FIRST SUPPLEMENTAL INDENTURE
Exhibit
4.1
FIRST
SUPPLEMENTAL INDENTURE
This
FIRST SUPPLEMENTAL INDENTURE (this “First
Supplemental Indenture”),
dated
as of November 7, 2006, is entered into by and between Viskase Companies,
Inc.,
a Delaware corporation (the “Company”),
and
LaSalle Bank National Association, as trustee and collateral agent
(“Trustee”).
Capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in the Indenture (as defined below).
RECITALS:
WHEREAS,
the Company and Trustee are parties to that certain Indenture, dated as of
June
29, 2004 (the “Indenture”),
relating to the Company’s 11½% Senior Secured Notes due 2011 (the “11½%
Notes”);
WHEREAS,
contemporaneously with the execution and delivery of this First Supplemental
Indenture, the Company has authorized and issued a new series of preferred
stock
of the Company (the “Equity
Financing”);
WHEREAS,
the Company wishes to amend certain provisions of the Indenture in connection
with consummation of the Equity Financing (the “Amendments”);
WHEREAS,
Section 9.02 of the Indenture provides that the Company, when authorized
by a
resolution of its Board of Directors, and the Trustee, with the written consent
of the holders of at least a majority in aggregate principal amount of the
outstanding 11½% Notes, may amend or supplement the Indenture, subject to
certain exceptions;
WHEREAS,
in accordance with Section 9.02 of the Indenture, to effectuate the Amendments
as set forth in this First Supplemental Indenture, the Company has solicited
and
obtained consents from holders of not less than a majority in principal amount
of the outstanding 11½% Notes, as determined in accordance with Section 2.09 of
the Indenture;
WHEREAS,
the Company has been authorized by a resolution of its Board of Directors
to
enter into this First Supplemental Indenture and effectuate the Amendments;
and
WHEREAS,
the Company has requested that the Trustee execute and deliver this First
Supplemental Indenture.
1
AGREEMENTS:
NOW,
THEREFORE, in consideration of the promises and the mutual agreements contained
herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows for
the
benefit of each other party and for the equal and ratable benefit of the
holders
of the 11½% Notes:
ARTICLE
1
AMENDMENTS
The
Indenture is hereby amended and modified as follows (all references to sections
or subsections being the applicable sections or subsections of the Indenture),
and all such amendments and modifications are deemed to be incorporated into
the
other documents executed in connection with the Indenture to the extent
applicable:
Section
1.01. Additional
Definitions.
The
following definitions shall be added in alphabetical order to Section 1.01
of
the Indenture:
“Rights
Offering”
means
an offering of up to approximately $24,000,000 of Common Stock by the Company
to
be made in connection with the offer and sale of the Series A Preferred
Stock.
“Series
A Preferred Stock”
means
the Series A Convertible Preferred Stock, par value $0.01 per share, of the
Company with an initial liquidation value of $24,000,000.
Section
1.02. Amendment
to Definition of Consolidated Net Income.
The
definition of “Consolidated
Net Income”
contained in Section 1.01 of the Indenture is hereby amended such that clause
(5) of such definition is amended and restated as follows:
“(5)
(a)
any restoration to income of any material contingency reserve, except to
the
extent that provision for such reserve was made out of Consolidated Net Income
accrued at any time following the Issue Date or (b) any losses with respect
to
occurrences for which the Company has made a claim or claims with its insurance
carriers, to the extent of such claim or claims, unless and until there shall
have been a final determination denying such claim or claims;”
Section
1.03. Amendment
to Definition of Permitted Indebtedness.
The
definition of “Permitted
Indebtedness”
contained in Section 1.01 of the Indenture is hereby amended such that each
of
clause (1) and clause (16) of such definition is amended and restated as
follows:
“(1)
(a)
Indebtedness under the Notes issued in the Offering or in the Exchange Offer
in
an aggregate outstanding principal amount not to exceed $90.0 million and
(b)
Indebtedness under Additional Notes in such principal amount as may be issued
in
respect of payments on, purchases, defeasances, redemptions and prepayments
of,
and decreases and other acquisitions and retirement for value of, any or
all of
the 8% Senior Notes, together, in the case of either (a) or (b), with the
related Guarantees;”
2
“(16)
additional Indebtedness of the Company and its Restricted Subsidiaries in
an
aggregate principal amount not to exceed $20.0 million at any time outstanding
(which amount may, but need not be, incurred in whole or in part under the
Credit Agreement).”
Section
1.04. Amendment
to Definition of Permitted Investment.
The
definition of “Permitted
Investment”
contained in Section 1.01 of the Indenture is hereby amended such that clause
(1)(b) of such definition is amended and restated as follows:
“(1)(b)
Investments in any Person that is or will become immediately after such
Investment a Foreign Restricted Subsidiary by (i) the Company or any Guarantor
so long as the aggregate amount of all such Investments do not exceed $60.0
million at any time outstanding and (ii) any other Foreign Restricted
Subsidiary;”
Section
1.05. Amendment
to Limitations on Restricted Payments.
