[VISKASE HOLDING]
SECURITY AGREEMENT
This SECURITY AGREEMENT (this "Agreement"), dated as of
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June __, 1999 made by VISKASE HOLDING CORPORATION, a Delaware
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corporation (the "Grantor"), in favor of THE CIT GROUP/BUSINESS CREDIT,
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INC., a New York corporation, as Agent ("Agent") on behalf of itself and
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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 ("Viskase Corporation"), and
Viskase Sales Corporation, a Delaware corporation ("Viskase Sales")
(Viskase Corporation and Viskase Sales are sometimes referred to herein
individually as a "Company" and collectively as the "Companies"), and
certain other parties.
W I T N E S S E T H:
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WHEREAS, Grantor is a wholly-owned subsidiary of Viskase
Corporation;
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 affiliate
relationship 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 Parent (as defined below) 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 but not
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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.
"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.
"Parent" 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
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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 Guaranteed
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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 represents and
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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. Intentionally omitted.
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 Agent that
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from and after the date of this Agreement and until the Guaranteed
Obligations are fully satisfied:
a. Further Documentation; Pledge of Instruments. At any
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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, in
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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 material
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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 not
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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,
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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,
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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
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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. Intentionally omitted.
---------------------
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 Parent) 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 Grantor or
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 Parent) 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. Intentionally omitted.
---------------------
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 HOLDING CORPORATION, a
Delaware corporation
By:
----------------------------
Its:
----------------------------
ACCEPTED AND ACKNOWLEDGED BY:
THE CIT GROUP/BUSINESS CREDIT, INC.,
a New York corporation, as Agent
By:
-------------------------------
Its:
-------------------------------
