JOINT AND SEVERAL GUARANTY AGREEMENT
------------------------------------
June ____, 1999
To: THE CIT GROUP/BUSINESS CREDIT, INC., as Agent
Address: 00 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: VISKASE CORPORATION AND VISKASE SALES CORPORATION
(collectively, the "Companies")
Ladies and Gentlemen:
Reference is made to a certain Financing Agreement of even date
herewith (as the same may be amended, modified or restated from time to
time, herein called the "Financing Agreement") among you, in your
capacity as the agent thereunder ("Agent"), the lenders party thereto
(the "Lenders") and the Companies. Capitalized terms used herein and
defined in the Financing Agreement shall have the same meanings as set
forth therein unless otherwise specifically defined herein.
Each of the undersigned (herein each a "Guarantor" and collectively
the "Guarantors") will obtain benefits from the incurrence of loans by
the Companies and the issuance of letters of credit pursuant to the
Financing Agreement. The Guarantors understand and agree that it is a
condition to the making of loans and the issuing of letters of credit
under the Financing Agreement that each Guarantor shall have executed
and delivered this Guaranty.
Each Guarantor hereby unconditionally jointly and severally
guarantees and agrees to be liable for the full and indefeasible payment
and performance when due of all now existing and future indebtedness,
obligations or liabilities of the Companies to you and the Lenders,
howsoever arising, whether direct or indirect, absolute or contingent,
secured or unsecured, whether arising under the Financing Agreement as
now written or as amended or supplemented hereafter including, without
limitation, all Obligations owed by the Companies to you and the
Lenders. In addition, each of the Guarantors agrees to pay to you, for
the benefit of the Lenders, on demand (a) the amount of all expenses
(including reasonable attorney's fees) incurred by you and the Lenders
in collecting or attempting to collect any Company's obligations to you
after the same shall become due, whether from any Company, from any
other obligor, or from the Guarantors, or in realizing upon any
collateral, and (b) interest at the Default Rate of Interest on all
overdue amounts payable to you hereunder, even if such amount cannot be
collected from the Companies. (All of the aforementioned obligations,
liabilities, expenses and interest, together with the Obligations, are
hereinafter collectively called the "Guaranteed Obligations").
To the extent you or the Lenders receive payment on account of the
Guaranteed Obligations, which payment is thereafter set aside or
required to be repaid by you or any Lender in whole or in part, then, to
the extent of any sum not finally retained by you or any Lender
(regardless of whether such sum is recovered from you or such Lender by
any Company, their trustees, or any other party acting for, on behalf of
or through any Company or their representatives), the Guarantors'
obligations to you and the Lenders under this Guaranty, as amended,
modified or supplemented, shall remain in full force and effect (or be
reinstated) until the Guarantors have made payment to you, on behalf of
the Lenders, therefor, which payment shall be due upon demand.
This Guaranty is executed as an inducement to you and the Lenders
to make loans or advances to the Companies, or issue guaranties at the
request of the Companies, or otherwise to extend credit or financial
accommodations to the Companies or to enter into or continue a financing
arrangement with the Companies, and is executed in consideration
therefor. Each of the Guarantors agrees that any of the foregoing acts
shall be deemed to have been done or extended by you and the Lenders in
consideration of and in reliance upon the execution of this Guaranty,
but that nothing herein shall obligate you to do any of the foregoing.
In addition, the Guarantors acknowledge: (a) that the business
operations of each Guarantor and each Company are interrelated and
compliment one another, and that such entities have a common business
purpose, with intercompany bookkeeping and accounting adjustments used
to separate their respective properties, liabilities and transactions;
(b) to permit their uninterrupted and continuous operations, such
entities now require and will in the future require various funds and
other credit accommodations from the Companies; and (c) with respect to
certain of the Guarantors, the funds obtained by the Companies under the
Financing Agreement will be used by the Companies to pay for services
rendered by such Guarantors to the Companies, or to pay for the
operating expenses of such Guarantors.
