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EXHIBIT 10.14
INTERCREDITOR AGREEMENT
JLM MARKETING, INC., JLM INDUSTRIES, INC., JLM TERMINALS, INC., JLM
INTERNATIONAL, INC. and OLEFINS MARKETING, INC. (herein individually and
collectively called the "Borrower") from time to time incurs or may incur
obligations, direct and/or contingent, to STATE STREET BANK AND TRUST
COMPANY ("State Street"), CAISSE NATIONALE DE CREDIT AGRICOLE ("Credit
Agricole") and STANDARD CHARTERED BANK NEW YORK BRANCH ("SCB") (herein each
individually called a "Creditor"), some or all of which obligations are or
may be secured, either wholly or partially, by Collateral. Each Creditor
has filed or may file financing statements or otherwise perfect security
interests in the Collateral under the Uniform Commercial Code of one or
more States of the United States, and the Creditors desire to agree among
themselves as to the relative priority of their respective security
interests in Collateral.
Intending to be legally bound it is hereby agreed for the purposes of
this Intercreditor Agreement, that:
1. DEFINITIONS.
As used herein, the following terms have the following meanings:
(a) "Collateral" means such personal property and fixtures
of the Borrower, whether now or hereafter existing or now owned or
hereafter and wherever located, of every kind and description, tangible or
intangible, including, but not limited to,
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all goods, documents, instruments, chattel paper, contract rights,
equipment, accounts, general intangibles, letters of credit and advices of
credit (including the proceeds thereof), rights, and inventory, and
including the products and cash and non cash proceeds of each of the
foregoing and accessories and accessions thereto, as now or hereafter
constitute security for any Obligations of the Borrower.
(b) "General Security Interest" means any perfected and
enforceable Security Interest of a Creditor in Collateral, however arising,
other than a Specific Security Interest or a Priority Security Interest.
(c) "Obligations" means all amounts now or in the future owing
by a Borrower, whether direct, indirect, or contingent, to a Creditor and
including, without limitation, all costs and expenses, including, without
limitation, reasonable attorneys' fees, of enforcement, possession, sale,
preparation for sale, and collection of the Borrower's obligations and/or
the Collateral, as applicable.
(d) "Priority Security Interest" means a Security Interest of a
Creditor in:
(i) inventory and other goods, the acquisition or purchase
of which by the Borrower was either (A) financed by a documentary or
commercial letter of credit issued by the Creditor, (B) supported by a
standby letter of credit issued by the Creditor, (C) financed by a
direct advance from the
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Creditor, or (D) financed by a banker's acceptance of which the
Creditor is the acceptor;
(ii) Collateral of a type described in subparagraphs (i),
(ii), (iii) or (iv) of paragraph l(f) as to which the Security
Interest constitutes a purchase money security interest;
(iii) All trading accounts, margin accounts and other
hedging accounts, including all money, instruments, contracts,
contract rights and other property therein or credited thereto, which
result from trading or other hedging activities financed in whole or
in part by that Creditor and which have been assigned to that
Creditor, all cash collateral (including the accounts into which it is
deposited) provided to that Creditor for such financing or for foreign
exchange exposure or other Obligations of a Borrower with respect to
foreign exchange contracts, and all cash collateral (including the
accounts into which it is deposited) provided to that Creditor in
respect of financing provided by that Creditor of an open (in whole or
in part) position of a Borrower; and
(iv) any accounts, letter of credit proceeds, chattel paper,
goods, contract rights, general intangibles, instruments, documents,
and all other cash or non-cash proceeds, arising out of the sale or
other disposition of Collateral or proceeds described in this
paragraph l(d) and
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all accessories and accessions of or to such Collateral, and all
products of such Collateral.
(e) "Security Interest" means a perfected and enforceable
security interest, lien, assignment or right of setoff of a Creditor in,
upon or with respect to any Collateral.
(f) "Specific Security Interest" means a Security Interest of a
Creditor in any of the following Collateral, including the products and the
cash and non-cash proceeds thereof and accessories thereto, but which is
not a Priority Security Interest:
(i) Collateral in the possession of the Creditor (or agent
or bailee on its behalf); or
(ii) Collateral made available to the Borrower by the
Creditor (or its agent or bailee) pursuant to a trust receipt or other
security agreement or arrangement, the effect of which is to continue
the Creditor's Security Interest therein; or
(iii) Collateral covered by a non-negotiable document issued
in the name of the Creditor or as to which the Creditor (or an agent
or bailee on its behalf) controls possession through a negotiable
document; or
(iv) Collateral which is a deposit account or other
obligation owed by the Creditor to the Borrower; or
(v) Collateral which is specifically identified in a
security agreement, or in another writing,
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delivered to the Creditor at or about the time the Security Interest
attaches.
