PARENT SECURITY AGREEMENT
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This PARENT SECURITY AGREEMENT (this "Agreement"), dated as of
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June __, 1999 made by VISKASE COMPANIES, INC., a Delaware
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corporation (the "Grantor"), in favor of THE CIT GROUP/BUSINESS
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CREDIT, INC., a New York corporation, as Agent ("Agent") on behalf
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of itself and the lenders ("Lenders") party to that certain
Financing Agreement of even date herewith (as amended, modified or
supplemented from time to time, the "Financing Agreement") among
Lenders, each of Viskase Corporation, a Pennsylvania corporation,
and Viskase Sales Corporation, a Delaware corporation (each a
"Company" and collectively, the "Companies"), and certain other
parties.
W I T N E S S E T H:
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WHEREAS, Grantor, directly or indirectly, owns all of the
capital stock of the Companies;
WHEREAS, pursuant to the Financing Agreement, the Companies
are about to incur certain Obligations (as defined in the Financing
Agreement);
WHEREAS, Grantor acknowledges that in view of the parent-
subsidiary and other business relations between Grantor and the
Companies, the extensions of credit and other financial
accommodations contemplated by the Financing Agreement will inure
to the benefit of Grantor and it is in the direct interest and to
the direct advantage of Grantor that it execute and deliver this
Agreement;
WHEREAS, pursuant to that certain Joint and Several Guaranty
Agreement of even date herewith (the "Guaranty"), made by the
Grantor and certain indirect subsidiaries thereof in favor of the
Agent, on behalf and for the benefit of the Lenders, the Grantor
has guaranteed the full and prompt payment and performance of the
"Guaranteed Obligations" (as defined in the Guaranty), including
the indebtedness and other obligations of the Companies under the
Financing Agreement; and
WHEREAS, it is a condition precedent to the making of the
extensions of credit and other financial accommodations
contemplated by the Financing Agreement that the Grantor shall have
entered into this Agreement.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Agent and the Lenders from time to time to make the
extensions of credit and other financial accommodations
contemplated by the Financing Agreement, the Grantor hereby agrees
with the Agent on behalf and for the benefit of the Lenders as
follows:
1. Defined Terms. Capitalized terms used in this Agreement
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but not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Guaranty. As used in this Agreement,
the following terms have the meanings specified below (such
meanings being equally applicable to both the singular and plural
forms of the terms defined):
"Account" means any "account," as such term is defined in
Section 9-106 of the UCC, now owned or hereafter acquired by the
Grantor and, in any event, includes, without limitation, (i) all
accounts receivable, book debts and other forms of obligations
(other than forms of obligations evidenced by Chattel Paper,
Documents or Instruments) now owned or hereafter received or
acquired by or belonging or owing to the Grantor (including,
without limitation, under any trade name, style or division
thereof) whether arising out of goods sold or services rendered by
the Grantor or from any other transaction, whether or not the same
involves the sale of goods or services by the Grantor (including,
without limitation, any such obligation which might be
characterized as an account or contract right under the UCC),
(ii) all of Grantor's rights in, to and under all purchase orders
or receipts now owned or hereafter acquired by it for goods or
services, and all of Grantor's rights to any goods represented by
any of the foregoing (including, without limitation, unpaid
seller's rights of rescission, replevin, reclamation and
stoppage in transit and rights to returned, reclaimed or
repossessed goods), (iii) all moneys due or to become due to the
Grantor under all contracts for the sale of goods or the
performance of services or both by the Grantor (whether or not yet
earned by performance on the part of the Grantor or in connection
with any other transaction), now in existence or hereafter
occurring, including, without limitation, the right to receive the
proceeds of said purchase orders and contracts, and (iv) all
collateral security and guarantees of any kind given by any Person
with respect to any of the foregoing.
"Account Debtor" means any "account debtor," as such term is
defined in Section 9-105(l)(a) of the UCC.
"Chattel Paper" means any "chattel paper," as such term is
defined in Section 9-105(1)(b) of the UCC, now owned or hereafter
acquired by the Grantor.
"Collateral" has the meaning assigned to such term in
Section 2 of this Agreement.
"Contracts" means all contracts, undertakings or other
agreements (other than Chattel Paper, Documents or Instruments) in
or under which the Grantor may now or hereafter have any right,
title or interest, including, without limitation, with respect to
an Account, any agreement relating to the terms of payment or the
terms of performance thereof.
"Documents" means any "document," as such term is defined in
Section 9-105(l)(f) of the UCC, now owned or hereafter acquired by
the Grantor.
"Equipment" means any "equipment," as such term is defined in
Section 9-109(2) of the UCC, now owned or hereafter acquired by the
Grantor and, in any event, includes, without limitation, all
machinery, equipment, furnishings, fixtures, vehicles, computers
and other electronic data-processing and office equipment now owned
or hereafter acquired by the Grantor and any and all additions,
substitutions and replacements of any of the foregoing, wherever
located, together with all attachments, components, parts,
equipment and accessories installed thereon or affixed thereto.
"Excluded Assets" has the meaning assigned to such term in the
Financing Agreement.
"GECC Lease Documents" shall have the meaning assigned to such
term in the Financing Agreement.
"General Intangibles" means any "general intangibles," as such
term is defined in Section 9-106 of the UCC, now owned or hereafter
acquired by the Grantor and, in any event, includes, without
limitation, (a) all inventions (whether patentable or unpatentable
and whether or not reduced to practice), all improvements thereon,
and all patents, patent applications and patent disclosures,
together with all reissuances, continuations, continuations-in-
part, revisions, extensions and reexaminations thereof, (b) all
trademarks, service marks, trade dress, logos, trade names, domain
names, and corporate names, together with all translations,
adaptations, derivations and combinations thereof and including all
goodwill associated therewith, and all applications, registrations
and renewals in connection therewith, (c) all copyrightable works,
all copyrights and all applications, registrations and renewals in
connection therewith, (d) all mask works and all applications,
registrations and renewals in connection therewith, (e) all trade
secrets and confidential business information (including ideas,
research and development, know-how, formulas, compositions,
manufacturing and production processes and techniques, methods,
schematics, technology, technical data, designs, drawings,
flowcharts, block diagrams, specifications, customer and supplier
lists, pricing and cost information and business and marketing
plans and proposals), (f) all computer software (including data and
related documentation), (g) all other proprietary rights, (h) all
copies and tangible embodiments of the foregoing categories of
intellectual property listed in subsections (a) through (g) herein
(in whatever form of medium), and (i) all licenses, sublicenses,
agreements, or permissions related to the foregoing categories of
intellectual property listed in subsections (a) through (g) herein
(categories (a) through (i) herein are collectively referred to as
"Intellectual Property").
All General Intangibles which are patents, patent
applications, trademarks, trademark applications, copyrights,
copyright applications, mask works, and mask work applications are
listed on Schedule III hereto.
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"Guaranteed Parties" means the Agent and the Lenders,
collectively.
"Guarantors" has the meaning assigned to such term in the
Financing Agreement.
"Instrument" means any "instrument," as such term is defined
in Section 9-105(1)(i) of the UCC, now owned or hereafter acquired
by the Grantor, other than instruments that constitute or are a
part of a group of writings that constitute Chattel Paper.
"Intellectual Property" has the meaning assigned to such term
in the definition of General Intangibles in this Agreement.
"Intercompany Receivable" has the meaning assigned to such
term in the Financing Agreement.
"Inventory" means any "inventory," as such term is defined in
Section 9-109(4) of the UCC, now owned or hereafter acquired by the
Grantor, and wherever located, and, in any event, includes, without
limitation, all inventory, merchandise, goods and other personal
property now owned or hereafter acquired by the Grantor which are
held for sale or lease or are furnished or are to be furnished
under a contract of service or which constitute raw materials, work
in process or materials used or consumed or to be used or consumed
in the Grantor's business, or the processing, packaging, delivery
or shipping of the same, and all finished goods.
"Lien" means any mortgage, pledge, lien, charge, security
interest, conditional sale or other title retention agreement or
other encumbrance of any kind or description, including, without
limitation, any agreement to give or xxxxx x Xxxx.
"Loan Documents" has the meaning assigned to such term in the
Financing Agreement.
"Permitted Encumbrances" has the meaning assigned to such term
in the Financing Agreement.
"Permitted Indebtedness" has the meaning assigned to such term
in the Financing Agreement.
"Proceeds" means "proceeds," as such term is defined in
Section 9-306(1) of the UCC, and, in any event, shall include,
without limitation, (i) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to the Grantor from time to
time with respect to any of the Collateral, (ii) any and all
payments (in any form whatsoever) made or due and payable to the
Grantor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any Person
acting under color of governmental authority), and (iii) any and
all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
"Subsidiary" has the meaning assigned to such term in the
Financing Agreement.
"UCC" means the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of Illinois; provided,
however, in the event that, by reason of mandatory provisions of
law, any or all of the attachment, perfection or priority of the
Agent's security interest in any Collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than
the State of Illinois, the term "UCC" shall mean the Uniform
Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment,
perfection or priority and for purposes of definitions related to
such provisions.
2. Grant of Security Interest.
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(a) As collateral security for the full and prompt
payment when due (whether at stated maturity, by acceleration or
otherwise) of, and the performance and observance of, all the
Guaranteed Obligations and to induce the Guaranteed Parties to make
the extensions of credit and other financial accommodations
contemplated by the Financing Agreement, the Grantor hereby grants,
assigns, conveys, mortgages, pledges, hypothecates and transfers to
the Agent, on behalf and for the benefit of the Guaranteed Parties,
a lien upon and security interest in, all of the Grantor's right,
title and interest in, to and under the following (all of which
being hereinafter collectively called the "Collateral"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Contracts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all other goods and personal property of the
Grantor whether tangible or intangible or whether now owned or
hereafter acquired by the Grantor and wherever located; and
(x) to the extent not otherwise included, all
Proceeds of each of the foregoing and all accessions to,
substitutions and replacements for, and rents, profits and
products of, each of the foregoing;
provided, however, that, notwithstanding anything to the contrary
contained in this Section 2 (a), the collateral shall not include
any Contract or General Intangible if (and solely to the extent and
for so long as) such Contract or General Intangible expressly
prohibits Grantor from granting any Lien thereon or may otherwise
not be assigned, licensed, or sublicensed, without breaching any
underlying agreements with third parties.
(b) In addition, as collateral security for the full and
prompt payment when due (whether at stated maturity, by
acceleration or otherwise) of, and the performance and observance
of, all the Guaranteed Obligations and to induce the Guaranteed
Parties to make the extensions of credit and other financial
accommodations contemplated by the Financing Agreement, the Agent,
for the benefit of each Guaranteed Party, is hereby granted a lien
upon and security interest in all property of the Grantor held by
the Guaranteed Party, including, without limitation, all property
of every description, now or hereafter in the possession or custody
of or in transit to such Guaranteed Party for any purpose,
including safekeeping, collection or pledge, for the account of the
Grantor, or as to which the Grantor may have any right or power.
3. Rights of the Guaranteed Parties; Limitations on
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Guaranteed Parties' Obligations.
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(a) It is expressly agreed by the Grantor that, anything
herein to the contrary notwithstanding, the Grantor shall remain
liable under each of the Contracts to observe and perform all the
conditions and obligations to be observed and performed by it
thereunder and the Grantor shall perform all of its duties and
obligations thereunder, all in accordance with and pursuant to the
terms and provisions of each such Contract. Neither the Agent nor
any other Guaranteed Party shall have any obligation or liability
under any Contract by reason of or arising out of this Agreement or
the granting of a security interest in any Contract to the Agent on
behalf and for the benefit of the Guaranteed Parties or the receipt
by the Agent or any other Guaranteed Party of any payment relating
to any Contract pursuant hereto, nor shall the Agent or any other
Guaranteed Party be required or obligated in any manner to perform
or fulfill any of the obligations of the Grantor under or pursuant
to any Contract, or to make any payment, or to make any inquiry as
to the nature or the sufficiency of any payment received by it or
the sufficiency of any performance by any party under any Contract,
or to present or file any claim, or to take any action to collect
or enforce any performance or the payment of any amounts which may
have been assigned to it or to which it may be entitled at any time
or times.
(b) If an Event of Default has occurred and is
continuing, at the request of the Agent, the Grantor shall deliver
to the Agent all original and other documents evidencing, and
relating to, the sale and delivery of Inventory or the performance
of labor or service which created Accounts, including, without
limitation, all original orders, invoices, and shipping receipts;
and, prior to the occurrence of an Event of Default, the Grantor
shall deliver photocopies thereof to the Agent at its request.
(c) The Agent may at any time, upon the occurrence and
during the continuance of any Event of Default, upon concurrent
notice to the Grantor of its intention to do so, notify Account
Debtors of the Grantor, parties to Contracts of the Grantor,
obligors of Instruments of the Grantor and obligors in respect of
Chattel Paper of the Grantor that the Accounts and the right, title
and interest of the Grantor in and under such Accounts, Contracts,
such Instruments and such Chattel Paper have been assigned to the
Agent and that payments shall be made directly to the Agent. Upon
the occurrence of an Event of Default, at the request of the Agent,
the Grantor will so notify such Account Debtors, parties to such
Contracts, obligors of such Instruments and obligors in respect of
such Chattel Paper. Upon the occurrence and during the continuance
of an Event of Default, the Agent may in its own name or in the
name of others communicate with such Account Debtors, parties to
such Contracts, obligors of such Instruments and obligors in
respect of such Chattel Paper to verify with such Persons to the
Agent's satisfaction the existence, amount and terms of any
Accounts, Contracts, Instruments or Chattel Paper.
