Exhibit 3
AGREEMENT
This AGREEMENT dated as of July 15, 2002 is made and entered into by and
among HIGH RIVER LIMITED PARTNERSHIP, a Delaware limited partnership, DEBT
STRATEGIES FUND, INC., a Maryland corporation, and NORTHEAST INVESTORS TRUST, a
Massachusetts business trust (each a "Holder" and collectively, the "Holders").
WHEREAS, the Holders collectively hold in excess of 50% of the issued and
outstanding 10 1/4% Senior Notes due 2001 (the "Old Notes") of Viskase
Companies, Inc. ("Viskase" or the "Company") and have acted as an unofficial ad
hoc committee of holders of the Old Notes; and
WHEREAS, the Holders and the Company have each determined that it is
advisable and in their respective best interests to consummate a restructuring
of the Company (the "Restructuring") pursuant to which the Company would make an
offer (the "Offer") to acquire all of the issued and outstanding Old Notes in
exchange for 8% Senior Subordinated Secured Notes due 2008 (the "New Notes") and
Series A Convertible Preferred Stock (the "New Preferred Stock") of the Company,
or in the alternative, in certain circumstances, file a plan of reorganization
(the "Plan of Reorganization") that substantially incorporates the terms of the
Offer; and
WHEREAS, the Holders and the Company have entered into a Restructuring
Agreement, dated the date hereof (together with various other agreements and
documents referred to therein, collectively, the "Restructuring Agreement"),
which sets forth the terms of the Restructuring; and
WHEREAS, the Holders desire to set forth their agreement regarding their
respective and collective rights and obligations under the Restructuring
Agreement and as holders of the New Notes and the New Preferred Stock (including
shares of the Company's Common Stock issuable upon the conversion of the New
Preferred Stock).
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Holder Holdings of Old Notes. Each Holder hereby confirms that such
Holder (together with its Affiliates, as defined in Rule 405 of the General
Rules and Regulations under the Securities Act of 1933, as amended, except that
in the case of Debt Strategies Find, Inc., Affiliates shall be defined as set
forth in the attached letter dated even date herewith between said Holder and
the Company) is the holder of Old Notes having an aggregate principal amount as
follows:
High River Limited Partnership - $45,228,000
Debt Strategies Fund, Inc. - $22,526,000
Northeast Investors Trust - $20,395,000
Each Holder agrees promptly to advise the other Holders in writing if
during the term of this Agreement, such Holder and/or its Affiliates acquires
any additional Old Notes.
2. Amendments and Waivers Related to Restructuring Agreement. For purposes
of Section 7.03 of the Restructuring Agreement, any reduction in the Minimum
Condition to at least 95% of the Old Bonds having been validly tendered and not
properly withdrawn prior to the expiration of the Offer and any extension of a
time deadline set forth in the Restructuring Agreement for up to 30 days shall
not be deemed to constitute an amendment or change in the terms and conditions
of the Offer in a manner adverse to any of the Holders.
3. Designation and Election of Viskase Directors. Pursuant to the terms of
the Restructuring Agreement, as of the Consummation Date (as defined in the
Restructuring Agreement) or the date of confirmation of the Plan of
Reorganization, as the case may be, the Viskase Board of Directors is to be
reconstituted to consist of the Company's Chief Executive Officer and four
designees of the Holders, of whom at least one designee shall be independent, as
defined in the Restructuring Agreement. Of the four new Viskase Directors to be
designated by the Holders, each Holder will designate one director and in
addition High River Limited Partnership will designate the "independent"
director.
4. Restrictions on Transfer of Viskase Securities and Right of First Offer.
Pursuant to the Restructuring Agreement, for a period commencing the date
thereof until three years following either (i) the Consummation Date of the
Offer or (ii) the date of confirmation of the Plan of Reorganization, as the
case may be (the "Restriction Period") there will be restrictions on the
transfer of New Preferred Stock and Company Common Stock into which the New
Preferred Stock is converted (collectively, the "Restricted Securities") held by
the Holders, except for transfers among Holders and their Affiliates. Each
Holder hereby agrees that in addition to the restrictions on transfer set forth
in the Restructuring Agreement and except with respect to transfers to
Affiliates of the transferring Holder who agree to be bound by the terms hereof,
each Holder will provide to the other Holders a right of first offer if during
the Restriction Period the Holder desires to transfer any Restricted Securities.
