EXECUTION COPY
WAIVER, FORBEARANCE AND CONSENT AGREEMENT, dated
as of December 21, 2001 (this "Agreement"), between
VISKASE CORPORATION, a Pennsylvania corporation
(the "Lessee"), and STATE STREET BANK AND TRUST
COMPANY, a Massachusetts trust company, not in
its individual capacity but solely as successor
Owner Trustee under that certain Trust Agreement
with General Electric Capital Corporation, as Owner
Participant dated as of December 18, 1990 (the
"Lessor"), relating to the Lease Agreement dated
as of December 18, 1990 (as amended and supplemented
to the date hereof, the "Lease"), between the Lessee
and the Lessor, as successor Owner 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 defined have the meanings
assigned to such terms in the Lease).
Whereas, the Lessee has failed to comply with certain provisions,
and may have failed to comply with certain other provisions, of the Lease
Documents;
Whereas, the Lessee has requested in accordance with the Lease
Documents that the Lessor consent to certain transactions;
Whereas, the Lessor has agreed, subject to the terms and conditions
set forth herein, to waive, or forbear from the exercise of any rights and
remedies with respect to, such non-compliance and grant such consents
pursuant to the terms and subject to the conditions set forth herein; and
Whereas, simultaneously with the execution of this agreement,
Lessee has reinstated the Rent Letter of Credit to $23,499,190.49;
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. Waiver and Forbearance. (a) The Lessor hereby waives
any Default or Event of Default under any of the Lease Documents arising from
(i) the Lessee's failure to make the Basic Rent payment due on November 1,
2001 or to reinstate the Rent Letter of Credit before the date of this
Agreement, (ii) the Lessee's failure to meet the Fixed Charge Coverage Ratio
required under Section 5.09 of the Participation Agreement for the fiscal
quarters ending on September 30, 2001 and December 31, 2001, (iii) to the
extent the documents set forth on Schedule I hereto shall be delivered to the
Lessor on or before January 30, 2002, the Lessee's failure to deliver any
documents required to be delivered under Sections 5.04 and 5.10 of the
Participation Agreement prior to the date of this Agreement, (iv) the failure
to pay the Guarantor's 10 1/4% Senior Notes due 2001 at maturity and (v) the
Guarantor being a debtor under Chapter 11 of the Bankruptcy Code; provided,
however, that the waiver granted pursuant to the foregoing clause (v) shall
be rescinded if the Guarantor shall be a debtor under the Bankruptcy Code on
or after June 30, 2002; and provided, further, that the waivers granted
pursuant to this paragraph (a) shall be rescinded if the payment of Basic
Rent due on February 28, 2002 shall not be paid by the Lessee on February 28,
2002, it being understood that a draw by the Lessor against the Rent Letter
of Credit shall not be deemed to be a payment by the Lessee for the purposes
hereof.
(b) The Lessor hereby agrees to forbear until June 30, 2002 from
exercising its rights and remedies under the Lease with respect to a breach
of Section 5.09 of the Participation Agreement with respect to the fiscal
quarter ending on March 31, 2002.
SECTION 2. Consent. (a) Anything in the Lease Documents to the
contrary notwithstanding, the Lessor hereby consents to the sale of the
parcels of real estate identified in the letter attached hereto and agrees to
execute such documents as may be reasonably necessary to release such parcels
from the Ground Lease, the Security Agreement, the Security Agreement dated
as of July 28, 2000 among Viskase Holding Corporation, Viskase Companies,
Inc., the Corporation, Viskase Sales Corporation, the Lessor and General
Electric Capital Corporation and any security interest or mortgage created by
or pursuant to any of the foregoing or related documents or agreements.
(b) The Lessor and the Lessee agree to negotiate in good faith
within 45 days of the date of this Agreement the conditions of and
arrangements for the future demolition, sale or disposition of the Chicago
Plant, that portion of the Chicago Site located thereunder and any other
property, plant or equipment located in Bedford Park or Chicago, Illinois.
SECTION 3. Effectiveness. This Agreement shall become effective
as of the date first above written when (i) the parties hereto shall have
received counterparts of this Agreement that, when taken together, bear the
signatures of the Lessee and the Lessor and (ii) the Rent Letter of Credit
shall have been reinstated as set forth in the fourth recital of this
Agreement.
SECTION 4. Lease. Except with respect to the relevant provisions
hereof, the Lease shall continue in full force and effect in accordance with
the provisions thereof as in existence on the date hereof. This Agreement
shall be a Basic Document as defined in Appendix A to the Lease and each
other Basic Document to which the Lessee and the Lessor are a party (and the
Lease and each other Basic Document are hereby amended to reflect such
revision) . Accordingly, the parties hereto acknowledge that any breach of
the Lessee's representations, warranties or covenants hereunder may result in
an Event of Default, together with any consequences relating thereto, as set
forth in the Basic Documents.
SECTION 5. Effect of Agreement. Except as expressly set forth
herein, the provisions of this Agreement shall not by implication or
otherwise limit, impair, constitute a waiver of, or otherwise affect the
rights and remedies of the Lessor under the Lease or the Lessor or Owner
Participant under any other Basic Document, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Lease or any other Basic Document,
all of which are ratified and affirmed in all respects and shall continue in
full force and effect. Except with respect to the specific provisions
hereof, nothing herein shall be deemed to entitle the Lessee or the Guarantor
to a consent to, or a waiver, amendment, modification or other change of, any
of the terms, conditions, obligations, covenants or agreements contained in
the Lease or any other Basic Document in similar or different circumstances.
SECTION 6. Expenses. The Lessee agrees to promptly reimburse the
Owner Participant and the Lessor [$195,338.64], representing all expenses,
including the reasonable fees, charges and disbursements of its counsel,
incurred by the Owner Participant and the Lessor prior to the date hereof
which are reimbursable to the Owner Participant and the Lessor under the
Basic Documents.
SECTION 7. Covenants; Further Assurances. (a) The Lessee hereby
covenants and agrees with the Lessor that, from and after the date of this
Agreement until satisfaction of all of the obligations of the Lessee
hereunder, at any time and from time to time, upon the written request of the
Lessor, and at the sole expense of the Lessee, Lessee will promptly and fully
execute and deliver such further instruments and documents and take such
further actions as the Lessor may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and of the rights
herein granted.
(b) The Lessor hereby covenants and agrees with the Lessee that,
from and after the date of this Agreement until satisfaction of all of the
obligations of the Lessor hereunder, at any time and from time to time, upon
the written request of the Lessee, Lessor will promptly and fully execute and
deliver such further instruments and documents and take such further actions
as the Lessee may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights herein
granted.
SECTION 8. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED BY ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Counterparts. This Agreement may be 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 Agreement by facsimile transmission shall be
effective as delivery of a manually signed counterpart of this Agreement.
SECTION 10. Integration. This Agreement represents the entire
agreement of the parties with respect to the subject matter hereof and there
are no other promises or representations, written or oral, by the parties
relative to the subject matter hereof not reflected or referred to herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their duly authorized officers, all as of the daze and
year first above written.
STATE STREET BANK AND TRUST
COMPANY, not in its individual capacity,
but solely as Owner Trustee
By: -----------------------------------
Name:
Title:
VISKASE CORPORATION
By: -----------------------------------
Name: F. Xxxxxx Xxxxxxxxx
Title: President and CEO
