GENERAL SECURITY AGREEMENT
In consideration of loans, credit or other financial accommodations extended or
continued from time to time to, or on the guaranty, endorsement or other
assurance of, the undersigned ("Obligor") by RZB Finance LLC (together with its
successors and assigns, "RZB"), Obligor hereby agrees as follows:
1. Security Interest.
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a. To secure the full and punctual payment and performance of all of
the Obligations (as hereinafter defined), Obligor hereby grants to RZB
a continuing security interest in, and assigns and pledges to RZB, the
Collateral (as hereinafter defined).
b. "Obligations" shall mean and include all indebtedness,
liabilities, obligations, covenants and duties of Obligor to RZB or
any Affiliate of RZB (including those which RZB or such Affiliate may
have acquired from others) of every kind, nature and description,
direct or indirect, absolute or contingent, due or not due,
contractual or tortious, liquidated or unliquidated, arising by
operation of law or otherwise, now existing or hereafter arising, and
whether or not evidenced by any note or other instrument or agreement
and whether or not for the payment of money, including, but not
limited to, indebtedness, obligations and liabilities to RZB or such
Affiliate of Obligor as a member of any partnership, syndicate,
association or other group.
c. Affiliate and certain other terms used herein are defined in
Section 15 hereof.
d. As used herein, the term "Collateral" means the property described
opposite the box(es) checked below together with the property described in
Section 1(f) below:
[X] A. All Personal Property. All of the personal property and fixtures
of the Obligor wherever located and whether now owned or in existence or
hereafter acquired or created, of every kind and description, tangible or
intangible, including without limitation all inventory (including, without
limitation, inventory as defined in Section 1(d)(C) hereof), goods and
accessions thereto, equipment and accessions thereto, farm products, documents,
chattel paper (whether tangible or electronic), accounts (including, without
limitation, accounts as defined in Section 1(d)(D) hereof), contract rights,
securities and other investment property, general intangibles, tax refund
claims, patents, trademarks, intellectual property, payment intangibles,
supporting obligations, instruments, promissory notes, letters of credit and
proceeds thereof, advices of credit, letter-of-credit rights (whether or not the
letter of credit is evidenced by a writing), commercial tort claims, credits,
deposits, cash, deposit accounts (general or special), and certificates of
deposit. Each of such terms which is defined in the New York Uniform Commercial
Code as in effect from time to time shall have the meaning ascribed thereto
therein when used in this Agreement.
[ ] B. Equipment. Equipment (of any nature and description), now owned
or hereafter acquired and wherever located, employed in the operation of the
Obligor's business, and all proceeds thereof and products of such equipment in
any form whatsoever. As used herein, the term "equipment" shall also mean and
include all spare parts therefor, all present and future additions, attachments
and accessions thereto, all substitutions therefor and replacements thereof.
Nothing herein shall be construed as giving a right to the Obligor to sell any
equipment which is the subject of this Agreement.
[ ] C. Inventory. All of the inventory of the Obligor, of every type or
description, now owned or hereafter acquired and wherever located, whether raw,
in process or finished, all goods usable in processing the same and all
documents, documents of title and receipts covering any inventory (hereinafter,
referred to as "inventory"), and all proceeds thereof and products of such
inventory in any form whatsoever, including but not limited to accounts and
chattel paper (whether tangible or electronic) and cash proceeds.
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[ ] D. Accounts and Chattel Paper. All of the Obligor's present and
future accounts (including, without limitation, health-care-insurance
receivables), contract rights, letters of credit, letter-of-credit rights,
general intangibles, tax refund claims, payment intangibles, software,
supporting obligations, instruments, promissory notes, and chattel paper
(whether tangible or electronic) and all other rights to the payment of money,
whether or not arising out of the sale (or lease) of goods or services (herein
referred to in the plural as "accounts" and in the singular as "account"), all
proceeds thereof and all liens, securities, guarantees, remedies, and privileges
pertaining thereto, together with all rights and liens of the Obligor in and to
such goods, including returned or repossessed goods, and all rights and property
of any kind forming the subject matter of any of the accounts, including the
right of stoppage in transit.
[ ] E. Other.
See Schedule A annexed hereto and made a part hereof.
If no box is checked, Clause A (All Personal Property) shall be deemed
applicable for all purposes of this Agreement. If the Clause A box is checked,
checking also the Clause B and/or Clause C and/or Clause D and/or Clause E
box(es) is not intended, and shall not be construed, to limit the generality or
legal effect of the description contained in Clause A.
e. (i) If the Obligor shall at any time acquire a commercial tort
claim, as defined in Article 9 of the Uniform Commercial Code as in effect in
the State of New York ("NY UCC Article 9"), which the Obligor reasonably
believes based upon then-current information is likely to result in a judgment
in favor of the Obligor in excess of $25,000, the Obligor shall promptly notify
RZB in a writing signed by the Obligor of the brief details thereof and grant to
RZB in such writing a security interest therein and in the proceeds thereof, all
upon the terms of this Agreement, with such writing to be in form and substance
reasonably satisfactory to RZB.
(ii) RZB may at any time and from time to time file financing
statements, continuation statements and amendments thereto that describe the
Collateral as all assets of the Obligor or words of similar effect and which
contain any other information required by NY UCC Article 9 or revised Article 9
of the Uniform Commercial Code in the form or substantially in the form approved
in 1998 by the American Law Institute and the National Conference of
Commissioners on Uniform State Laws ("Revised Article 9") as adopted in any
other jurisdiction (including Part 5 thereof) for the sufficiency or filing
office acceptance of any financing statement, continuation statement or
amendment, including whether the Obligor is an organization, the type of
organization and any organization identification number issued to the Obligor.
The Obligor agrees to furnish any such information to RZB promptly upon
request. Any such financing statements, continuation statements or amendments
may be signed by RZB on behalf of the Obligor and may be filed at any time with
or without any signature of the Obligor or RZB in any jurisdiction whether or
not NY UCC Article 9 or Revised Article 9 is then in effect in that
jurisdiction.
(iii) The Obligor shall at any time and from time to time, whether or
not NY UCC Article 9 or Revised Article 9 is in effect in any particular
jurisdiction, take such steps as RZB may request for RZB to (i) obtain an
acknowledgment, in form and substance satisfactory to RZB, of any bailee having
possession of any of the Collateral that the bailee holds such Collateral for
RZB, (ii) obtain "control" of any investment property, deposit accounts,
letter-of-credit rights or electronic chattel paper (as such terms are defined
in NY UCC Article 9 with corresponding provisions in Sections 9-104, 9-105,
9-106 and 9-107, relating to what constitutes "control" for such items of
Collateral), with any agreements establishing control to be in form and
substance satisfactory to RZB, and (iii) otherwise insure the continued
perfection and priority of RZB's security interest in any of the Collateral and
of the preservation of its rights therein, whether in anticipation of or
following the effectiveness of NY UCC Article 9 in New York or Revised Article 9
in any other jurisdiction.
f. Any and all deposits or other sums at any time credited by or due from RZB
to the Obligor; and any and all monies, securities and other property of the
Obligor, and the proceeds thereof now or hereafter held
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or received by or in transit to RZB from or for the Obligor, whether for
safekeeping, custody, pledge, transmission, collection or otherwise, shall at
all times constitute security for any and all Obligations.
2. Rank and Perfection of Security Interest.
a. Obligor will not create or permit to exist, nor shall there
exist, any security interest in, lien, attachment, levy or encumbrance
upon, or assignment or pledge as security of, any of the Collateral,
except the security interest of and assignment and pledge to RZB
hereunder and Permitted Liens.
b. (i) Obligor will from time to time, at its expense, take all
action requested by RZB, or which may be necessary or desirable, to
perfect, continue, evidence, preserve, protect or validate the
security interest of and assignment and pledge to RZB hereunder to
enable RZB to exercise and enforce its rights hereunder, including,
but not limited to, (A) executing and delivering one or more notices,
financing statements, agreements or other writings, and (B) delivering
to RZB, and stamping or otherwise marking, in such manner as RZB may
specify, any and all chattel paper, instruments, letters and advice of
credit and documents constituting part of the Collateral, in each case
endorsed or accompanied by such instruments of assignment as RZB may
specify.