Section
4.09 of the Indenture is hereby amended such that each of clause (b)(2) and
clause (b)(9) of such definition is amended and restated as
follows:
“(b)(2)
(A) if no Default or Event of Default shall have occurred and be continuing
or
would exist after giving effect thereto, the acquisition of any shares of
Qualified Capital Stock of the Company, either (i) solely in exchange for
other
shares of Qualified Capital Stock of the Company or (ii) through the application
of net proceeds of a sale for cash (other than to a Subsidiary of the Company)
of shares of Qualified Capital Stock of the Company within 60 days after
such
sale or (B) the acquisition, redemption or other retirement for value of
Series
A Preferred Stock in an amount equal to the sum of (i) the gross proceeds
to the
Company from the Rights Offering plus (ii) the accrued but unpaid dividends
on
such acquired, redeemed or retired Series A Preferred Stock;”
“(b)(9)
if no Default or Event of Default shall have occurred and be continuing or
would
exist after giving effect thereto, payments on, purchases, defeasances,
redemptions and prepayments of, and decreases and other acquisitions and
retirement for value of, any or all of the 8% Senior Notes (A) on or after
June
1, 2008 or (B) prior to June 1, 2008 so long as the aggregate amount of
consideration for any such 8% Senior Notes purchased, defeased, redeemed,
prepaid or otherwise acquired or retired prior to June 1, 2008 does not exceed
90% of the outstanding principal amount thereof, plus accrued and unpaid
interest thereon;”
Section
1.06. Amendment
to Minimum EBITDA.
Section
4.17 of the Indenture is hereby amended and restated as follows:
“The
Company will not permit, as of the last day of any of its fiscal quarters
set
forth in the table below, its Consolidated EBITDA for the four consecutive
fiscal quarters ending on such day to be less than the amount set forth below
opposite such fiscal quarter:
3
|
Fiscal
Quarter Ending
|
Minimum
EBITDA
|
|
September
30, 2004 through September 30, 2006
|
$16,000,000
|
|
December
31, 2006 through September 30, 2008
|
$15,000,000
|
|
December
31, 2008 and thereafter
|
$20,000,000
|
Unless
the sum of (i) the Unrestricted Cash of the Company and its Restricted
Subsidiaries as of such day and (ii) the aggregate amount of advances that
the
Company is actually able to borrow under the Credit Agreement on such day
(after
giving effect to any borrowings thereunder on such day) is at least
$10,000,000.”
Section
1.07. Amendment
to Reports to Holders.
Section
4.23 of the Indenture is hereby amended and restated as follows:
“So
long
as any Notes are outstanding:
(1)
the
Company will furnish to the Trustee and to the Holders not later than 100
days
following the end of each fiscal year of the Company, financial statements
meeting the requirements of Regulation S-X as contemplated by Item 8 of Form
10-K, together with a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” meeting the requirements of Item 7 of Form
10-K and disclosure meeting the requirements of Items 3, 10 and 13 of Form
10-K;
and
(2)
the
Company will furnish to the Trustee and to the Holders not later than 50
days
following the end of each of the first three fiscal quarters of each fiscal
year
of the Company (but not with respect to the fourth quarter of each fiscal
year),
financial statements meeting the requirements of Regulation S-X as contemplated
by Item 1 of Part I of Form 10-Q, together with a “Management’s Discussion and
Analysis of Financial Condition and Results of Operations” meeting the
requirements of Item 2 of Part I of Form 10-Q.
During
such time as the Company is subject to, or elects to be subject to, the period
reporting requirements of the Exchange Act, the Company may satisfy its
obligations under this Section 4.23 by filing Annual Reports on Form 10-K
and
Quarterly Reports on Form 10-Q in accordance with the requirements of the
Exchange Act.”
Section
1.08. Amendment
to Merger, Consolidation and Sale of Assets.
Section
5.01 of the Indenture is hereby amended such that clause (2) shall be amended
and restated as follows:
“(2)
immediately after giving effect to such transaction and the assumption
contemplated by clause
(1)(b)(y)
above
(including after giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred in connection with or in respect of
such
transaction and any other transaction related thereto (including a merger
described under clause
(10)
of
clause
(b)
of
Section
4.09
and any
other transaction related thereto)), the Company or such Surviving Entity,
as
the case may be, (a) shall have a Consolidated Net Worth at least equal to
the
Consolidated Net Worth of the Company immediately prior to such transaction
and
(b) shall have a Consolidated Fixed Charge Coverage Ratio at least equal
to the
Fixed Charge Coverage Ratio of the Company immediately prior to such
transaction.”
4
Section
1.09. Amendment
to Events of Default.
