MASTER LETTER OF CREDIT AGREEMENT
---------------------------------
Dated as of June 29, 2001
THIS MASTER LETTER OF CREDIT AGREEMENT (this "Agreement") is issued by the
undersigned applicant (the "Applicant") in favor of LaSalle Bank National
Association (together with its affiliates as set forth in Section 11.8, the
"Bank").
The Applicant may from time to time request that the Bank issue letters of
credit for the account of the Applicant. The Applicant agrees that, except
as provided below, any such letter of credit shall be subject to the terms
and provisions of this Agreement, and the Applicant further agrees with and
for the benefit of the Bank as follows:
SECTION 1 CERTAIN DEFINITIONS. When used herein the following terms shall
have the following meanings (such definitions to be applicable to both the
singular and plural forms of such terms):
Application means, at any time, an application (which shall be in writing,
including by facsimile, or made by electronic transmission) for a letter of
credit to be issued by the Bank, specifying (a) the requested issuance date,
the amount, the beneficiary and the expiration date of such letter of credit,
(b) the documentary requirements for drawing thereunder and (c) such other
information as the Bank may reasonably request.
Business Day means any day on which the Bank is open for commercial banking
business at its principal office in Chicago, Illinois.
Event of Default means any of the events described in Section 9.1.
Item means any draft, order, instrument, demand or other document drawn or
presented, or to be drawn or presented, under any Letter of Credit.
ISP means at any time the most recent International Standby Practices issued
by the Institute for International Banking Law & Practice, Inc.
Letter of Credit means any letter of credit issued (including any letter of
credit issued prior to the date hereof) by the Bank for the account of the
Applicant (including any letter of credit issued jointly for the account of
the Applicant and any other Person), in each case as amended or otherwise
modified from time to time but excluding any letter of credit that is issued
pursuant to an Application which expressly provides that such letter of
credit is not issued pursuant to this Agreement. A letter of credit issued
by the Bank pursuant to an Application from the Applicant (either
individually or together with any other Person) shall be a Letter of Credit
hereunder even if another Person is named as the "Applicant" or "Account
Party" in such letter of credit.
Liabilities means all obligations of the Applicant to the Bank and its
successors and assigns, howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, now or hereafter existing or due
or to become due, arising out of or in connection with this Agreement, any
Letter of Credit, any Application or any instrument or document delivered in
connection herewith or therewith.
Person means any natural person, corporation, partnership, trust, limited
liability company, association, governmental authority or unit, or any other
entity, whether acting in an individual, fiduciary or other capacity.
Prime Rate means the rate per annum established by the Bank from time to time
as its "Prime Rate" for commercial customers. The Prime Rate is a reference
rate and does not necessarily represent the lowest or best rate actually
charged to any customer.
UCC means at any time the Uniform Commercial Code as in effect in the State
of Illinois.
UCP means at any time the most recent Uniform Customs and Practice for
Documentary Credits issued by the International Chamber of Commerce.
Unmatured Event of Default means any event which if it continues uncured
will, with lapse of time or notice or both, constitute an Event of Default.
SECTION 2 LETTER OF CREDIT PROCEDURES.
2.1 Issuance of Letters of Credit. Subject to the terms and conditions of
this Agreement, the Bank may from time to time, in its sole and complete
discretion, issue Letters of Credit for the account of the Applicant;
provided that the terms and provisions of each Letter of Credit and the
Application therefor shall be satisfactory to the Bank in its discretion.
2.2 Application. Not later than three Business Days prior to the date of
the proposed issuance of a Letter of Credit (or such later date as the Bank
shall agree), the Applicant shall deliver an Application for such Letter of
Credit to the Bank. An Application may be sent by facsimile, by United
States mail, by overnight courier, by electronic transmission using the
system provided by the Bank, by personal delivery or by any other means
acceptable to the Bank.
2.3 Form of Letters of Credit. (a) The Applicant authorizes the Bank to
set forth the terms of each Application in the Letter of Credit corresponding
to such Application (and in any amendment thereto) in such language as the
Bank decrees appropriate, with such variations from such terms as the Bank
may in its discretion determine to be necessary (which determination shall be
conclusive) and not materially inconsistent with such Application. The Bank
may, but shall not be obligated to, request the Applicant to review the form
of a Letter of Credit prior to issuance thereof, in which case the Applicant
shall be deemed to have approved the form of such Letter of Credit. With
respect to any other Letter of Credit, the Applicant agrees that such Letter
of Credit shall be conclusively presumed to be in proper form unless the
Applicant notifies the Bank in writing of any inconsistency in such Letter of
Credit within three Business Days of its issuance. Upon receipt of timely
notice of any discrepancy in any Letter of Credit, the Bank will endeavor to
obtain the consent of the beneficiary and any confirming bank for an
appropriate modification to such Letter of Credit; provided that the Bank
shall have no liability or responsibility for its failure to obtain such
consent.
(b) The Applicant accepts the risk that a Letter of Credit will be
interpreted or applied other than as intended by the Applicant to the extent
such Letter of Credit (i) permits presentation at a place other than the
place of issuance, (ii) permits application of laws or practice rules with
which the Applicant is unfamiliar, (iii) includes ambiguous, inconsistent or
impossible requirements, (iv) requires termination or reduction against a
presentation made by the Applicant rather than the beneficiary or (v) fails
to incorporate appropriate letter of credit practices rules.
2.4 Representations and Warranties. The delivery of each Application shall
automatically constitute a representation and warranty by the Applicant to
the Bank to the effect that on the requested date of issuance of such Letter
of Credit, (a) the representations and warranties of the Applicant set forth
in Section 4 shall be true and correct as of such requested date as though
made on the date thereof and (b) no Event of Default or Unmatured Event of
Default shall have then occurred and be continuing or will result from such
issuance.
SECTION 3 REIMBURSEMENT OBLIGATIONS; RESPONSIBILITIES, ETC.
3.1 Reimbursement Obligations. The Applicant hereby agrees to reimburse
the Bank forthwith upon demand in an amount equal to any payment or
disbursement made by the Bank under any Letter of Credit or any time draft
issued pursuant thereto, together with interest on the amount so paid or
disbursed by the Bank from and including the date of payment or disbursement
to but not including the date the Bank is reimbursed by the Applicant at a
rate per annum equal to the Prime Rate from time to time in effect plus 2%
(or, if less, the maximum rate permitted by applicable law). The obligation
of the Applicant to reimburse the Bank under this Section 3 for payments and
disbursements made by the Bank under any Letter of Credit or any time draft
issued pursuant thereto shall be absolute and unconditional under any and all
circumstances, including, without limitation, the following:
(a) any failure of any Item presented under such Letter of Credit to
strictly comply with the terms of such Letter of Credit;
(b) the legality, validity, regularity or enforceability of such Letter of
Credit or of any Item presented thereunder;
(c) any defense based on the identity of the transferee of such Letter of
Credit or the sufficiency of the transfer if such Letter of Credit is
transferable;
(d) the existence of any claim, set-off, defense or other right that the
Applicant may have at any time against any beneficiary or transferee of
such Letter of Credit, the Bank or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or
any unrelated transaction;
(e) any Item presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(f) honor of a demand for payment presented electronically even if such
Letter of Credit requires that demand be in the form of a draft;
(g) waiver by the Bank of any requirement that exists for the Bank's
protection and not the protection of the Applicant or any waiver by the
Bank which does not in fact materially prejudice the Applicant;
(h) any payment made by the Bank in respect of an Item presented after the
date specified as the expiration date of, or the date by which
documents must be received under, such Letter of Credit if payment
after such date is authorized by the ISP, the UCC or the UCP, as
applicable; or
(i) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing;
provided that the Applicant shall not be obligated to reimburse the Bank for
any wrongful payment or disbursement made by the Bank under any Letter of
Credit as a result of any act or omission constituting gross negligence or
willful misconduct on the part of the Bank.
3.2 Discrepancies (a) The Applicant agrees that it will promptly examine
any and all instruments and documents delivered to it from time to time in
connection with any Letter of Credit, and if the Applicant has any claim of
non-compliance with its instructions or of discrepancies or other
irregularity, the Applicant will immediately (and, in any event within three
Business Days) notify the Bank thereof in writing, and the Applicant shall be
deemed to have waived any claim against the Bank unless such notice is given
within such time period. Without limiting the foregoing, if the Bank makes
any payment or disbursement under a Letter of Credit and the Applicant does
not send a notice to the Bank within three Business Days objecting to such
payment or disbursement and specifying in reasonable detail the discrepancy
or irregularity which is the basis for such objection, then the Applicant
shall be precluded from making any objection to the Bank's honor of the
presentation with respect to which such payment or disbursement was made (but
shall not be precluded from asserting any objection to any different
presentation under the same or a different Letter of Credit).
(b) The Applicant's acceptance or retention of any documents presented under
or in connection with a Letter of Credit (including originals or copies of
documents sent directly to the Applicant) or of any property for which
payment is supported by a Letter of Credit shall ratify the Bank's honor of
the documents and absolutely preclude the Applicant from raising a defense or
claim with respect to the Bank's honor of the relevant presentation.