(ii) Obligor hereby authorizes RZB, at its option but without
any obligation so to do, to file financing and continuation statements
and amendments to financing statements, naming Obligor as debtor, with
respect to any of the Collateral without the signature of Obligor, and
agrees that a carbon, photographic or other reproduction of this
Agreement or of a financing statement is sufficient as a financing
statement. Obligor shall pay the costs of any recording or filing of
any financing or continuation statements, or amendments thereto,
concerning the Collateral.
3. Covenants.
a. Obligor shall at all times: (i) be the sole owner of each and
every item of Collateral, (ii) defend the Collateral against the
claims and demands of all persons and (iii) in the case of tangible
property constituting part of the Collateral, (A) properly maintain
and keep in good order and repair such property and (B) keep such
property fully insured with responsible companies acceptable to RZB
against such risks as such Collateral may be subject to, or as RZB may
request, under policies containing loss payable clauses naming RZB as
loss payee as its interests may appear and otherwise in form and
substance satisfactory to RZB, and providing that: (1) all proceeds
thereof shall be payable to RZB, (2) such insurance shall not be
affected by any act or neglect of Obligor or other owner of the
property described in such policy, and (3) such policy and loss
payable clause may not be cancelled or amended except upon ten days'
prior written notice to RZB.
b. Obligor will comply with the requirements of all leases,
mortgages and other instruments relating to premises where any
Collateral is located.
c. Obligor will not sell or otherwise dispose of any of the
Collateral, except that, if the same constitute Collateral, until
notice terminating such authority is given by RZB to Obligor, (i)
accounts may be collected in the ordinary course of business as
heretofore conducted and (ii) inventory or farm products may be sold
in the ordinary course of business as heretofore conducted.
d. Obligor will give RZB not less than 30 days prior written notice
of (i) any change in (A) its name, identity or corporate structure,
(B) the location of its chief executive office or any other place of
business, or (C) the location of any of the Collateral or its books
and records concerning any accounts, (ii) the location of each new
place of business opened by Obligor, and (iii) each new location of
any Collateral. Obligor will give RZB prompt notice of any loss or
depreciation in the value of any of the Collateral. Set forth on
Schedule A annexed hereto are all trade names or trade styles used by
Obligor, the location of Obligor's chief executive office, all
locations of Collateral and all locations of Obligor's books and
records.
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e. At any time and from time to time (i) RZB may and is hereby
authorized to transfer into or register in the name of itself or its
nominee any instruments, investment property or documents constituting
a part of the Collateral without notice to Obligor, (ii) RZB may
receive and retain all Distributions (as hereinafter defined in
Section 15), (iii) Obligor will permit representatives of RZB during
normal business hours to inspect its premises and books and records
pertaining to the Collateral and make extracts from and copies of such
books and records, and (iv) upon request, Obligor will enter into
warehousing, lockbox or other custodial arrangements satisfactory to
RZB.
f. If any Collateral is at any time in the possession or control of
any warehouseman, bailee or any of Obligor's agents or processors,
Obligor shall, and RZB shall also have the right to, notify such
warehouseman, bailee, agent or processor of the security interests
created hereby and obtain the agreement of all such persons that they
hold and will hold possession of such Collateral for the benefit of
RZB and deliver the same at the direction of RZB without further
consent of the Obligor.
g. Obligor shall keep full and accurate books and records relating
to the Collateral, and stamp or otherwise mark such books and records
in such manner as RZB may reasonably require in order to reflect the
security interest granted hereby.
h. Obligor will immediately deliver and pledge to RZB or RZB's agent
each instrument, now owned or hereafter acquired, appropriately
endorsed to RZB or RZB's agent.
i. Obligor shall use its best efforts to cause to be collected from
its account debtors and other obligors, as and when due, any and all
amounts owing under or on account of each account, each general
intangible, each payment intangible, each supporting obligation, each
right to payment of money, each chattel paper and each instrument
(including, without limitation, all of the foregoing items which are
delinquent, such delinquent items to be collected in accordance with
lawful collection procedures) and apply forthwith upon receipt thereof
all such amounts as are so collected to the outstanding balance of
such items. Upon RZB's request at any time, any such amounts so
collected by Obligor shall be promptly remitted to RZB, in precisely
the form received (except for endorsement by Obligor when required),
and until so remitted to RZB, shall be held by Obligor in trust for
RZB, and shall not be commingled with other funds or property of
Obligor, and RZB shall be entitled to apply such amounts to the
Obligations in such manner as RZB in its sole discretion shall
determine. Obligor will not renew or extend the time of payment of, or
consent or agree to any reduction of the amount payable with respect
to, any account or other item mentioned above in this paragraph
without the written consent of RZB. The costs and expenses (including,
without limitation, attorneys' fees) of collection, whether incurred
by Obligor or RZB, shall be borne by Obligor.