Section
6.01 of the Indenture is hereby amended such that each of clause (5) and
clause
(6) shall be amended and restated as follows:
“(5)
one
or more judgments in an aggregate amount in excess of $10.0 million shall
have
been rendered against the Company or any of its Significant Subsidiaries
(other
than any judgments as to which a reputable and solvent third party insurer
has
accepted full coverage) and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments become
final
and non-appealable;”
“(6)
(a)
the entry of an order for relief against the Company or any of its Significant
Subsidiaries under Xxxxx 00, Xxxxxx Xxxxxx Code by a court having jurisdiction
in the premises or a decree or order by a court having jurisdiction in the
premises adjudging the Company or any of its Significant Subsidiaries a bankrupt
or involvent under any other applicable federal or state law, or the entry
of a
decree or order approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or
any of
its Significant Subsidiaries under Title 11, United States Code or any other
applicable federal or state law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or any of
its
Significant Subsidiaries or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of any
such
decree or order unstayed and in effect for a period of 90 consecutive days;
or
(b) the consent by the Company or any of its Significant Subsidiaries to
the
institution of bankruptcy or insolvency proceedings against it, or the filing
by
it of a petition or answer or consent seeking reorganization or relief under
Xxxxx 00, Xxxxxx Xxxxxx Code or any other applicable federal or state law,
or
the consent by it to the filing of any such petition or to the appointment
of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any of its Significant Subsidiaries or of any
substantial part of its property, or the making by it of an assignment for
the
benefit of creditors, or the admission by it in writing of its inability
to pay
its debts generally as they become due, or the taking of corporate action
by the
Company or any of its Significant Subsidiaries in furtherance of any such
action;”
ARTICLE
2
EFFECTIVENESS;
OPERATIVENESS
This
First Supplemental Indenture shall be effective as of the date set forth
above,
upon the execution hereof by each of the parties hereto. Upon such execution,
the Indenture shall be modified and amended in accordance with this First
Supplemental Indenture, and all the terms and conditions of both shall be
read
together as though they constitute one instrument, except that, in case of
conflict, the provisions of this First Supplemental Indenture will control.
The
Indenture, as modified and amended by this First Supplemental Indenture,
is
hereby ratified and confirmed in all respects and shall bind every holder
of the
11½% Notes. In case of conflict between the terms and conditions contained in
the 11½% Notes and those contained in the Indenture, as modified and amended by
this First Supplemental Indenture, the provisions of the Indenture, as modified
and amended by this First Supplemental Indenture, shall control.
5
ARTICLE
3
CONFLICT
WITH THE TRUST INDENTURE ACT
If
any
provision of this First Supplemental Indenture limits, qualifies or conflicts
with any provision of the Trust Indenture Act of 1939 (the “TIA”)
that
is required under the TIA to be part of and govern any provision of this
First
Supplemental Indenture, the provision of the TIA shall control. If any provision
of this First Supplemental Indenture modifies or excludes any provision of
the
TIA that may be so modified or excluded, the provision of the TIA shall be
deemed to apply to the Indenture as so modified or to be excluded by this
First
Supplemental Indenture.
ARTICLE
4
SEVERABILITY
In
case
any provision in this First Supplemental Indenture shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
ARTICLE
5
HEADINGS
The
Article and Section headings of this First Supplemental Indenture have been
inserted for convenience of reference only, are not to be considered a part
of
this First Supplemental Indenture and shall in no way modify or restrict
any of
the terms or provisions hereof.
ARTICLE
6
BENEFITS
UNDER THE FIRST SUPPLEMENTAL INDENTURE
Nothing
in this First Supplemental Indenture or the 11½% Notes, express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the holders of the 11½% Notes, any
benefit of any legal or equitable right, remedy or claim under the Indenture,
this First Supplemental Indenture or the 11½% Notes.
6
ARTICLE
7
SUCCESSORS
All
agreements of the Company and the Trustee in this First Supplemental Indenture
shall bind their respective successors.
ARTICLE
8
THE
TRUSTEE
The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this First Supplemental Indenture or for or
in
respect of the recitals contained herein, all of which are made solely by
the
Company.
ARTICLE
9
CERTAIN
DUTIES AND RESPONSIBILITIES OF THE TRUSTEE
In
entering into this First Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture relating to the conduct
or
affecting the liability or affording protection to the Trustee, whether or
not
elsewhere herein so provided.
ARTICLE
10
GOVERNING
LAW
THIS
FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. Each of the parties hereto agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this First Supplemental Indenture.
ARTICLE
11
COUNTERPART
ORIGINALS
The
parties may sign any number of copies of this First Supplemental Indenture.
Each
signed copy shall be an original, but all of them together represent one
and the
same agreement.
*
* *
*
7
IN
WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the date first above written.
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VISKASE
COMPANIES, INC.
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By:
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/s/
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Name:
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Xxxxxx
X. Xxxxxxx
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Title:
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Vice
President and Chief Financial Officer
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LASALLE
BANK NATIONAL ASSOCIATION,
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as
Trustee
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By:
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/s/
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Name:
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Title:
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[SIGNATURE
PAGE TO FIRST SUPPLEMENTAL INDENTURE]
