MasterCollateralandIntercreditorAgreement股东及债权人条约doc.docx

1、MasterCollateralandIntercreditorAgreement股东及债权人条约docMaster Collateral and Intercreditor Agreement股东及债权人协议 - (i) Continued Effectiveness. The Junior Creditors hereby agree that their obligations hereunder shall be continuing, absolute and unconditional and not subject to any reduction, limitation, im

2、pairment, termination, defense or recoupment whatsoever by reason of, or be otherwise diminished by, any of the following: (a) any extension, modification or renewal of, or indulgence with respect to, or substitution for, the Senior Debt or any part thereof or any agreement relating thereto at any t

3、ime; (b) any failure or omission to perfect or maintain any lien or security interest on, or preserve rights to, any security or collateral or to enforce any right, power or remedy with respect to the Senior Debt or any part thereof or any agreement relating thereto, or any collateral securing the S

4、enior Debt or any part thereof; (c) any waiver of any right, power or remedy or of any default with respect to the Senior Debt or any part thereof or any agreement relating thereto or with respect to any collateral securing the Senior Debt or any part thereof; (d) any release, surrender, compromise,

5、 settlement, waiver, subordination or modification, with or without consideration, of, any collateral securing the Senior Debt or any part thereof, any guaranties with respect to the Senior Debt or any part thereof, or any other obligations of any person or entity with respect to the Senior Debt or

6、any part thereof; (e) the enforceability or validity of the Senior Debt or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Senior Debt or any part thereof; (f) any Senior Facility Representatives electio

7、n, in any case or proceeding instituted under chapter 11 of the United States Bankruptcy Code, of the application of section 1111(b)(2) of the United States Bankruptcy Code; (g) any borrowing, use of cash collateral, or grant of a security interest by the Borrowers, as debtor in possession, under se

8、ction 363 or 364 of the United States Bankruptcy Code; or (h) the disallowance of all or any portion of any of the Agents or the Lenders claims for repayment of the Senior Debt under section 502 or 506 of the United States Bankruptcy Code. The Senior Facility Representatives may direct the Master Co

9、llateral Agent to take any action or exercise any remedy with respect to any Collateral from time to time and at any time in their sole discretion, without notice to the Junior Creditors. The terms of this Agreement, the subordination effected hereby, and the rights and the obligations of the Junior

10、 Creditors, the Borrowers, and the Senior Creditors arising hereunder shall not be affected, modified or impaired in any manner or to any extent by: (a) any amendment or modification of or supplement to the any Senior Facility Agreement or any Junior Facility Agreement; (b) the validity or enforceab

11、ility of any of such documents; or (c) any exercise or nonexercise of any right, power or remedy under or in respect of the Senior Debt or the Junior Debt or any of the instruments or documents referred to in clause (a) above. The Junior Creditors hereby acknowledge that the provisions of this Agree

12、ment are intended to be enforceable at all times, whether before the commencement of, after the commencement of, in connection with or premised on the occurrence of a Proceeding.(j) No Contest. The Junior Creditors agree that they will not at any time contest the validity, perfection, priority or en

13、forceability of the Senior Debt or the Senior Facility Agreements or the rights of the holders of the Senior Debt in the Collateral hereunder.Section 18 Term Of Agreement. This Agreement shall be terminated upon the final indefeasible payment of all Obligations and the termination of the Senior Faci

14、lity Agreements and the Junior Facility Agreements.Section 19 Notices. All demands, notices and communications relating to this Agreement shall be in writing and shall be deemed to have been duly given when received by the other party or parties at the address shown on Schedule I or in the Joinder S

15、upplement by which they became a party hereto, whether by personal delivery, express delivery or facsimile, or such other address as may hereafter be furnished to the other party or parties by like notice. Any such demand, notice or communication hereunder shall be deemed to have been received on th

16、e date delivered to or received at the premises of the addressee.Section 20 GOVERNING LAW; VENUE; CONSENT TO JURISDICTION.(A) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF _, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5

17、1401 AND 51402 OF THE _ GENERAL OBLIGATIONS LAW).(B) VENUE FOR ANY ACTION BROUGHT UNDER THIS AGREEMENT MAY BE IN ANY _ STATE COURT OR FEDERAL DISTRICT COURT SITTING IN _ COUNTY, _. EACH PARTY TO THIS AGREEMENT HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURT.Section 21 Assignment. Except as express

18、ly permitted herein, no party to this Agreement may assign its rights or delegate its obligations under this Agreement without the express written consent of the other parties.Section 22 Counterparts. For the purpose of facilitating the execution of this Agreement and for other purposes, this Agreem

19、ent may be executed simultaneously in any number of counterparts, each of which shall be deemed to be an original, and together shall constitute and be one and the same instrument.Section 23 Headings. The section headings are not part of this Agreement and shall not be used in its interpretation.Sec

20、tion 24 Third Party Beneficiaries. It is hereby agreed by the parties hereto that the Secured Parties are, and are intended to be, third party beneficiaries under this Agreement with the right to enforce this Agreement as if such Secured Parties were parties hereto.Section 25 Defaults; Certain Remed

21、ies.(a) Event of Default. An Event of Default shall exist under this Agreement if there exists an Senior Default or Junior Default . For the purpose of this Agreement, a Default shall mean any occurrence or condition which, with the giving of notice or the passage of time, or both, would be an Event

22、 of Default. Unless and until the Master Collateral Agent has actual knowledge that an Event of Default shall have occurred and is continuing, the Master Collateral Agent shall not take any action under this Agreement except for the performance of such duties as are specifically set forth herein and

23、 except as may be set forth from time to time in written instructions by the Required Facility Representatives in accordance with this Agreement, and upon receipt of such written instruction, the Master Collateral Agent shall give such notice or direction or exercise such right, remedy or power here

24、under as shall be specified in such instruction.(b) Notice of Event of Default; Control by Required Facility Representatives. If the Master Collateral Agent has actual knowledge that an Event of Default shall have occurred, the Master Collateral Agent shall give prompt notice thereof to each Facilit

25、y Representative; and if and for so long as the Master Collateral Agent shall not have actual knowledge that such Event of Default shall no longer be continuing, the Master Collateral Agent shall exercise such rights, powers and remedies (whether vested in it by this Agreement or by law or in equity

26、 or by statute or otherwise) for the protection and enforcement of its rights under this Agreement as the Master Collateral Agent may be directed in writing by the Required Facility Representatives in accordance with this Agreement, and in such exercise shall use the same degree of care and skill as

27、 a prudent person would use under the circumstances in the conduct of such persons own affairs. The Required Facility Representatives, by an instrument or instruments in writing executed and delivered to the Master Collateral Agent, shall have the right to direct the method and place of conducting t

28、he action to be taken by the Master Collateral Agent in connection with the protection and enforcement of the Master Collateral Agents rights under this Agreement.(c) Default Remedies. If any one or more Events of Default exist and shall be continuing, the Master Collateral Agent shall have the righ

29、t to proceed to protect and enforce its rights hereunder by exercising all or any of the rights and remedies available to it under applicable law (either by suit in equity or by action at law or by any other appropriate proceeding) and all or any of the rights and remedies conferred in this Agreemen

30、t, whether for the specific performance of any covenant or agreement herein or therein contained or in execution or aid of any power herein or therein granted, or for foreclosure thereunder, in such order as the Master Collateral Agent may determine in its sole discretion (subject to the direction o

31、f the Required Facility Representatives pursuant to Section 25(b).No power, right or remedy conferred on the Master Collateral Agent in this Agreement is intended to be exclusive of any other right, power or remedy and each and every right and remedy shall be cumulative and shall be in addition to e

32、very other right or remedy given herein or now or hereafter existing at law or in equity or by statute or otherwise. The Master Collateral Agent shall, at the written direction of the Required Facility Representatives, also do one or more of the following (subject to Section 12 hereof):(i) institute proceedings in its own name and on behalf of the Secured Parties as Master Collateral Agent for the collection of all amounts then payable on the Senior Debt and/or the Junior Debt with respect thereto, whether by declaration or otherwise, enforce any judgment obtained, a