j. Upon request by RZB, Obligor will promptly notify (and Obligor
hereby authorizes RZB so to notify) each account debtor or obligor in
respect of any account, general intangible, payment intangible,
supporting obligation, right to payment of money, chattel paper or
instrument that such Collateral has been assigned to RZB hereunder,
and that any payments due or to become due in respect of such
Collateral are to be made directly to RZB or its designee.
k. Obligor will, promptly upon request, provide to RZB all
information and evidence it may reasonably request concerning the
Collateral, and in particular the accounts, to enable RZB to enforce
the provisions of this Agreement.
4. General Authority. Obligor hereby irrevocably appoints RZB its true
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and lawful attorney, with full power of substitution, in the name of
Obligor, RZB, or otherwise, for the sole use and benefit of RZB, but at
Obligor's expense, to the extent permitted by law to exercise, at any time
and from time to time while an Event of Default (as hereinafter defined)
exists, all or any of the following powers with respect to all or any of
the Collateral:
a. to demand, sue for, collect, receive and give acquittance for any
and all monies due or to become due thereon or by virtue thereof,
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b. to settle, compromise, compound, prosecute or defend any action
or proceeding with respect thereto,
c. to take any action or do any thing which Obligor is required to
do hereunder,
d. to extend the time of payment of any or all thereof and to make
any allowance and other adjustments with reference thereto, and
e. to do all other acts and things necessary and advisable in the
sole discretion of RZB to carry out and enforce this Agreement.
5. Events of Default. Without limiting the right of RZB to demand
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payment of any or all of the Obligations at any time in its sole
discretion, it shall be an Event of Default if any of the following events
shall occur: (i) default in payment of any of the Obligations when due,
whether on demand or otherwise; or (ii) the occurrence of any "Event of
Default" or "default" as defined or specified in any agreement, instrument
or document evidencing or providing for the Obligations or any guaranty
thereof.
6. Remedies upon Event of Default Rights. Upon the occurrence of an
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Event of Default and at any time or from time to time thereafter:
a. RZB may declare, by notice to Obligor, any and all of the
Obligations immediately due and payable, without any other
presentment, demand, protest or notice of any kind, anything in any
other agreement to the contrary notwithstanding, and in the case of
any bankruptcy, insolvency or similar proceeding relating to Obligor
or its property, all of the Obligations shall automatically become due
and payable (provided, however, that the foregoing shall not be deemed
to limit or impair in any way whatsoever the absolute right of RZB to
demand payment of the Obligations at any time in its sole discretion,
to the extent the agreements and instruments pertaining to such
Obligations provide for such demand);
b. RZB shall have no obligation to make further loans, extensions of
credit or other financial accommodations to or on behalf of Obligor,
anything in any other agreement to the contrary notwithstanding
(provided, however, that the foregoing shall not be deemed to limit or
impair in any way whatsoever the sole and absolute discretion of RZB
to make or refrain from making such loans, extensions of credit or
financial accommodations to the extent the agreements and instruments
pertaining thereto provide for such discretion);
c. RZB may exercise all other rights to which it is entitled
hereunder or under applicable law;
d. RZB may exercise all rights of a secured party under the UCC
(whether or not in effect in the jurisdiction where such rights are
exercised) and, in addition, RZB may sell the Collateral or any part
thereof at public or private sales, for cash, upon credit or for
future delivery, and at such price or prices as RZB may deem
satisfactory. RZB may be the purchaser of any or all of the Collateral
so sold at any public sale (or, if the Collateral is of a type
customarily sold in a recognized market or is of a type which is the
subject of widely distributed standard price quotations, at any
private sale) and thereafter hold the same, absolutely, free from any
right or claim of whatever kind. Obligor will execute and deliver such
documents and take such other action as RZB deems necessary or
advisable in order that any such sales may be made in compliance with
law. Upon any such sales RZB shall have the right to deliver, assign
and transfer to the purchaser thereof the Collateral so sold. Each
purchaser at any such sales shall hold the Collateral so sold to it
absolutely, free from any claim or right of whatever kind, including
any equity or right of redemption of Obligor, and to the extent
permitted by law, Obligor hereby specifically waives all rights of
