Section 7 hereof, all Additional
Collateral that is received by the Pledgor shall, until paid
or delivered to the Collateral Agent, be held by the Pledgor
in trust for the benefit of the Collateral Agent and shall
be segregated from the other funds of the Pledgor and the
Pledgor shall deliver the same forthwith to the Collateral
Agent in the exact form received, with the endorsement of
the Pledgor when necessary and/or appropriate undated stock
powers duly executed in blank, or, if requested by the
Collateral Agent, an additional pledge agreement or security
agreement executed and delivered by the Pledgor, all in form
and substance satisfactory to the Collateral Agent, to be
held by the Collateral Agent subject to the terms hereof, as
additional collateral security for the Obligations.
SECTION 5. Representations and Warranties. On
and as of the date hereof, the Pledgor represents and
warrants to the Collateral Agent and the Secured Parties as
follows:
(a) The Pledgor is the owner of, and has good and
marketable title to, the Collateral pledged pursuant to this
Agreement, free and clear of any Lien except for the pledge
and security interest granted to the Collateral Agent for
the benefit of the Secured Parties hereunder and Liens for
Taxes not yet due or which are subject to a Good Faith
Contest. No financing statement covering the Collateral is
on file in any public office other than the financing
statements filed pursuant to this Agreement or in connection
with the transactions contemplated by the Trust Indenture.
The Collateral is not subject to any law (except as may be
required in connection with any disposition of the
Collateral by laws affecting the offering and sale of
securities generally) or contractual obligation that would
be violated by or that would prohibit the grant of the
security interest in the Collateral granted pursuant hereto
or the disposition of the Collateral by or to the Collateral
Agent upon the occurrence and continuance of an Event of
Default.
(b) The Pledgor is a limited partnership duly
formed and validly existing under the laws of the State of
Delaware. The Pledgor has full power, authority and legal
right to enter into this Agreement and perform hereunder and
to pledge and deliver all of the Collateral pursuant to this
Agreement. The pledge of the Collateral pursuant to this
Agreement has been duly authorized by the Pledgor and this
Agreement has been duly authorized, executed and delivered
by the Pledgor and 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).
(c) No consent of any other party (including,
without limitation, Partners or creditors of the Pledgor)
and no consent, authorization, approval or other action by,
and no notice to or filing with, any Governmental Authority
is required which has not been obtained either (i) for the
pledge by the Pledgor of the Collateral pursuant to this
Agreement or for the execution, delivery or performance of
this Agreement by the Pledgor or (ii) for the exercise by
the Collateral Agent of the voting or other rights provided
for in this Agreement or the remedies in respect of the
Collateral pursuant to this Agreement (except as may be
required (x) in connection with such disposition by laws
affecting the offering and sale of securities generally,
(y) under federal and state laws, rules and regulations and
applicable interpretations thereof providing for the
supervision or regulation of the banking or trust businesses
generally and applicable to the Collateral Agent or any
Secured Party and (z) with respect to the Collateral Agent
or any Secured Party as a result of any relationship which
such Person may have with Persons not parties to, or any
activity or business such Person may conduct other than
pursuant to, any of the Financing Documents).
(d) All of the Pledged Shares have been duly
authorized and validly issued and are fully paid and non-
assessable. None of the Pledged Shares constitutes "margin
stock" within the meaning of Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System.
(e) The pledge of the Collateral delivered to the
Collateral Agent pursuant to this Agreement concurrently
with the execution and delivery of this Agreement and the
filing of Form UCC-1 financing statements with the Secretary
of State of the State of Texas and the Secretary of State of
the State of Delaware create a valid and perfected first
priority security interest in the Collateral securing the
payment of the Obligations assuming continued possession
thereof by the Collateral Agent subject to no Liens other
than those created by this Agreement.
(f) The Pledged Shares constitute all of the
issued and outstanding shares of stock of the Company. The
Pledgor shall cause the Collateral to constitute at all
times not less than all of the total number of shares of
capital stock of the Company then issued and outstanding
(including treasury shares, if any).
