INTERCREDITOR AND SUBORDINATION AGREEMENT
THIS INTERCREDITOR AND SUBORDINATION AGREEMENT ("Intercreditor Agreement")
dated as of June 8, 2001 is by and between CONGRESS FINANCIAL CORPORATION
(CENTRAL), an Illinois corporation ("Congress" as hereinafter further
defined) and ENRON NORTH AMERICA CORP., a Delaware corporation ("Enron" as
hereinafter further defined). Congress and Enron are sometimes individually
referred to herein as a "Creditor" and collectively as "Creditors."
W I T N E S S E T H:
WHEREAS, Enron has made a loan or provided other financial accommodations to
Huntco Steel, Inc., a Delaware corporation ("HSI"), which loan is secured by
certain assets and properties of HSI, Huntco, Inc. ("Huntco"), Huntco Nevada,
Inc. ("Huntco Nevada"), and Midwest Products, Inc. ("Midwest", and together
with HSI, HSIA, Huntco and Huntco Nevada, collectively, "Debtors" as
hereinafter further defined); and
WHEREAS, Congress has entered into financing arrangements with Debtors,
pursuant to which Congress has made and may, upon certain terms and
conditions, make loans and provide other financial accommodations to HSI and
Midwest secured by certain assets and properties of Debtors; and
WHEREAS, Enron has entered into a Master Purchase Agreement (as defined
below) with HSI for the purchase and sale of steel products and HSI's
obligations under such Master Purchase Agreement are secured by designated
steel products and other assets of the Debtors. The parties have agreed that
the designated steel products are in fact owned by Enron, but because of the
possibility that such products may be determined to be or recharacterized as
being owned by HSI, Enron has been granted a security interest in such
products; and
WHEREAS, Creditors desire to enter into this Intercreditor Agreement to (i)
confirm the relative priority of the security interests of each Creditor in
the assets and properties of Debtors, (ii) provide for the orderly sharing
among Creditors, in accordance with such priorities, of proceeds of such
assets and properties upon any foreclosure thereon or other disposition
thereof, and (iii) agree upon the terms of the subordination of certain
obligations of Debtors and related matters;
NOW THEREFORE, in consideration of the mutual benefits accruing to
Creditors hereunder and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto do hereby
agree as follows:
1. DEFINITIONS
As used above and in this Intercreditor Agreement, the following terms shall
have the meanings ascribed to them below:
1.1 "Agreements" shall mean, collectively, the Congress Credit Agreements,
the Enron Credit Agreements and the Enron Inventory Agreements.
1.2 "Blockage Notice" shall mean a written notice from Congress to the
Debtors and Enron that a Payment Event of Default or a Non-Payment Event of
Default has occurred and is continuing with respect to the Senior Debt and
which specifies that such notice is a "Blockage Notice".
1.3 "Business Day" shall mean any Monday through Friday during which
commercial lenders are open for business in both Chicago, Illinois and
Houston, Texas.
1.4 "Collateral" shall mean all of the property and interests in property,
real or personal, tangible or intangible, now owned or hereafter acquired by
any Debtor in or upon which either or both of Creditors at any time has a
Lien, and including, without limitation, all proceeds of such property and
interests in property, provided, that, the term Collateral as used herein
shall not include any of the Enron Inventory Collateral.
1.5 "Commodity" shall mean steel products that conform to the
specifications described on Exhibit A hereto.
1.6 "Congress" shall mean Congress Financial Corporation (Central), an
Illinois corporation, and its successors and assigns (including any other
lender or group of lenders that at any time refinances or replaces the Senior
Debt, or succeeds to all or any portion of the Senior Debt or is otherwise
party to the Congress Credit Agreements); provided, that, such entity either
executes an intercreditor agreement substantially in the form of this
Intercreditor Agreement or otherwise agrees to be bound by the terms hereof.
1.7 "Congress Credit Agreements" shall mean, collectively, the Loan and
Security Agreement, dated April 15, 1999, by and among Congress and Debtors
("Congress Loan Agreement") and all agreements, documents and instruments at
any time executed and/or delivered by any Debtor or any other person to, with
or in favor of Congress in connection therewith or related thereto, as all of
the foregoing now exist or may hereafter be amended, modified, supplemented,
extended, renewed, restated, refinanced, replaced or restructured (in whole
or in part and including any agreements with, to or in favor of any other
lender or group of lenders that at any time refinances, replaces or succeeds
to all or any portion of the Senior Debt; provided, that, such entity either
executes an intercreditor agreement substantially in the form of this
Intercreditor Agreement or otherwise agrees to be bound by the terms hereof.
1.8 "Creditors" shall mean, collectively, Congress and Enron and their
respective successors and permitted assigns.
1.9 "Debtors" shall mean, collectively, the following together with their
respective successors and assigns, including, without limitation, a receiver,
trustee or debtor-in-possession on behalf of such person or on behalf of any
such successor or assign): (a) Huntco Steel, Inc. a Delaware corporation,
(b) HSI Aviation, Inc., a Missouri corporation, (c) Huntco Inc., a Missouri
corporation, (d) Huntco Nevada, Inc., a Nevada corporation, and (e) Midwest
Products, Inc., a Missouri corporation; each of the foregoing sometimes being
referred to herein individually as a "Debtor".
1.10 "Enron" shall mean Enron North America Corp., a Delaware corporation
and its successors and assigns.
1.11 "Enron Credit Agreements" shall mean, collectively, the Loan Agreement
dated as of April 6, 2001, among Enron and Debtors as amended by the First
Amendment to Loan Agreement dated as of April 6, 2001, and all agreements,
documents and instruments at any time executed and/or delivered by any Debtor
or any other person to, with or in favor of Enron in connection therewith or
related thereto, as all of the foregoing now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced,
provided, that the Enron Credit Agreements shall not include any of the Enron
Inventory Agreements except for the separate Guarantees, each dated as of
April 6, 2001, by Huntco, Huntco Nevada and Midwest in favor of Enron, the
separate Security Agreements, each dated as of April 6, 2001, by HSI, Huntco,
Huntco Nevada and Midwest in favor of Enron, the separate Pledge Agreements,
each dated as of April 6, 2001, by Huntco and Huntco Nevada in favor of Enron
and the financing statements related to the foregoing items.
1.12 "Enron Inventory Agreements" shall mean, collectively, IMA1, IMA2, the
Master Purchase Agreement and all agreements, documents and instruments at
any time executed and/or delivered by any Debtor or any other person to, with
or in favor of Enron in connection therewith or related thereto, as all of
the foregoing now exist or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced, provided that the Enron Inventory
Agreements shall not include any of the Enron Credit Agreements except for
the separate Guarantees, each dated as of April 6, 2001, by Huntco, Huntco
Nevada and Midwest in favor of Enron, the separate Security Agreements, each
dated as of April 6, 2001, by HSI, Huntco, Huntco Nevada and Midwest in favor
of Enron, the separate Pledge Agreements, each dated as of April 6, 2001, by
Huntco and Huntco Nevada in favor of Enron and the financing statements
related to the foregoing items.