3.3 Documents. Unless specified to the contrary in the relevant
Application, the Applicant agrees that the Bank and its correspondents:
(a) may accept as complying with the applicable Letter of Credit any Item
drawn, issued or presented under such Letter of Credit which is issued or
purportedly issued by an agent, executor, trustee in bankruptcy, receiver or
other representative of the party identified in such Letter of Credit as the
party permitted to draw, issue or present such Item; and (b) may in its or
their discretion, but shall not be obligated to, accept or honor (i) any Item
which substantially complies with the terms of the applicable Letter of
Credit; (ii) any Item which substantially complies under the laws, rules,
regulations and general banking or trade customs and usages of the place of
presentation, negotiation or payment; (iii) drafts which fail to bear any or
adequate reference to the applicable Letter of Credit; (iv) any Item
presented to the Bank after the stated expiration date of a Letter of Credit
but within any applicable time period during which such Letter of Credit may
be honored in accordance with the UCP, the UCC and/or the ISP, as applicable
(and, in any event, any item presented to the Bank on the Business Day
immediately following the stated expiration date of any Letter of Credit, if
such stated expiration date falls on a day which is not a Business Day); or
(v) any Item which substantially complies with the requirements of the UCP,
the UCC and/or the ISP, as applicable. In determining whether to pay under
any Letter of Credit, the Bank shall have no obligation to the Applicant or
any other Person except to confirm that the Items required to be delivered
under such Letter of Credit appear to have been delivered and appear on their
face to substantially comply with the requirements of such Letter of Credit.
For purposes of the foregoing, an Item "substantially complies" unless there
are discrepancies in the presentation which appear to be substantial and
which reflect corresponding defects in the beneficiary's performance in the
underlying transaction. A discrepancy is not substantial if it is unrelated
or immaterial to the nature or amount of the Applicant's loss. For example,
documents honored by the Bank that do not comply with the timing requirements
of the Letter of Credit for presenting or dating any required beneficiary
statement nonetheless substantially comply if those timing requirements are
not material in determining whether the underlying agreement has been
substantially performed or violated.
3.4 Exculpation. In addition to the exculpatory provisions contained in
the UCP, the UCC and/or the ISP, as applicable, the Bank and its
correspondents shall not be responsible for, and the Applicant's obligation
to reimburse the Bank shall not be affected by, (a) compliance with any law,
custom or regulation in effect in the country of issuance, presentation,
negotiation or payment of any Letter of Credit, (b) any refusal by the Bank
to honor any Item because of an applicable law, regulation or ruling of any
governmental agency, whether now or hereafter in effect, (c) any action or
inaction required or permitted under the UCC, the UCP, the ISP or the United
Nations Convention on Independent Guarantees and Standby Letters of Credit,
in each case as applicable, or (d) any act or the failure to act of any agent
or correspondent of the Bank, including, without limitation, failure of any
such agent or correspondent to pay any Item because of any law, decree,
regulation, ruling or interpretation of any governmental agency.
3.5 Risks. The Applicant assumes all risks of the acts or omissions of any
beneficiary or transferee of any Letter of Credit (it being understood that
such assumption is not intended to, and shall not, preclude the Applicant
from pursuing any right or remedy it may have against any such beneficiary or
transferee). The Applicant further agrees that any action or omission by the
Bank under or in connection with any Letter of Credit or any related Item,
document or property shall, unless in breach of good faith, be binding on the
Applicant and shall not put the Bank under any resulting liability to the
Applicant. Without limiting the foregoing, the Applicant agrees that in no
event shall the Bank be liable for incidental, consequential, punitive,
exemplary or special damages.
3.6 Limitation on Bank's Obligations. Without limiting any other provision
herein, the Bank is expressly authorized and directed to honor any request
for payment which is made under and in compliance with the terms of any
Letter of Credit without regard to, and without any duty on the part of the
Bank to inquire into, the existence of any dispute or controversy between any
of the Applicant, the beneficiary of any Letter of Credit or any other
Person, or the respective rights, duties or liabilities of any of them, or
whether any facts represented in any Item presented under a Letter of Credit
are true or correct. Furthermore, the Applicant agrees that the Bank's
obligation to the Applicant shall be limited to honoring requests for payment
made under and in compliance with the terms of any Letter of Credit, and the
Bank's obligation remains so limited even if the Bank may have prepared or
assisted in the preparation of the wording of any Letter of Credit or any
Item required to be presented thereunder or the Bank may otherwise be aware
of the underlying transaction giving rise to any Letter of Credit.
3.7 Automatic Renewal of Letters of Credit. If any Letter of Credit
contains any provision for automatic renewal, the Applicant acknowledges and
agrees that the Bank is under no obligation to allow such renewal to occur
and any such renewal shall remain within the sole and absolute discretion of
the Bank. The Applicant irrevocably consents to the automatic renewal of
each such Letter of Credit in accordance with its terms if the Bank allows
such renewal to occur; provided that the Applicant shall have the right to
request the Bank to disallow any such renewal on the condition that the
Applicant shall give the Bank prior written notice of such request not less
than 30 days prior to the deadline imposed upon the Bank for notification to
the beneficiary of non-renewal of any such Letter of Credit.