(g) The execution, delivery and performance of
this Agreement will not (i) require any consent or approval
of the Partners of the Pledgor which has not been obtained;
(ii) violate the provisions of the Pledgor's Certificate of
Limited Partnership or Second Amended and Restated Agreement
of Limited Partnership or the Certificate of Incorporation
and By-Laws of the Company; (iii) violate the provisions of
any law (including, without limitation, any usury law),
regulation or order of any Governmental Authority applicable
to the Pledgor or any of its Subsidiaries; (iv) conflict
with, result in a breach of or constitute a default under
any agreement relating to the management or affairs of the
Pledgor or any of its Subsidiaries, or any indenture or loan
or credit agreement or any other material agreement, lease
or instrument to which the Pledgor is a party or by which
the Pledgor or any of its Subsidiaries or any of their
material properties may be bound; or (v) result in or create
any Lien (other than Permitted Liens) under, or require any
consent under, any indenture or loan or credit agreement or
any other material agreement, instrument or document, or the
provisions of any order, writ, judgment, injunction, decree,
determination or award of any Governmental Authority binding
upon the Pledgor or any of its Subsidiaries or any of their
properties.
(h) There is no action, suit or proceeding at law
or in equity or by or before any Governmental Authority,
arbitral tribunal or other body now pending or, to the best
knowledge of the Pledgor, threatened against the Pledgor or
its Subsidiaries which questions the validity or legality of
or seeks damages in connection with this Agreement or any
action taken or to be taken pursuant to this Agreement,
which could reasonably be expected to have a material
adverse effect on the Pledgor.
(i) The chief executive office of the Pledgor is
located at 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000.
(j) The Pledgor is not (i) an "investment
company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of
1940, as amended, or (ii) a "holding company" or a
"subsidiary company" of a "holding company" or an
"affiliate" of a "holding company" or a "subsidiary company"
within the meaning of PUHCA or (iii) a "registered holding
company" or a "subsidiary company" of a "registered holding
company" or an "affiliate" of a "registered holding company"
or a "subsidiary company" of a "registered holding company"
within the meaning of PUHCA.
(k) The Pledgor shall not permit the Company to
merge or consolidate with or into any other Person or
liquidate, wind-up, or dissolve or dispose of all or
substantially all of its property, business or assets.
(l) Without the prior written consent of the
Secured Parties, the Pledgor shall not exchange, sell,
transfer, pledge, hypothecate, assign, convey or otherwise
dispose of, or permit to be exchanged, sold, transferred,
pledged, hypothecated, assigned, conveyed or disposed of,
any of the Collateral.
(m) The Pledgor shall not authorize, cause or
permit the Company (i)(A) to commence a voluntary case or
other proceeding seeking liquidation, reorganization or
other relief with respect to the Company or the Company's
debts or under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of
a Collateral Agent, receiver, custodian or other similar
official of the Company or any substantial part of the
Company's property or (B) to consent to any such relief or
to the appointment of or taking possession by such official
in an involuntary case or other proceeding commenced against
the Company, or (C) to make a general assignment for the
benefit of the Company's creditors. Neither the Pledgor nor
any of its Affiliates shall commence or join with any other
Person (other than the Secured Parties) in commencing any
proceeding against the Company under any bankruptcy,
reorganization, liquidation or insolvency law or statute now
or hereafter in effect in any jurisdiction.
(n) The Pledgor has derived and will continue to
derive direct and indirect benefits from the incurrence of
its obligations under this Agreement and from the incurrence
by the Pledgor of its obligations under the Partnership
Guaranty, the Trust Indenture, the Company Loan Agreement
and the other Financing Documents.
SECTION 6. Supplements; Further Assurances. The
Pledgor agrees that, at any time and from time to time, the
Pledgor will at its expense promptly execute and deliver all
further instruments and documents, and take all further
action, that may be necessary or desirable, or that the
Collateral Agent may reasonably request, in order to perfect
and protect any security interest granted or purported to be
granted hereby or to enable the Collateral Agent to exercise
and enforce its rights and remedies hereunder with respect
to any Collateral.
SECTION 7. Voting Rights; Dividends; Etc.
(a) So long as no Event of Default or Trigger
Event shall have occurred and be continuing, the Pledgor
shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Collateral or any part
thereof; provided, that the Pledgor shall not (i) exercise
or fail to exercise any such right if such exercise or
failure to exercise would, in the reasonable judgment of the
Pledgor, have a material adverse effect on the value of the
Collateral or any part thereof or (ii) vote such Collateral
in any manner that is inconsistent with the terms of this
Agreement, the Trust Indenture or any other Project Document
or that would cause an Event of Default or Trigger Event to
occur. It is understood, however, that the voting by the
Pledgor of any Pledged Shares for, or the Pledgor's consent
to, the election of directors at a regularly scheduled
annual or other meeting of stockholders, or with respect to
incidental matters at any such annual meeting, shall not be
deemed inconsistent with the terms of this Agreement within
the meaning of this Section 7(a).