1.13 "Enron Inventory Collateral" shall mean any of the following that is
owned by Enron or, notwithstanding having been purchased and paid for by
Enron, is at any time determined to be, through recharacterization or
otherwise, property of HSI: (a) all steel products including all Commodity
(collectively, "Steel Products"), purchased by Enron after the date hereof
pursuant to or in connection with the provisions of IMA1 and/or IMA2 that has
not been sold by Enron to and paid for by HSI and (b) any proceeds,
insurance, indemnity, warranty, or guaranty of or for any such Steel
Products. In no event shall the term "Enron Inventory Collateral" include
(i) any Steel Products that were purchased by Enron from HSI with respect to
which Enron owes HSI any amounts or (ii) any rights to payment of any Debtor,
whether or not earned by performance, for any property which a Debtor
purchased from Enron and fully paid for that is subsequently sold, leased,
licensed, assigned or otherwise disposed of by such Debtor.
1.14 "Enron Inventory Debt" shall mean all obligations, liabilities and
indebtedness of every kind, nature and description owing by any Debtor to
Enron under the Enron Inventory Agreements, including purchase payments,
interest, charges, fees, premiums, indemnities and expenses, however
evidenced, whether as principal, surety, endorser, guarantor or otherwise,
whether now existing or hereafter arising, whether arising before, during or
after the initial or any renewal term of the Enron Inventory Agreements or
after the commencement of any case with respect to such Debtor under the U.S.
Bankruptcy Code or any similar statute (and including, without limitation,
any principal, interest, fees, costs, expenses and other amounts, whether or
not such amounts are allowable in whole or in part, in any such case or
similar proceeding), whether direct or indirect, absolute or contingent,
joint or several, due or not due, primary or secondary, liquidated or
unliquidated, secured or unsecured, and whether arising directly or howsoever
acquired by Enron, provided, that, the Enron Inventory Debt shall not include
any of the Junior Debt.
1.15 "Enron Notice of Remedies" shall have the meaning set forth in Section
2.7(b).
1.16 "IMA1" shall mean the Inventory Management Agreement (Phase I) dated as
of April 6, 2001, by and between Enron and HSI as the same may be amended or
modified from time to time.
1.17 "IMA2" shall mean the Inventory Management Agreement (Phase II) dated
as of April 6, 2001, by and between Enron and HSI as the same may be amended
or modified from time to time.
1.18 "Junior Debt" shall mean only all of the obligations, liabilities and
indebtedness of every kind, nature and description owing by any Debtor to
Enron under the Enron Credit Agreements, including principal, interest,
charges, fees, premiums, indemnities and expenses, however evidenced, whether
as principal, surety, endorser, guarantor or otherwise, whether now existing
or hereafter arising, whether arising before, during or after the initial or
any renewal term of the Enron Credit Agreements or after the commencement of
any case with respect to such Debtor under the U.S. Bankruptcy Code or any
similar statute (and including, without limitation, any principal, interest,
fees, costs, expenses and other amounts, whether or not such amounts are
allowable in whole or in part, in any such case or similar proceeding),
whether direct or indirect, absolute or contingent, joint or several, due or
not due, primary or secondary, liquidated or unliquidated, secured or
unsecured, and whether arising directly or howsoever acquired by Enron,
provided, that, the Junior Debt shall not include any of the Enron Inventory
Debt.
1.19 "Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, security interest, encumbrance (including,
but not limited to, easements, rights of way and the like), lien (statutory
or other), security agreement or transfer intended as security, including
without limitation, any conditional sale or other title retention agreement,
the interest of a lessor under a capital lease or any financing lease having
substantially the same economic effect as any of the foregoing.
1.20 "Master Purchase Agreement" shall mean the Master Steel Purchase and
Sale Agreement dated as of April 6, 2001, by and between Enron and Debtor.
1.21 "Non-Payment Event of Default" shall mean any Senior Debt Event of
Default (other than a Payment Event of Default).
1.22 "Payment Blockage Period" shall mean (a) any period during which a
Payment Event of Default has occurred and is continuing and (b) any other
period during which a Standstill Period exists.
1.23 "Payment Event of Default" shall mean any default in the payment of any
Senior Debt when due (whether upon maturity, mandatory prepayment,
acceleration or otherwise) beyond any applicable grace period with respect
thereto.
1.24 "Person" or "person" shall mean any individual, sole proprietorship,
partnership, corporation (including, without imitation, any corporation which
elects subchapter S status under the Internal Revenue Code of 1986, as
amended), limited liability company, limited liability partnership, business
trust, unincorporated association, joint stock company, trust, joint venture,
or other entity or any government or any agency or instrumentality or
political subdivision thereof.
1.25 "Revolver Limit" shall have the meaning set forth in Section 4.1(f).
1.26 "Senior Debt" shall mean any and all obligations, liabilities and
indebtedness of every kind, nature and description owing by any Debtor under
the Congress Credit Agreements to Congress and/or its affiliates or
participants, including principal, interest, charges, fees, premiums,
indemnities and expenses, however evidenced, whether as principal, surety,
endorser, guarantor or otherwise, whether arising under Congress Credit
Agreements or otherwise, whether now existing or hereafter arising, whether
arising before, during or after the initial or any renewal term of the
Congress Credit Agreements or after the commencement of any case with respect
to such Debtor under the U.S. Bankruptcy Code or any state insolvency law or
similar statute (and including, without limitation, any principal, interest,
fees, costs, expenses and other amounts, which would accrue and become due
but for the commencement of such case, whether or not such amounts are
allowed or allowable in whole or in part in any such case), whether direct or
indirect, absolute or contingent, joint or several, due or not due, primary
or secondary, liquidated or unliquidated, secured or unsecured, and whether
arising directly or howsoever acquired by Congress.
1.27 "Senior Debt Event of Default" shall mean any "Event of Default" under
and as defined in the Congress Credit Agreements.
1.28 "Specified Event of Default" shall mean (a) a Payment Event of Default;
or (b) a Non-Payment Event of Default arising out of Debtors' failure to
comply with Section 9.16 of the Congress Loan Agreement (as in effect on the
date hereof) that continues uncured for a period of 30 days after the earlier
of (i) the date Debtor receives a notice from Congress of such Section 9.16
default or (ii) the date Debtor is required to provide financial reports to
Congress that disclose (or would have disclosed) such default.
