FORBEARANCE AGREEMENT, dated as of November 14, 2002
(this "Agreement"), between VISKASE CORPORATION, a
Pennsylvania corporation (the "Lessee"), and STATE STREET BANK
AND TRUST COMPANY, a Massachusetts trust company, not in its
individual capacity but solely as successor Owner Trustee
under that certain Trust Agreement with General Electric
Capital Corporation, as Owner Participant dated as of December
18, 1990 (the "Lessor"), relating to the Lease Agreement dated
as of December 18, 1990 (as amended and supplemented to the
date hereof, the "Lease"), between the Lessee and the Lessor,
as successor Owner Trustee to Fleet National Bank, formerly
known as Shawmut Bank Connecticut, National Association,
formerly known as The Connecticut National Bank (capitalized
terms used herein and not defined have the meanings assigned
to such terms in the Lease).
Whereas, the Lessee has failed to comply with the Fixed Charge
Coverage Ratio covenant in the Basic Documents;
Whereas, the Guarantor may become a debtor under Chapter 11 of the
Bankruptcy Code; and
Whereas, the Lessee has requested that the Lessor forbear for a
certain period from exercising remedies available to it under the Lease;
Now therefore, in consideration of the mutual agreements herein
contained and for other good and valuable consideration, the adequacy and
receipt of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Forbearance. The Lessor hereby agrees to forbear until
December 15, 2002 from exercising its rights and remedies under the Lease
with respect to 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 and September 30, 2002 and (ii) the Guarantor being a
debtor under Chapter 11 of the Bankruptcy Code.
SECTION 2. Effectiveness. This Agreement shall become effective
as of the date first above written when the parties hereto shall have
received counterparts of this Agreement that, when taken together, bear the
signatures of the Lessee and the Lessor.
SECTION 3. Lease. Except with respect to the relevant provisions
hereof, the Lease shall continue in full force and effect in accordance with
the provisions thereof as in
existence on the date hereof. This Agreement shall be a Basic Document as
defined in Appendix A to the Lease and each other Basic Document to which the
Lessee and the Lessor are a party (and the Lease and each other Basic
Document are hereby amended to reflect such revision) . Accordingly, the
parties hereto acknowledge that any breach of the Lessee's representations,
warranties or 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 Agreement. Except as expressly set forth
herein, the provisions of this Agreement 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 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. Expenses. The Lessee agrees to promptly reimburse the
Owner Participant and the Lessor $__________ for all expenses, including the
reasonable fees, charges and disbursements of its counsel, incurred by the
Owner Participant and the Lessor prior to the date hereof which are
reimbursable to the Owner Participant and the Lessor under the Basic
Documents.
SECTION 6. Covenants; Further Assurances. (a) The Lessee hereby
covenants and agrees with the Lessor that, from and after the date of this
Agreement 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 Agreement and of the rights
herein granted.
(b) The Lessor hereby covenants and agrees with the Lessee that,
from and after the date of this Agreement 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 Agreement and of the rights herein
granted.
SECTION 7. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED BY ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one agreement. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be
effective as delivery of a manually signed counterpart of this Agreement.
SECTION 9. Integration. This Agreement 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their duly authorized officers, all as of the date and
year first above written.
STATE STREET BANK AND TRUST
COMPANY, not in its individual capacity, but
solely as Owner Trustee
By:
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Name:
Title:
VISKASE CORPORATION
By:
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Name:
Title:
