Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Viskase Companies, Inc. 10-K 83 446K
2: EX-2 Amendment to Purchase Agreement 7 22K
3: EX-2 Plan of Reorganization 14 84K
4: EX-10 Amendment to Employment Agreement 3 14K
5: EX-10 Amendment to Employment Agreement 3 13K
7: EX-10 Forbearance Agreement 3 14K
6: EX-10 Management Incentive Plan 7 22K
8: EX-10 Side Letter Agreement 17 54K
9: EX-99 Certification of CEO 1 7K
10: EX-99 Certification of CFO 1 7K
EX-10 — Side Letter Agreement
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VISKASE COMPANIES, INC.
625 Willowbrook Centre Parkway
Willowbrook, IL 60527
December 20, 2002
GE Capital Services Structured
Finance Group, Inc.
120 Long Ridge Road
Stamford, CT 06927
Attention: Anne Kennelly Kratky
Re: Viskase Companies, Inc. ("Viskase")
-----------------------------------
Dear Anne:
This letter will confirm the agreement reached between
General Electric Capital Corporation ("GECC") and Viskase as
follows:
1. Viskase shall, at or prior to the Confirmation
Hearing to be held on December 20, 2002 with respect to its
proposed Prepackaged Plan of Reorganization (in the form
attached as Exhibit A to the Disclosure Statement Pursuant To
Section 1125 Of The Bankruptcy Code Relating To A Prepackaged
Plan Of Reorganization Proposed By Viskase Companies, Inc. And
Its Co-Proponent Non-Debtor Subsidiaries Under Chapter 11 Of The
Bankruptcy Code, the "Plan"), file a modification to the Plan
(the "Modification"), in the form attached to this letter as
Exhibit A.
2. On the Effective Date of the Plan, (i) Viskase
Corporation and State Street Bank and Trust Company ("State
Street"), as owner trustee, shall enter into an amendment to the
GECC Lease in the form attached as Exhibit B hereto, (ii)
Viskase, Viskase Corporation, GECC and State Street shall enter
into an amendment to the Participation Agreement, dated as of
December 18, 1990, among Viskase Corporation as lessee,
Envirodyne Industries, Inc. as guarantor, GECC as owner
participant, and the Trustee, in the form attached as Exhibit C
hereto, and (iii) GECC, State Street and Wells Fargo Bank
Minnesota, National Association, shall enter into a
Subordination Agreement in the form attached hereto as Exhibit
D.
3. The final Confirmation Order entered by the Court
shall be in the form attached hereto as Exhibit E, with such
changes as are reasonably acceptable to GECC.
4. GECC agrees not to object to the Plan, as
modified pursuant to the Modification (the "Modified Plan").
5. GECC's forbearance from exercising certain rights
and remedies pursuant to the Forbearance Agreement, dated
November 11, 2002 between Viskase Corporation and State Street
Bank & Trust Company, as owner trustee (as extended by letters
of December 13, 2002, December 17, 2002, and December 18, 2002),
shall be extended to December 20, 2002 at 5:00 p.m. (Eastern
Time); provided, however, that, in the event the Modified Plan
is confirmed by an order of the Bankruptcy Court in accordance
with paragraph 3 hereof, such forbearance period shall be
automatically extended to the earlier of April 21, 2003 and the
Effective Date of the Plan; and provided further, however, that
in the event the holders of the Old Notes object to confirmation
of the Modified Plan (or support an objection to confirmation of
the Modified Plan made by any other party), (i) GECC may object
to the Plan or the Modified Plan on any and all grounds, and
(ii) GECC shall have the right to terminate the extension of the
forbearance period provided herein on one (1) business day's
written notice of such termination by GECC to Viskase
Corporation.
[CONTINUED ON FOLLOWING PAGE]
If the foregoing correctly reflects our agreement,
please sign where indicated below.
Very truly yours,
VISKASE COMPANIES, INC.