1.29 "Standstill Period" shall mean any period commencing on the date a
Blockage Notice is given and ending one hundred eighty (180) days after the
date such Blockage Notice is given; provided, that, if Congress receives an
Enron Notice of Remedies at any time before Congress delivers a Blockage
Notice to Enron, then Standstill Period shall mean any period commencing on
the date Congress receives such Enron Notice of Remedies and ending one
hundred ninety (190) days after the date such Enron Notice of Remedies is
received by Congress.
1.30 All terms defined in the Uniform Commercial Code as in effect in the
State of Illinois as of the date hereof, unless otherwise defined herein
shall have the meanings set forth therein. All references to any term in the
plural shall include the singular and all references to any term in the
singular shall include the plural.
2. SECURITY INTERESTS; PRIORITIES; REMEDIES
2.1 Acknowledgment of Liens. Each Creditor hereby acknowledges that the
other Creditor has been granted a Lien upon the Collateral. Congress hereby
acknowledges that Debtor has granted Enron a Lien upon the Enron Inventory
Collateral and that as of the date hereof Congress does not have a Lien on
the Enron Inventory Collateral.
2.2 Priority of Liens. Notwithstanding the order or time of attachment, or
the order, time or manner of perfection, or the order or time of filing or
recordation of any document or instrument, or other method of perfecting a
security interest in favor of each Creditor in any Collateral or Enron
Inventory Collateral, and notwithstanding any conflicting terms or conditions
which may be contained in any of the Agreements, (a) the Liens upon the
Collateral of Congress have and shall have priority over the Liens upon the
Collateral of Enron and such Liens of Enron are and shall be, in all
respects, subject and subordinate to the Liens of Congress therein to the
full extent of the Senior Debt and (b) the Liens upon the Enron Inventory
Collateral of Enron have and shall have priority over the Liens (if any) upon
the Enron Inventory Collateral of Congress and such Liens of Congress (if
any) are and shall be, in all respects, subject and subordinate to the Liens
of Enron therein to the full extent of the Enron Inventory Debt.
2.3 Priorities Unaffected by Action or Inaction. The lien priorities
provided in Section 2.2 shall not be altered or otherwise affected by any
amendment, modification, supplement, extension, renewal, restatement or
refinancing of the Senior Debt (which does not contravene Section 4.1(c) or
(f)), or the Junior Debt or the Enron Inventory Debt, nor by any action or
inaction which any Creditor may take or fail to take in respect of the
Collateral or the Enron Inventory Collateral.
2.4 Rights of Third Parties; No Contest of Lien. Each Creditor shall be
solely responsible for perfecting and maintaining the perfection of its Lien
in and to each item constituting the Collateral in which such Creditor has
been granted a Lien. The foregoing provisions of this Intercreditor
Agreement are intended solely to govern the respective lien priorities as
between the Creditors and shall not impose on the Creditors any obligations
in respect of the disposition of proceeds of foreclosure on any Collateral or
Enron Inventory Collateral which would conflict with prior perfected claims
therein in favor of any other person or any order or decree of any court or
other governmental authority or any applicable law. Enron agrees that it
will not contest the validity, perfection, priority or enforceability of the
Liens upon the Collateral of Congress and that as between Congress and Enron,
the terms of this Intercreditor Agreement shall govern even if part or all of
the Senior Debt or the Liens securing payment and performance thereof are not
perfected or are avoided, disallowed, set aside or otherwise invalidated in
any judicial proceeding or otherwise. Congress agrees that it will not
contest the validity, perfection, priority or enforceability of the Liens
upon the Collateral or Enron Inventory Collateral of Enron and that as
between Congress and Enron, the terms of this Intercreditor Agreement shall
govern even if part or all of the Junior Debt, the Enron Inventory Debt or
the Liens securing payment and performance thereof are not perfected or are
avoided, disallowed, set aside or otherwise invalidated in any judicial
proceeding or otherwise.
2.5 Right to Enforce Agreement. Congress shall have the right to manage,
perform and enforce the terms of the Congress Credit Agreements with respect
to the Collateral, to exercise and enforce all privileges and rights
thereunder according to its discretion and the exercise of its business
judgment, including, without limitation, the right to take or retake control
or possession of such Collateral and to hold, prepare for sale, process,
sell, lease, dispose of, or liquidate such Collateral; provided, that, during
a Standstill Period the foregoing rights shall be exclusively the rights of
Congress. Enron shall have the exclusive right to manage, perform and enforce
the terms of the Enron Inventory Agreements with respect to the Enron
Inventory Collateral, to exercise and enforce all privileges and rights
thereunder according to its discretion and the exercise of its business
judgment, including, without limitation, the exclusive right to take or
retake control or possession of such Enron Inventory Collateral and to hold,
prepare for sale, process, sell, lease, dispose of, or liquidate same.
2.6 Sale and Release of Collateral; Right of First Refusal.
(a) Notwithstanding anything to the contrary contained in any of the
Agreements, during the continuance of a Specified Event of Default, Enron
shall consent to the sale, transfer or other disposition of Collateral by any
Debtor with the consent of Congress, if and only if, Enron does not agree to
purchase such Collateral within the 10 days period provided for in the right
of first refusal set forth in Section 2.6 (b) below. In connection with any
sale or disposition pursuant to the foregoing sentence (i) Debtor shall
deliver the proceeds to Congress and Congress shall cause the net cash
proceeds Congress receives from such sale or disposition to be immediately
applied, first, to the Senior Debt in such order and manner as Congress shall
determine and, second, after the payment in full of the Senior Debt, to the
Junior Debt in such order and manner as Enron shall determine and (ii)
Congress and Debtors shall immediately and permanently reduce the Maximum
Credit under the Senior Loan Agreements by not less than the amount of the
Senior Debt that is repaid in connection with such sale or disposition of
Collateral. Upon the closing of such a sale or disposition, Enron shall (x)
immediately upon the request of Congress, release or otherwise terminate its
Liens on the Collateral so sold or otherwise disposed of, (y) Enron shall
immediately deliver such release documents with respect to the Collateral so
sold or otherwise disposed of as Congress may reasonably require in
connection therewith and (z) be deemed to have consented under the Enron
Credit Agreements to such sale or other disposition. Notwithstanding
anything to the contrary contained in any of the Agreements, only Enron shall
have the right to restrict or permit, or approve or disapprove, the sale,
transfer or other disposition of the Enron Inventory Collateral. To the
extent it has or may obtain any Lien with respect to the Enron Inventory
Collateral, Congress shall (i) immediately upon the request of Enron, release
or otherwise terminate any Lien Congress may have on the Enron Inventory
Collateral to the extent such Enron Inventory Collateral is sold or otherwise
disposed of either by Enron, its agents or any Debtor with the consent of
Enron and Congress shall immediately deliver such release documents with
respect to the Enron Inventory Collateral so sold or otherwise disposed of as
Enron may require in connection therewith and (ii) be deemed to have
consented under the Congress Credit Agreements to such sale or other
disposition.
