EXECUTION COPY
AMENDMENT NO. 1 TO THE LETTER AGREEMENT
AMENDMENT No. 1, dated as of June 30, 2000 (this
"Amendment"), to the Agreement and Amendment, dated as of April
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13, 2000 (the "Letter Agreement"), between VISKASE CORPORATION, a
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Pennsylvania corporation (the "Lessee"), and STATE STREET BANK
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AND TRUST COMPANY, a Massachusetts trust company, not in its
individual capacity but solely as Owner Trustee under the Trust
Agreement (the "Lessor"), relating to the Lease Agreement dated
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as of December 18, 1990 (as amended and supplemented to the date
hereof, the "Lease"), between the Lessee and the Lessor, as
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successor trustee to Fleet National Bank, formerly known as
Shawmut Bank Connecticut, National Association, formerly known as
The Connecticut National Bank (capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to
such terms in the Letter Agreement).
Whereas, the Lessee and the Lessor entered into the
Letter Agreement, which provided, inter alia, that the Lessee
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would pay the 2000 Basic Rent Payment and the 2001 Basic Rent
Payment (as defined in the Letter Agreement, as amended hereby)
on or prior to the Extension Date;
Whereas, the Lessee has requested that the Lessor allow
the Lessee to make the 2000 Basic Rent Payment and the 2001 Basic
Rent Payment at a later time; and
Whereas, the Lessor and the Lessee have agreed to amend
the Letter Agreement pursuant to the terms and subject to the
conditions set forth herein.
Now therefore, in consideration of the mutual
agreements herein contained and for other good and valuable
consideration, the adequacy and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment. (a) Section 2 of the Letter
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Agreement is hereby amended by replacing the second sentence
thereof with the following sentences: "The Lessee hereby
acknowledges and confirms that it has been authorized by all
lenders party to any of the Financing Agreements (collectively,
with their successors, endorsees, transferees and assigns, the
"Lenders") to grant a security interest in the Collateral (as
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defined in each of the Financing Agreements) in favor of the
Lessor, such Lender consent being subject to the Lessor entering
into a subordination agreement with the Lenders (the
"Subordination Agreement"), which agreement shall contain
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language providing that in the event of a refinancing, refunding,
replacement, renewal or creation of any new senior secured
financing whenever incurred, the Lessor agrees to enter into a
new subordination agreement on similar terms with such senior
secured lenders, so long as such refinancing, refunding,
replacement, renewal or creation of any new senior secured
financing is in accordance with Section XVII(h) of the Lease, as
amended by this Agreement. The security interest in the
Collateral shall be perfected as of July 11, 2000 (provided,
however, that if the Lessee is prevented from granting the
perfected security interest solely as a result of the Lessor's
unreasonable refusal to enter into the Subordination Agreement,
such date will be extended until the date on which the Lessor
enters into the Subordination Agreement), pursuant to
documentation with lien-related provisions in substantially the
form executed in connection with the Financing Agreements, as
security for the obligations of the Lessee to the Lessor
hereunder and to the Lessor and Owner Participant under the Basic
Documents, such security interest to be (i) subordinated pursuant
to the Subordination Agreement and (ii) limited, if required
under the Indenture dated December 31, 1993, between Envirodyne
Industries, Inc. and Bankers Trust Company, to the amount of the
Capital Lease Obligation (as defined therein) in respect of the
Lease."