(b) The Pledgor shall be entitled to receive,
retain and distribute any and all distributions paid in
respect of the Collateral; provided, that any and all
(i) distributions paid or payable in shares
(or rights to shares) in the Company,
(ii) distributions paid or payable in cash,
securities or other property in respect of any
Collateral in connection with a partial or total
liquidation or dissolution, and
(iii) cash, securities or other property paid,
payable or otherwise distributed in redemption of, or
in exchange for, any Collateral,
shall be, and shall be forthwith delivered to the Collateral
Agent to hold as, Collateral and shall, if received by the
Pledgor, be received in trust for the benefit of the
Collateral Agent, be segregated from the other property or
funds of the Pledgor and be forthwith delivered to the
Collateral Agent as Collateral in the same form as so
received (with any necessary endorsement).
(c) In order to permit the Pledgor to exercise
the voting and other rights which it is entitled to exercise
pursuant to Section 7(a) above and to receive the
distributions which it is authorized to receive and retain
pursuant to Section 7(b) above, the Collateral Agent shall,
if necessary, execute and deliver (or cause to be executed
and delivered) to the Pledgor all such proxies, dividend
payment orders and other instruments as the Pledgor may
reasonably request.
(d) Upon the occurrence and during the
continuance of an Event of Default or Trigger Event, after
the Collateral Agent delivers a notice to the Pledgor to the
following effect, all rights of the Pledgor to exercise the
voting and other consensual rights which it would otherwise
be entitled to exercise pursuant to Section 7(a) above shall
cease and all such rights shall thereupon become vested in
the Collateral Agent, which shall thereupon have the sole
right to exercise such voting and other consensual rights;
provided, that if and when an Event of Default or Trigger
Event is cured in accordance with the applicable provisions
of the Financing Documents, all rights of the Pledgor shall
resume.
(e) Upon the occurrence and during the
continuance of an Event of Default or Trigger Event, all
rights of the Pledgor to thereafter receive the
distributions which it would otherwise be authorized to
receive pursuant to Section 7(b) above shall cease and all
such rights shall thereupon become vested in the Collateral
Agent, which shall thereupon have the sole right to receive
and hold as Collateral such distributions; provided, that if
and when an Event of Default or Trigger Event is cured in
accordance with the applicable provisions of the Financing
Documents, all rights of the Pledgor shall resume.
(f) In order to permit the Collateral Agent to
receive all distributions to which it may be entitled
pursuant to Section 7(e) above and to exercise the voting
and other consensual rights which it may be entitled to
exercise pursuant to Section 7(d) above, the Pledgor shall,
if necessary, upon written notice from the Collateral Agent,
from time to time execute and deliver to the Collateral
Agent appropriate dividend payment orders and other
instruments as the Collateral Agent may reasonably request.
(g) All distributions and other amounts which are
received by the Pledgor contrary to the provisions of
Section 7(e) above shall be received in trust for the
benefit of the Collateral Agent, shall be segregated from
other funds of the Pledgor and shall be forthwith paid over
to the Collateral Agent as Collateral in the same form as so
received (with any necessary endorsement).
SECTION 8. Covenants.
(a) Transfers and Other Liens. Without the prior
written consent of the Collateral Agent, or as otherwise
permitted under the Intercreditor Agreement, the Pledgor
shall not (i) vote to enable, or take any other action to
permit, the Company (x) to issue any additional capital
stock, (y) to issue any other securities convertible into or
exchangeable for any capital stock of the Company or (z) to
issue any other securities that grant the right to purchase
any capital stock of the Companysuch company, (ii) sell,
assign, transfer, exchange or otherwise dispose of, or grant
any option with respect to, the Pledged Shares,
(iii) create, incur or permit to exist any Liens or options
in favor of, or any claims of any Person with respect to,
any of the Pledged Shares or any interest therein, except
for Permitted Liens and the Liens provided for by this
Agreement.
(b) Change of Address. The Pledgor shall not
establish a new location for its chief executive office or
change its name until (i) it has given to the Collateral
Agent no less than sixty (60) 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,
satisfactory to the Collateral Agent, to maintain the
security interest of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected
and in full force and effect.
(c) Payment of Taxes, etc. The Pledgor shall pay
or cause to be paid, and shall hold the Collateral Agent and
the Secured Parties harmless from, any and all liabilities
with respect to, or resulting from any delay in paying, any
and all stamp, excise, sales or other taxes which may be
payable or determined to be payable with respect to any of
the Collateral.
SECTION 9. Collateral Agent Appointed Attorney-In-
Fact.
(a) Upon the occurrence and during the
continuance of an Event of Default or Trigger Event, subject
to the Pledgor's rights under Section 7 hereof, the Pledgor
hereby appoints the Collateral Agent as 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
(i) to exercise all voting, consent other rights related to
the Collateral and (ii) from time to time in the Collateral
Agent's discretion, to take any action and to execute any
instrument which the Collateral 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. The Pledgor hereby
ratifies all that such attorney shall lawfully do or cause
to be done by virtue hereof. This power of attorney is
coupled with an interest and shall be irrevocable for the
term of this Agreement. Nevertheless, the Pledgor shall, if
so requested by the Collateral Agent, ratify and confirm all
that the Collateral Agent shall lawfully do or cause to be
done by virtue hereof as the Pledgor's attorney-in-fact by
executing and delivering to the Collateral Agent, or to such
other Person as the Collateral Agent shall direct, all
documents and instruments as may be necessary or, in the
judgment of the Collateral Agent, advisable for such
purpose.
(b) The Pledgor further authorizes the Collateral
Agent, at any time and from time to time, (i) to execute, in
connection with any sale provided for hereunder, any
endorsements, assignments or other instruments of conveyance
or transfer with respect to the Collateral and (ii) to the
full extent permitted by applicable law, to file one or more
financing or continuation statements, and amendments
thereto, relative to all or any part of the Collateral
without the signature of the Pledgor.
SECTION 10. Collateral Agent May Perform. If the
Pledgor fails to perform any agreement contained herein
after receipt of a written request to do so from the
Collateral Agent, the Collateral Agent may itself perform,
or cause performance of, such agreement, and the reasonable
expenses of the Collateral Agent, including the reasonable
fees and expenses of its counsel, incurred in connection
therewith shall be payable by the Pledgor pursuant to
Section 15 hereof.
SECTION 11. Reasonable Care. The Collateral
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 Collateral Agent
accords its own property consisting of negotiable
securities, cash or other forms of property as applicable,
it being understood that subject to the exercise of such
reasonable care the Collateral 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 Collateral 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. None of the Collateral
Agent, the Secured Parties or any of their directors,
officers, employees or agents shall be deemed to have
assumed any of the liabilities or obligations of a
shareholder of the Company, or of the owner of any Pledged
Shares or any other security included in the Collateral from
time to time as a result of the pledge and security interest
granted under or pursuant to this Agreement. None of the
Collateral Agent, the Secured Parties or any of their
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 any of them
be under any obligation to take any action whatsoever with
regard thereto.
SECTION 13. Remedies Upon Default. If an Event
of Default or a Trigger Event shall have occurred and be
continuing:
(a) (i) The Collateral Agent may exercise in
respect of the Collateral, in addition to all other
rights and remedies provided for herein or otherwise
available to it, all of the rights and remedies of a
secured party on default under the Uniform Commercial
Code in effect in the State of New York at that time,
and the Collateral Agent may also in its sole
discretion, without advertisement or notice except as
specified below, sell the Collateral or any part
thereof in one or more parcels at public or private
sale, at any exchange, broker's board or at any of the
Collateral 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 Collateral
Agent may reasonably deem commercially reasonable,
irrespective of the impact of any such sales on the
market price of the Collateral at any such sale. The
Collateral Agent may, in its sole discretion, at any
such sale, restrict the prospective bidders or
purchasers as to their number, nature of business and
investment intention. Upon any such sale the
Collateral Agent shall have the right to deliver,
assign and transfer to the purchaser thereof (including
the Collateral Agent or any Secured Party) the
Collateral. Each purchaser at any such sale shall hold
the property sold 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 (10) 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 Collateral
Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been
given. The Collateral 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. At any such sale, the
Collateral may be sold in one lot, as an entirety or in
separate units. Assuming that such sales are made in
compliance with federal and state securities laws, the
Collateral Agent shall incur no 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 Collateral 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 Collateral Agent accepts the first offer
received and does not offer such Collateral to more
than one offeree.
(ii) The Pledgor recognizes that the
Collateral 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 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
Collateral Agent agree that such private sales shall be
made in a commercially reasonable manner and that the
Collateral 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 Pledged
Shares for a form of public sale requiring registration
under the Securities Act.
(iii) In case of any sale of all or any part
of the Collateral on credit or for future delivery, the
Collateral so sold may be retained by the Collateral
Agent until the full selling price is paid by the
purchaser thereof, but the Collateral Agent shall not
incur any liability in case of the failure of such
purchaser to take up and pay for the Collateral so sold
and, in case of any such failure, such Collateral may
again be sold pursuant to the provisions hereof.
(iv) The receipt by the Collateral Agent of
the purchase money paid at any such sale made by it
shall be a sufficient discharge of all obligations of
the purchaser thereof. No purchaser (or the
representatives or assigns of any purchaser), after
paying such purchase money and receiving such receipt,
shall be bound to see to the application of such
purchase money or any part thereof or in any manner
whatsoever be answerable for any loss, misapplication
or nonapplication of any such purchase money, or any
part thereof, or be bound to inquire as to the
authorization, necessity, expediency or regularity of
any such sale.
(v) Instead of exercising the power of
sale provided in Section 13(a)(i) hereof, the
Collateral Agent may proceed by a suit or suits at law
or in equity to foreclose the security interest under
this Agreement and sell the Collateral or any portion
thereof under a judgment or decree of a court or courts
of competent jurisdiction.
(vi) Upon notice to the Pledgor, the
Collateral Agent may register the Collateral or any
part thereof in the name of the Collateral Agent or its
nominee as pledgee or otherwise take such action as the
Collateral Agent shall in its sole discretion deem
necessary or desirable with respect to the Collateral
and the Collateral Agent or its nominee may thereafter,
in its sole discretion, without notice, exercise all
voting and other rights relating to the Collateral and
exercise any and all rights, privileges or options
pertaining to the Collateral as if it were the absolute
owner thereof, and exchange, at its sole discretion,
any and all of the Collateral upon the merger,
consolidation, reorganization, recapitalization or
other readjustment of the Company, all without
liability except to account for property actually
received by it, but the Collateral Agent shall have no
duty to exercise any of the aforesaid rights,
privileges or options and shall not be responsible for
any failure to do so or delay in so doing, except to
the extent that such failure or delay constitutes gross
negligence or willful misconduct.
(vii) The Collateral Agent may exercise such
voting and other consensual rights and rights to
receive and hold as Collateral dividends and other
payments which the Pledgor would otherwise be entitled
to receive or exercise, as the case may be, pursuant to
Section 7 and all such voting and consensual rights and
rights to receive the dividends and other payments
which the Xxxxxxx would otherwise be authorized to
exercise, receive and retain pursuant to Section 7
shall cease and all such rights shall thereupon become
vested in the Collateral Agent.
(viii) No sale or other disposition of all or
any part of the Collateral by the Collateral Agent
pursuant to this Section 13 shall be deemed to relieve
the Company, the Pledgor or the Pledgor of any
Obligation except to the extent the proceeds thereof
are applied by the Collateral Agent to the payment of
such Obligations.
(ix) The Pledgor hereby waives presentment,
demand, protest or notice (to the extent permitted by
applicable law) of any kind in connection with this
Agreement or any Collateral.
(b) The proceeds of any Collateral obtained or
disposed of hereunder shall be applied as set forth in the
Intercreditor Agreement and the Depositary Agreement.
SECTION 14. Purchase of the Shares by the
Pledgor. The Pledgor may be a purchaser of the Pledged
Shares 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 Collateral Agent may
apply the purchase price to the payment of the Obligations
and any other indebtedness and obligations secured hereby.
Any such purchaser shall, upon any such purchase, acquire
good title to the Pledged Shares so purchased, free of the
security interests created by this Agreement.
SECTION 15. Expenses. The Pledgor will upon
demand pay to the Collateral Agent and the Secured Parties
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
Collateral Agent or the Secured Parties 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 Collateral Agent hereunder or (ii)
the failure by the Pledgor to perform or observe any of the
provisions hereof, together with interest thereon at the
rate per annum equal to the Prime Rate plus two percent
(2%). Any amounts payable by the Pledgor pursuant to this
Section 15 shall be payable on demand and shall constitute
Obligations secured hereby.
SECTION 16. No Waiver. No failure or delay on
the part of the Collateral Agent to exercise, and no course
of dealing with respect to, and no delay in exercising, any
right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by the
Collateral Agent of any right, power or remedy hereunder
preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies
herein provided are to the fullest extent permitted by law
cumulative and are not exclusive of any remedies provided by
law. No notice to or demand on the Pledgor in any case
shall entitle the Pledgor to any other or further notice or
demand in similar or other circumstances.
SECTION 17. 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 without the
written concurrence of each party hereto and none of the
Collateral shall be released without the written consent of
the Collateral Agent. Any such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given.
SECTION 18. Release. Subject to Section 27
hereof, upon the indefeasible payment in full or performance
of the Obligations and the occurrence of the Debt
Termination Date, the Collateral Agent, upon request by the
Pledgor, shall execute and deliver all such documentation
necessary to release the Lien in its favor and to terminate
this Agreement.
SECTION 19. Notices. Any notice to the
Collateral Agent shall be deemed effective only if sent to
and received at the office of the Collateral Agent at
000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, or sent by
confirmed telecopy to telecopy number (000) 000-0000. Any
notice to the Pledgor hereunder shall be deemed to have been
duly given only if sent to and received at the office of the
Pledgor at 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000, Attention: General Partner, or sent by
confirmed telecopy to telecopy number (000) 000-0000, or at
such other address of which such Person shall have notified
in writing to each other party hereto.
SECTION 20. Continuing Security Interest.
(a) This Agreement shall create a continuing Lien
on the Collateral until the release thereof pursuant to
Section 18 hereof. Upon termination of this Agreement
pursuant to the terms of Section 18 hereof, the Pledgor
shall be entitled to the return, promptly upon its request
and at its expense, of such of the Collateral as shall not
have been sold or otherwise applied pursuant to the terms
hereof.
(b) Except as may be expressly applicable
pursuant to Section 9-505 of the Uniform Commercial Code, no
action taken or omission to act by the Collateral Agent or
the Secured Parties hereunder, including, without
limitation, any exercise of voting or consensual rights or
any other action taken or inaction pursuant to this
Agreement shall be deemed to constitute a retention of the
Collateral in satisfaction of the Obligations or otherwise
to be in full satisfaction of the Obligations, and the
Obligations shall remain in full force and effect, until the
Collateral Agent and the Secured Parties shall have applied
payments (including, without limitation, collections from
Collateral) towards the Obligations in the full amount then
outstanding or until such subsequent time as is hereinafter
provided in subsection (c) below.
(c) To the extent that any payment on the
Obligations or proceeds of the Collateral are subsequently
invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to a trustee, debtor in
possession, receiver or other Person under any bankruptcy
law, common law or equitable cause, then to such extent the
Obligations so satisfied shall be revived and continue as if
such payment or proceeds had not been received by the
Collateral Agent or the Secured Parties, and the Collateral
Agent's and the Secured Parties' security interests, rights,
powers and remedies hereunder shall continue in full force
and effect. In such event, this Agreement shall be
automatically reinstated if it shall theretofore have been
terminated pursuant to Section 27.
SECTION 21. Security Interest Absolute. All
rights of the Collateral Agent and security interests
hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any
of the Project Documents, or any other agreement or
instrument relating thereto (other than against the
Collateral Agent);
(b) 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 Project Documents, or any
other agreement or instrument relating thereto; provided,
that the aggregate amount of the Obligations shall not be
increased other than in accordance with the Trust Indenture
without the consent of the Pledgor;
(c) 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
(d) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Pledgor.
SECTION 22. Indemnity.
(a) The Pledgor agrees to indemnify, reimburse
and hold the Collateral Agent and the Secured Parties 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, in this Section 22, the "expenses") of
whatsoever kind and nature imposed on, asserted against or
incurred by any Indemnitee 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 transactions contemplated hereby, or
the enforcement of any of the terms hereof, or the
preservation of any rights hereunder or (ii) the ownership,
purchase, delivery, control, acceptance, financing,
possession, condition, sale, return or other disposition, or
use of, the Collateral, including, without limitation,
latent or other defects, whether or not discoverable. Each
Indemnitee agrees to use its best efforts promptly to notify
the Pledgor of any assertion of any such liability, damage,
injury, penalty, claim, demand, action, judgment or suit of
which such Indemnitee has knowledge.
(b) Without limiting the application of
Section 22(a), the Pledgor agrees to pay, or reimburse the
Collateral Agent for, any and all reasonable fees, costs and
expenses of whatever kind or nature incurred in connection
with the creation, preservation, protection or validation of
the Collateral 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 Liens 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 Collateral 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.
(c) Without limiting the application of Section
22(a) or (b), the Pledgor agrees to pay, indemnify and hold
each Indemnitee harmless from and against any loss, costs,
damages and expenses which such Indemnitee may suffer,
expend or incur in consequence of or growing out of 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.
(d) If and to the extent that the obligations of
the Pledgor under this Section 22 are unenforceable for any
reason, the Pledgor hereby agrees to make the maximum
contribution to the payment and satisfaction of such
obligations permissible under applicable law.
SECTION 23. No Responsibility of Certain Parties.
None of the Collateral Agent or any Secured Party, or any of
their respective officers, employees, servants, controlling
persons, executives, directors, agents, authorized
representatives, attorneys-in-fact or affiliates shall be
liable to the Pledgor for any action taken or omitted to be
taken by it or them (other than actions arising from or
relating to any gross negligence or willful misconduct of
any such Person) under or in connection with this Agreement
or any other Project Document to which the Pledgor is a
party, or responsible in any manner to any Person for any
recital, statement, representation or warranty made by the
Pledgor or any officer thereof contained in this Agreement
or any other Project Document to which the Pledgor is a
party or in any certificate, report, statement or other
document referred to or provided for in, or received by the
Collateral Agent or any Secured Party under or in connection
with, this Agreement or any other Project Document to which
the Pledgor is a party or for the value, effectiveness,
genuineness, enforceability or sufficiency of this Agreement
or any other Project Document or for any failure of the
Pledgor to perform any of the Obligations.
SECTION 24. Obligations Secured by Collateral.
Any amount paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement, and any amount
paid by the Collateral 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 Prime
Rate plus two percent (2%) shall constitute Obligations
secured by the Collateral.
SECTION 25. Severability. Any provision of this
Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision
in any other jurisdiction. Where provisions of any law or
regulation resulting in such prohibition or unenforceability
may be waived, they are hereby waived by the parties hereto
to the full extent permitted by law so that this Agreement
shall be deemed a valid and binding agreement, and the
security interest created hereby shall constitute a
continuing first Lien on and first perfected security
interest in the Collateral, assuming continued possession
thereof by the Collateral Agent or its agent, in each case
enforceable in accordance with its terms.
SECTION 26. Counterparts; Effectiveness. This
Agreement and any amendment, waiver, consent or supplement
may be executed in counterparts, each of which when so
executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective upon
the execution and delivery of a counterpart hereof by each
of the parties hereto.
SECTION 27. 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 Collateral
Agent or any Secured Party hereunder or pursuant hereto is
rescinded or must otherwise be restored or returned by the
Collateral Agent or such Secured Party upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of
the Company or the Pledgor or upon the appointment of any
intervenor or conservator of, or trustee or similar official
for, the Company or the Pledgor 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 28. WAIVER OF SUBROGATION; SUBMISSION TO
JURISDICTION; WAIVER OF JURY TRIAL.
(a) THE PLEDGOR IRREVOCABLY WAIVES ALL RIGHTS OF
SUBROGATION (WHETHER CONTRACTUAL, UNDER SECTION 000 XX XXXXX
00 XX XXX XXXXXX XXXXXX CODE, 11 U.S.C. 101 ET SEQ. (THE
"BANKRUPTCY CODE"), UNDER COMMON LAW OR OTHERWISE) TO THE
CLAIMS OF THE COLLATERAL AGENT AND THE SECURED PARTIES
AGAINST THE PLEDGOR WHICH ARISE IN CONNECTION WITH, OR AS A
RESULT OF, THIS AGREEMENT.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO 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 THE PLEDGOR HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. THE
PLEDGOR AND THE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVE
TRIAL BY JURY, AND THE PLEDGOR HEREBY IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
(c) THE PLEDGOR IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS 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 SPECIFIED IN SECTIONE19, SUCH
SERVICE TO BECOME EFFECTIVE FOUR (4) BUSINESS DAYS AFTER
SUCH MAILING.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
COLLATERAL AGENT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE PLEDGOR IN ANY OTHER
JURISDICTION.
SECTION 29. GOVERNING LAW; TERMS. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
UNLESS OTHERWISE DEFINED HEREIN OR IN THE TRUST INDENTURE,
TERMS DEFINED IN ARTICLE 8 OR ARTICLE 9 OF THE NEW YORK
UNIFORM COMMERCIAL CODE ARE USED HEREIN AS THEREIN DEFINED.
SECTION 30. Recourse Limited to Collateral.
Notwithstanding anything to the contrary contained herein,
the liability and obligation of the Pledgor or any past,
present or future Partner, or any officer, director or
stockholder of any Partner under or by reason of this
Agreement 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 past, present or future
Partner or any officer, director, stockholder or related
Person (other than the Company and the Pledgor) of any
Partner. The Collateral Agent and each Secured Party, 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 past, present or future Partner or any
officer, director, stockholder or related Person (other than
the Company and the Pledgor) of any Partner under or by
reason of or in connection with this Agreement and agrees to
look solely to the Collateral for the enforcement of such
liability and obligation of the Pledgor.
Nothing contained in this Section 30 shall be
construed (i) as preventing the Trustee, the Secured Parties
or the Collateral Agent from naming the Pledgor, any past,
present or future partner, officer, director or stockholder
or related Person in any action or proceeding brought by the
Trustee, the Secured Parties or the Collateal Agent to
enforce and to realize upon the security and Collateral
provided under or in connection with this Agreement 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 past, present or
future partner, officer, director or shareholder or related
Person (other than the Company or the Partnership), 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 other Project
Documents or the enforcement thereof by the Trustee, (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, other guaranty or indemnification
agreement now or hereafter executed and delivered to the
Trustee in connection with the Collateral Documents, or (iv)
as modifying, qualifying or affecting any any manner
whatsoever the personal recourse liability of any past,
present or future partner, officer, director or stockholder
or related Person 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 31. Waiver. To the fullest extent it may
lawfully so agree, the Pledgor agrees that it will not at
any time insist upon, claim, plead or take any benefit or
advantage of any appraisement, valuation, stay, extenuation,
moratorium, redemption or similar law now or hereafter in
force in order to prevent, delay or hinder the enforcement
hereof or the absolute sale of any part of the Collateral.
The Pledgor, for itself and all who claim through it, so far
as it or they now or hereafter lawfully may do so, hereby
waives the benefit of all such laws and all right to have
the Collateral marshaled upon any foreclosure hereof, and
agrees that any court having jurisdiction to foreclose this
Agreement may order the sale of the Collateral as an
entirety. Without limiting the generality of the foregoing,
the Pledgor hereby (i) authorizes the Collateral Agent, in
its sole discretion and without notice to or demand upon the
Pledgor and without otherwise affecting the obligations of
the Pledgor hereunder, from time to time to take and hold
other collateral (in addition to the Collateral) for payment
of any Obligations, or any part thereof, and to exchange,
enforce or release such other collateral or any part thereof
and to enforce or release such other collateral or any part
thereof and to accept and hold any endorsement or guarantee
of payment of the Obligations or any part thereof and to
release or substitute any endorser or guarantor or any other
Person granting security for or in any other way obligated
upon any Obligations or any part thereof and (ii) waives and
releases any and all right to require the Collateral Agent
to collect any of the Obligations from any specific item or
items of the Collateral or from any other party liable as a
guarantor or in any other manner in respect of any of the
Obligations or from any other security for any of the
Obligations.
Section 32. Consent. By its execution hereof,
the Pledgor hereby consents to the transfer of the
Collateral to any designee of the Collateral Agent in
accordance with this Agreement.
IN WITNESS WHEREOF, each party hereto has caused
this Stock Pledge and Security Agreement to be duly executed
and delivered by its officer thereunto duly authorized on
the date first above written.
PANDA-XXXXXXXX, L.P.
By Panda - Xxxxxxxx Corporation,
its general partner
By
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
FLEET NATIONAL BANK, as
collateral agent
By
Name:
Title:
Schedule I
Shares of Common Stock of the Company
Panda-Xxxxxxxx Funding Corporation
Par Value Stock
No. of Shares per Share Certificate Number
1,000 $0.01 1