(b) In the event that during the continuance of a Specified Event of
Default any Debtor obtains a bona fide offer from any Person to purchase all
or any portion of the Collateral from such Debtor and Congress is willing to
consent to such a sale, Congress shall give notice in writing to Enron (a
"Sale Notice") not less than 10 days prior to the proposed purchase date,
specifying the name of the proposed purchaser, the proposed purchase date
(which shall be a Business Day) (the "Purchase Date"), the Collateral to be
sold (the "Proposed Sale Collateral"), the purchase price, and all other
material terms of the proposed sale. Within 10 days of receipt of a Sale
Notice, Enron may give notice in writing to Congress (a "Purchase Notice")
that Enron elects to purchase the Proposed Sale Collateral pursuant to the
terms of the Sale Notice, in which event on the Purchase Date (or such other
date as may be agreed by Enron and Congress) Enron (or any Person nominated
by Enron) shall purchase the Proposed Sale Collateral pursuant to the terms
of the Sale Notice. If within 10 days following delivery of a Sale Notice,
Enron has not provided Congress with a Purchase Notice, then Debtor, with
Congress' consent, may sell the Proposed Sale Collateral (i) on or before the
Purchase Date; (ii) to the proposed purchaser, (iii) for a price not less
than the purchase price and (iv) upon the material terms of such proposed
sale, in each case as specified in the Sale Notice. If Debtor does not sell
the Proposed Sale Collateral on or before the Purchase Date in accordance
with the foregoing sentence, then it may not subsequently sell the Proposed
Sale Collateral without first delivering an additional Sale Notice and
following the procedure set out in this Section 2.6(b); provided, that, if
Enron agrees it will purchase the Proposed Sale Collateral pursuant to this
Section 2.6(b) and Enron fails to complete such purchase on or before the
applicable Purchase Date then Debtor, with Congress' consent, may sell such
Proposed Sale Collateral to the purchaser under the Sale Notice for any price
agreed upon by the parties to such sale, without any further notice to or
consent from Enron and Enron shall be deemed to have consented to such sale
and to have released all of its liens on such Proposed Sale Collateral.
2.7 Limitation on Remedies.
(a) Notwithstanding any rights or remedies avail-able to a Creditor under
any of the Agreements, applicable law or otherwise, Congress shall not,
directly or indirectly, seek to foreclose or realize upon (judicially or non-
judicially) any Lien it may have on any Enron Inventory Collateral or assert
any claims or interests therein.
(b) Notwithstanding any rights or remedies avail-able to a Creditor under
any of the Agreements, applicable law or otherwise, except as otherwise
specifically provided in Section 2.7(c) below, Enron shall not, during a
Standstill Period (and shall not at any other time upon less than ten (10)
Business Days prior written notice to Congress of the intention of Enron to
exercise any of the rights or remedies set forth below (an "Enron Notice of
Remedies"), directly or indirectly, (i) seek to collect from any Debtor
(including, without limitation, from or by way of any Collateral) any of the
Junior Debt or exercise any of its rights or remedies upon a default or event
of default by any Debtor under the Enron Credit Agreements or otherwise, or
(ii) seek to foreclose or realize upon (judicially or non-judicially) its
Lien on any Collateral or assert any claims or interests therein (including,
without limitation, by setoff or notification of account debtors), or (iii)
commence any action or proceeding against any Debtor or its properties under
the U.S. Bankruptcy Code or any state insolvency law or similar present or
future statute, law or regulation or any proceedings for voluntary
liquidation, dissolution or other winding up of any Debtor's business, or the
appointment of any trustee, receiver or liquidator for any Debtor or any part
of its properties or any assignment for the benefit of creditors or any
marshaling of assets of any Debtor, or (iv) take any other action against any
Debtor and the Collateral.
(c) Notwithstanding Section 2.7(b) above, Enron shall have the right to:
(i) bid for and purchase any Collateral at any private or judicial
foreclosure upon such Collateral initiated by Congress, (ii) file a proof of
claim, attend, participate and vote in any administrative, legal or equitable
action or proceeding against any Debtor seeking any reorganization,
liquidation, bankruptcy or any other action involving the readjustment of all
or any part of the Junior Debt, or other similar relief under the U.S.
Bankruptcy Code, (iii) upon not less than seven (7) days prior written notice
to Congress, take action and continue to pursue appropriate action to obtain
a monetary judgment in respect of any non-payment of the Junior Debt;
provided, that no action shall be taken to execute, enforce or collect such
judgment, (iv) upon not less than seven (7) days prior written notice to
Congress, exercise its right to accelerate the maturity of the Junior Debt
under the Enron Credit Agreements (subject to Congress' rights under Section
2.8 hereof); provided, that, no action shall be taken to collect or enforce
the Junior Debt, (v) send such notices of the existence of, or any evidence
or confirmation of, the Junior Debt under the Enron Credit Agreements or the
Liens of Enron in the Collateral to any court or governmental agency, or file
or record any such notice or evidence to the extent necessary to prove or
preserve (but not enforce) the Liens of Enron in the Collateral or the Junior
Debt (including notice of default and acceleration), and (vi) take action to
the extent necessary to preserve the validity, efficacy, and priority of the
Junior Debt and/or prevent the expiration of any applicable statute of
limitation with respect to Enron's rights under the Enron Credit Agreements;
provided, that Enron shall not challenge or dispute the validity, perfection,
priority or enforceability of the Senior Debt or any of the Liens of Congress
in the Collateral.
(d) Notwithstanding anything to the contrary contained in this Section 2.7,
except during a Standstill Period, Enron shall have the right, upon ten (10)
Business Days' prior written notice to Congress, to take action to enforce
its Liens on any of the Collateral or assert any claims or interests therein,
or exercise any other similar remedies with respect thereto or commence any
action or proceeding against any Debtor under the U.S. Bankruptcy Code or any
state insolvency law upon an event of default under the Enron Credit
Agreements (other than as a result of an event of default under the Congress
Credit Agreements) so long as such default is either continuing or was not
cured within the applicable cure period, subject at all times to the
provisions of Section 2.2 of this Intercreditor Agreement.