2. PRIORITIES OF SECURITY INTERESTS.
(a) The Security Interests of Credit Agricole and SCB in
Collateral pledged or furnished by or on behalf of JLM International, Inc.
or Olefins Marketing, Inc. ("JLM International/Olefins Collateral") each
have a first priority over any Security Interests of State Street Bank in
the same Collateral, to the extent of all Obligations of the Borrower to
Credit Agricole and SCB secured thereby.
(b) The Security Interests of State Street in Collateral pledged
or furnished by or on behalf of JLM Marketing, Inc. and JLM Terminals, Inc.
have priority over the respective Security Interests of Credit Agricole
and/or SCB in the same Collateral, to the extent of all Obligations of the
Borrower to State Street secured thereby.
(c) Notwithstanding any provision of this Agreement to the
contrary, (i) the Security Interests of each Creditor in Collateral pledged
or furnished by or on behalf of JLM Industries, Inc. shall rank equal in
priority (regardless of whether such Security Interests constitute
Priority, Specific or General Security Interests) and (ii) any Creditor
which has a Security Interest in any shares of stock or other equity
interests owned by JLM Industries, Inc. ("Equity Collateral") in any
company of which JLM Industries, Inc. owns, directly or indirectly, more
than 25% of
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the outstanding equity interests shall hold such Equity Collateral as agent
for itself and the other Creditors, with each Creditor having an interest
in such Equity Collateral in an amount equal to its pro rata share of all
Obligations (contingent or otherwise) of JLM Industries, Inc. to all the
Creditors (such pro rata share of each Creditor to be determined on the
basis of the Obligations (contingent or otherwise) of JLM Industries, Inc.
to such Creditor) and, in furtherance of the foregoing, JLM Industries,
Inc. hereby grants to each Creditor a security interest in all Equity
Collateral in which any Creditor holds a Security Interest. Notwithstanding
the immediately preceding sentence, the mortgage lien granted by JLM
Industries, Inc. to State Street (the "Priority Lien") on the real property
and related fixtures located at the real property known as Xxx 0, Xxxxxx
Xxxxx Xxxxxxxxx Xxxx Xxxxx 3-A, Tampa, Hillsborough County, Florida with a
25,300 square foot office building to be constructed thereon (the "Priority
Real Property") shall have priority over any lien on the Priority Real
property of any other Creditor of JLM Industries, Inc. to the extent that
such Priority Lien secures obligations for money borrowed by JLM
Industries, Inc. from State Street pursuant to the Consolidated Promissory
Note, dated as of June 1, 1994 in the principal amount of $2,000,000 to
State Street from JLM Industries, Inc. and JLM Marketing, Inc., secured by
the Priority Real Property as such note may be amended, restated, extended
or otherwise modified from time to time.
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(d) As among SCB and Credit Agricole only (each such Creditor, a
"Transactional Creditor") and with respect only to JLM International/
Olefins Collateral:
(i) A Priority Security Interest of a Transactional
Creditor in Collateral has priority, to the extent of all Obligations
of the Borrower to such Transactional Creditor secured thereby (and
not merely the Obligations relating to the purchase or acquisition of
goods or inventory or otherwise constituting a purchase money security
interest), over any Specific Security Interest or General Security
Interest of the other Transactional Creditor in the same Collateral.
(ii) A Specific Security Interest of a Transactional
Creditor in Collateral has priority, to the extent of all Obligations
of the Borrower to such Transactional Creditor secured thereby (and
not merely the Obligations, if any, relating to such Collateral), over
any General Security Interest of the other Transactional Creditor in
the same Collateral.
(iii) If Priority Security Interests of both Transactional
Creditors attach to the same Collateral, the Security Interests shall
rank equally in priority, except that a Security Interest in
Collateral of a type referred to in paragraph l(f)(iii), which is a
Priority Security Interest by virtue of paragraph l(d)(ii) hereof,
has, in the absence of
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notice of another Priority Security Interest stamped on or affixed to
the document (notwithstanding anything in paragraph 2(f) relating to
notice), priority over any Security Interest in Collateral of a type
referred to in paragraph l(f)(ii) which is a Priority Security
Interest by virtue of paragraph l(d)(ii).
(iv) If Specific Security Interests of both Transactional
Creditors attach to the same Collateral, the Security Interests shall
rank equal in priority, except that a Specific Security Interest in
Collateral of the type referred to in paragraph l(f)(iii) hereof has,
in the absence of notice of another Security Interest stamped on or
affixed to the document (notwithstanding anything in paragraph 2(f)
relating to notice), priority over any Specific Security Interest in
Collateral of the type referred to in paragraph l(f)(ii).
(v) General Security Interests of the Transactional
Creditors in the same Collateral rank equal in priority.
(e) The priorities specified in this Agreement are applicable
irrespective of the time or order of attachment or perfection of Security
Interests or the time or order of filing of financing statements or the
giving or failure to give notice of the acquisition or expected acquisition
of purchase money or other Security Interests.