SECTION 4 REPRESENTATIONS AND WARRANTIES. The Applicant represents and
warrants to the Bank that:
(a) Organization, etc. The Applicant is duly organized or formed, validly
existing and (to the extent applicable under the laws of the relevant
jurisdiction) in good standing under the laws of the jurisdiction of
its organization or formation, and the Applicant is duly qualified and
in good standing as a foreign entity authorized to do business in each
other jurisdiction where, because of the nature of its activities or
properties, such qualification is required, except that Viskase
Companies, Inc. is not currently in good standing in Illinois as a
foreign corporation.
(b) Authorization; No Conflict. The execution and delivery by the
Applicant of this Agreement and each Application, the issuance of
Letters of Credit for the account of the Applicant hereunder and the
performance by the Applicant of its obligations under this Agreement
and the Applications are within the organizational powers of the
Applicant, have been duly authorized by all necessary organizational
action, have received all necessary governmental approval (if any shall
be required), and do not and will not contravene or conflict with, or
result in or require the imposition of any lien or security interest
under, any provision of law or of the charter or by-laws of the
Applicant, or of any indenture, loan agreement or other contract, or
any judgment, order or decree, which is binding upon the Applicant.
(c) Validity and Binding Nature. This Agreement is, and upon delivery to
the Bank each Application will be, the legal, valid and binding
obligation of the Applicant, enforceable against the Applicant in
accordance with its terms, subject to bankruptcy, insolvency and
similar laws of general application affecting the right of creditors
and to general principles of equity.
(d) Approvals. No authorization, approval or consent of, or notice to or
filing with, any governmental or regulatory authority is required to be
made in connection with the execution and delivery by the Applicant of
this Agreement or the issuance of any Letter of Credit for the account
of the Applicant pursuant hereto.
SECTION 5 FEES. The Applicant agrees to pay the Bank all reasonable fees
of the Bank (at the rates specified by the Bank from time to time in
schedules delivered by the Bank to the Applicant) with respect to each Letter
of Credit (including, without limitation, all fees associated with any
amendment to, drawing under, banker's acceptance pursuant to, or transfer of
a Letter of Credit), such fees to be payable on demand by the Bank therefor.
SECTION 6 COMPUTATION OF INTEREST AND FEES. All interest and fees
hereunder shall be computed for the actual number of days elapsed on the
basis of a year of 360 days. The interest rate applicable to Letter of
Credit reimbursement obligations shall change simultaneously with each change
in the Prime Rate.
SECTION 7 MAKING OF PAYMENTS. (a) All payments of principal of, or
interest on, letter of credit reimbursement obligations, all payments of fees
and all other payments hereunder shall be made by the Applicant in
immediately available funds to the Bank at its principal office in Chicago
not later than 12:30 P.M., Chicago time, on the date due, and funds received
after that time shall be deemed to have been received by the Bank on the next
Business Day. If any payment of principal, interest or fees falls due on a
Saturday, Sunday or other day which is not a Business Day, then such due date
shall be extended to the next Business Day, and additional interest shall
accrue and be payable for the period of such extension.
(b) The Applicant irrevocably agrees that the Bank or any affiliate thereof
may (but neither the Bank nor any such affiliate shall be obligated to) debit
money market account no. 8600755196 maintained by Viskase Corporation with
Bank, all proceeds of the foregoing, and all replacements and substitutions
of the foregoing purchased with the proceeds of the foregoing of the
Applicant in an amount sufficient to pay any fee, reimbursement obligation or
other amount that is due and payable hereunder. The Bank or the applicable
affiliate shall promptly notify the Applicant of any such debit (but failure
of the Bank or any such affiliate to do so shall not impair the effectiveness
thereof or impose any liability on the Bank or such affiliate).
(c) The Applicant shall reimburse the Bank for each payment under a Letter
of Credit in the same currency in which such payment was made; provided that,
if the Bank so requests (in its discretion), the Applicant shall reimburse
the Bank in United States dollars for any payment under a Letter of Credit
made in a foreign currency at the rate at which the Bank could sell such
foreign currency in exchange for United States dollars for transfer to the
place of payment of such payment or, if there is no such rate, the United
States dollar equivalent of the Bank's actual cost of settlement. The
Applicant agrees to pay the Bank on demand in United States dollars such
amounts as the Bank may be required to expend to comply with any and all
governmental exchange regulations now or hereafter applicable to the purchase
of foreign currency.
(d) All payments by the Applicant hereunder shall be made free and clear of
and without deduction for any present or future income, excise or stamp taxes
and any other taxes, fees, duties, withholdings or other charges of any
nature whatsoever imposed by any taxing authority, but excluding franchise
taxes and taxes imposed on or measured by the Bank's net income or receipts
(such non-excluded items being called "Taxes"). If any withholding or
deduction from any payment to be made by the Bank hereunder is required in
respect of any Taxes pursuant to any applicable law, rule, or regulation,
then the Applicant will
(i) pay directly to the relevant authority the full amount required to
be so withheld or deducted;
(ii) promptly forward to the Bank an official receipt or other
documentation satisfactory to the Bank evidencing such payment to
such authority; and
(iii) pay to the Bank such additional amount as is necessary to ensure
that the net amount actually received by the Bank will equal the
full amount the Bank would have received had no such withholding or
deduction been required.