Each Guarantor hereby acknowledges that in the event any Company,
at any time, fails to provide Agent with evidence of the insurance
coverage as required by the Financing Agreement (the "Insurance
Coverage"), Agent may, upon prior written notice to the Guarantor,
purchase the Insurance Coverage at any Company's or any Guarantor's
expense to protect Agent's interests in the Collateral. Such insurance
may, but need not, protect any Company's or any Guarantor's interests,
and Agent shall be under no obligation to so protect any Company's or
any Guarantor's interests. The Insurance Coverage that Agent purchases
on behalf of each Company may not pay any claim that any Company makes
or any claim that is made against any Company in connection with the
Collateral. Any Company or any Guarantor may later cancel any Insurance
Coverage purchased by Agent, but only after providing Agent with
evidence that Insurance Coverage has been obtained as provided for in
the Financing Agreement. In the event Agent purchases all or any
portion of the Insurance Coverage for the Collateral or as otherwise
required hereunder, each Company and each Guarantor will be responsible
for all costs and expenses of such Insurance Coverage, including, but
not limited to, interest and any other charges reasonably imposed by
Agent in connection with the purchase of the Insurance Coverage, until
the effective date of the cancellation or expiration of the Insurance
Coverage. The costs and expenses of any Insurance Coverage purchased by
Agent shall be added to the Guaranteed Obligations. Each Guarantor
acknowledges that the cost of the Insurance Coverage purchased by Agent
pursuant hereto may be more than the cost of insurance any Company or
any Guarantor may be able to obtain on its own.
Notice of acceptance of this Guaranty, the making of loans or
advances, or the extension of credit under the Financing Agreement, the
amendment, execution or termination of the Financing Agreement or any
other agreements in connection therewith, and presentment, demand,
protest, notice of protest, notice of non-payment and all other notices
to which the Guarantors may be entitled (whether under this Guaranty or
the Financing Agreement), and your and the Lenders' reliance on this
Guaranty are hereby waived, except to the extent provided herein or in
the Financing Agreement. Each of the Guarantors also waives notice of
changes in terms or extensions of the time of payment, the taking and
releasing of collateral or guarantees (including the release of any of
the Guarantors) and the settlement, compromise or release of any of the
Guaranteed Obligations, and agrees that, as to each of the Guarantors,
the amount of the Guaranteed Obligations shall not be diminished by any
of the foregoing. Each of the Guarantors also agrees that neither you
nor the Lenders must attempt to collect any of the Guaranteed
Obligations from the other Guarantors or any other obligor or to realize
upon any collateral securing the Guaranteed Obligations, but may require
the Guarantors to make immediate payment of the Guaranteed Obligations
to you, for the benefit of the Lenders, when due. Accordingly, each of
the Guarantors understands this is a guaranty of payment, and not of
collection. Neither you nor the Lenders shall be liable for failure to
collect the Guaranteed Obligations or to realize upon any collateral or
security therefor, or any part thereof, or for any delay in so doing,
nor shall you or the Lenders be under any obligation to take any action
whatsoever with regard thereto.
This Guaranty is absolute, unconditional and continuing, regardless
of the validity, regularity or enforceability of any of the Guaranteed
Obligations or the fact that a security interest or lien in any
collateral or security therefor may not be enforceable by you or may
otherwise be subject to equities or defenses or prior claims in favor of
others, or may be invalid or defective in any way and for any reason,
including any action, or failure to act, on your part or on the part of
the Lenders. Payment by each Guarantor shall be made to you, for the
benefit of the Lenders, at your office from time to time on demand as
the Guaranteed Obligations become due, and one or more successive or
concurrent actions may be brought hereon against the Guarantors (or any
one or more of them) either in the same action or in separate actions.
In the event any claim or action, or action on any judgment, based on
this Guaranty, is made or brought against the Guarantors, the Guarantors
agree not to assert against you or the Lenders any set-off right or
counterclaim which the Company may have, and, further, each Guarantor
agrees not to deduct, set-off, or seek to counterclaim for or recoup,
any amounts which are or may be owed by you or the Lenders to the
Guarantors, or for any loss of contribution from any other Guarantor.
Furthermore, in any litigation based on this Guaranty in which you
and/or the Lenders, on the one hand, and any of the Guarantors, on the
other hand, shall be adverse parties, the Guarantors hereby waive the
right to interpose any defense based upon any statute of limitations or
any claim of laches and waive the performance of each and every
condition precedent to which the Guarantors might otherwise be entitled
by law. Each of the Guarantors hereby consents to the in personam
jurisdiction of the courts of the State of Illinois. In the event that
you bring any action or suit in any court of record in Illinois (whether
State or Federal) to enforce any or all liabilities of the Guarantors
hereunder, service of process may be made on the Guarantors by mailing
a copy of the summons to the Guarantors at the addresses set forth below
by certified mail, return receipt requested.