By: /s/ Gordon S. Donovan
----------------------
Name: Gordon S. Donovan
Title: Vice President and
Chief Financial Officer
AGREED:
Date: December 20, 2002
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Anne Kennelly Kratky
----------------------------
Name: Anne Kennelly Kratky
Title: Managing Director
AMENDMENT TO LEASE AGREEMENT
AMENDMENT TO LEASE AGREEMENT, dated as of ________ __, 2003 (this
"Amendment"), among Viskase Corporation, as Lessee (the "Lessee"), and State
Street Bank and Trust Company, a Massachusetts trust company and successor in
interest to The Connecticut National Bank, not in its individual capacity but
solely as Owner Trustee under that certain Trust Agreement with General
Electric Capital Corporation dated as of December 18, 1990 (the "Lessor").
W I T N E S S E T H:
WHEREAS, the Lessee and the Lessor are parties to that certain
Lease Agreement, dated as of December 18, 1990 (as from time to time amended,
restated, supplemented or otherwise modified, the "Lease Agreement", and
unless the context otherwise requires or unless otherwise defined herein,
capitalized terms used herein shall have the meanings assigned to them in the
Lease Agreement); and
WHEREAS, Viskase Companies, Inc. (the "Guarantor") filed on or
about November __, 2002 a case (the "Reorganization Case") under Chapter 11
of the Bankruptcy Code (the "Bankruptcy Code"); and
WHEREAS, in contemplation of the Reorganization Case, on or about
August 20, 2002, the Guarantor distributed to the holders of its 10-1/4%
Senior Notes due 2001 (the "Old Notes") (i) an Offer to Exchange the Old
Notes for 8% Senior Subordinated Secured Notes due 2008 and 6% Series A
Convertible Preferred Stock, in each case issued by the Guarantor (the
"Exchange Offer") and (ii) a Disclosure Statement pursuant to Section 1126(b)
of the Bankruptcy Code and a related Debtor's Prepackaged Plan of
Reorganization (the "Plan of Reorganization"); and
WHEREAS, in connection with such Reorganization Case and Plan of
Reorganization, the Lessee and the Lessor have agreed to amend the terms of
the Lease;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereto agree as follows:
Section 1. Amendments To The Lease Agreement. Effective as of the
Effective Date (as defined herein), the Lease Agreement is amended as
follows:
1.1 By inserting in Section 17(e)(1)(A) after "5.06," the
following: "5.07"; and by deleting in Section 17(e)(1)(B) the reference to
"5.07".
1.2 By deleting the reference to "or" before "5.23" in Section
17(e)(1)(A) and substituting therefor ","; and by adding in Section
17(e)(1)(A) after "5.23" the following: ", 5.26 or 5.27".
1.3 By amending and restating Section 17(h) in its entirety as
follows:
"(h)(i) the Lessee, the Guarantor or any Subsidiary Guarantor shall
fail to make any payment on any Debt of the Lessee, the Guarantor or a
Subsidiary Guarantor or any guaranty obligation in respect of the Debt
of any other Person, and, in each case, such failure relates to Debt
having a principal amount of $3,000,000 or more, when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), (ii) any other event shall occur or
condition shall exist which shall constitute an event of default (after
giving effect to any applicable grace periods and waivers) under any
agreement or instrument relating to any such Debt, if the effect of such
event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Debt having a principal amount of $3,000,000 or
more, (iii) any such Debt having a principal amount of $3,000,000 or
more shall become or be declared to be due and payable, or required to
be prepaid or repurchased (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof or (iv) the
occurrence, without the consent of Lessor, of any of the events
specified in Section 3 of that certain Agreement and Amendment dated as
of April 13, 2000 between Lessee and Lessor; provided that a breach of
this clause (iv) that does not also result in a breach of Section 5.07
of the Participation Agreement shall not be deemed to be a violation of
this Lease for any purposes other than those specified in Section 20(b)
of that certain Security Agreement dated as of July 28, 2000 by Lessee,
Guarantor, Viskase Holding Corporation and Viskase Sales Corporation in
favor of Owner Trustee and Owner Participant."