Moreover, if any Taxes are directly asserted against the Bank or on any
payment received by the Bank hereunder, the Bank may pay such Taxes and the
Applicant will promptly pay such additional amount (including any penalty,
interest or expense) as is necessary in order that the net amount received by
the Bank after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount the Bank would have received had no
such Taxes been asserted.
If the Applicant fails to pay any Taxes when due to the appropriate taxing
authority of fails to remit to the Bank the required receipts or other
required documentary evidence, the Applicant shall indemnify the Bank for any
incremental Tax, interest, penalty or expense that may become payable by the
Bank as a result of such failure.
SECTION 8 INCREASED COSTS. If, after the date hereof, the adoption of, or
any change in, any applicable law, rule or regulation, or any change in the
interpretation or administration of any applicable law, rule or regulation by
any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by the Bank with
any request, guideline or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency,
(a) affects or would affect the amount of capital required or expected to
be maintained by the Bank or any corporation controlling the Bank and
(taking into consideration the Bank's or such controlling corporation's
policies with respect to capital adequacy) the Bank determines that the
amount of such capital is increased as a consequence of this Agreement
or the Letters of Credit; or
(b) imposes, modifies or deems applicable any reserve (including, without
limitation, any reserve imposed by the Board of Governors of the
Federal Reserve System), special deposit or similar requirement against
assets of deposits with or for the account of, or credit extended by
the Bank with respect to letters of credit, or imposes on the Bank any
other condition affecting this Agreement or the Letters of Credit, and
the Bank determines that the result of any of the foregoing is to
increase the cost to, or to impose a cost on, the Bank of issuing or
maintaining any Letter of Credit or of making any payment or
disbursement under any Letter of Credit, or to reduce the amount of any
sum received or receivable by the Bank under this Agreement;
then within five Business Days after demand by the Bank (which demand shall
be accompanied by a statement setting forth in reasonable detail the basis of
such demand and a calculation thereof in reasonable detail), the Applicant
shall pay directly to the Bank such additional amount as will compensate the
Bank for such increased capital requirement, such increased cost or such
reduction, as the case may be. Determinations and statements of the Bank
pursuant to this Section 8 shall be conclusive absent manifest error, and the
provisions of this Section 8 shall survive termination of this Agreement.
SECTION 9 EVENTS OF DEFAULT AND THEIR EFFECT.
9.1 Events of Default. Each of the following shall constitute an Event of
Default under this Agreement:
9.1.1 Non-Payment of Liabilities, etc. Default in the payment when due
of any principal of or interest on any Liabilities, or default, and
continuance thereof for five days after notice thereof from the Bank, in
the payment when due of any fees or other amounts payable by the Applicant
hereunder.
9.1.2 Bankruptcy, etc. The Applicant or any guarantor of the
Liabilities shall become insolvent or admit in writing its inability to
pay debts as they mature, or the Applicant or any such guarantor shall
apply for, consent to or acquiesce in the appointment of a trustee or
receiver, or in the absence of such application, consent or acquiescence,
a trustee or receiver is appointed for the Applicant or any such
guarantor, or any proceeding under any bankruptcy or insolvency law or any
dissolution or liquidation proceeding is instituted by or against the
Applicant or any such guarantor and, if instituted against the Applicant
or such guarantor, remains for 30 days undismissed, or any writ of
attachment is issued against any substantial portion of the Applicant's or
any such guarantor's property and is not released within 30 days of
service, or the Applicant or any such guarantor takes any action to
authorize, or in furtherance of any of the foregoing.
9.1.3 Other Agreements with Bank. Any default shall occur (subject to
any applicable grace period) under any other agreement between the
Applicant and the Bank or any of its affiliates (including any agreement
under which the Applicant is a borrower and the Bank or any such affiliate
and one or more other financial institutions are the lenders); or the
Applicant shall fail to comply with or to perform (subject to any
applicable grace period) any covenant set forth in any such other
agreement as such covenant is in effect on the date hereof or is amended
from time to time with the consent of the Bank (but without giving effect
to the expiration or termination of any such agreement unless such
agreement is replaced by another agreement to which the Bank is a party).
9.1.4 Representations and Warranties. Any representation or warranty
made by the Applicant herein or in any writing furnished in connection
with or pursuant to this Agreement shall be false or misleading in any
material respect on the date made.