2.8 Right to Cure. Congress shall have the right, but not any obligation,
to cure for the account of Debtors any default by any Debtor under the Enron
Credit Agreements at any time during the Standstill Period or the applicable
cure period that is provided for in the Enron Credit Agreements, as
applicable, if longer, or thereafter with the consent of Enron, or any
default by any Debtor under the Enron Inventory Agreements at any time during
the applicable cure period that is provided for in the Enron Inventory
Agreements, or thereafter with the consent of Enron. In the event that the
default which was the basis for the declaration by Enron shall be cured
within such applicable cure period, whether by Congress, any Debtor or any
other person, or shall be waived or otherwise cease to exist, the rights of
Enron under Section 2.7(d) above shall cease until the occurrence of any
other or additional event of default. In no event shall Congress by virtue
of the payment of amounts, or performance of any obligation required to be
paid or performed by any Debtor, be deemed to have assumed any obligation of
any Debtor to Enron or any other person. Enron shall have the right, but not
any obligation, to cure for the account of Debtors any default by any Debtor
under the Congress Credit Agreements at any time during the applicable cure
period that is provided for in the Congress Credit Agreements, or thereafter
with the consent of Congress. In no event shall Enron by virtue of the
payment of amounts, or performance of any obligation required to be paid or
performed by any Debtor, be deemed to have assumed any obligation of any
Debtor to Congress of any other person.
2.9 Notices of Default. Each Creditor shall give to the other
Creditor concurrently with the giving thereof to any Debtor, (a) a copy of
any written notice by such Creditor of either a default or an event of
default under its Agreements with such Debtor, or written notice of demand of
payment from such Debtor, and (b) any written notice sent by a Creditor to
such Debtor at any time an event of default under such Creditor's Agreements
with such Debtor exists stating such Creditor's intention to exercise any of
its enforcement rights or remedies, including written notice pertaining to
any foreclosure on any of the Collateral or other judicial or non-judicial
remedy in respect thereof, and any legal process served or filed in
connection therewith; provided, that, the failure of any party to give notice
as required hereby shall not affect the relative priorities of Creditors'
respective Liens as provided herein or the validity or effectiveness of any
such notice as against any Debtor. Each Debtor hereby authorizes and
consents to each Creditor sending any such notices to the other Creditor.
3. SUBORDINATION OF DEBT
3.1 Subordination. Enron's right to payment and satisfaction of the Junior
Debt, directly or indirectly, by any means whatsoever, is deferred, to the
indefeasible payment and satisfaction in full of all Senior Debt.
Notwithstanding anything to the contrary contained in this Section 3.1, (a)
Enron's rights with respect to the Enron Inventory Debt and its rights under
the Enron Inventory Agreements are not in any way subordinated to the Senior
Debt or the payment and satisfaction thereof and (b) Enron may receive
payments in respect of the Junior Debt to the extent permitted under Section
4.1(a) hereof.
3.2 Distributions.
(a) In the event of any distribution, division, or application, partial or
complete, voluntary or involuntary, by operation of law or otherwise, of all
or any part of the Collateral or the proceeds thereof to the creditors of any
Debtor or readjustment of the obligations and indebtedness of any Debtor,
whether by reason of liquidation, bankruptcy, arrangement, receivership,
assignment for the benefit of creditors, marshaling of assets of any Debtor
or any other action or proceeding involving the readjustment of all or any
part of the indebtedness or other obligations of any Debtor or the
application of the assets of any Debtor to the payment or liquidation
thereof, or upon the dissolution or other winding up of any Debtor's
business, or upon the sale of all or substantially all of any Debtor's
assets, then, and in any such event, (i) Enron shall receive the Enron
Inventory Collateral and any distribution arising therefrom, (ii) Congress
shall receive indefeasible payment in full of all of the Senior Debt in cash
or other immediately available funds prior to the payment of all or any part
of the Junior Debt, (iii) to the extent Congress has not received
indefeasible payment in full of all of the Senior Debt in cash or other
immediately available funds, Congress shall be entitled to receive any
payment or distribution of any kind or character, whether in cash, securities
or other property, which be payable or deliverable in respect of any or all
of the Junior Debt and (iv) only after Congress has received payment in
accordance with Sections 3.2(a)(ii) and (iii) above, Enron shall receive
payment with respect to the Junior Debt.
(b) In order to enable Congress to enforce its rights under Section 3.2(a)
above, to the extent Enron fails to reasonably pursue enforcement of its
claims with respect to the Junior Debt, Congress is hereby irrevocably
authorized and empowered, at the expense of Congress (in its own name or in
the name of Enron or otherwise), but shall have no obligation to, enforce
claims comprising any of the Junior Debt by proof of debt, proof of claim,
suit or otherwise and take generally any action which Enron might otherwise
be entitled to take, as Congress may deem necessary or advisable for the
enforcement of its rights or interests hereunder.
(c) To the extent necessary for Creditors to realize the benefits of the
subordination of Debt provided for herein (including the right to receive any
payment and distributions which might otherwise be payable or deliverable in
respect of the Senior Debt or Junior Debt in any proceeding described in
Section 3.2(a) or otherwise), each Creditor shall execute and deliver to the
other Creditor such instruments or documents together with such assignments
or endorsements as the requesting Creditor shall deem necessary.
3.3 Instrument Legend and Notation. Any instrument at any time evidencing
the Junior Debt, or any portion thereof, shall be permanently marked on its
face with a legend conspicuously indicating that payment thereof is
subordinate in right of payment to the Senior Debt and subject to the terms
and conditions of this Intercreditor Agreement, and after being so marked
certified copies thereof shall be delivered to Congress. No specific legend,
further assignment or endorsement or delivery of notes, guarantees or
instruments shall be necessary to subject any Junior Debt to the
subordination thereof contained in this Intercreditor Agreement.
3.4 Payments Received by Enron. Should any payment or distribution or
security or instrument or proceeds thereof be received by Enron in respect of
the Junior Debt (other than those permitted under Section 4.1(a)), Enron
shall receive and hold the same in trust, as trustee, for the benefit of
Congress, segregated from other funds and property of Enron and shall
forthwith deliver the same to Congress (together with any endorsement or
assignment of Enron where necessary), for application to any of the Senior
Debt. In the event of the failure of Enron to make any such endorsement or
assignment to Congress, Congress, or any of its officers or employees, are
hereby irrevocably authorized on behalf of Enron to make the same.
3.5 Payments Received by Congress. Should any payment or distribution or
security or instrument or proceeds thereof be received by Congress that is
part of, arises from or is proceeds of the Enron Inventory Collateral
pursuant to the sale thereof and of which Congress has received written
notice or has actual knowledge, Congress shall receive and hold the same in
trust, as trustee, for the benefit of Enron, segregated from other funds and
property of Congress and shall forthwith deliver the same to Enron (together
with any endorsement or assignment of Congress where necessary), for
application to any of the Enron Inventory Debt. Notwithstanding anything to
the contrary in the immediately preceding sentence, if Congress receives any
funds without having actual knowledge or without having received written
notice that such funds constitute proceeds of the Enron Inventory Collateral
before Congress has applied such funds to the Senior Debt or given credit for
such proceeds to any Debtor for purposes of determining the amount of the
loans available to Debtors, Congress shall have no obligation with respect to
such proceeds or liability therefor to Enron and such proceeds shall cease to
be part of the Enron Inventory Collateral; except that if Congress receives
written notice that such funds are proceeds of Enron Inventory Collateral
within forty-five (45) days after the date Congress has applied such proceeds
to the Senior Debt and Congress receives such evidence that such funds are
proceeds of Enron Inventory Collateral as Congress may reasonably require,
Congress shall pay over such amounts to Enron to the extent that, after
giving effect to such payment, the amount of the Excess Availability (as
defined in the Congress Credit Agreements) of HSI and Midwest in the
aggregate shall not be less than $1,000,000. In the event of the failure of
Congress to make any endorsement or assignment to Enron pursuant to this
Section 3.5, Enron, or any of its officers or employees, are hereby
irrevocably authorized on behalf of Congress to make the same.
3.6 Release of Liens and Security Interests. Congress hereby releases its
security interests in the Enron Inventory Collateral granted to it by HSI in
the Congress Credit Agreements and HSI and Congress agree that each will
enter into an amendment to the existing Congress Credit Agreements and UCC-3
Partial Releases, each in form and substance satisfactory to Congress and
Enron, to indicate that Congress has released such security interests in the
Enron Inventory Collateral.
4. COVENANTS, REPRESENTATIONS AND WARRANTIES
4.1 Additional Covenants.
(a) Debtors shall not, directly or indirectly, make and Enron shall not,
directly or indirectly, accept or receive any payment of principal or
interest with respect to the Junior Debt or any prepayment or non-mandatory
payment or any payment pursuant to acceleration or claims of breach or any
payment to acquire Junior Debt, except that, at any time other than during a
Payment Blockage Period, Debtors may make and Enron may receive the fees due
as of the date hereof under the Enron Credit Agreements (as in effect on the
date hereof), reimbursement of reasonable expenses of Enron due from time to
time under the Enron Credit Agreements as in effect on the date hereof, and
regularly scheduled payments of principal, interest, and fees under the Enron
Credit Agreements (as in effect on the date hereof).
(b) Enron shall not sell, assign, pledge, encumber or otherwise dispose of
any of the Junior Debt unless the transferee executes an intercreditor
agreement substantially in the form of this Intercreditor Agreement or
otherwise agrees to be bound by the terms hereof.
(c) Congress shall not sell, assign, pledge, encumber or otherwise dispose
of any of the Senior Debt unless the transferee executes an intercreditor
agreement substantially in the form of this Intercreditor Agreement or
otherwise agrees to be bound by the terms hereof.
(d) Enron and Debtor shall, at any time or times upon the request of
Congress, promptly furnish to Congress a true, correct and complete statement
of the outstanding Junior Debt;
(e) Congress, Enron and Debtors shall execute and deliver to the other
parties hereto such additional agreements, documents and instruments and take
such further actions as may be reasonably necessary in the opinion of the
requesting party to effectuate the provisions and purposes of this
Intercreditor Agreement.
(f) Unless Congress receives Enron's prior written consent, Congress shall
not increase the "Maximum Credit" (as such term is defined in the Congress
Credit Agreements) to be an amount greater than $80,000,000 less the amount
of the permanent reductions thereto pursuant to the provisions of Section
2.6 above (such amount being referred to herein as, the "Revolver Limit").
(g) Debtors shall give Congress prompt written notice (but, in any event,
within two (2) Business Days) of any exercise by Enron of its rights under
the Enron Inventory Agreements to require any Debtor to purchase from or sell
to Enron any Commodity or other inventory, which notice shall specify the
Commodity or other inventory to be purchased or sold.
4.2 Additional Enron Representations and Warranties. Enron and Debtor
represent and warrant to Congress that:
(a) as of the date hereof, the total outstanding principal amount of the
Junior Debt is $10,000,000;
(b) as of the date hereof, no default or event of default, or event which
with notice or passage of time or both would constitute an event of default
exists or has occurred under the Enron Credit Agreements;
(c) Enron is the exclusive legal and beneficial owner of all of the Junior
Debt; and
(d) this Intercreditor Agreement constitutes the legal, valid and binding
obligations of Enron, enforceable in accordance with its terms.
4.3 Additional Congress Representations and Warranties. Congress and
Debtor represent and warrant to Enron that upon the effectiveness of the
amendments to the Congress Credit Agreements being executed concurrently
herewith:
(a) as of the date hereof, the Maximum Credit (as set forth in the Congress
Credit Agreement) is $80,000,000;
(b) as of the close of business on June 6, 2001, based on the books and
records of Congress, the total principal amount of the Senior Debt
outstanding was $66,476,276.70 (provided, that, such amount is subject to the
right of Congress to make adjustments thereto as a result of items which have
been provisionally credited to the loan account of Debtors and other charges
which may or may not have been reflected in the records of Congress as of the
date hereof);
(c) as of the date hereof, no default or event of default, or event which
with notice or passage of time or both would constitute an event of default
exists or has occurred under the Congress Credit Agreements;
(d) Congress is the exclusive legal and beneficial owner of all of the
Senior Debt (except pursuant to the sale of any participation interests
therein);
(e) Congress is authorized by each of the financial institutions which have
purchased participation interests in the Senior Debt to enter into this
Intercreditor Agreement and modify the Congress Credit Agreements in
accordance with the terms hereof; and
(f) this Intercreditor Agreement constitutes the legal, valid and binding
obligations of Congress, enforceable in accordance with its terms.
4.4 Waivers. Notice of acceptance hereof, the making of loans, advances
and extensions of credit or other financial accommodations to, and the
incurring of any expenses by or in respect of, Debtor by Congress or Enron,
and presentment, demand, protest, notice of protest, notice of nonpayment or
default and all other notices to which Congress, Enron and Debtor are or may
be entitled are hereby waived (except as expressly provided for herein or as
to Debtor, in the Agreements). Subject to the covenants set forth in Section
4.1, each Creditor waives as to the other Creditor notice of, and hereby
consents to any amendment, modification, supplement, renewal, restatement or
extensions of time of payment of or increase or decrease in the amount of any
of the Senior Debt, the Junior Debt or the Enron Inventory Debt or to the
Congress Credit Agreements, the Enron Credit Agreement, the Enron Inventory
Agreements or any Collateral or Enron Inventory Collateral. Enron hereby
waives notice of and consents to (a) the taking, exchange, surrender and
releasing of Collateral or guarantees now or at any time held by or available
to Congress for the Senior Debt or any other person at any time liable for or
in respect of the Senior Debt, (b) the exercise by Congress of, or refraining
by Congress from the exercise of any rights against Debtor or any other
obligor or any Collateral, (c) the settlement, compromise or release of, or
the waiver of any default with respect to, any of the Senior Debt, and/or (d)
Congress' election, in any proceeding instituted under the U.S. Bankruptcy
Code, of the application of Section 1111(b)(2) of the U.S. Bankruptcy Code.