1.4 By adding in Section 21.01 the following after the first
sentence thereof:
"Notwithstanding anything to the contrary in this Lease, including
without limitation, Section 21.02, or in any other Basic Document: From
and after September 27, 2000 through the L/C Release Date (as defined
below), the amount available to be drawn under the Rent Letter of Credit
(and each successor thereto or replacement thereof) shall equal (but in
no event be less than) the then applicable annual Basic Rent amount due
on the next Basic Rent Payment Date. As of each Basic Rent Payment
Date, to the extent the amount of the Rent Letter of Credit outstanding
on such Basic Rent Payment Date exceeds the amount of the Rent Letter of
Credit required by the preceding sentence (provided that the Basic Rent
payment then due has been paid) , the Lessee may, at its option, in
accordance with Section 21.01(b), cause the existing Rent Letter of
Credit to be replaced with a Rent Letter of Credit in the amount then
required. The Lessee's obligation to cause a Rent Letter of Credit to
be issued in favor of Lessor shall terminate on the L/C Release Date
(provided that the Basic Rent payment then due has been paid), at which
time Lessor agrees not to make any drawing under any Rent Letter of
Credit then outstanding and Lessor shall, as provided in Section
10.19(b) of the Participation Agreement, surrender such Rent Letter of
Credit to the issuer thereof for cancellation. "L/C Release Date" shall
mean (i) February 28, 2005 (if the Lessee shall not have delivered a
timely renewal notice pursuant to Section 5.01(b) of this Agreement and
there shall be no Basic Rent payment then due and owing) or (ii) the
date that is one year before the end of any Renewal Term (if the Lessee
shall not have delivered timely renewal notice
for an additional Renewal Term pursuant to Section 5.01(b) of this
Agreement and there shall be no Basic Rent payment then due and owing)."
Section 2. Conditions Precedent To The Effectiveness Of This
Amendment. Except as otherwise expressly provided herein, this Amendment
shall become effective as of the first date on which each of the following
conditions shall have been satisfied or provided for in a manner satisfactory
to the Lessor, or waived by the Lessor in writing (such date is referred to
herein as the "Effective Date"):
(a) This Amendment shall have been fully executed and
delivered by each of the parties hereto.
(b) The Amendment to the Participation Agreement, dated as of
the date hereof, among the Guarantor, the Lessee, the Owner Participant and
the Lessor shall have been fully executed and delivered by each of the
parties thereto.
(c) The Senior Secured Notes Indenture shall have been fully
executed and delivered by each of the parties thereto, substantially in the
form of Exhibit A hereto.
(d) The Guarantor shall have entered into documentation with
respect to a working capital facility in form and substance reasonably
satisfactory to the Owner Participant and the Lessor.
(e) The Plan of Reorganization shall have been confirmed by
the Bankruptcy Court and the transactions contemplated by the Exchange Offer
and the Plan of Reorganization shall have been consummated.
(f) The Guarantor and the Lessee shall have reimbursed the
Owner Participant and the Lessor for all reasonable out-of-pocket fees, costs
and expenses, including the reasonable fees, costs and expenses of counsel or
other advisors in connection with the preparation, execution, and delivery of
this Amendment.
Section 3. Lease Agreement. Except with respect to the relevant
provisions amended by the terms hereof, the Lease Agreement shall continue in
full force and effect in accordance with the provisions thereof as in
existence on the date hereof. This Amendment shall be a Basic Document as
defined in Appendix A to the Lease Agreement and each other Basic Document to
which the Lessee and the Lessor are a party (and the Lease Agreement and each
other Basic Document are hereby amended to reflect such revision).
Accordingly, the parties hereto acknowledge that any breach of the Lessee's
covenants hereunder may result in an Event of Default, together with any
consequences relating thereto, as set forth in the Basic Documents.
Section 4. Effect of Amendment. Except as expressly set forth
herein, the provisions of this Amendment shall not by implication or
otherwise limit, impair, constitute a waiver of, or otherwise affect the
rights and remedies of the Lessor under the Lease or the Lessor or Owner
Participant under any other Basic Document, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Lease Agreement or any other Basic
Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Except with respect to the specific
provisions hereof, nothing herein shall be deemed to entitle the Lessee or
the Guarantor to a consent to, or a waiver, amendment, modification or other
change of, any of the terms, conditions, obligations, covenants or agreements
contained in the Lease or any other Basic Document in similar or different
circumstances.
Section 5. Covenants; Further Assurances. (a) The Lessee hereby
covenants and agrees with the Lessor that, from and after the date of this
Amendment until satisfaction of all of the obligations of the Lessee
hereunder, at any time and from time to time, upon the written request of the
Lessor, and at the sole expense of the Lessee, Lessee will promptly and fully
execute and deliver such further instruments and documents and take such
further actions as the Lessor may reasonably request for the purpose of
obtaining or preserving the full benefits of this Amendment and of the rights
herein granted.
(b) The Lessor hereby covenants and agrees with the Lessee that,
from and after the date of this Amendment until satisfaction of all of the
obligations of the Lessor hereunder, at any time and from time to time, upon
the written request of the Lessee, the Lessor will promptly and fully execute
and deliver such further instruments and documents and take such further
actions as the Lessee may reasonably request for the purpose of obtaining or
preserving the full benefits of this Amendment and of the rights herein
granted.
Section 6. Integration. This Amendment represents the entire
agreement of the parties with respect to the subject matter hereof and there
are no other promises or representations, written or oral, by the parties
relative to the subject matter hereof not reflected or referred to herein.
Section 7. GOVERNING LAW. THIS AMENDMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 8. Section Titles. Section titles contained in this
Amendment are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
Section 9. Counterparts. This Amendment may be executed in any
number of separate counterparts, each of which shall collectively and
separately constitute one agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
VISKASE CORPORATION, as Lessee
By:
-----------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, not in
its individual capacity, but solely as Owner Trustee
By:
-----------------------------
Name:
Title:
AMENDMENT TO PARTICIPATION AGREEMENT
AMENDMENT TO PARTICIPATION AGREEMENT, dated as of ________ __, 2003
(this "Amendment"), among Viskase Corporation, as Lessee (the "Lessee"),
Viskase Companies, Inc., successor in interest to Envirodyne Industries, Inc.
as Guarantor (the "Guarantor"), General Electric Capital Corporation, as
Owner Participant (the "Owner Participant"), and State Street Bank and Trust
Company, a Massachusetts trust company and successor in interest to The
Connecticut National Bank, not in its individual capacity but solely as Owner
Trustee under that certain Trust Agreement with the Owner Participant dated
as of December 18, 1990 (the "Lessor").
W I T N E S S E T H:
WHEREAS, the Lessee, the Guarantor, the Owner Participant and the
Lessor are parties to that certain Participation Agreement, dated as of
December 18, 1990 (as from time to time amended, restated, supplemented or
otherwise modified, the "Participation Agreement", and unless the context
otherwise requires or unless otherwise defined herein, capitalized terms used
herein shall have the meanings assigned to them in the Participation
Agreement); and
WHEREAS, the Guarantor filed on or about November __, 2002 a case
(the "Reorganization Case") under Chapter 11 of the Bankruptcy Code (the
"Bankruptcy Code"); and
WHEREAS, in contemplation of the Reorganization Case, on or about
August 20, 2002, the Guarantor distributed to the holders of its 10-1/4%
Senior Notes due 2001 (the "Old Notes") (i) an Offer to Exchange the Old
Notes for 8% Senior Subordinated Secured Notes due 2008 and 6% Series A
Convertible Preferred Stock, in each case issued by the Guarantor (the
"Exchange Offer") and (ii) a Disclosure Statement pursuant to Section 1126(b)
of the Bankruptcy Code and a related Debtor's Prepackaged Plan of
Reorganization (the "Plan of Reorganization"); and
WHEREAS, in connection with such Reorganization Case and Plan of
Reorganization, the Guarantor, the Lessee and the Owner Participant have
agreed to amend the terms of the Participation Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereto agree as follows:
Section 1. Amendments To The Participation Agreement. Effective as
of the Effective Date (as defined herein), the Participation Agreement is
amended as follows:
1.1 By amending and restating Section 5.07 in its entirety as
follows:
"SECTION 5.07. Limitation on Debt. The Guarantor shall not, and
shall not permit any of its Subsidiaries to directly or indirectly
create, incur, issue, assume or otherwise become liable with respect to,
extend the maturity of or become responsible for the payment of, any
Debt other than:
(i) Debt under the Basic Documents;
(ii) Debt evidenced by (A) the Senior Secured Notes in an aggregate
principal amount not to exceed $60,000,000 at any time and (B) the PIK
Notes (as defined in the Senior Secured Notes Indenture) to the extent
such PIK Notes represent interest accrued on the Senior Secured Notes at
a rate no greater than 8% per annum;
(iii) Debt of the Guarantor under a working capital facility in a
principal amount not to exceed $25,000,000 at any time;
(iv) Debt of the Guarantor or any of its Subsidiaries under cash
collateralized letters of credit not to exceed $30,000,000 in the
aggregate at any time;
(v) Debt of the Guarantor to any of its Subsidiaries or of a
Subsidiary of the Guarantor to the Guarantor or to another Subsidiary of
the Guarantor, but only to the extent that the proceeds of any such Debt
incurred by a non-Wholly Owned Subsidiary of the Guarantor are used to
make a Restricted Payment to, or an Investment in, the Guarantor or a
Wholly Owned Subsidiary of the Guarantor;
(vi) Debt of the Guarantor or any of its Subsidiaries under
Currency Agreements and Interest Rate Agreements; provided, however,
such Currency Agreements and Interest Rate Agreements do not increase
the outstanding Debt of the Guarantor other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;1
(vii) Debt of the Guarantor or any of its Subsidiaries arising from
agreements providing for indemnification, adjustment of purchase price
or similar obligations, or from guarantees or letters of credit, surety
bonds or performance bonds securing any obligations of the Guarantor or
any of its Subsidiaries, in any case incurred or assumed in connection
with the disposition of any business, Property or Subsidiary of the
Guarantor, other than guarantees of Debt incurred by any Person
acquiring all or any portion of such business, Property or Subsidiary
for the purpose of financing such acquisition; provided, however, that
the maximum aggregate liability in respect of all such Debt in the
nature of such
-------------------------
1 Additional language regarding Interest Rate Agreements to come from
Viskase.
guarantees shall at no time exceed the gross proceeds actually received
from the sale of such business, Property or Subsidiary;
(viii) Debt of the Guarantor or any of its Subsidiaries (A)
resulting from the endorsement of negotiable instruments for collection
in the ordinary course of business, or (B) arising under guarantees
incurred in the ordinary course of business with respect to suppliers,
licensees, franchisees or customers of the Guarantor of such Subsidiary;
(ix) Debt of the Guarantor or any of its Subsidiaries under letters
of credit issued in the ordinary course of business (A) to finance the
purchase of goods by the Guarantor or a Subsidiary of the Guarantor or
(B) for the purpose of supporting performance or surety bonds or
obligations of the Guarantor or any of its Subsidiaries, in either case
not constituting obligations for borrowed money;
(x) Debt of the Guarantor or any of its Subsidiaries in respect of
performance or surety bonds issued for the account of the Guarantor or
any of its Subsidiaries in the ordinary course of business; and
(xi) additional Debt incurred by the Guarantor and its Subsidiaries
in an aggregate principal amount outstanding not to exceed at any time
(A) $0, during periods prior to and including February 28, 2003, (B)
$2,000,000, during the period from March 1, 2003 to and including
February 28, 2004 and (C) $5,000,000, during all periods thereafter."
1.2 By amending and restating Section 5.08 in its entirety as
follows:
"SECTION 5.08. Limitation on Restricted Payments. The Guarantor
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly: (i) declare or pay any dividend or make any similar
distribution or payment on Capital Stock (including, without limitation,
any dividend, similar distribution or payment made to stockholders of
the Guarantor or such Subsidiary in connection with a merger,
consolidation or similar event) of the Guarantor or such Subsidiary to
the holders thereof, other than dividends, distributions or payments
payable or made solely in shares of Capital Stock of the Guarantor or
such Subsidiary, as the case may be, of the same class held by such
holders (other than Redeemable Stock or Exchangeable Stock) or in
options, warrants or other rights to purchase such shares; (ii)
purchase, redeem or otherwise acquire or retire for value, or permit any
Subsidiary of the Guarantor to, directly or indirectly, purchase, redeem
or otherwise acquire or retire for value, any Capital Stock in the
Guarantor or any Subsidiary (other than any such transaction
constituting an Investment in such Restricted Party or Affiliate
permitted by clause (v) below or Section 5.21(a)); (iii) redeem,
repurchase, defease, prepay (including, without limitation, in-substance
or legal defeasance)
or otherwise acquire or retire for value, or permit any Subsidiary of
the Guarantor to, directly or indirectly, redeem, repurchase, defease,
prepay (including, without limitation, in-substance or legal defeasance)
or otherwise acquire or retire for value, prior to any scheduled
maturity, scheduled repayment or scheduled sinking fund or mandatory
redemption payment, Debt of the Guarantor or any Subsidiary; or (iv) pay
any interest amounts accrued on the Senior Secured Notes in cash prior
to March 31, 2006 (the foregoing actions set forth in clauses (i)
through (iv) being referred to herein as "Restricted Payments"); or (v)
make any Investment in an Affiliate of the Guarantor, or permit any
Subsidiary of the Guarantor to make any Investment in an Affiliate of
the Guarantor (which for purposes of this clause (v) shall not include
(1) a Wholly Owned Subsidiary of the Guarantor or (2) an Unrestricted
Subsidiary).