9.2 Effect of Event of Default. If any Event of Default described in
Section 9.1.2 shall occur, all Liabilities shall immediately become due and
payable and the Applicant shall immediately become obligated to deliver to
the Bank cash collateral in an amount equal to the face amount of all
outstanding Letters of Credit; and if any other Event of Default shall occur,
the Bank may declare all Liabilities to be due and payable and may demand
that the Applicant immediately deliver to the Bank cash collateral in an
amount equal to the face amount of all outstanding Letters of Credit,
whereupon all Liabilities shall become immediately due and payable and the
Applicant shall immediately become obligated to deliver to the Bank cash
collateral in an amount equal to the face amount of all outstanding Letters
of Credit. The Bank shall promptly advise the Applicant of any such
declaration, but failure to do so shall not impair the effect of such
declaration. The Applicant hereby grants the Bank a security interest in all
cash collateral delivered hereunder. All cash collateral shall be held by
the Bank and applied to Liabilities arising in connection with any drawing
under a Letter of Credit. After all Letters of Credit have been fully drawn,
expired or been terminated, such cash collateral shall be applied by the
Bank, first, to any remaining Liabilities and, then, to any other liabilities
of the Applicant to the Bank, and any excess shall be delivered to the
Applicant or as a court of competent jurisdiction may direct.
SECTION 10 SECURITY
10.2 Grant of Security Interest. As security for the prompt payment and
performance of all Liabilities, and in addition to any other security given
to the Bank by separate agreement, the Applicant hereby grants to the Bank a
continuing security interest in all of the following, whether now existing or
hereafter arising: money market account no. 8600755196 maintained by Viskase
Corporation with Bank, all proceeds of the foregoing, and all replacements
and substitutions of the foregoing purchased with the proceeds of the
foregoing. The Applicant further agrees that the Bank or any of its
affiliates may set off and apply to any of the Liabilities which are then due
and payable (by acceleration or otherwise) any deposit of the Applicant at
any time held by the Bank or any of its affiliates. The Applicant agrees
that this Agreement (or a carbon or photographic copy hereof) may be filed as
a financing statement to the extent permitted by law. The Applicant agrees
that, on request by the Bank, the Applicant shall execute and deliver such
financing statements and other documents or instruments as may be required by
the Bank to perfect or maintain the security interest of the Bank hereunder.
10.2 Rights and Remedies. The Bank shall have all rights and remedies of a
secured party under the UCC. If prior notice to the Applicant is required
for any action, the Bank shall give the Applicant at least five days' notice
in writing of the time and place of the sale, disposition or other event
giving rise to such required notice, and the Applicant agrees that such
notice will be deemed commercially reasonable. Any property or document
representing collateral may be held by the Bank in its name or in the name of
the Bank's nominee, all without prior notice. Proceeds of any sale or other
disposition of collateral shall be applied, in order, to the expenses of
retaking, holding and preparing the collateral for sale (including reasonable
attorneys' fees and legal expenses), and then to the obligations of the
Applicant hereunder until paid in full. The Applicant shall be liable for
any deficiency.
SECTION 11 GENERAL
11.1 Waiver; Amendments. No delay on the part of the Bank in the exercise
of any right, power or remedy shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or remedy preclude other
or further exercise thereof, or the exercise of any other right, power or
remedy. No amendment, modification or waiver of, or consent with respect to,
any provision of this Agreement shall be effective unless the same shall be
in writing and signed and delivered by the Bank, and then any such amendment,
modification, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
11.2 Notices. (a) Except as otherwise expressly provided herein, all
notices hereunder shall be in writing (including facsimile and electronic
transmission, which shall be considered original writings). Notices given by
mail shall be deemed to have been given three Business Days after the date
sent if sent by registered or certified mail, postage prepaid, to the
applicable party at its address shown below its signature hereto or at such
other address as such party may, by written notice received by the other
party to this Agreement, have designated as its address for notices. Notices
given by facsimile or electronic transmission shall be deemed to have been
given when sent. Notices sent by any other means shall be deemed to have
been given when received (or when delivery is refused).
(b) The Bank may rely on any writing (including any facsimile, any
electronic transmission or any information on a computer disk or similar
medium which may be reduced to writing), or any telephonic or other oral
message or instruction (including, without limitation, any oral waiver of any
discrepancy with respect to any Item), that the Bank believes in good faith
to have been received from an authorized officer, employee or representative
of the Applicant, and the Bank shall not be liable for any action taken in
good faith with respect to any writing, message or instruction from an
unauthorized person. The Bank shall not be under any duty to verify the
identity of any person submitting any Application or other writing or making
any other communication hereunder. Notwithstanding the foregoing, the Bank
is not obligated to recognize the authenticity of any request to issue,
amend, honor or otherwise act on any Letter of Credit that is not evidenced
to the Bank's satisfaction by a writing originally signed by a person the
Applicant has certified is authorized to act for the Applicant hereunder or
by a message or instruction authenticated to the Bank's satisfaction.
