FIRST AMENDMENT TO INTERCREDITOR AGREEMENT
Exhibit
10.4
FIRST
AMENDMENT TO
This
First Amendment to Intercreditor Agreement (this “Amendment”),
dated
as of November 7, 2006, is made by and among XXXXX FARGO FOOTHILL, INC., a
California corporation (together with its successors and assigns, the
“Lender”)
under
and pursuant to the Loan Agreement, LASALLE BANK NATIONAL ASSOCIATION
(“LaSalle”),
solely in its capacity as Collateral Agent (together with its successors and
assigns, “Collateral
Agent”)
under
the Noteholder Documents, VISKASE COMPANIES, INC., a Delaware corporation (the
“Borrower”)
and
those subsidiaries of the Borrower hereafter party hereto (the “Subsidiaries,”
and
together with the Borrower, each, individually, a “Credit
Party,”
and
collectively, the “Credit
Parties”),
and
amends that certain Intercreditor Agreement, dated as of June 29, 2004, by
and
among the Lender, the Collateral Agent and the Borrower (the “Original
Intercreditor Agreement”).
Terms
capitalized herein and not otherwise defined herein shall have the meanings
ascribed to such terms in the Original Intercreditor Agreement.
WHEREAS,
the
parties hereto desire to amend certain of the terms and provisions of the
Original Increditor Agreement as provided herein.
NOW,
THEREFORE,
in
consideration of the premises herein contained, and for other good and valuable
consideration (the receipt, sufficiency and adequacy of which are hereby
acknowledged), the parties hereto (intending to be legally bound) hereby agree
as follows:
1. Amendments
to Original Intercreditor Agreement.
Subject
to the terms and conditions contained herein, the parties hereto hereby amend
the Original Intercreditor Agreement as follows:
(a) The
definition of “Maximum
Lender Priority Debt Amount”
in
Section
1.01
of the
Original Intecreditor Agreement is hereby amended to change the number
“$23,000,000” to “$25,000,000.”
(b) Clause
(ii)
of
Section
5.02(b)
of the
Original Intercreditor Agreement is hereby amended and restated in its entirety
as follows:
“(ii)
increase the aggregate principal amount of the Notes to an amount in excess
of
Ninety Million Dollars ($90,000,000) or such greater amount as may be issued
in
accordance with the provisions of the Indenture.”
2. Miscellaneous.
(a) Amendment.
No
amendment, modification, termination or waiver of any provision of this
Amendment, or consent to any departure therefrom, shall be effective without
the
prior written consent of each of the parties.
(b) Notices.
Any
notice under this Amendment shall be given in accordance with Section 7.05
of
the Original Intercreditor Agreement.
(c) Successors
and Assigns.
This
Amendment shall be binding upon and for the benefit of the parties hereto and
their respective, permitted successors and assigns.
(d) Severability.
Wherever possible, each provision of this Amendment shall be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Amendment shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or inability,
without invalidating the remainder of such provision or the remaining provisions
of this Amendment.
(e) Captions.
The
captions and headings of this Amendment are for convenience of reference only
and shall not affect the interpretation of this Amendment.
(f)
Governing
Law.
This
Amendment shall be governed by and construed in accordance with the internal
laws of the State of Illinois without regard to the conflicts of law provisions
thereof.
(g) References.
On or
after the date hereof, each reference in the Original Intercreditor Agreement
or
to this “Agreement” or words of like import, shall unless the context otherwise
requires, be deemed to refer to the Original Intercreditor Agreement as amended
hereby.
(h) Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
constitute an original and all of which when taken together shall constitute
one
and the same agreement.
[Signature
page follows]
2
IN
WITNESS WHEREOF,
the
undersigned have caused this Amendment to be duly executed and delivered as
of
the date first above written.
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XXXXX
FARGO FOOTHILL, INC.,
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a
California corporation
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By:
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/s/
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Title:
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LASALLE
BANK NATIONAL ASSOCIATION,
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| in its capacity as Collateral Agent | |||
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By:
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/s/
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Title:
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VISKASE
COMPANIES, INC.,
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a
Delaware corporation
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By:
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/s/
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Title:
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Signature
Page to First Amendment to the Intercreditor
Agreement