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(f) Except as herein otherwise specifically provided in this
Agreement, priority shall be determined in accordance with law.
3. CONDITIONS TO ENFORCEMENT.
The effectiveness and enforceability of a Creditor's entitlement to
priority or other rights as to any Security Interest provided by this
Agreement is conditioned on the existence and continuance of such Security
Interest as valid and enforceable, and in favor of such Creditor covering
the Collateral in question and securing the relevant Obligations to such
Creditor at, and in respect to, each and all relevant times that such
priority or other rights under this Agreement is enforced or attempted to
be enforced by such Creditor.
4. EFFECT OF ADDITIONAL CREDIT ACCOMMODATIONS.
Each Creditor may make additional credit accommodations to the
Borrower without notice to or the consent of the other Creditors. Upon the
written request of any Creditor, in accordance with the notice provisions
of paragraph 10 hereof, to the other Creditor, such Creditor shall promptly
provide the requesting Creditor with the total amount of the Borrower's
Obligations then outstanding to such Creditor as of the date of the reply
and a list of Collateral by type in which such Creditor has a General
Security Interest, and, in the case of a Priority Security Interest, along
with an identification of the items of Collateral and the letter of credit
or other Obligations of the Borrower under which such
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Priority Security Interest arose. If also specifically requested, the
Creditor will also supply information about any Security Interest it may
have and the Obligations under which such arose or which it secures.
However, any incorrect or misleading information provided by any Creditor
pursuant to this paragraph 4 shall not impose any liability on the
reporting Creditor unless the reporting information is a result of such
Creditor's gross negligence or willful misconduct. Borrower specifically
consents to each Creditor's making the reports required under this
paragraph.
5. NOTICE OF DEFAULT.
Each Creditor shall promptly give written notice to the other
Creditors of the occurrence and continuance of a "default" or "event of
default" under any agreement, instrument, or document, to which borrower is
a party, of which such Creditor has given written notice to a Borrower and
Borrower hereby specifically consents to such notice. Any failure of a
Creditor to provide notice of a "default" or "event of default" shall not
impose any liability on such Creditor unless such failure is a result of
such Creditor's gross negligence or willful misconduct.
6. LIQUIDATION OF COLLATERAL.
(a) With regard to Collateral in which a Creditor has a
Security Interest which has first priority pursuant to the provisions
hereof (and, in determining whether it has such priority, a Creditor
shall be entitled to rely on information provided by a Borrower), as
among the Creditors:
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(i) Such Creditor (or such Creditors jointly if there
be more than one having first priority) shall have sole and complete
discretion to determine the time and manner of any realization on all
or any portion of such Collateral in which it has such Security
Interest having first priority and such Creditor shall have the sole
and complete discretion to determine the application of the proceeds
of any portion of the Collateral in which it has such first priority
Security Interest to the Borrower's Obligations then outstanding to
such Creditor and secured thereby.
(ii) No Creditor shall be under any duty or bear any
responsibility to liquidate or refrain from liquidating Collateral in
which it has a Security Interest having first priority.
(iii) A Creditor shall not incur any liability to the
other Creditors as a result of the manner of liquidation of Collateral
in which it has a Security Interest having first priority unless such
is a result of such Creditor's gross negligence or willful misconduct.
(iv) If a Creditor commences liquidation of
Collateral in which it has a Security Interest having first priority,
it will attempt to give prompt notice thereof to the other Creditors
within forty-eight (48) hours of commencement of such program, but any
delay or failure in giving such notice shall not affect the rights of
such Creditor or impose
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any liability on such Creditor, unless such delay or failure is a
result of such Creditor's gross negligence or willful misconduct;
(v) When that Creditor determines to its satisfaction
and in its sole discretion that (A) all of the Borrower's Obligations
to such Creditor have been fully paid or otherwise provided for, and
(B) it will not extend any further credit to any Borrower (or that it
will assign Collateral or make a balance available notwithstanding
that it might extend additional credit to a Borrower) that Creditor
shall assign to other Creditors in accordance with the priorities set
forth herein its Security Interests in any other Collateral in which
it has a Security Interest and make the balance, if any, available for
distribution to the other Creditors in accordance with the priorities
set forth herein. A Creditor assigning or delivering Collateral in
which it has a Security Interest or surplus proceeds thereof to
another Creditor pursuant to this paragraph 6 may require reasonable
indemnification from the recipient Creditor(s).
(b) With regard to Collateral in which a Creditor does not
have a Security Interest having first priority pursuant to the provisions
hereof, as among the Creditors, such Creditor shall not liquidate such
Collateral, assert any claim against or seek to foreclose upon such
Collateral or otherwise commence any enforcement action with respect to
such Collateral or with respect
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to its Security Interest, except upon notice to and written consent from
the other Creditors holding Security Interests having first or any other
priority higher than such Creditor's priority as to such Collateral
pursuant to the provisions hereof.