Any of the foregoing shall not, in any manner, affect the terms hereof or
impair the obligations of Enron hereunder. All of the Senior Debt and the
Junior Debt and the Enron Inventory Debt shall be deemed to have been made or
incurred in reliance upon this Intercreditor Agreement.
4.5 Subrogation; Marshaling. Enron shall be subrogated to the rights of
Congress to the extent that Enron pays over to Congress or Congress otherwise
receives pursuant to the terms of this Intercreditor Agreement any payment or
proceeds received by or that would have been received by Enron in
satisfaction of the Junior Debt. Enron shall not be entitled to enforce any
such rights of subrogation until the Senior Debt is indefeasibly paid in full
in immediately available funds and the Congress Credit Agreements are
terminated. In order to enable Enron to enforce its rights under this
Section 4.5, to the extent Congress fails to reasonably pursue enforcement of
its claims with respect to the Senior Debt, Enron is hereby irrevocably
authorized and empowered, (in its own name or in the name of Congress or
otherwise), but shall have no obligation to, enforce claims comprising any of
the Senior Debt by proof of debt, proof of claim, suit or otherwise and take
generally any action which Congress might otherwise be entitled to take, as
Enron may deem necessary or advisable for the enforcement of its rights or
interests hereunder; provided, that, such rights shall not be exercised until
the Senior Debt is indefeasibly paid in full in immediately available funds
and the Congress Credit Agreements are terminated. To the extent necessary
for Creditors to realize the benefits of the subrogation provided for herein
(including the right to receive any payment and distributions which might
otherwise be payable or deliverable in respect of the Senior Debt), each
Creditor shall execute and deliver to the other Creditor such instruments or
documents together with such assignments or endorsements as the requesting
Creditor shall deem necessary. Enron hereby waives any and all rights to
have any Collateral or any part thereof granted to Congress marshaled upon
any foreclosure or other disposition of such collateral by Congress or
Debtor.
4.6 No Offset. In the event that Enron at any time incurs any obligation
to pay any money to Debtor, Enron hereby irrevocably agrees that it shall not
deduct from or setoff against any amounts owed by Enron to any Debtor in
connection with any such transaction any amounts Enron claims are due to it
with respect to the Junior Debt, provided, that, such limitation shall not
limit in any way Enron's rights to set off amounts owed by Debtor to Enron
pursuant to documents other than the Enron Credit Agreements.
5. MISCELLANEOUS
5.1 Amendments. Any waiver, permit, consent or approval by any Creditor of
or under any provision, condition or covenant to this Intercreditor Agreement
must be in writing and shall be effective only to the extent it is set forth
in writing and as to the specific facts or circumstances covered thereby.
Any amendment of this Intercreditor Agreement must be in writing and signed
by each of the parties to be bound thereby.
5.2 Successors and Assigns.
(a) This Intercreditor Agreement shall be binding upon the parties hereto
and their respective successors and assigns and shall inure to the benefit of
each of Creditors and its respective successors, participants and permitted
assigns.
(b) Congress reserves the right to grant participations in, or otherwise
sell, assign, transfer or negotiate all or any part of, or any interest in,
the Senior Debt and the Collateral securing same; provided, that, Enron shall
not be obligated to give any notices to or otherwise in any manner deal
directly with any participant in the Senior Debt and no participant shall be
entitled to any rights or benefits under this Intercreditor Agreement except
through Congress. In connection with any participation or other transfer or
assignment, Congress (i) may disclose to such assignee, participant or other
transferee or assignee all documents and information which Congress now or
hereafter may have relating to the Senior Debt or the Collateral and (ii)
shall disclose to such participant or other transferee or assignee the
existence and terms and conditions of this Intercreditor Agreement.
(c) In connection with any permitted assignment or transfer of any or all
of the Senior Debt, or any or all rights of Congress in the property of any
Debtor (other than pursuant to a participation), Enron agrees to execute and
deliver an agreement containing terms substantially identical to those
contained herein in favor of any such assignee or transferee and, in
addition, will execute and deliver an agreement containing terms
substantially identical to those contained herein in favor of any third
person who refinances or succeeds to or replaces any or all of Congress'
financing of any Debtor, whether such successor financing or replacement
occurs by transfer, assignment, "takeout" or any other means or vehicle.
(d) Enron reserves the right to grant participations in, or otherwise sell,
assign, transfer or negotiate all or any part of, or any interest in, the
Junior Debt, the Enron Inventory Debt, the Collateral and/or the Enron
Inventory Collateral securing same; provided, that, Congress shall not be
obligated to give any notices to or otherwise in any manner deal directly
with any participant in the Junior Debt or the Enron Inventory Debt and no
participant shall be entitled to any rights or benefits under this
Intercreditor Agreement except through Enron. In connection with any
participation or other transfer or assignment, Enron (i) may disclose to such
assignee, participant or other transferee or assignee all documents and
information which Enron now or hereafter may have relating to the Junior Debt
or the Enron Inventory Debt or the Collateral or the Enron Inventory
Collateral and (ii) shall disclose to such participant or other transferee or
assignee the existence and terms and conditions of this Intercreditor
Agreement.
(e) In connection with any permitted assignment or transfer of any or all
of the Junior Debt or the Enron Inventory Debt, or any or all rights of Enron
in the property of any Debtor (other than pursuant to a participation),
Congress agrees to execute and deliver an agreement containing terms
substantially identical to those contained herein in favor of any such
assignee or transferee and, in addition, will execute and deliver an
agreement containing terms substantially identical to those contained herein
in favor of any third person who refinances or succeeds to or replaces any or
all of Enron's financing of any Debtor or the sale of steel products to any
Debtor, whether such successor or replacement occurs by transfer, assignment,
"takeout" or any other means or vehicle.
5.3 Insolvency. This Intercreditor Agreement shall be applicable both
before and after the filing of any petition by or against any Debtor under
the U.S. Bankruptcy Code and all converted or succeeding cases in respect
thereof, and all references herein to any Debtor shall be deemed to apply to
a trustee for such Debtor and such Debtor as debtor-in-possession. The
relative rights of Congress and Enron to repayment of the Senior Debt, the
Junior Debt and the Enron Inventory Debt, respectively, and in or to any
distributions from or in respect of any Debtor or any Collateral, Enron
Inventory Collateral or proceeds thereof, shall continue after the filing
thereof on the same basis as prior to the date of the petition, subject to
any court order approving the financing of, or use of cash collateral by, any
Debtor as debtor-in-possession.
5.4 Bankruptcy Financing. If a Debtor shall become subject to a proceeding
under the U.S. Bankruptcy Code and if Congress desires to permit the use of
cash collateral or to provide financing to such Debtor under either Section
363 or Section 364 of the U.S. Bankruptcy Code, Enron agrees as follows: (a)
adequate notice to Enron shall have been provided for such financing or use
of cash collateral if Enron receives notice two (2) Business Days prior to
the entry of the order approving such financing or use of cash collateral and
(b) no objection will be raised by Enron to any such financing or use of cash
collateral on the ground of a failure to provide "adequate protection" for
Enron's junior Liens on the Collateral or any other grounds, provided (i)
Enron retains a Lien on the post-petition Collateral with the same priority
as existed prior to the commencement of the proceeding under the U.S.
Bankruptcy Code and (ii) the maximum outstanding principal amount of such
post-petition financing, together with the outstanding principal amount of
the pre-petition Senior Debt, shall not in the aggregate exceed the Revolver
Limit. For purposes of this Section, notice of a proposed financing or use
of cash collateral shall be deemed given when given, in the manner prescribed
by Section 5.5 hereof, to Enron.
5.5 Notices. All notices, requests and demands to or upon the respective
parties hereto shall be in writing and shall be deemed duly given, made or
received: if delivered in person, immediately upon delivery; if by telex,
telegram or facsimile transmission, immediately upon sending and upon
confirmation of receipt; if by nationally recognized overnight courier
service with instructions to deliver the next Business Day, one (1) Business
Day after sending; and if mailed by certified mail, return receipt requested,
five (5) days after mailing to the parties at their addresses set forth below
(or to such other addresses as the parties may designate in accordance with
the provisions of this Section):
To Congress: Congress Financial Corporation (Central)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Portfolio Manager
To Enron: Enron North America Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Either Creditor may change the address(es) to which all notices, requests and
other communications are to be sent by giving written notice of such address
change to the other Creditor in conformity with this Section 5.5, but such
change shall not be effective until notice of such change has been received
by the other Creditors.
5.6 Counterparts. This Intercreditor Agreement may be executed in any
number of counterparts, each of which shall be an original with the same
force and effect as if the signatures thereto and hereto were upon the same
instrument.
5.7 Governing Law. The validity, construction and effect of this
Intercreditor Agreement shall be governed by the internal laws of the State
of New York (without giving effect to principles of conflicts of law).
5.8 Consent to Jurisdiction; Waiver. Each of the parties hereto, hereby
irrevocably consents to the non-exclusive jurisdiction of the Untied States
District Court of the Southern District of New York sitting in New York
County or the Commercial Division, Civil Branch of the Supreme Court of the
State of New York sitting in New York County and any appellate court from any
thereof in any action or proceeding with respect to this Intercreditor
Agreement or in any way connected with or related or incidental to the
dealings of the parties hereto in respect of this Intercreditor Agreement or
the transactions related hereto, in each case whether now existing or
hereafter arising, and whether in contract, tort, equity or otherwise. THE
PARTIES HERETO HEREBY WAIVE THEIR RIGHTS, IF ANY, TO RECOVER ATTORNEY'S FEES
AND CONSEQUENTIAL, SPECIAL, INDIRECT, TREBLE, EXEMPLARY AND PUNITIVE DAMAGES
WITH RESPECT TO THIS INTERCREDITOR AGREEMENT.
5.9 Complete Agreement. This written Intercreditor Agreement is intended
by the parties as a final expression of their agreement and is intended as a
complete statement of the terms and conditions of their agreement.
5.10 No Third Parties Benefitted. Except as expressly provided in Section
5.2, this Intercreditor Agreement is solely for the benefit of the Creditors
and their respective successors, participants and assigns, and no other
person shall have any right, benefit, priority or interest under, or because
of the existence of, this Intercreditor Agreement.
5.11 Disclosures; Non-Reliance. Each Creditor has the means to, and shall
in the future remain, fully informed as to the financial condition and other
affairs of each Debtor and no Creditor shall have any obligation or duty to
disclose any such information to any other Creditor. Except as expressly set
forth in this Intercreditor Agreement, the parties hereto have not otherwise
made to each other nor do they hereby make to each other any warranties,
express or implied, nor do they assume any liability to each other with
respect to: (a) the enforceability, validity, value or collectability of any
of the Junior Debt, the Enron Inventory Debt or Senior Debt or any guarantee
or security which may have been granted to any of them in connection
therewith, (b) any Debtor's title to or right to transfer any of the
Collateral or the Enron Inventory Collateral, or (c) any other matter except
as expressly set forth in this Intercreditor Agreement.
5.12 Term. This Intercreditor Agreement is a continuing agreement and shall
remain in full force and effect until the indefeasible satisfaction in full
in immediately available funds of all of the Senior Debt and the termination
of the financing arrangements between Congress and Debtors.
IN WITNESS WHEREOF, the parties have caused this Intercreditor Agreement to
be duly executed as of the day and year first above written.
CONGRESS FINANCIAL CORPORATION (CENTRAL)
By:
Title:
ENRON NORTH AMERICA CORP.
By:
Title:
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Each of the undersigned hereby acknowledges and agrees to the foregoing terms
and provisions and by its signature below, it agrees that it will, together
with its successors and assigns, be bound by the provisions hereof.
Each of the undersigned agrees that any Creditor holding Collateral or Enron
Inventory Collateral does so as bailee (under the UCC) for the other and is
hereby authorized to and may turn over to such other Creditor upon request
therefor any such Collateral Enron Inventory Collateral, after all
obligations and indebtedness of the undersigned to the bailee Creditor have
been fully paid and performed.
Each of the undersigned acknowledges and agrees that: (i) although it may
sign this Intercreditor Agreement it is not a party hereto and does not and
will not receive any right, benefit, priority or interest under or because of
the existence of the foregoing Intercreditor Agreement, (ii) in the event of
a breach by the undersigned or Congress of any of the terms and provisions
contained in the foregoing Intercreditor Agreement to which such person is
bound, such a breach shall constitute an "Event of Default" as defined in and
under the Enron Credit Agreements and the Enron Inventory Agreements to which
such person is bound, (iii) in the event of a breach by the undersigned or
Enron of any of the terms and provisions contained in the foregoing
Intercreditor Agreement, such a breach shall constitute an "Event of Default"
as defined in and under the Congress Credit Agreements and (iv) it will
execute and deliver such additional documents and take such additional action
as may be necessary or desirable in the opinion of any Creditor to effectuate
the provisions and purposes of the foregoing Intercreditor Agreement.
HUNTCO STEEL, INC.
By:
Title:
HUNTCO INC.
By:
Title:
HUNTCO NEVADA, INC.
By:
Title:
MIDWEST PRODUCTS, INC.
By:
Title:
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Exhibit A
SPECIFICATIONS
Specifications for hot rolled, cold rolled and coated steel coils shall be
coils with the following specifications, regardless of whether such coils
have been treated or otherwise modified.