redemption, stay or appraisal which it has or may have under any law
now existing or hereafter adopted. The notice (if any) of such sale
required herein shall (i) in the case of a public sale, state the time
and place fixed for such sale, and (ii) in the case of private sale,
state the day after which such sale may be consummated. Any such
public sale shall be held at such time or times within ordinary
business hours and at such place or places as RZB may fix in the
notice of such sale. Unless the Collateral is perishable or
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threatens to decline speedily in value or is of a type customarily
sold on a recognized market, RZB will give Obligor reasonable notice
of the time and place of any such public sale or of the time after
which any private sale or any other intended disposition thereof is to
be made, and Obligor agrees that five (5) days prior notice shall be
deemed reasonable notice. At any such sale the Collateral may be sold
in one lot as an entirety or in separate parcels, as RZB may
determine. RZB shall not be obligated to make any such sale pursuant
to any such notice. RZB may without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to
time by announcement at the time and place fixed for the sale, and
such sale may be made at any time or place to which the same may be so
adjourned. In case of any sale of all or any part of Collateral on
credit or for future delivery, the Collateral sold may be retained by
RZB until the selling price is paid by the purchaser thereof, but RZB
shall not incur any liability in case of the failure of such purchaser
to take up and pay for the Collateral so sold and, in case of any such
failure, such Collateral may again be sold upon like notice. RZB,
instead of exercising the power of sale herein conferred upon it, may
proceed by a suit or suits at law or in equity to foreclose the
security interests granted herein and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or courts of
competent jurisdiction.
e. For the purposes of enforcing any and all rights and remedies
under this Agreement, RZB may (i) require Obligor to, and Obligor
agrees that it will, at its expense and upon the request of RZB,
forthwith assemble all or any part of the Collateral as directed by
RZB and make it available at a place designated by RZB which is, in
its opinion, reasonably convenient to RZB whether at the premises of
Obligor or otherwise, (ii) to the extent permitted by applicable law,
enter, with or without process of law and without breach of the peace,
any premises where any of the Collateral is or may be located, and
without charge or liability to it, seize and remove such Collateral
from such premises, (iii) have access to and use Obligor's books and
records relating to the Collateral and (iv) prior to the disposition
of the Collateral, store or transfer it without charge in or by means
of any storage or transportation facility owned or leased by Obligor
or any other person, corporation or other entity, process, repair or
recondition it or otherwise prepare it for disposition in any manner
and to the extent RZB deems appropriate and, in connection with such
preparation and disposition, use without charge any trademark, trade
name, copyright, patent or technical process used by Obligor.
f. If the Collateral consists in whole or in part of instruments or
other investment property and RZB elects to sell or otherwise dispose
of such instruments or other investment property, (i) Obligor will, if
it controls the issuer of such instruments or other investment
property, or it otherwise has the right to effect such registration,
and if RZB deems such registration to be desirable, cause such
instruments or other investment property to be registered under the
Securities Act of 1933, as amended, and take all other action,
including but not limited to complying with the "blue sky" or
securities laws of the several states and delivering to RZB
appropriate quantities of prospectuses, necessary or appropriate so as
to permit the public sale or other disposition thereof by RZB in such
jurisdictions as RZB may select, and indemnify, in the form then
customary, all persons who are underwriters, statutory or otherwise,
of such instruments or other investment property in connection with
such sale or disposition, such indemnity, to the extent applicable to
RZB, to be in addition to that afforded RZB under Section 10(c)
hereof, and (ii) RZB may elect not to exercise its rights under clause
(i) and in that event may, if in its judgment it shall be necessary or
desirable so to do, restrict the number of prospective bidders so as
to comply with the provisions of Section 5 of such Securities Act, and
restrict such prospective bidders to persons who will represent and
agree that they are purchasing the instruments or other investment
property in question for their own account for investment and not with
a view to the distribution or release of any thereof and who will
further agree that such instruments or other investment property
purchased by them may bear an appropriate restrictive legend to that
effect.