(c) Proceeds from Collateral in which two or more
Transactional Creditors have a Security Interest of equal priority pursuant
to the provisions hereof shall be shared pro rata based upon the relative
proportions which the total outstanding Obligations of the Borrower to each
such Creditor secured by such Security Interests having equal priority,
bear to the total amount of the Obligations of the Borrower outstanding to
each other Transactional Creditor having a Security Interest entitled to
equal priority and secured thereby. In the case of Priority Security
Interests held by two or more Transactional Creditors, the Obligations
included in the calculations to be made pursuant to the preceding sentence
as to any Collateral shall be limited to the Obligations incurred to enable
the Borrower to acquire rights in such Collateral.
(d) After the Borrower's Obligations to each Creditor have
been paid in full, all remaining proceeds of Collateral, if any, after
giving effect to this Agreement and to governing law, shall be delivered to
the Borrower.
7. TERMINATION.
Any Creditor may terminate its status as a Creditor hereunder by
giving ten (10) days prior written notice of
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termination to the other Creditor and to the Borrower. Such termination
shall not impair any Security Interest theretofore granted to or held by
any Creditor (including the terminating Creditor), regardless of whether
such Security Interest attaches to any Collateral prior to or after the
effective date of termination, or affect the priorities thereof or rights
with respect thereto hereunder. Any security interest first granted to or
held by the terminating Creditor after the effective date of termination
shall have priority according to law and without resort to this Agreement
as between such Creditor and the non-terminating Creditor.
8. GOVERNING LAW.
This Agreement shall be governed by the substantive laws of the
State of New York. Unless the context otherwise requires, all terms used
herein which are defined in the Uniform Commercial Code of the State having
jurisdiction over the specific Collateral shall have the meanings therein
stated.
9. ASSIGNMENT; RIGHTS OF PARTIES.
This Agreement is for the benefit of each Creditor and its
successors and assigns, and no other person or persons including the
Borrower or any creditor or Creditors' representative of or for the
Borrower, shall have any right, benefit, priority or interest under, or
because of the existence of, this Agreement. Borrower has executed this
Agreement to acknowledge its understanding of the existence of this
Agreement among the Creditors and to evidence the specific consents and
agreement made
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by Borrower herein, and for no other purpose. To the extent that any
provision of this Agreement pursuant to which any Creditor has any right or
obligation with respect to any other Creditor is inconsistent with any
provision of any other agreement between any Creditor and a Borrower, the
provision contained in this Agreement shall prevail.
10. NOTICES.
All notices and other communications provided for under this
Agreement shall be in writing (including telegraphic communication) and
either mailed registered mail, return receipt requested, telegraphed,
telecopied or hand delivered as appropriate to the following persons and
their addresses:
Debtor:
JLM Marketing, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx, Treasurer
JLM Industries, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx, Treasurer
JLM Terminals, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx, Treasurer
JLM International, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx, Treasurer
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Olefins Marketing, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx, Treasurer
Creditor:
State Street Bank and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, Loan Officer
Caisse Nationale De Credit Agricole
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Standard Chartered Bank
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx, Vice President
or as to each party, at such other address as shall be by such party in a
written notice to the other parties complying as to delivery with the terms
of this paragraph. All such notices and communications shall, when mailed
or telegraphed, by effective when deposited in the mails, or when delivered
to the telegraph office, telecopied or hand delivered to the party for whom
it is intended as appropriate to the mode of communication addressed as
aforesaid.
11. REPRESENTATIONS AND WARRANTIES.
Each party executing this Agreement warrants and represents to
each other party hereto that the execution, delivery and performance by
such party of this Agreement have been duly authorized by all necessary
corporate action and do not and will not require any other consents or
approvals and this Agreement is a legal, valid and binding obligation of
the party enforceable
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against it in accordance with the Agreement's terms, subject to bankruptcy,
reorganization and other similar laws.
12. HEADINGS.
Paragraph headings in this Agreement are included for the
convenience of reference only and shall not constitute a part of this
Agreement for any other purposes.
13. COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute but one and the same agreement.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each party hereto by its authorized officers
has caused this Agreement to be duly executed as of the 1st day of June,
1994.
CAISSE NATIONALE DE CREDIT AGRICOLE
Attest:
By: /s/
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STANDARD CHARTERED BANK,
NEW YORK BRANCH
By: /s/
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STATE STREET BANK AND
TRUST COMPANY
By: /s/
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JLM MARKETING, INC.
By: /s/
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JLM INDUSTRIES, INC.
By: /s/
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JLM TERMINALS, INC.
By: /s/
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JLM INTERNATIONAL, INC.
By: /s/
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OLEFINS MARKETING, INC.
By: /s/
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