(d) Upon an Event of Default, the Agent shall have the
right to make test verifications of the Accounts and physical
verifications of the Inventory in any manner and through any medium
that it considers advisable, and the Grantor agrees to furnish all
such assistance and information as the Agent may reasonably require
in connection therewith. The Grantor, at its own cost and expense,
will prepare and deliver to the Agent, upon the occurrence and
during the continuance of an Event of Default, upon the Agent's
request, the following reports: (i) a reconciliation of all its
Accounts, (ii) an aging of all its Accounts, (iii) trial balances,
(iv) a test verification of such Accounts as the Agent may request,
and (v) a certificate or certificates of an officer of Grantor
certifying as to the foregoing. The Grantor at its expense will
prepare and deliver to the Agent the results of the annual physical
verification of its Inventory made or observed by such accountants.
4. Representations and Warranties. The Grantor hereby
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represents and warrants to the Guaranteed Parties as follows:
(a) The Grantor is the sole owner of each item of the
Collateral in which it purports to grant a security interest
hereunder, having good title thereto, free and clear of any and all
Liens, except for the security interests granted pursuant to this
Agreement, the GECC Lease Documents, the Loan Documents or other
Permitted Encumbrances (collectively, the "Encumbrances"). No
material amounts payable under or in connection with any of its
Accounts or Contracts are evidenced by Instruments which have not
been delivered to the Agent;
(b) No effective security agreement, financing
statement, equivalent security or Lien instrument or continuation
statement covering all or any part of the Collateral is on file or
of record in any public office, except such as may have been filed
by the Grantor in favor of the Agent pursuant to this Agreement or
such as relate to other Permitted Encumbrances;
(c) Assuming appropriate financing statements have been
filed in the jurisdictions listed on Schedule I hereto, appropriate
filings have been made with the United States Patent and Trademark
Office and the United States Copyright Office, appropriate delivery
has been made of any and all Instruments, and, solely with respect
to Chattel Paper, Instruments and vehicles, all other appropriate
actions have been taken, this Agreement is effective to create a
valid and continuing first priority Lien on, and security interest
in, the Collateral prior to all other Liens except the
Encumbrances;
(d) The Grantor's principal place of business and the
place where its records concerning the Collateral are kept and the
location of its Inventory and Equipment are set forth on
Schedule II hereto;
(e) The amount represented by the Grantor to the Agent
from time to time as owing by each Account Debtor or by all Account
Debtors in respect of the Accounts of the Grantor will at such time
be the correct amount actually and unconditionally owing by such
Account Debtors thereunder;
(f) The consolidated audited balance sheet and related
statements of operations and cashflow, and changes in stockholders'
equity for the Grantor and the Companies as of December 31, 1998
and for the fiscal year then ended, and the consolidated unaudited
balance sheet and related statements of operations and cashflow for
the Grantor and the Companies as of March 31, 1999 and for the
three (3) months then ended, have been prepared in accordance with
GAAP and present accurately and fairly in all material respects the
Grantor's financial position as at the dates thereof and the
Grantor's results of operation for the periods then ended;
(g) (i) the fair value of Grantor's assets exceeds the
book value of Grantor's liabilities, (ii) Grantor is generally able
to pay its debts as they become due and payable, and (iii)Grantor
does not have unreasonably small capital to carry on its business
as it is currently conducted absent extraordinary and unforeseen
circumstances;
(h) Grantor is duly organized and validly existing under
the laws of the state of its incorporation, and is qualified to do
business in each State where the failure to so qualify would have
a material adverse effect on the business, assets or condition
(financial or otherwise) of the Grantor and its Subsidiaries taken
as a whole; and
(i) the execution and delivery of this Agreement by
Grantor and the consummation of the transactions contemplated
hereby, do not violate any term, provision or covenant contained in
the Articles or Certificate of Incorporation or Bylaws of Grantor,
or any term, provision, covenant or representation contained in any
loan agreement, lease, indenture, mortgage, deed of trust, note,
security agreement or pledge agreement to which any Grantor is a
signatory or by which Grantor or any Grantor's assets are bound.
5. Covenants. The Grantor covenants and agrees with the
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Agent that from and after the date of this Agreement and until the
Guaranteed Obligations are fully satisfied:
(a) Further Documentation; Pledge of Instruments. At
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any time and from time to time, upon the written request of the
Agent, and at the sole expense of the Grantor, the Grantor will
promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as the Agent
may reasonably deem desirable to obtain the full benefits of this
Agreement and of the rights and powers herein granted, including,
without limitation, the filing of any financing or continuation
statements under the UCC with respect to the Liens and security
interests granted hereby, transferring Collateral to the Agent's
possession (if a security interest in such Collateral can be
perfected by possession), placing the interest of the Agent as
lienholder on the certificate of title of any vehicle and, upon an
Event of Default, using its good faith reasonable efforts to secure
all consents and approvals necessary or appropriate for the
assignment to the Agent of any Contract held by the Grantor or in
which the Grantor has any rights not heretofore assigned. The
Grantor also hereby authorizes the Agent to file any such financing
or continuation statement without the signature of the Grantor to
the extent permitted by applicable law. If any of the Collateral
shall be or become evidenced by any Instrument, the Grantor agrees
to pledge such Instrument to the Agent and shall duly endorse such
Instrument in a manner satisfactory to the Agent and deliver the
same to the Agent.
(b) Maintenance of Records. The Grantor will keep and
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maintain at its own cost and expense satisfactory and complete
records of the Collateral, including, without limitation, a record
of all payments received and all credits granted with respect to
the Collateral and all other dealings with the Collateral. At the
Agent's request, the Grantor will xxxx its books and records
pertaining to the Collateral to evidence this Agreement and the
Lien and security interests granted hereby. If requested by the
Agent, all Chattel Paper will be marked with the following legend:
"This writing and the obligations evidenced or secured hereby are
subject to the security interest of The CIT Group/Business Credit,
Inc., as Agent." If requested by the Agent, the security interest
of the Agent shall be noted on the certificate of title of each
vehicle. For the Agent's further security, the Grantor agrees that
the Agent shall have a special property interest in all of the
Grantor's books and records pertaining to the Collateral and, upon
the occurrence and during the continuance of any Event of Default,
at the request of the Agent, the Grantor shall deliver and turn
over any such books and records to the Agent or to its
representatives at any time on demand of the Agent. Prior to the
occurrence of an Event of Default and upon reasonable notice from
the Agent, the Grantor shall permit any representative of the Agent
to inspect such books and records and will provide photocopies
thereof to the Agent.
(c) Indemnification. In any suit, proceeding or action
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brought by the Agent or any other Guaranteed Party relating to any
Account, Chattel Paper, Contract, General Intangible or Instrument
for any sum owing thereunder, or to enforce any provision of any
Account, Chattel Paper, Contract, General Intangible or Instrument,
the Grantor will save, indemnify and keep each of the Agent and the
Guaranteed Parties harmless from and against all expense, loss or
damage suffered by reason of any defense, set-off, counterclaim,
recoupment or reduction of liability whatsoever of the obligor
thereunder, arising out of a breach by the Grantor of any
obligation thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to, or in favor of,
such obligor or its successors from the Grantor, and all such
obligations of the Grantor shall be and remain enforceable against
and only against the Grantor and shall not be enforceable against
the Agent or the Guaranteed Parties; provided, however, that the
Grantor shall not have any obligation under this Section 5(c) to
the Agent or the Guaranteed Parties with respect to any expense,
loss or damage caused by or resulting from the gross negligence or
willful misconduct of the Agent or the Guaranteed Parties.
(d) Compliance with Laws, Etc. The Grantor will comply,
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in all material respects, with all applicable requirements of law,
contractual obligations, commitments, instruments, licenses,
permits and franchises applicable to the Collateral, including,
without limitation, all permits; provided, however, that the
Grantor shall not be deemed in default of this Section 5(d) if all
such non-compliances in the aggregate could not reasonably be
expected to have a material adverse effect on the business, assets
or condition (financial or otherwise) of the Grantor and its
Subsidiaries taken as a whole.
(e) Payment of Taxes, Etc. (i) The Grantor will pay and
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discharge before the same shall become delinquent, all federal,
state, local and other taxes and similar charges (other than
immaterial state, local and foreign taxes and similar charges)
except where contested in good faith pursuant to Section 5(e)(ii).
(ii) The Grantor may in good faith contest, by
proper legal actions or proceedings, the validity or amount of
any charges or claims arising under Section 5(e)(i), provided
that at the time of commencement of any such action or
proceeding, and during the pendency thereof (A) no Event of
Default shall have occurred, (B) adequate reserves with
respect thereto are maintained on the books of the Grantor in
accordance with generally accepted accounting principles, in
effect from time to time, (C) none of the assets of the
Grantor would be subject to forfeiture or loss or any Lien by
reasons of the institution or prosecution of such contest,
(D) if such contest is terminated or discontinued adversely to
the Grantor, the Grantor will promptly pay or discharge such
contested charges or claims and all additional charges,
interest, penalties and expenses, if any, and will deliver to
the Agent evidence acceptable to the Agent of such compliance,
payment or discharge, and (E) the nonpayment or nondischarge
thereof could not singly or in the aggregate reasonably be
expected to have a material adverse effect on the business,
assets or condition (financial or otherwise) of the Grantor
and its Subsidiaries taken as a whole.
(f) Compliance with Terms of Accounts, Etc. In all
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material respects, the Grantor will comply with and perform all
obligations, covenants, conditions and agreements with respect to
any Account, Chattel Paper, Contract, License and all other
agreements to which it is a party or by which it is bound.
(g) Limitation on Liens on Collateral. The Grantor will
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not create, permit or suffer to exist, and will defend the
Collateral against and take such other action as is necessary to
remove, any Lien on the Collateral except Permitted Encumbrances,
and will defend the right, title and interest of the Agent in and
to any of the Grantor's rights under the Chattel Paper, Contracts,
Documents, General Intangibles and Instruments and to the Equipment
and Inventory and in and to the Proceeds thereof against the claims
and demands of all Persons whomsoever.
(h) Limitations on Modifications of Accounts. Upon the
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occurrence and during the continuance of any Event of Default, the
Grantor will not, without the Agent's prior written consent, grant
any extension of the time of payment of any of the Accounts,
Chattel Paper or Instruments, or compromise, compound or settle the
same for less than the full amount thereof, or release, wholly or
partly, any Person liable for the payment thereof, or allow any
credit or discount whatsoever thereon.
(i) Maintenance of Insurance.
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(a) The Grantor agrees to maintain insurance on the
Equipment and Inventory under such policies of insurance, with
such insurance companies, in such reasonable amounts and
covering such insurable risks as are at all times reasonably
satisfactory to the Agent (the "Required Insurance"). All
policies covering the Equipment and Inventory are subject to
the rights of any holders of Permitted Encumbrances holding
claims senior to the Agent, to be made payable to the Agent,
for the benefit of the Lenders, in case of loss, under a
standard non-contributory "lender" or "secured party" clause
and are to contain such other provisions as the Agent
reasonably may require to fully protect the Agent's and the
Lenders' interests in the Inventory and Equipment and to any
payments to be made under such policies. All summaries of
such policies are to be delivered to the Agent. All such
insurance policies shall be prepaid, with a loss payable
endorsement in favor of the Agent, for the benefit of the
Lenders, and shall provide for not less than thirty (30) days
prior written notice to the Agent of the exercise of any right
of cancellation. Upon the occurrence of an Event of Default
which is not waived, the Agent shall, subject to the rights of
any holders of Permitted Encumbrances holding claims senior to
the Agent, have the sole right, in the name of the Agent or
Grantor, to file claims under any insurance policies, to
receive, receipt and give acquittance for any payments that
may be payable thereunder, and to execute any and all
endorsements, receipts, releases, assignments, reassignments
or other documents that may be necessary to effect the
collection, compromise or settlement of any claims under any
such insurance policies.
(b) Grantor hereby acknowledges that in the event
Grantor, at any time, fails to provide Agent with evidence of
the Required Insurance, Agent may purchase the Required
Insurance at Grantor's expense to protect Agent's interests in
the Collateral. Such insurance may, but need not, protect
Grantor's interests, and Agent shall be under no obligation to
so protect Grantor's interests. The Required Insurance that
Agent purchases on behalf of Grantor may not pay any claim
that Grantor makes or any claim that is made against Grantor
in connection with the Collateral. Grantor may later cancel
any Required Insurance purchased by Agent, but only after
providing Agent with evidence that Required Insurance has been
obtained as provided for in this Agreement. In the event
Agent purchases all or any portion of the Required Insurance
for the Collateral or as otherwise required hereunder, Grantor
will be responsible for all costs and expenses of such
Required Insurance, including, but not limited to, interest
and any other charges imposed by Agent in connection with the
purchase of the Required Insurance, until the effective date
of the cancellation or expiration of the Required Insurance.
The costs and expenses of any Required Insurance purchased by
Agent shall be added to the Guaranteed Obligations. Grantor
acknowledges that the cost of the Required Insurance purchased
by Agent pursuant hereto may be more than the cost of
insurance Grantor may be able to obtain on its own.
(j) Limitations on Disposition. The Grantor will not
--------------------------
sell, lease, transfer or otherwise dispose of any of the
Collateral, or attempt or contract to do so, except as expressly
permitted herein or by the Financing Agreement.
(k) Further Identification of Collateral. The Grantor
------------------------------------
will, if so requested by the Agent, furnish to the Agent, as often
as the Agent reasonably requests, statements and schedules further
identifying and describing the Collateral and such other reports in
connection with the Collateral as the Agent may reasonably request,
all in reasonable detail.
(l) Notices. The Grantor will advise the Agent
-------
promptly, in reasonable detail, (i) of any material Lien or claim
made or asserted against any of the Collateral and (ii) of the
occurrence of any other event which could reasonably be expected to
have a material adverse effect on the aggregate value of the
property and assets of the Grantor and its Subsidiaries taken as a
whole or in the security interests created hereunder.
(m) Right of Inspection. Upon reasonable notice to the
-------------------
Grantor (unless an Event of Default has occurred and is continuing,
in which case no notice is necessary), the Agent shall at all times
have full and free access during normal business hours to all the
books and records and correspondence of the Grantor, and the Agent,
or its representatives, may examine the same, take abstracts
therefrom and make photocopies thereof, and the Grantor agrees to
render to the Agent, at the Grantor's cost and expense, such
clerical and other assistance as may be reasonably requested with
regard thereto. Upon reasonable notice to the Grantor (unless an
Event of Default has occurred and is continuing, in which case no
notice is necessary), the Agent and its representatives shall also
have the right to enter into and upon any premises where any of the
Equipment or Inventory is located for the purpose of inspecting the
same, observing its use or otherwise protecting its interests
therein.
(n) Maintenance of Equipment. The Grantor will keep and
------------------------
maintain the Equipment, other than Equipment that has become
obsolete, in good operating condition, ordinary wear and tear
excepted, sufficient for the continuation of the business conducted
by the Grantor on a basis consistent with past practices, and the
Grantor will provide all maintenance and service and all repairs
necessary for such purpose.
(o) Continuous Perfection. The Grantor will not change
---------------------
its name, identity or corporate structure in any manner which might
make any financing or continuation statement filed in connection
herewith seriously misleading within the meaning of
Section 9-402(7) of the UCC (or any other then applicable provision
of the UCC) unless the Grantor shall have given the Agent at least
30 days' prior written notice thereof and shall have taken all
action (or made arrangements to take such action substantially
simultaneously with such change if it is impossible to take such
action in advance) necessary or reasonably requested by the Agent
to amend such financing statement or continuation statement so that
it is not seriously misleading. The Grantor will not change its
principal place of business or remove its records or change the
location of its Inventory and Equipment, each as set forth on
Schedule II hereto, unless it gives the Agent at least 30 days'
prior written notice thereof and has taken such action as is
necessary to cause the security interest of the Agent in the
Collateral to continue to be perfected.
(p) Financial Statements. Until termination of this
--------------------
Agreement and payment and satisfaction of all Guaranteed
Obligations due hereunder, Grantor agrees that, unless Agent shall
have otherwise consented in writing, Grantor will furnish to Agent
and Co-Agent: (a) within ninety (90) days after the end of each
fiscal year of Grantor, a Consolidated Balance Sheet and a
Consolidating Balance Sheet as at the close of such year, and
statements of operations, cash flow and reconciliation of
stockholders' equity of Grantor for such year, audited by
independent public accountants selected by Grantor and satisfactory
to the Agent, together with the unqualified opinion (as to scope of
review) of the accountants preparing such financial statements
(except that for the fiscal year 2000 audited financial statements,
the opinion of such accountants may be qualified, if necessary, for
the sole purpose of reflecting that, as of the date of such
opinion, the Companies do not have a financing commitment in place
for the period commencing on the Termination Date(as defined in the
Financing Agreement)); (b) within thirty (30) days of the end of
each fiscal quarter, a Consolidated Balance Sheet and a
Consolidating Balance Sheet as at the end of such fiscal quarter,
and a consolidated statement of operations and cash flow of Grantor
for such fiscal quarter and for the period commencing on the first
day of the current fiscal quarter through the end of such fiscal
quarter; (c) within thirty-five (35) days after the end of each
fiscal month, a Consolidated Balance Sheet and a Consolidating
Balance Sheet as at the end of such fiscal month, and a
consolidated statement of operations and cash flow of Grantor for
such fiscal month and for the period commencing on the first day of
the current fiscal year through the end of such fiscal month;
(d) no later than thirty (30) days after the beginning of each
fiscal year, monthly projections of the Consolidated Balance Sheet,
Consolidating Balance Sheet, the consolidated and consolidating
statements of operations and cash flow of Grantor; and (e) from
time to time, such further information regarding the business
affairs and financial condition of Grantor as the Agent may
reasonably request.
(q) Operating Restrictions. Until termination of this
----------------------
Agreement and payment and satisfaction of all Guaranteed
Obligations due hereunder, Grantor agrees that, without the prior
written consent of the Agent, except as otherwise herein provided,
Grantor will not, and will not permit any Subsidiary to:
(i) Except for transfers of assets permitted under
Sub Section (iii) below and Permitted Encumbrances, mortgage,
----------------
assign, pledge, transfer or otherwise permit any lien, charge,
security interest, encumbrance or judgment, (whether as a
result of a purchase money or title retention transaction, or
other security interest, or otherwise) to exist on any of its
assets or goods, whether real, personal or mixed, whether now
owned or hereafter acquired;
(ii) Incur or create any Indebtedness other than the
Permitted Indebtedness;
(iii) Sell, lease, assign, transfer or otherwise
dispose of (i) Collateral, except as otherwise specifically
permitted by this Agreement, or (ii) either all or
substantially all of its assets, if any, which do not
constitute Collateral; provided, however, that (A) transfers
of Inventory solely among the Companies and/or the Guarantors
(other than Grantor) shall be permitted hereunder so long as
any such transfer would be classified as an Intercompany
Receivable, (B) sales or dispositions of Excluded Assets shall
be permitted hereunder, and (C) sales or transfers of
Collateral to either Company by the other Company or by any
Subsidiary to any Company shall be permitted hereunder;
(iv) (i) Merge or consolidate with any other entity,
provided, however, that (x) any Company may merge or
consolidate with any Guarantor (other than Grantor) and
(y) any non-Guarantor Subsidiary may merge or consolidate with
any other non-Guarantor Subsidiary; (ii) change its corporate
name or principal place of business without at least thirty
(30) days prior written notice to the Agent, (iii) change the
form of its organization from for-profit corporation or
(iv) enter into or engage in any operation or activity
materially different from that presently being conducted by
Grantor or such Subsidiary;
(v) Assume, guarantee, endorse, or otherwise become
liable upon the obligations of any person, firm, entity or
corporation, except (i) by the endorsement of negotiable
instruments for deposit or collection or similar transactions
in the ordinary course of business, (ii) guaranties in favor
of Agent under the Loan Documents, (iii) existing guaranties
listed on Schedule 7.9(a) of the Financing Agreement, (iv)
---------------
guaranties entered into in the ordinary course of business by
Grantor of the obligations of Grantor or any Company,
(v) guaranties entered into in the ordinary course of business
by any Subsidiary (vi) guaranties in support of the
Subordinated Debt (as defined in the Financing Agreement) and
(vii) guaranties entered into in connection with the
refinancing of any Indebtedness (as defined in the Financing
Agreement) permitted to be guaranteed by this Section,
provided that the guarantor thereof was previously
guaranteeing the Indebtedness being refinanced and the
principal amount of such Indebtedness being refinanced shall
not be increased from such principal amount outstanding on the
day prior to the date of such refinancing; provided, however,
that the principal amount of such Indebtedness being
guaranteed may be increased by up to Two Million Five Hundred
Thousand Dollars ($2,500,000) if, and only if, such
Indebtedness is Permitted Indebtedness;
(vi) Declare or pay any dividend or distribution of
any kind on, or purchase, acquire, redeem or retire, any of
its equity interests (of any class or type whatsoever),
whether now or hereafter issued and outstanding, other than
Permitted Distributions (as defined in the Financing
Agreement); or
(vii) Create any new Subsidiary, or make any
advance or loan to, or any investment in, or acquire all or
substantially all of the assets or capital stock of, or other
equity interests in, any firm, entity, person or corporation,
other than (i) investments in the Subsidiaries, (ii) Permitted
Investments (as defined in the Financing Agreement),
(iii) loans constituting Permitted Indebtedness, and
(iv) advances to officers and directors in the ordinary course
of business for travel expenses, employment relocation
programs and similar business expenses subject to a limit of
Seven Hundred Fifty Thousand Dollars ($750,000) in the
aggregate at any one time outstanding; provided, however that
such limit shall not apply with respect to legally required
and permissible indemnification of officers and directors.
(r) Financial Covenants. Grantor shall be in compliance
-------------------
and cause each of the Companies to be in compliance with (i) each
of the Financial Covenants set forth in Section 7.10 of the
Financing Agreement and (ii) the restrictions contained in
Section 7.11 of the Financing Agreement with respect to Capital
Expenditures (as defined in the Financing Agreement) and Operating
Leases (as defined in the Financing Agreement).
(s) Millennium Compliance. Grantor and each Subsidiary
---------------------
shall take all action reasonably necessary to assure that its
computer-based systems are able to effectively process date-
sensitive data functions. Grantor represents and warrants to the
Agent that the "Year 2000" problem (that is, the inability of
certain computer applications to recognize and properly perform
date-sensitive functions involving dates subsequent to December 31,
1999) will not have a Material Adverse Effect on any such entity.
Grantor and each Subsidiary reasonably anticipate that all computer
applications which are material to the operation of its business
will, on a timely basis, properly perform date-sensitive functions
on and after January 1, 2000. Upon the Agent's request from time
to time, Grantor shall provide the Agent with assurances, in form
and substance reasonably satisfactory to the Agent, that Grantor's
and each Subsidiary's computer systems and applications are, or
will be, Year 2000 compliant on a timely basis.
6. The Agent's Appointment as Attorney-in-Fact.
-------------------------------------------
(a) The Grantor hereby irrevocably constitutes and
appoints the Agent and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney- in-fact
with full, irrevocable power and authority in the place and stead
of the Grantor and in the name of the Grantor or in its own name,
from time to time in the Agent's discretion upon the occurrence and
during the continuance of an Event of Default, for the purpose of
carrying out the terms of this Agreement, to take any and all
appropriate action and to execute and deliver any and all documents
and instruments which the Agent may deem necessary or desirable to
accomplish the purposes of this Agreement and, without limiting the
generality of the foregoing, hereby grants the Agent the power and
right, on behalf of the Grantor, without notice to or assent by the
Grantor to do the following:
(i) to ask, demand, collect, receive and give
acquittances and receipts for any and all moneys due and to
become due under any Collateral and, in the name of the
Grantor or in its own name or otherwise, to take possession of
and endorse and collect any checks, drafts, notes, acceptances
or other Instruments for the payment of moneys due under any
Collateral and to file any claim or to take any other action
or proceeding in any court of law or equity or otherwise
deemed appropriate by the Agent for the purpose of collecting
any and all such moneys due under any Collateral whenever
payable and to file any claim or to take any other action or
proceeding in any court of law or equity or otherwise deemed
appropriate by the Agent for the purpose of collecting any and
all such moneys due under any Collateral whenever payable;
(ii) to pay or discharge taxes, Liens, security
interests or other encumbrances levied or placed on or
threatened against the Collateral, to effect any repairs or
maintain any insurance called for by the terms of this
Agreement and to pay all or any part of the premiums therefor
and the costs thereof; and
(iii) (A) to direct any party liable for any
payment under any of the collateral to make payment of any and
all moneys due, and to become due thereunder, directly to the
Agent or as the Agent shall direct; (B) to receive payment of
and receipt for any and all moneys, claims and other amounts
due, and to become due at any time, in respect of or arising
out of any Collateral; (C) to sign and indorse any invoices,
freight or express bills, bills of lading, storage or
warehouse receipts, drafts against debtors, assignments,
verifications and notices in connection with Accounts and
other Documents constituting or relating to the Collateral;
(D) to commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any part thereof and
to enforce any other right in respect of any Collateral;
(E) to defend any suit, action or proceeding brought against
the Grantor with respect to any Collateral; (F) to settle,
compromise or adjust any suit, action or proceeding described
above and, in connection therewith, to give such discharges or
releases as the Agent may deem appropriate; (G) to license or,
to the extent permitted by an applicable license, sublicense,
whether general, special or otherwise, and whether on an
exclusive or non-exclusive basis, any patent or trademark,
throughout the world for such term or terms, on such
conditions, and in such manner, as the Agent shall in its sole
discretion determine; and (H) generally to sell, transfer,
pledge, make any agreement with respect to or otherwise deal
with any of the Collateral as fully and completely as though
the Agent was the absolute owner thereof for all purposes, and
to do, at the Agent's option and the Grantor's expense, at any
time, or from time to time, all acts and things which the
Agent reasonably deems necessary to protect, preserve or
realize upon the Collateral and the Agent's and the Guaranteed
Parties' Lien therein, in order to effect the intent of this
Agreement, all as fully and effectively as the Grantor might
do.
(b) The Grantor hereby ratifies, to the extent permitted
by law, all that any said attorney shall lawfully do or cause to be
done by virtue hereof. The power of attorney granted pursuant to
this Section 6, being coupled with an interest, shall be
irrevocable until the Guaranteed Obligations are fully paid and
satisfied.
(c) The powers conferred on the Agent hereunder are
solely to protect the Agent's and the Guaranteed Parties' interests
in the Collateral and shall not impose any duty upon either of them
to exercise any such powers. The Agent shall be accountable only
for amounts that it actually receives as a result of the exercise
of such powers and neither it nor any of its officers, directors,
employees or agents shall be responsible to the Grantor for any act
or failure to act.
(d) The Grantor also authorizes the Agent, at any time
and from time to time upon the occurrence and during the
continuance of any Event of Default, (i) to communicate in its own
name with any party to any Contract with regard to the assignment
of the right, title and interest of the Grantor in and under the
Contracts hereunder and other matters relating thereto and (ii) to
execute, in connection with the sale provided for in Section 8
hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
7. Performance by the Agent of the Grantor's Obligations.
-----------------------------------------------------
If the Grantor fails to perform or comply with any of its
agreements contained herein and the Agent, as provided for by the
terms of this Agreement, shall itself perform or comply, or
otherwise cause performance or compliance, with such agreement, the
reasonable expenses of the Agent incurred in connection with such
performance or compliance, together with interest thereon at the
highest rate then in effect in respect of the Guaranteed
Obligations, shall be payable by the Grantor to the Agent on demand
and shall constitute Guaranteed Obligations.
8. Remedies, Rights Upon an Event of Default.
-----------------------------------------
(a) If any Event of Default shall occur and be
continuing, the Agent may exercise in addition to all other rights
and remedies granted to it in this Agreement and in any other Loan
Document (as defined in the Financing Agreement), all rights and
remedies of a secured party under the UCC. Without limiting the
generality of the foregoing, the Grantor expressly agrees that in
any such event the Agent, without demand of performance or other
demand, advertisement or notice of any kind (except the notice
specified below of time and place of public or private sale) to or
upon the Grantor or any other Person (all and each of which
demands, advertisements and/or notices are hereby expressly waived
to the maximum extent permitted by the UCC and other applicable
law), may forthwith collect, receive, appropriate and realize upon
the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give an option or options to purchase, or sell or
otherwise dispose of and deliver said Collateral (or contract to do
so), or any part thereof, in one or more parcels at public or
private sale or sales, at any exchange or broker's board or any of
the Agent's offices or elsewhere at such prices as it may deem
best, for cash or on credit or for future delivery without
assumption of any credit risk. For the purpose of enabling the
Agent to exercise its rights and remedies hereunder, the Grantor
hereby grants to Agent, for the benefit of the Lenders, to the
extent assignable, licensable, or sublicensable, without breaching
any underlying agreements with third parties, an irrevocable,
nonexclusive license (exercisable without payment of royalty or
other compensation to the Grantor) to use, assign, license or
sublicense any of the General Intangibles. The Agent or any other
Guaranteed Party shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of said Collateral
so sold, free of any right or equity of redemption, which equity of
redemption the Grantor hereby releases. The Grantor further
agrees, at the Agent's request, to assemble the Collateral and make
it available to the Agent at places which the Agent shall
reasonably select, whether at the Grantor's premises or elsewhere.
The Agents shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, as provided
in Section 8(d) hereof, the Grantor remaining liable for any
deficiency remaining unpaid after such application, and only after
so paying over such net proceeds and after the payment by the Agent
of any other amount required by any provision of law, including
Section 9-504(1)(c) of the UCC, need the Agent account for the
surplus, if any, to the Grantor. To the extent permitted by
applicable law, the Grantor waives all claims, damages, and demands
against the Guaranteed Parties arising out of the repossession,
retention or sale of the Collateral. The Grantor agrees that the
Agent need not give more than ten days notice of the time and place
of any public sale or of the time after which a private sale may
take place and that such notice is reasonable notification of such
matters. The Grantor shall remain liable for any deficiency if the
proceeds of any sale or disposition of the Collateral are
insufficient to pay all Guaranteed Obligations, the Grantor also
being liable for the reasonable fees and expenses of any attorneys
employed by the Agent and the Guaranteed Parties to collect such
deficiency.
(b) The Grantor also agrees to pay all costs of the
Agent and the other Guaranteed Parties, including, without
limitation, reasonable attorneys' fees, incurred in connection with
the enforcement of any of their respective rights and remedies
hereunder.
(c) The Grantor hereby waives presentment, demand,
protest or any notice (to the maximum extent permitted by
applicable law) of any kind in connection with this Agreement or
any Collateral.
(d) The Proceeds of any sale, disposition or other
realization upon all or any part of the Collateral shall be
distributed by the Agent in the order of priorities set forth in
the Financing Agreement or other Loan Documents as with respect to
the Companies.
(e) The Grantor also agrees that the Agent shall be
under no obligation to xxxxxxxx any assets in favor of the Grantor
or any other party or against or in payment of any or all of the
Guaranteed Obligations. To the extent the Agent or the other
Guaranteed Parties enforce their security interests or any
Guaranteed Party exercises its rights of setoff and such payment or
payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of
such recovery, the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or
setoff had not occurred.
9. Limitation on the Guaranteed Parties' Duty in Respect of
--------------------------------------------------------
Collateral. No Guaranteed Party shall have any duty as to any
----------
Collateral in its possession or control or in the possession or
control of any agent or nominee of it or any income thereon or as
to the preservation of rights against prior parties or any other
rights pertaining thereto, except that each Guaranteed Party shall
use reasonable care with respect to the Collateral in its
possession or under its control. Upon request of the Grantor, the
Agent shall account for any moneys received by it in respect of any
foreclosure on or disposition of the Collateral.
10. Notices. Except as otherwise provided herein, all
-------
notices and correspondences hereunder shall be in writing and sent
by certified or registered mail, return receipt requested, or by
overnight delivery service, with all charges prepaid, if to the
Agent, then to The CIT Group/Business Credit, Inc., 00 Xxxxx
XxXxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Regional Manager, if to the Grantor, then to Viskase Companies,
Inc., 0000 Xxxx 00xx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000,
Attention: President and General Counsel, or by facsimile
transmission, promptly confirmed in writing sent by first class
mail, if to the Agent, on behalf of the Guaranteed Parties, at
(000) 000-0000, and if to the Grantor, at (000) 000-0000. All such
notices and correspondence shall be deemed given (i) if sent by
certified or registered mail, three business days after being
postmarked, (ii) if sent by overnight delivery service, when
received at the above stated addresses or when delivery is refused
and (iii) if sent by telex or facsimile transmission, when receipt
of such transmission is acknowledged.
11. Amendments, Etc. No amendment or waiver of any provision
---------------
of this Agreement nor consent to any departure by the Grantor
therefrom shall in any event be effective unless the same shall be
in writing and signed by the Agent and Grantor, and then any such
waiver or consent shall only be effective in the specific instance
and for the specific purpose for which given.
12. No Waiver; Remedies.
-------------------
(a) No failure on the part of Agent or any other
Guaranteed Party to exercise, and no delay in exercising any right
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative, may be exercised singly or
concurrently, and are not exclusive of any remedies provided by law
or the Financing Agreement or other Loan Documents.
(b) Failure by the Agent at any time or times hereafter
to require strict performance by the Grantor or any other Person of
any of the provisions, warranties, terms or conditions contained in
any of the Financing Agreement or other Loan Documents now or at
any time or times hereafter executed by the Grantor or any such
other Person and delivered to any of the Guaranteed Parties shall
not waive, affect or diminish any right of any of the Guaranteed
Parties at any time or times hereafter to demand strict performance
thereof, and such right shall not be deemed to have been modified
or waived by any course of conduct or knowledge of any of the
Guaranteed Parties, or any agent, officer or employee of any
Guaranteed Party.
13. Successors and Assigns. This Agreement and all
----------------------
obligations of the Grantor hereunder shall be binding upon the
successors and assigns of the Grantor, and shall, together with the
rights and remedies of the Agent hereunder, inure to the benefit of
the Agent, the other Guaranteed Parties, and their respective
successors and assigns.
14. Governing Law; Severability. This Agreement shall be
---------------------------
governed by, and be construed and interpreted in accordance with,
the internal law of the State of Illinois, without regard to
conflicts of law principles. Wherever 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 prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of such
prohibition or invalidity and without invalidating the remaining
provisions of this Agreement.
15. Waiver of Jury Trial. The Grantor and Agent waive any
--------------------
right they may have to trial by jury in any action or proceeding to
enforce or defend any rights or remedies hereunder, under the
Guaranty or under any of the other Loan Documents.
16. Further Indemnification. The Grantor agrees to pay, and
-----------------------
to save the Agent and each other Guaranteed Party harmless from,
any and all liabilities with respect to, or resulting from any
delay in paying, any and all excise, sales or other similar taxes
which may be payable or determined to be payable with respect to
any of the Collateral or in connection with any of the transactions
contemplated by this Agreement.
17. Section Titles. The Section titles contained in this
--------------
Agreement are and shall be without substantive meaning or content
of any kind whatsoever and are not a part of this Agreement.
18. Confidentiality. For the purposes of this Section 18,
--------------- ----------
"Confidential Information" means all financial projections and all
other information delivered to the Agent, the Co-Agent (as defined
in the Financing Agreement), the Syndication Agent (as defined in
the Financing Agreement) or any Lender by or on behalf of Grantor,
any Company or any Subsidiary in connection with the transactions
contemplated by or otherwise pursuant to this Agreement that is
proprietary in nature and that is clearly marked or labeled or
otherwise adequately identified as being confidential information
of Grantor, any Company or any Subsidiary, provided that such term
does not include information that (a) was publicly known or
otherwise known to the Agent, the Co-Agent, the Syndication Agent
or the Lenders prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or omission
by the Agent, the Co-Agent, the Syndication Agent or the Lenders or
any person acting on their behalf, (c) otherwise becomes known to
the Agent, the Co-Agent, the Syndication Agent or the Lenders other
than through disclosure by the Agent, the Co-Agent, the Syndication
Agent, the Lenders, any Company or any Subsidiary or
(d) constitutes financial statements delivered under Section 5(p)
------------
that are otherwise publicly available. The Agent, the Co-Agent,
the Syndication Agent and the Lenders will maintain the
confidentiality of such Confidential Information in accordance with
commercially reasonable procedures adopted by the Agent, the Co-
Agent, the Syndication Agent and the Lenders in good faith to
protect confidential information of third parties delivered to
them, provided that the Agent, the Co-Agent, the Syndication Agent
and the Lenders may deliver or disclose Confidential Information to
(a) their respective directors, officers, employees, agents,
attorneys and affiliates (to the extent such disclosure reasonably
relates to the administration of this Agreement and the other Loan
Documents and such Person (as defined in the Financing Agreement)
has been notified of these confidentiality provisions), (b) their
respective financial advisors and other professional advisors who
agree to hold confidential the Confidential Information
substantially in accordance with the terms of this Section 18,
----------
(c) any other Lender, (d) any bank or other commercial lender to
which the Agent, the Co-Agent or a Lender sells or offers to sell
a portion of their rights and obligations under the Financing
Agreement or any participation therein (if such person has agreed
in writing prior to its receipt of such Confidential Information to
be bound by the provisions of this Section 18), or (e) any other
----------
person (including bank auditors and other regulatory officials) to
which such delivery or disclosure may be necessary or appropriate
(i) to comply with compliance with any applicable law, rule,
regulation or order, (ii) in response to any subpoena or other
legal process after giving the Grantor notice and an opportunity to
seek judicial protection for such materials, (iii) in connection
with any litigation to which the Agent, the Co-Agent, the
Syndication Agent or a Lender is a party or (iv) if an Event of
Default has occurred and is continuing, to the extent the Agent may
reasonably determine such delivery and disclosure to be necessary
or appropriate in the enforcement or for the protection of the
rights and remedies under this Agreement or the other Loan
Documents.
19. Security Interest Absolute. All rights of the Agent and
--------------------------
security interests hereunder, and all obligations of the Grantor
hereunder, shall be absolute and unconditional irrespective of:
(i) any lack or validity or enforceability of any
provision of any of the Financing Agreement, the Loan
Documents or any other agreement, document or instrument
relating thereto;
(ii) any change in the time, manner or place of
payment of, or in any other term of, or any increase in the
amount of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of any term of, or any consent to
any departure from any requirement of, any of the Financing
Agreement or the Loan Documents;
(iii) any exchange, release or non-perfection of
any Lien on any collateral, or any release or amendment or
waiver of any term of any guaranty of, or consent to departure
from any requirement of any guaranty of all or any of the
Guaranteed Obligations; or
(iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, Grantor,
other than payment in full of the Guaranteed Obligations.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Grantor has caused this Agreement to
be executed and delivered by its duly authorized officer on the
date first above written.
VISKASE COMPANIES, INC., a
Delaware corporation
By:
-----------------------
Its:
-----------------------
ACCEPTED AND ACKNOWLEDGED BY:
THE CIT GROUP/BUSINESS CREDIT, INC.,
a New York corporation, as Agent
By:
-------------------------------
Its:
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