7. Limitation on Duty of RZB in Respect of Collateral. Beyond the safe
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custody thereof, RZB shall have no duty as to any Collateral in its
possession or control or in the possession or control of any agent or
bailee or as to any income thereon or as to the preservation of rights
against prior parties or any other rights pertaining thereto. RZB shall be
deemed to have exercised reasonable care in the custody and preservation of
the Collateral in its possession if the Collateral is accorded treatment
substantially equal
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to that which it accords its own property, and shall not be liable or
responsible for any loss or damage to any of the Collateral, or for any
diminution in value thereof, by reason of the act or omission of any
warehouseman, carrier, forwarding agency, consignee or other agent or
bailee selected by RZB in good faith.
8. Application of Proceeds. Upon any demand for payment of any or all of
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the Obligations or upon the occurrence and during the continuance of any
other Event of Default, the proceeds of any sale of, or other realization
upon, all or any part of the Collateral shall be applied by RZB in the
following order of priority:
a. to payment of the expenses of such sale or other realization,
including reasonable compensation to (and costs and disbursements of)
agents and counsel for RZB, and all expenses, liabilities and advances
incurred or made by RZB in connection therewith, and any other
unreimbursed expenses for which RZB is to be reimbursed pursuant to
the documents or instruments evidencing or governing any of the
Obligations;
b. to the payment of accrued but unpaid interest on the Obligations
in accordance with the provisions of any promissory note, letter of
credit reimbursement agreement or other agreement or instrument
evidencing any of the Obligations;
c. to the payment of unpaid principal of the Obligations;
d. to the payment of all other Obligations, until all Obligations
shall have been paid in full; and
e. to payment to Obligor or its successors or assigns, or to
whomsoever may be entitled thereto, or as a court of competent
jurisdiction may direct, of any surplus then remaining from such
proceeds.
If, upon the sale, lease or other disposition of the Collateral, the
proceeds thereof are insufficient to pay all amounts to which RZB is
legally entitled, Obligor will remain liable for the deficiency, together
with interest thereon at the rate provided for post-maturity interest in
the agreements and instruments evidencing the Obligations.
9. General Representations, Warranties and Agreements. Obligor hereby
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represents, warrants and agrees that:
a. The execution, delivery and performance of this Agreement are
within its powers, corporate or otherwise, have been duly authorized
by all required action and do not and will not contravene any law or
any agreement or undertaking to which it is a party or by which it may
in any way be bound or, if Obligor is a corporation, its certificate
of incorporation or by-laws.
b. Each of the representations and warranties contained herein is
true and correct on the date hereof and all other information,
including financial statements and projections, furnished to RZB at
any time by or on behalf of Obligor was and will be complete and
correct in all respects to the extent necessary for the purpose of
presenting the subject matter thereof fairly to RZB.
c. The Obligor is the sole owner of each of the accounts and other
items of Collateral referred to in Section 3(i) above and no one has or
claims to have any interest of any kind therein or thereto; each of the
debtors and other obligors named in or obligated under every such account
and other items of Collateral referred to in Section 3(i) above is indebted
to the Obligor in the amount and on the terms indicated in the invoice or
other evidence of such account or such other item of collateral and any
schedule of accounts, each account and other item of collateral referred to
in Section 3(i) above is bona fide and arises out of the completed
performance of labor or services or the sale and delivery or lease of
merchandise or both; and none of the accounts or such other item of
collateral is now, nor will at any time in the future become contingent
upon the fulfillment of any contract or conditions whatsoever, nor subject
to any defense, recoupment, offset or counterclaim.
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10. Expenses of Obligor's Duties; RZB's Rights to Perform on Obligor's
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Behalf; RZB's Expenses and Indemnification.
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a. Obligor's agreements and duties hereunder shall be performed by
it at its sole cost and expense.
b. If Obligor shall fail to do any act or thing which it has
covenanted to do hereunder, RZB may (but shall not be obligated to) do
the same or cause it to be done, either in its name or in the name and
on behalf of Obligor, and Obligor hereby irrevocably authorizes RZB so
to act.
c. Obligor agrees to reimburse RZB for all costs and expenses,
including attorneys' fees and disbursements, incurred, and to
indemnify and hold RZB harmless from and against all losses suffered,
by RZB in connection with (i) RZB's exercise of any right or remedy
granted to it hereunder, (ii) any claim and the prosecution or defense
thereof arising out of or in any way connected with this Agreement,
and (iii) the collection or enforcement of the Obligations.
d. Amounts payable by Obligor under this Section 10 shall constitute
Obligations which shall be payable on demand.
11 No Waivers of Rights Hereunder; Rights Cumulative.
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a. No delay by RZB in exercising any right hereunder, or under any
of the other Obligations, shall operate as a waiver thereof, nor shall
any single or partial exercise of any right preclude other or further
exercises thereof or the exercise of any other right. No waiver or
amendment of any provision of this Agreement or of any of the other
agreements, instruments or documents evidencing the Obligations shall
be enforceable against RZB unless it shall be in writing, be signed by
RZB, and expressly refer to the provision affected; any such waiver
shall be limited solely to the specific event waived.
b. All rights granted to RZB hereunder shall be cumulative and shall
be supplementary of and in addition to those granted or available to
RZB with respect to the other Obligations or under applicable law and
nothing herein shall be construed as limiting any such other right.
12. Assignment, Participations.
---------------------------
a. RZB may assign any or all of the Obligations and may transfer
therewith any or all of the Collateral therefor and the transferee
shall have the same rights with respect thereto as had RZB. Upon such
transfer, RZB shall be released from all responsibility for the
Collateral so transferred.
b. RZB may from time to time sell or otherwise grant participations
in any of the Obligations and any Collateral for the Obligations.
Obligor agrees that each such holder of a participation may exercise
any and all rights of banker's lien, set-off and counterclaim with
respect to its participation in the Obligations as fully as though
Obligor were directly indebted to such holder in the amount of such
participation.
13. Continuing Agreement; Termination.
-----------------------------------
a. This Agreement shall be a continuing agreement and shall apply to
all present and future Obligations, notwithstanding that at any
particular time all of the Obligations then outstanding shall have
been paid in full.
b. This Agreement shall continue in full force and effect until
written notice of termination shall have been signed by RZB.
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14. Governing Law; Jurisdiction; Certain Waivers.
------------------------------------------------
a. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK, EXCEPT AS OTHERWISE REQUIRED BY
MANDATORY PROVISIONS OF LAW.
b. OBLIGOR HEREBY AGREES THAT ANY LEGAL ACTION OR PROCEEDING AGAINST
OBLIGOR WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK IN THE CITY OF NEW YORK OR OF THE UNITED STATES
OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS RZB MAY ELECT,
AND, BY EXECUTION AND DELIVERY HEREOF, OBLIGOR ACCEPTS AND CONSENTS
TO, FOR ITSELF AND IN RESPECT TO ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND AGREES
THAT SUCH JURISDICTION SHALL BE EXCLUSIVE, UNLESS WAIVED BY RZB IN
WRITING, WITH RESPECT TO ANY ACTION OR PROCEEDING BROUGHT BY IT
AGAINST RZB. NOTHING HEREIN SHALL LIMIT THE RIGHT OF RZB TO BRING
PROCEEDINGS AGAINST OBLIGOR IN THE COURTS OF ANY OTHER JURISDICTION.
OBLIGOR AGREES THAT SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO THIS AGREEMENT
AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WAIVES ANY RIGHT TO STAY
OR TO DISMISS ANY ACTION OR PROCEEDING BROUGHT BEFORE SAID COURTS ON
THE BASIS OF FORUM NON CONVENIENS.
----- --- ----------
c. Obligor waives personal service of process and consents that
service of process upon it may be made by certified or registered
mail, return receipt requested, directed to Obligor at its address
last specified for notices hereunder, and service so made shall be
deemed completed five days after the same shall have been so mailed.
d. EACH OF RZB AND OBLIGOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF OBLIGOR
OR RZB. THIS PROVISION IS A MATERIAL INDUCEMENT FOR RZB'S EXTENDING
CREDIT TO OBLIGOR.