Any Holder desiring to make a transfer (the "Offering Holder") other than to an
Affiliate during the Restriction Period shall give the other Holders (the
"Remaining Holders") written notice thereof (the "Offer Notice"), indicating the
description and quantity of Restricted Securities being offered (the "Offered
Securities") together with a minimum price (the "Offer Price"). Each opportunity
to purchase Offered Securities shall be allocated between Remaining Holders
and/or their respective Affiliates in proportion to the Remaining Holders'
holdings of Old Notes set forth in Section 1 hereof. Any Offered Securities not
purchased by a Remaining Holder and/or its Affiliates within five business days
following the receipt of the Offer Notice may be purchased by the other
Remaining Holder and/or its Affiliates. Any Offered Securities not purchased by
the Remaining Holders and/or their Affiliates within ten business days following
receipt of the Offer Notice may then be offered for sale by the Offering Holder
at a price not lower than the
Offer Price, subject to the restrictions on transfer set forth in the
Restructuring Agreement, as applicable. If a sale of the Offered Securities by
the Offering Holder is not completed within 90 days following the date of the
Offering Notice, any further efforts by the Offering Holder to sell the Offered
Securities shall require that a new Offer Notice first be sent to the Remaining
Holders and other provisions of this Section 4 be followed. Any Holder who
desires to transfer Restricted Securities to an Affiliate of that Holder shall
not later than five business days prior to the effective date of the proposed
transfer give notice of the proposed transfer to the other Holders together with
evidence of the transferee Affiliate's agreement to be bound by the terms of
this Agreement.
5. Term. This Agreement shall remain in effect for a period commencing the
date hereof and ending upon the termination of the Restriction Period; provided,
however, that this Agreement shall terminate in the event the Restructuring
Agreement terminates for any reason.
6. Specific Enforcement. It is agreed and understood that monetary damages
would not adequately compensate an injured Holder for the breach of this
Agreement by any party, that this Agreement shall be specifically enforceable,
and that any breach or threatened breach of this Agreement shall be the proper
subject of a temporary or permanent injunction or restraining order. Further,
each Holder waives any claim or defense that there is an adequate remedy at law
for such breach or threatened breach.
7. Further Assurances. Each of the Holders agrees (x) to support the
proposed Restructuring, (y) to take such reasonable actions as are necessary to
consummate the transactions described in the Restructuring Agreement and (z) to
refrain from taking any actions which may result in the Company having the right
to terminate the Restructuring Agreement pursuant to Sections 7.01 (d)(i), (iii)
and (iv).
8. Miscellaneous.
a. Entire Agreement. This Agreement, together with the Restructuring
Agreement, is intended to be the sole agreement of the Holders as it relates to
the subject matter hereof and hereby supersedes all other agreements among the
Holders related thereto.
b. Binding Effect. This Agreement shall be binding upon the parties hereto
and their Affiliates who acquire any Viskase Securities, and their respective
successors and permitted assigns.
c. Amendments. Any amendments to this Agreement shall be in writing signed
by all Holders.
d. Applicable Law; Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to conflicts of law principles thereof. Each Holder hereby
consents to the
exclusive jurisdiction of the Federal District Court and New York State
Supreme Court located in the Borough of Manhattan, City and State of New York
for the purpose of resolving any disputes arising under or related to this
Agreement.
e. Notices. All notices under this Agreement must be in writing and will be
deemed to have been duly given when delivered personally or by a national
overnight courier service or a confirmed facsimile transmission to the Holders
at the addresses or facsimile numbers set forth in the Restructuring Agreement.
Any Holder from time to time may change its address, facsimile number or other
information for the purpose of notices to that Holder by giving notice to the
other Holders specifying such change.
f. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be held to be prohibited by or
invalid under applicable law, such provision shall be effective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provisions or the remaining provisions of this Agreement.
g. Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
h. Captions. The captions, headings and arrangements used in this Agreement
are for convenience only and do not in any way limit or modify the terms and
provisions hereof.
IN WITNESS WHEREOF, each party has caused this Agreement to be signed by
its officer duly authorized as of the date first above written.
HIGH RIVER LIMITED PARTNERSHIP
By: BARBERRY CORP., its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
DEBT STRATEGIES FUND, INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
NORTHEAST INVESTORS TRUST
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Trustee, not individually
This Instrument is executed by the trustees as trustees and
not individually and the obligations of such instrument are
not binding upon any of the trustees or shareholders
individually, but are binding only upon the Trust's Assets.