11.3 Costs, Expenses and Taxes; Indemnification. (a) The Applicant agrees
to pay on demand all reasonable out-of-pocket costs and expenses of the Bank
(including the reasonable fees and charges of counsel for the Bank) in
connection with the enforcement of this Agreement. In addition, the
Applicant agrees to pay, and to save the Bank harmless from all liability
for, any stamp or other taxes which may be payable in connection with the
execution or delivery of this Agreement, the issuance of Letters of Credit
hereunder, or the issuance of any other instrument or document provided for
herein or delivered or to be delivered hereunder or in connection herewith.
(b) The Applicant agrees to indemnify the Bank and each of its affiliates
and each of their respective officers, directors, employees and agents (each
an "Indemnified Party") against, and to hold each Indemnified Party harmless
from, any and all actions, causes of action, suits, losses, costs, damages,
expenses (including reasonable attorneys' fees and charges, expert witness
fees and other dispute resolution expenses) and other liabilities
(collectively the "Indemnified Liabilities") incurred by any Indemnified
Party as a result of, or arising out of, or relating to, this Agreement or
any Letter of Credit (and without regard to whether the applicable
Indemnified Party is a party to any proceeding out of which such Indemnified
Liabilities arise), except to the extent that a court of competent
jurisdiction determines in a final, non-appealable order that any Indemnified
Liability resulted directly from the gross negligence or willful misconduct
of such Indemnified Party. Without limiting the generality of the foregoing
sentence, the term "Indemnified Liabilities" includes any claim or liability
in which an advising, confirming or other nominated bank, or a beneficiary
requested to issue its own undertaking, seeks to be reimbursed, indemnified
or compensated. If and to the extent the foregoing undertaking may be
unenforceable for any reason, the Applicant agrees to make the maximum
contribution to the payment of each of the Indemnified Liabilities which is
permitted under applicable law.
(c) Without limiting clause (b), the Applicant agrees to indemnify the Bank,
and to hold the Bank harmless from, any loss or expense incurred by the Bank
as a result of any judgment or order being given or made for the payment of
any amount due hereunder in a particular currency (the "Currency of
Account") and such judgment or order being expressed in a currency (the
"Judgment Currency") other than the Currency of Account and as a result of
any variation having occurred in the rate of exchange between the date which
such amount is converted into the Judgment Currency and the date of actual
payment pursuant thereto. The foregoing indemnity shall constitute a
separate and independent obligation of the Applicant.
(d) All obligations provided for in this Section 11.3 shall survive any
termination of this Agreement.
11.4 Captions. Section captions used in this Agreement are for convenience
only and shall not affect the construction of this Agreement.
11.5 Governing Law. This Agreement shall be a contract made under and
governed by the laws of the State of Illinois applicable to contracts made
and to be performed entirely within such State. Except to the extent
inconsistent with such state law or otherwise expressly stated in any Letter
of Credit, each Letter of Credit and this Agreement also are subject to the
terms of (i) with respect to matters relating to standby Letters of Credit
and Applications therefor, the ISP, and (ii) with respect to matters relating
to commercial Letters of Credit and Applications therefor, the UCP. Whenever
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 to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement. All obligations of the Applicant and
rights of the Bank expressed herein shall be in addition to and not in
limitation of those provided by applicable law.
11.6 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Agreement.
11.7 Successors and Assigns. This Agreement shall be binding upon the
Applicant and its successors and assigns; provided that the Applicant may not
assign any of its rights or obligations hereunder without the prior written
consent of the Bank.
11.8 Right of Bank to Act through Branches and Affiliates. The Bank may
cause any Letter of Credit requested by the Applicant to be issued by a
branch or affiliate of the Bank, and all references to the "Bank" herein or
in any related document shall include each applicable branch or affiliate.
11.9 Foreign Assets Control Regulations. The Applicant certifies that no
transaction in foreign commodities covered by any Application will be
prohibited under the foreign assets control regulations of the United States
Treasury Department and that any importation related to any Letter of Credit
will conform with all applicable laws, rules and regulations.
11.10 Mitigation; Limitation of Liability. The Applicant agrees to take
action to avoid or reduce the amount of damages which may be claimed against
the Bank. For example, (a) in the case of wrongful honor, the Applicant
agrees to enforce its rights arising out of the underlying transaction
(except to the extent that enforcement is impractical due to the insolvency
of the beneficiary or other Person from whom the Applicant might otherwise
recover), and (b) in the case of wrongful dishonor, the Applicant agrees to
specifically and timely authorize the Bank to effect a cure and give written
assurances to the beneficiary that a cure is being arranged. The Applicant's
aggregate remedies against the Bank for honoring a presentation or retaining
honored documents in breach of the Bank's obligations to the Applicant
(whether arising under this Agreement, applicable letter of credit practice
or law, or any other agreement or law) are limited to the aggregate amount
paid by the Applicant to the Bank with respect to the honored presentation.
11.11 Subrogation. The Bank shall be subrogated (for purposes of defending
against the Applicant's claims and proceeding against others to the extent of
any liability of the Bank to the Applicant) to the Applicant's rights against
any Person who may be liable to the Applicant on any underlying transaction,
to the rights of any holder in due course or Person with similar status
against the Applicant and to the rights of the beneficiary of any Letter of
Credit or its assignee or any Person with similar status against the
Applicant.
11.12 Co-Applicants. (a) If this Agreement is signed by two or more Persons
(each a "Co-Applicant"), then the term "Applicant" shall mean each such
Person and all such Persons shall be jointly and severally liable for all
obligations of the "Applicant" hereunder and in respect of the Letters of
Credit issued pursuant hereto. Any Co-Applicant shall have the right to
issue all instructions relating to Letters of Credit (including, without
limitation, instructions as to the disposition of documents and waiver of
discrepancies) and to agree with the Bank upon any amendment, extension,
renewal or modification of, or change in the amount of, any Letter of Credit,
and such instructions and agreements shall be binding upon all Co-Applicants.
Each Co-Applicant shall be bound by (i) any notice from the Bank to any other
Co-Applicant, (ii) any other Co-Applicant's settlement or release of any
claim against the Bank arising under this Agreement and (iii) any default
under this Agreement attributable to any other Co-Applicant.
(b) Each Co-Applicant agrees that if at any time all or any part of any
payment theretofore applied by the Bank to any of the Liabilities is or must
be rescinded or returned by the Bank for any reason whatsoever (including the
insolvency, bankruptcy or reorganization of any Co-Applicant), such
Liabilities shall, to the extent that such payment is or must be rescinded or
returned, be deemed to have continued in existence, notwithstanding such
application by the Bank, and the obligations of such Co-Applicant with
respect thereto shall continue to be effective or be reinstated, as the case
may be, as to such Liabilities, all as though such application by the Bank
had not been made.
(c) The Bank may, from time to time, in its sole discretion and without
affecting the obligation of any Co-Applicant, take any or all of the
following actions: (a) retain or obtain the primary or secondary obligation
of any other obligor, in addition to such Co-Applicant, with respect to any
of the Liabilities, and take any security for the obligations of any such
other obligor, (b) extend or renew any of the Liabilities for one or more
periods (whether or not longer than the original period), alter or exchange
any of the Liabilities, or release or compromise any obligation of any other
Co-Applicant or any obligation of any nature of any other obligor with
respect to any of the Liabilities, (c) release its security interest in, or
surrender, release or permit any substitution or exchange for, all or any
part of any property securing any of the Liabilities, or extend or renew for
one or more periods (whether or not longer than the original period) or
release, compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such property, and (d) resort to such Co-
Applicant for payment of any of the Liabilities when due, whether or not the
Bank shall have resorted to any property securing any of the Liabilities or
shall have proceeded against any other Co-Applicant or any other obligor
primarily or secondarily obligated with respect to any of the Liabilities.
11.13 Continuation of Liability. Regardless of the expiry date of any Letter
of Credit, the Applicant shall remain liable hereunder until the Bank is
released from liability by every Person that is entitled to draw or demand
payment under each Letter of Credit issued pursuant hereto.
11.14 Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY APPLICATION, SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE COURTS OF XXXX COUNTY, ILLINOIS OR IN THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY
MAY BE BROUGHT, AT THE BANK'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE
SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE APPLICANT HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF, THE COURTS OF XXXX
COUNTY, ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION. THE APPLICANT
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, TO THE ADDRESS SET FORTH BENEATH ITS SIGNATURE HERETO (OR
SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE BANK AS ITS
ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF ILLINOIS. THE APPLICANT EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGNT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
Waiver of Jury Trial. EACH OF THE APPLICANT AND, BY ISSUING ANY LETTER OF
CREDIT, THE BANK HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY
APLLICATION, INSTRUMENT, DOCUMENT, AMENDMENT OR AGREEMENT DELIVERED OR WHICH
MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY
BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
Delivered at Chicago, Illinois as of the day and year first above written.
--------------------------------------------------------------------------
Viskase Corporation
-------------------
[Applicant - Company Name]
By: X. X. Xxxxxxxxx
Title: President & CEO
By: X. X. Xxxxxxx
Title: Vice President & CFO
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxxxx, XX 00000
Attention General Counsel
---------------
Facsimile: (000) 000-0000
Viskase Companies, Inc.
---------------------------------
[Second Applicant, if applicable]
By: X. X. Xxxxxxxxx
Title: President & CEO
By: X. X. Xxxxxxx
Title: Vice President & CFO
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxxxx, XX 00000
Attention General Counsel
---------------
Facsimile: (000) 000-0000
--------------