15. Definitions. As used herein:
-----------
a. Except as otherwise specifically defined or provided herein, all
terms defined in Article 1 or 9 of the New York Uniform Commercial
Code as in effect on the date of this Agreement (other than the term
"Collateral") are used herein with the meanings therein given.
b. The following terms shall have the indicated meanings:
"Affiliate" of RZB shall mean a corporation that directly or
indirectly controls or is controlled by, or is under common control
with, RZB.
"Distributions" shall mean cash dividends and other distributions and
interest paid in cash, in each case with respect to all instruments,
investment property and securities constituting part of the
Collateral.
"Guarantor" shall mean any maker, drawer, acceptor, endorser,
guarantor, surety, accommodation party or other person liable upon or
for any of the Obligations.
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"Permitted Liens" shall mean liens specifically consented to by RZB in
writing, and liens of any other financial institution which is a party
to an intercreditor agreement with RZB in form and substance
satisfactory to RZB.
16. Notices. Any notice or request hereunder may be given to Obligor or
-------
to RZB at their respective addresses set forth below or at such other
address as may hereafter be specified in a notice designated as a notice of
change of address under this Section. Any notice or request hereunder may
be given by, in the case of notices or requests to Obligor, mail,
commercial courier service, telex, or telegram, or by telephone
subsequently confirmed by mail, commercial courier service, return receipt
requested, or by and in the case of notices to RZB, registered mail, telex
or telegram, subsequently confirmed by such registered mail. Notices and
requests to Obligor shall, in the case of those by mail, commercial courier
service, telex or telegram, be deemed to have been given when deposited in
the mail, first-class postage prepaid, or delivered to such courier
service, the telegraph office or telex operator, addressed as provided in
this Section, and in the case of those by telephone, when so communicated
to Obligor; notices to RZB shall be deemed to have been given only when
actually received by RZB at its address determined as provided in this
Section. Any requirement under applicable law of reasonable notice by RZB
to Obligor of any event shall be met if notice is given to Obligor in the
manner prescribed above at least seven days before (a) the date of such
event or (b) the date after which such event will occur.
17. General.
-------
a. If this Agreement is executed by two or more Obligors, they shall
be jointly and severally liable hereunder, all provisions hereof
regarding the Obligations or the Collateral shall apply to the
Obligations and Collateral of any or all of them and the termination
of this Agreement as to one or more of such Obligors shall not
terminate this Agreement as to any remaining Obligors.
b. This Agreement shall be binding upon the heirs, executors,
administrators, assigns or successors of each of the undersigned
Obligors and shall inure to the benefit of and be enforceable by RZB,
its successors, transferees and assigns.
-10-
c. If any provision hereof is invalid and unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (i) the
other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of RZB in order
to carry out the intentions of the parties hereto as nearly as may be
possible, and (ii) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
Dated: September 15, 2004
--
RIO VISTA OPERATING PARTNERSHIP L.P.
By: RIO VISTA OPERATING GP LLC, general partner
By: /s/ Richard Shore, Jr.
-----------------------------
Name: Richard Shore, Jr.
---------------------------
Title: President
--------------------------
Address:
Rio Vista Operating Partnership L.P. Telephone: 713-467-8253
820 Gessner Road Telefax: 713-467-8258
Houston, TX 77024
Accepted: September __, 2004
RZB FINANCE LLC
By: /s/ Pearl Geffers
---------------------------------
Pearl Geffers
Title: First Vice President
------------------------------
By: /s/ Griselda Alvizo
---------------------------------
Griselda Alvizo
Title: Vice President
-------------------------------
Address of RZB:
RZB Finance LLC Telephone: 212-845-4113
1133 Avenue of the Americas Telefax: 212-944-6387
New York, New York 10036
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SCHEDULE A
----------
1. Trade Names or Trade Styles used by Obligor.
-------------------------------------------
None.
2. Obligor's Chief Executive Office.
--------------------------------
820 Gessner Road
Suite 1285
Houston, TX 77024
3. All Locations of Collateral.
---------------------------
Terminal/Pipeline facilities: Brownsville, Texas
Personal Property, intangibles, fixtures: Houston, Texas
Terminal/Pipeline facilities: Matamoros, Mexico
Storage facilities: Saltillo, Mexico
Office: Mexico City, Mexico
4. All Locations of Obligor's Books and Records.
--------------------------------------------
Brownsville, Texas
El Segundo, California
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