All sums at any time to the credit of the Guarantors and any
property of the Guarantors on which you at any time have a lien or
security interest, or of which you at any time have possession, shall
secure payment and performance of all of the Guaranteed Obligations.
Upon the occurrence of any of the following events (each, an "Event
of Default"):
(a) any Event of Default under, or the termination of, the
Financing Agreement in accordance with the terms thereof;
(b) the failure of any of the Guarantors to observe or perform
any agreements, warranties or covenants contained herein; or
(c) the dissolution or cessation of any Guarantor's business
(other than a merger of the existing subsidiaries of any Company into
any other Company in the manner permitted by the Financing Agreement),
or the calling by any Guarantor of a meeting of the creditors of any of
the Guarantors for the purposes of compromising the debts of such
Guarantor, or the failure of any of the Guarantors to meet its debts as
they mature, or the commencement by or against any of the Guarantors of
any bankruptcy, insolvency, arrangement, reorganization, receivership or
similar proceedings under any foreign, federal or state law; provided
that in the event of any involuntary proceeding is commenced against any
Guarantor, such proceeding is not dismissed or discharged within thirty
(30) days after commencement thereof;
then, in the case of the Event of Default described in clause (a) above,
the liability of all of the Guarantors for the entire amount of the
Guaranteed Obligations shall mature, and in the case of the Events of
Default described in clauses (b) and (c) above, the liability of each
Guarantor with respect to which such event relates for the entire amount
of the Guaranteed Obligations shall mature even if the liability of the
Companies therefor does not mature.
This Guaranty may be terminated as to any one of the Guarantors
only as of any Anniversary Date and then only upon actual receipt by one
of your officers of at least sixty (60) days prior written notice of
termination sent by registered or certified mail; provided however, that
any of the Guarantors so terminating this Guaranty shall remain bound
hereunder, and this Guaranty shall continue in full force and effect,
with respect to any and all of the Guaranteed Obligations created or
arising prior to the effective date of such termination and with respect
to any and all extensions, renewals or modifications of said
pre-existing Guaranteed Obligations. Termination as to any one of the
Guarantors shall not affect the obligations of any of the other
Guarantors, nor relieve the one giving such notice from liability for
any post-termination collection expenses or interest, to the extent that
such collection expenses and interest relate to or accrue on Guaranteed
Obligations created or arising prior to the effective date of such
termination. This is a continuing agreement and written notice as above
provided shall be the only means of termination, notwithstanding the
fact that for certain periods of time there may be no Guaranteed
Obligations owing to you or the Lenders by the Companies.
Your books and records showing the account between the Lenders and
the Companies shall be admissible in evidence in any action or
proceeding as prima facie proof of the items therein set forth. Your
monthly statements, if any, rendered to the Companies shall be binding
upon the Guarantors (whether or not the Guarantors received copies
thereof) and shall constitute an account stated between the Lenders and
the Companies unless you shall have received a written statement of the
Companies' exceptions within forty-five days after the statement was
mailed to the Companies in accordance with the Financing Agreement.
Each of the Guarantors expressly waives any and all rights of
subrogation, reimbursement, indemnity, exoneration, contribution or any
other claim which it may now or hereafter have against any Company or
any other person directly or contingently liable for the Guaranteed
Obligations, or against or with respect to any Company's property
(including, without limitation, property securing its obligations to you
and the Lenders) arising from the existence or performance of this
Guaranty, except to the extent the Guaranteed Obligations shall have
been paid in full and discharged.
The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor, any other guarantor of the Companies
or the Companies, and a separate action or actions may be brought and
prosecuted against each Guarantor, whether or not action is brought
against any other Guarantor, any other guarantor of the Companies or the
Companies and whether or not any other Guarantor, any other guarantor of
the Companies or the Companies be joined in any such action or actions.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any
----- --
payment or distribution is made by any Guarantor (a "Funding Guarantor")
under this Guaranty, such Funding Guarantor shall be entitled to a
contribution from all other Guarantors in a pro rata amount based on the
--- ----
Adjusted Net Assets (as defined below) of each Guarantor (including the
Funding Guarantor) for all payments, damages and expenses incurred by
that Funding Guarantor in discharging any Company's obligations with
respect to the Guarantied Obligations or any other Guarantor's
obligations with respect to this Guaranty. The term "Adjusted Net
Assets" of each Guarantor at any date shall mean the lesser of the
amount by which (x) the fair value of the property of such Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities, but excluding liabilities under this Guaranty,
of such Guarantor at such date and (y) the present fair salable value of
the assets of such Guarantor at such date exceeds the amount that will
be required to pay the probable liability of such Guarantor on its debts
(after giving effect to all other fixed and contingent liabilities),
excluding debt in respect of this Guaranty, as they become absolute and
matured. All rights for contribution of any Guarantor shall be
subordinated to the prior payment in full of the Guarantied Obligations.