1.3 By amending and restating clause (e) of Section 5.09 as
follows:
"and (e) 0.4 to 1, for each fiscal quarter thereafter".
1.4 By amending and restating Section 5.23 in its entirety as
follows:
"Section 5.23 Limitation on Liens. The Guarantor shall not, and
shall not permit any of its Subsidiaries to, incur or suffer to exist
any Liens on any of its assets, except (i) Liens securing the
obligations of the Guarantor and its Subsidiaries under the Basic
Documents, (ii) Liens securing the Senior Secured Notes and the PIK
Notes (as defined in the Senior Secured Notes Indenture) permitted to be
incurred pursuant to clause (ii) of Section 5.07, (iii) Liens securing
the working capital facility in an aggregate principal amount not to
exceed $25,000,000 permitted to be incurred pursuant to clause (iii) of
Section 5.07 and (iv) Permitted Liens".
1.5 By adding the following new Section 5.26:
"Section 5.26. Asset Sales. The Guarantor shall not, and shall
cause its Subsidiaries not to, make any Asset Sale without the prior
written consent of the Lessor if the Net Available Proceeds (as defined
in the Senior Secured Notes Indenture) to be received from such Asset
Sale would be equal to or greater than $20,000,000.
1.6 By adding the following new Section 5.27:
"Section 5.27. The Senior Secured Notes Indenture. The Guarantor
shall not, without the prior written consent of the Lessor, agree to
amend, modify or supplement any terms of the Senior Secured Notes
Indenture or the Senior Secured Notes relating to scheduled maturity,
scheduled repayment or prepayment, scheduled sinking fund, mandatory
redemption or Offer to Purchase with respect to the Senior Secured
Notes.
1.7 By adding in Appendix A to the Participation Agreement the
following definitions:
"Senior Secured Notes" shall mean the 8% Senior Subordinated
Secured Notes due 2008 issued pursuant to the Senior Secured Notes
Indenture.
"Senior Secured Notes Indenture" shall mean the Indenture dated as
of ____________ __, 2002 between the Guarantor and Wells Fargo Bank
Minnesota, National Association, as trustee, as it may be supplemented,
amended or modified from time to time.
1.8 By deleting from clause (i) of the definition of "Permitted
Liens", the reference to "Bank Credit Agreement" and substituting therefor
the following: "the Senior Secured Notes, the PIK Notes (as defined in the
Senior Secured Notes Indenture) permitted to be incurred pursuant to clause
(ii) of Section 5.07 of the Participation Agreement and the working capital
facility permitted to be incurred pursuant to clause (iii) of Section 5.07 of
the Participation Agreement".
1.9 By deleting immediately before clause (l) of the definition of
"Permitted Liens" the reference to "and" and adding the following new
language to end of such definition: "; (m) Liens arising pursuant to the Rent
Letter of Credit and other cash collateralized letters of credit permitted to
be incurred pursuant to clause (iv) of Section 5.07; and (n) Liens approved
in writing by the Owner Participant".
Section 2. No Default; Waiver. As of the Effective Date, the Owner
Participant waives any Default or Event of Default arising from (i) the
Lessee's failure to meet the Fixed Charge Coverage Ratio required under
Section 5.09 of the Participation Agreement for the fiscal quarters ending on
March 31, 2002, June 30, 2002, September 30, 2002 and December 31, 2002 and
(ii) the Guarantor having been until the Effective Date a debtor under
Chapter 11 of the Bankruptcy Code and agrees not to exercise any rights with
respect to such breach, Default or Event of Default.
Section 3. Conditions Precedent To The Effectiveness Of This
Amendment. Except as otherwise expressly provided herein, this Amendment
shall become effective as of the first date on which each of the following
conditions shall have been satisfied or provided for in a manner satisfactory
to the Owner Participant, or waived by the Owner Participant in writing (such
date is referred to herein as the "Effective Date"):
(a) This Amendment shall have been fully executed and
delivered by each of the parties hereto.
(b) The Amendment to Lease Agreement, dated as of the date
hereof, between the Lessee and the Lessor shall have been fully executed and
delivered by each of the parties thereto.
(c) The Senior Secured Notes Indenture shall have been fully
executed and delivered by each of the parties thereto, substantially in the
form of Exhibit A hereto.
(d) The Guarantor shall have entered into documentation with
respect to a working capital facility in form and substance reasonably
satisfactory to the Owner Participant and the Lessor.
(e) The Plan of Reorganization shall have been confirmed by
the Bankruptcy Court and the transactions contemplated by the Exchange Offer
and the Plan of Reorganization shall have been consummated.
(f) The Guarantor and the Lessee shall have reimbursed the
Owner Participant and the Lessor for all reasonable out-of-pocket fees, costs
and expenses, including the reasonable fees, costs and expenses of counsel or
other advisors in connection with the preparation, execution, and delivery of
this Amendment.
Section 4. Participation Agreement. Except with respect to the
relevant provisions amended by the terms hereof, the Participation Agreement
shall continue in full force and effect in accordance with the provisions
thereof as in existence on the date hereof. This Amendment shall be a Basic
Document as defined in Appendix A to the Participation Agreement and each
other Basic Document to which the Lessee and the Lessor are a party (and the
Participation Agreement and each other Basic Document are hereby amended to
reflect such revision). Accordingly, the parties hereto acknowledge that any
breach of the Lessee's covenants hereunder may result in an Event of Default,
together with any consequences relating thereto, as set forth in the Basic
Documents.
Section 5. Effect of Amendment. Except as expressly set forth
herein, the provisions of this Amendment shall not by implication or
otherwise limit, impair, constitute a waiver of, or otherwise affect the
rights and remedies of the Lessor under the Lease or the Lessor or Owner
Participant under any other Basic Document, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Participation Agreement or any other
Basic Document, all of which are ratified and affirmed in all respects and
shall continue in full force and effect. Except with respect to the specific
provisions hereof, nothing herein shall be deemed to entitle the Lessee or
the Guarantor to a consent to, or a waiver, amendment, modification or other
change of, any of the terms, conditions, obligations, covenants or agreements
contained in the Lease or any other Basic Document in similar or different
circumstances.
Section 6. Covenants; Further Assurances. (a) The Lessee hereby
covenants and agrees with the Lessor that, from and after the date of this
Amendment until satisfaction of all of the obligations of the Lessee
hereunder, at any time and from time to time, upon the written request of the
Lessor, and at the sole expense of the Lessee, Lessee will promptly and fully
execute and deliver such further instruments and documents and take such
further actions as the Lessor may reasonably request for the purpose of
obtaining or preserving the full benefits of this Amendment and of the rights
herein granted.
(b) The Lessor hereby covenants and agrees with the Lessee that,
from and after the date of this Amendment until satisfaction of all of the
obligations of the Lessor hereunder, at any time and from time to time, upon
the written request of the Lessee, Lessor will promptly and fully execute and
deliver such further instruments and documents and take such further actions
as the Lessee may reasonably request for the purpose of obtaining or
preserving the full benefits of this Amendment and of the rights herein
granted.
Section 7. Integration. This Amendment represents the entire
agreement of the parties with respect to the subject matter hereof and there
are no other promises or representations, written or oral, by the parties
relative to the subject matter hereof not reflected or referred to herein.
Section 8. GOVERNING LAW. THIS AMENDMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 9. Section Titles. Section titles contained in this
Amendment are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
Section 10. Counterparts. This Amendment may be executed in any
number of separate counterparts, each of which shall collectively and
separately constitute one agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
VISKASE COMPANIES, INC., as Guarantor
By:
----------------------------------------
Name:
Title:
VISKASE CORPORATION, as Lessee
By:
----------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Owner Participant
By:
----------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, not in
its individual capacity, but solely as Owner Trustee
By:
----------------------------------------
Name:
Title:
Dates Referenced Herein and Documents Incorporated by Reference
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