FORBEARANCE AND CONSENT AGREEMENT, dated as of June 28, 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, and may fail in the
future to comply with, the Fixed Charge Coverage Ratio covenant in the Basic
Documents; and
Whereas, the Lessee has requested in accordance with the Basic Documents
that the Lessor consent to certain transactions;
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
November 30, 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. Consent. Anything in the Basic Documents to the contrary
notwithstanding, the Lessor hereby (i) appoints the Lessee as its agent for
the sale of the Chicago Plant and (ii) consents to (A) the sale of the
Chicago Site (and the Chicago Plant located therein) and agrees to execute
such documents as are necessary to release the Chicago Site and the Chicago
Plant from the Ground Lease, the Security Agreement, the 2000 Security
Agreement and any security interest created by or pursuant to any of the
foregoing agreements and (B) the sale of any property, plant or equipment
located in Bedford Park or Chicago, Illinois and agrees to execute such
documents as are necessary to release such property, plant or equipment from
the 2000 Security Agreement and any security interest created by or pursuant
to the foregoing. Any net cash proceeds from the sale of the Chicago Plant
shall be for the benefit of, and shall be paid to, the Lessor for the benefit
of the Owner Participant with respect to the Chicago Plant, without any
adjustment (notwithstanding anything to the contrary contained in the Lease)
of Basic Rent or other amounts due under the Lease. The Lessee shall present
all bids or plans for the disposition of the Chicago Plant to the Lessor with
a recommendation as to whether to accept such bid or plan. The Lessor (in
consultation with the Owner Participant) shall consider in its reasonable
business judgment whether to accept any recommendations by the Lessee,
provided that Lessor's consent with respect to any such recommendation shall
not be unreasonably withheld.
SECTION 3. 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 4. 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 5. 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 6. Expenses. The Lessee agrees to promptly reimburse the Owner
Participant and the Lessor $39,500, representing 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 7. 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 8. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED BY ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. 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 10. 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:
-------/s/-----------------------------
Name: Xxxxxxx X. XxXxxx
Title: Assistant Vice President
VISKASE CORPORATION
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President and CFO