Notwithstanding anything to the contrary contained in this
Guaranty, it is the intention of the Guarantors, as well as you and the
Lenders, that the amount of each Guarantor's obligations hereunder shall
not be in excess of the maximum amount which would be free from
avoidance or recovery by operation of any law (State or Federal)
relating to bankruptcy, reorganization, arrangement, adjustment of
debts, relief of debtors, insolvency, fraudulent transfers and
conveyances or other similar laws (collectively, "Applicable Bankruptcy
Laws"). Accordingly, if (and only if) any Guarantor's obligations under
this Guaranty, or any payment made by any Guarantor hereunder, but for
the limitation set forth above, would be subject to avoidance or
recovery by virtue of the operation or application of any Applicable
Bankruptcy Law in any proceeding involving such Guarantor, then the
amount of such Guarantor's obligations under this Guaranty shall be
limited to the largest amount which, after giving effect to the
operation or application of such Applicable Bankruptcy Law, would not
render such Guarantor's obligations to you and the Lenders hereunder
unenforceable, avoidable, or subject to recovery. The foregoing
provisions are intended solely to preserve the rights of you and the
Lenders against the Guarantors to the maximum extent permitted under
Applicable Bankruptcy Laws, and neither any Company nor any Guarantor
shall have any right or claim under this paragraph until a proceeding is
instituted by or against any Guarantor under Applicable Bankruptcy Laws.
This Guaranty embodies the whole agreement of the parties and may
not be modified except in writing by you and the Guarantors, and no
course of dealing between you or any of the Lenders, on the one hand,
and any of the Guarantors, on the other hand, shall be effective to
change or modify this Guaranty. The failure of you or the Lenders to
exercise any right hereunder shall not be construed as a waiver of the
right to exercise the same or any other right at any other time and from
time to time thereafter, and such rights shall be considered as
cumulative rather than alternative. No knowledge of any breach or other
nonobservance by any of the Guarantors of the terms and provisions of
this Guaranty shall constitute a waiver thereof, nor a waiver of any
obligations to be performed by the Guarantors hereunder.
This Guaranty may be assigned by you and the Lenders and shall be
for your benefit and for the benefit of the Lenders, and any assignee or
transferee of you or any of the Lenders, and shall cover any Guaranteed
Obligations owed to you or any of the Lenders (as the case may be) at
the time of assignment or transfer as well as any and all future
Guaranteed Obligations, loans, advances or extensions of credit made to
the Companies by, or otherwise owed by the Companies to, such assignee
or transferee under the terms of the Financing Agreement.
This instrument is executed and given in addition to, and not in
substitution, reduction, replacement, or satisfaction of, any other
endorsements or guarantees of the Guaranteed Obligations, now existing
or hereafter executed by any or all of the Guarantors or others in your
favor.
When used in this Guaranty, all pronouns shall, wherever
applicable, be deemed to include the singular and plural as well as the
masculine, feminine, and neuter genders. This Guaranty shall inure to
the benefit of you and the Lenders, the successors and assigns and any
parent, subsidiary or affiliate of you or any of the Lenders; shall be
binding jointly and severally upon the Guarantors and upon the
respective successors and assigns of each of the Guarantors; and shall
pertain to the Companies and its successors and assigns.
This Guaranty may be executed in any number of counterparts, each
of which when so executed shall be deemed an original and such
counterparts shall together constitute but one and the same document.
This Guaranty shall be governed by and construed in accordance with
the laws of the State of Illinois, U.S.A.
THE GUARANTORS, YOU AND THE LENDERS EACH HEREBY WAIVE ANY RIGHT TO
-----------------------------------------------------------------------
A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS
----------------------------------------------------------------
GUARANTY.
--------
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Guarantors have executed and delivered this
Joint and Several Guaranty Agreement effective as of the date above set
forth.
VISKASE COMPANIES, INC.,
a Delaware corporation
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxxxx Xxxx, XX 00000
By:
-----------------------------------
Title:
--------------------------------
VISKASE HOLDING CORPORATION,
a Delaware corporation
By:
----------------------------------
Its:
----------------------------------