(b) Section 4 of the Letter Agreement is hereby
amended by the following:
(i) deleting the third, fourth and fifth sentences
thereof and inserting the following text in place thereof:
"The Lessor and the Lessee agree that the $23,499,190.49
payment of Basic Rent due on February 28, 2000 (the "2000
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Basic Rent Payment") shall be paid on or prior to the
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earliest to occur of (i) the sale of the Films Operation,
(ii) notice by the Lessee to the Lessor that it has
suspended or abandoned its efforts to sell the Films
Operation, (iii) the occurrence of any event which would
entitle any Lender, with or without lapse of time or
giving of notice, to terminate or withdraw its forbearance
obligations with respect to the Lessee, (iv) the
occurrence and continuance of an Event of Default under
the Lease (or Default with respect to Section XVII(g) of
the Lease), (v) two (2) Business Days (as defined below)
after written notice from the Lessor to the Lessee of the
Lessee's failure to grant the perfected security interest
to the Lessor as required by Section 2 hereof, if such
perfected security interests still have not been granted,
and (vi) September 27, 2000 (such earliest date, the
"Extension Date")"; and
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(ii) deleting the text "July 1, 2000." at the end
thereof and inserting the following text in place thereof:
"the earlier of (i) two (2) Business Days (as defined
herein) after the date of execution of a definitive
purchase agreement for the sale of the Films Operation and
(ii) August 1, 2000. During the period commencing on June
30, 2000 and continuing through and including the date
upon which the Lessee shall have paid the 2000 Basic Rent
Payment to the Lessor, the Lessor shall earn, and the
Lessee shall pay to the Lessor, interest on the 2000 Basic
Rent Payment at the Stipulated Rate (as defined in the
Lease), payable on the Extension Date. For the avoidance
of doubt, any failure by the Lessee to make the required
payment on the Extension Date shall result, among other
things, in the relevant provisions of the Lease regarding
late payments and payment defaults becoming effective with
respect to such failure. As used in this Agreement, the
term "Business Day" means any day other than a Saturday,
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Sunday or other day on which commercial banks in New York
City are authorized or required by law to close."
(c) Section 5 of the Letter Agreement is hereby
amended by:
(i) inserting the text "(the "2001 Basic Rent
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Payment")" between the words "date" and "shall"; and
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(ii) inserting the following text between the
first and second sentences thereof: "During the period
commencing on June 30, 2000 and continuing through and
including the date upon which the Lessee shall have paid
the 2001 Basic Rent Payment to the Lessor, the Lessor
shall earn, and the Lessee shall pay to the Lessor,
interest on the 2001 Basic Rent Payment at the Stipulated
Rate (as defined in the Lease), payable on the Extension
Date."
(d) Section 8 of the Letter Agreement is hereby amended
by inserting the text "and June 30, 2000" after the text "March
31, 2000".
(e) Section 9 of the Letter Agreement is hereby amended
by deleting the following text: "provided, however, if any lender
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consent required pursuant to Section 2 has not been obtained by
Viskase on or prior to April 21, 2000, Lessor has the option, at
its sole discretion, to terminate this Agreement, upon which
termination all the provisions hereof shall become null and
void."
SECTION 2. Effectiveness. This Amendment shall become
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effective as of the date first above written when the parties
hereto shall have received counterparts of this Amendment that,
when taken together, bear the signatures of the Lessee and the
Lessor.
SECTION 3. Letter Agreement. This Amendment shall
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apply and be effective only with respect to the provisions of the
Letter Agreement specifically referred to herein. After the date
hereof, any reference to the Letter Agreement shall mean the
Letter Agreement as amended hereby.
SECTION 4. Applicable Law. THIS AMENDMENT SHALL BE
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GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 5. Counterparts. This Amendment may be
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executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall
constitute but one agreement. Delivery of an executed signature
page to this Amendment by facsimile transmission shall be
effective as delivery of a manually signed counterpart of this
Amendment.
SECTION 6. Expenses. The Lessee agrees to reimburse
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the Owner Participant and the Lessor for its out-of-pocket
expenses in connection with this Amendment and any actions taken
in connection herewith, including the reasonable fees, charges
and disbursements of Cravath, Swaine & Xxxxx, counsel for the
Owner Participant.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers,
all as of the date and year first above written.
STATE STREET BANK AND TRUST
COMPANY, as Owner Trustee,
by
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Name:
Title:
VISKASE CORPORATION,
by
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Name:
Title:
