CONTINUING AGREEMENT FOR PRIVATE
LETTERS OF CREDIT
October 14, 1997
To: RZB FINANCE LLC
Gentlemen:
In consideration of your issuing from time to time, at our request, your
Commercial and/or Standby Letters of Credit (herein called individually, the
"Credit" and, collectively, the "Credits") substantially in accordance with
our application or request, we, the undersigned (jointly and severally if more
than one), hereby agree as follows:
1. As to drafts or other demands or acceptances under or purporting to
be under any Credit, which are payable in United States currency, we agree (a)
in the case of each draft or demand, to reimburse you at your office
designated above or as otherwise instructed by you, on demand, in United
States currency, the amount paid on such drafts or other demand, or, if so
demanded by you, to pay to you, in such currency at your office designated
above or as otherwise instructed by you, in advance, the amount required to
pay such draft or other demand, and (b) in the case of each acceptance, to pay
to you, at your office, in United States currency, the amount thereof on
demand but in any event not later than one Business Day prior to maturity, or,
in case the acceptance is not payable at your office, then on demand but in
any event in time to reach the place of payment in the course of the mails not
later than one Business Day prior to maturity.
2. As to drafts or other demands or acceptances under or purporting to
be under any Credit, which are payable in currency other than United States
currency, we agree (a) in the case of each draft or demand, to reimburse you,
at your office designated above or as otherwise instructed by you, on demand,
the equivalent of the amount paid, in United States currency, or, if so
demanded by you, to pay to you at such office, in advance one Business Day
prior to the date of your payment of such draft or other demand, the
equivalent of the amount required to pay such draft or other demand, in United
States currency, in each case at the rate of exchange current in New York for
cable or telex transfers to the place of payment in the currency in which such
draft or other demand is drawn, or if there be no such rate at said time then
at such rate as you shall fix, and (b) in the case of each acceptance, to
furnish you, at such office, on demand, but in any event in time to reach the
place of payment in the course of the mails not later than one Business Day
prior to maturity, with first class bankers' demand bills of exchange to be
approved by you for the amount of the acceptance, payable in the currency of
the acceptance, and bearing our endorsement, or, if you so request, to pay to
you, at your office, on demand, the equivalent of the acceptance, in United
States currency, in each case at the rate of exchange current in New York for
cable or telex transfers at the time of transmission to the place of payment
in the currency in which such draft or other demand is drawn, or if there be
no such rate at said time then at such rate as you shall fix. In any event,
we hereby agree to indemnify and hold you harmless from and against any
foreign exchange losses which you may suffer.
3. In the event that any United States Currency drafts are drawn by us
on you in order to refinance any obligation set forth in the preceding two
sections, and such drafts, at your option, are accepted by you, we agree to
pay to you on demand, but in any event not later than the maturity date, the
amount of each such acceptance, and this agreement shall be applicable to all
such drafts so accepted by you as if such drafts were drawn under a Credit.
4. We also agree to pay you, on demand or such other dates as may be
agreed by you, your commission and all obligations, liabilities, interest,
charges and expenses paid or incurred or due you in connection with any Credit
or this agreement, in each case at the rate agreed between you and us or, in
the absence of such agreement, at a rate per annum equal to 2% in excess of
the Base Lending Rate (as hereinafter defined). Interest shall accrue and be
paid by us on the amount of each drawing, from the date of payment by you on
any draft or other demand or acceptance under any Credit to the date of our
payment to you in full.
The term "Base Lending Rate" means, for any day, the higher of (i)
the rate announced by you from time to time at the principal office of The
Chase Manhattan Bank (the "Bank") in New York, New York as its prime rate for
domestic (United States) commercial loans in effect on such day and (ii) the
Federal Funds Rate in effect on such day plus 1/2%. (Such Base Lending Rate
is not necessarily intended to be the lowest rate of interest charged by the
Bank in connection with extensions of credit.) Each change in the Base
Lending Rate shall result in a corresponding change in the interest rate and
such change shall be effective on the effective date of such change in the
Base Lending Rate.
The term "Federal Funds Rate" means, for any day, the overnight
federal funds rate in New York City, as published for such day (or, if such
day is not a New York business day, for the next preceding New York business
day) in the Federal Reserve Statistical Release H.15 (519) or any successor
publication, or if such rate is not so published for any day which is a New
York business day, the average of the quotations for such day on overnight
federal funds transactions in New York City received by the Bank from three
federal funds brokers of recognized standing selected by the Bank.
We agree to pay expenses, including attorneys' fees, paid or
incurred by you in connection with any Credit, including such attorneys' fees
as may arise out of any controversy which develops among any of the parties to
any Credit or the enforcement of any of your rights hereunder and also
including such charges as may result from the storage of goods shipped under
or purporting to be under any Credit.
5. We hereby recognize and admit your ownership in and unqualified right
to the possession and disposal of and grant to you a security interest in any
property shipped under or pursuant to or in connection with any Credit or in
any way relative thereto or to the drafts drawn thereunder, whether or not
released to us on trust or bailee receipt, and also in and to all accounts,
accounts receivable, contract rights, inventory, general intangibles, claims,
credits, monies, demands, patent and trademark rights relative to or arising
out of any Credit or drafts drawn under any Credit and all shipping documents,
warehouse receipts, documents of title, bills of lading, policies or
certificates of insurance and other documents and instruments accompanying or
relative to or arising out of any Credit or drafts drawn under any Credit, and
in and to the proceeds and products of each and all of the foregoing, and all
additions and accessions thereto and substitutions therefor (collectively, the
"Collateral"), until such time as all the obligations and liabilities of us or
any of us to you at any time existing under or with reference to any Credit or
this agreement, or any other obligation or liability to you, have been fully
paid and discharged, all as security for such obligations and liabilities; and
we agree that all or any of such property and documents, and the proceeds of
any thereof, coming into the possession of you or any of your correspondents,
may be held and disposed of by you as herein or by applicable law provided;
and the receipt by you, or any of your correspondents, at any time of other
security, of whatsoever nature, including cash, shall not be deemed a waiver
of any of your rights or powers herein recognized.
6. In the event that you deliver to us any of the documents, goods,
wares or merchandise covered by any Credit prior to your having received
reimbursement with respect to the relative drafts or acceptances as herein
provided, your security interest therein as provided above shall continue and
we agree to sign and deliver to you a Financing Statement under the terms of
the Uniform Commercial Code of New York or any other applicable jurisdiction,
hereby granting you full power to sign and file such Financing Statement on
our behalf, and at our expense, and we further agree that your rights
specified herein shall be in addition to and not in limitation of your rights
under the said statute or any other applicable statute.
7. In the event you receive some but not all of the documents against
which drawings, by whatsoever method, may be made and, at our request, you
deliver such document to us, against trust receipt or otherwise, prior to the
presentation of the relative draft, we agree to pay to you on demand the
amount of any claim made against you by reason thereof and irrevocably
authorize you to pay or accept (as the case may be) such draft when it is
presented regardless of whether or not such draft or any document which may
accompany it complies with the terms of the relevant Credit.
8. Except in so far as instructions have been heretofore given by us in
writing to the contrary, you and any of your correspondents may receive and
accept as "Bills of Lading" under any Credit any documents issued or
purporting to be issued by or on behalf of any carrier which acknowledges
receipt of property for transportation, whatever the specific provisions of
such documents, and the date of each such document shall be deemed the date of
shipment of the property mentioned therein; and you may receive and accept as
documents of insurance either insurance policies or insurance certificates.
Commercial invoices presented under any Credit may be referred to for the
description of the goods and you may accept such description as controlling
and may receive and accept bills of lading, insurance and other documents
however variant in description from that contained in such invoice; unless
otherwise specified in this agreement, wherever the goods are described in
other documents, description in general terms is acceptable.
9. Except in so far as instructions have been heretofore given by us in
writing expressly to the contrary, we agree that part shipments may be made
under any Credit and you may honor the relative drafts; and if any Credit
specifies shipments in installments within stated periods, and the shipper
fails to ship in any designated period, such Credit shall cease to be
available for that or any subsequent installment, at your sole discretion.
10. We agree that in the event of any extension of the maturity or time
for presentation of drafts or other demands or documents, or any other
modification of the terms of any Credit, at the request of any of us, with or
without notification to the others, or in the event of any increase in the
amount of any Credit at the request of any of us, with or without notification
to the others, this agreement shall be binding upon us with regard to any
Credit so extended, increased or otherwise modified, to drafts or other
demands or acceptances and documents and property covered thereby, and to any
action taken by you or any of your correspondents in accordance with such
extension, increase or other modification. We agree that you and any of your
correspondents may accept or pay any draft dated on or before the expiration
of any time limit expressed in any Credit, regardless of when drawn and
whether or when negotiated, provided that the other required documents are
dated on or prior to the expiration date of any such Credit.
11. The users, beneficiaries and transferees of each Credit shall be
deemed our agents and we assume all risks of their acts or omissions. Neither
you nor your correspondents shall be responsible for and our obligations
hereunder shall not be affected by: (a) acts or omissions of any other
person, including, without limitation, any beneficiary or transferee of any
Credit; (b) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Credit or rights or benefits
thereof or proceeds thereunder in whole or in part, which may prove to be
invalid or ineffective for any reason; (c) the form, validity, sufficiency, or
genuineness of documents or drafts, even if such documents or drafts should in
fact prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (d) failure of any draft to bear any reference or adequate reference
to any Credit, or failure of documents to accompany any draft, or failure of
any person to note the amount of any draft on the reverse of any Credit or to
surrender or take up any Credit or to send forward documents apart from drafts
as required by the terms of any Credit; each of which provisions, if contained
in any Credit itself, it is agreed may be waived by you; (e) any laws, customs
and regulations which may be effective in countries of negotiation and/or
payment of any Credit; (f) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, wireless
or otherwise, whether or not they be in cipher, or errors in translation or in
interpretation of technical terms; (g) any error, neglect, insolvency, failure
of business or default of any of your correspondents; (h) any loss or delay in
the transmission or otherwise of any document or draft or proceeds thereof;
(i) the existence, character, quality, quantity, condition, packing, value or
delivery of the property purporting to be represented by documents; (j) any
difference in character, quality, quantity, condition or value of the property
from that expressed in documents; (k) the time, place, manner or order in
which shipment is made; (l) any partial or incomplete shipment or failure or
omission to ship any or all of the property referred to in any Credit; (m) the
character, adequacy, validity or genuineness of any insurance; (n) the
solvency or responsibility of any insurer, or any other risk connected with
insurance; (o) any deviation from instructions, delay, default or fraud by the
shipper or anyone else in connection with the property or the shipping
thereof; (p) the solvency, responsibility or relationship to the property of
any party issuing any documents in connection with the property; (q) any delay
in arrival or failure to arrive of either the property or any of the documents
relating thereto; (r) any delay in giving or failure to give notice of arrival
or any other notice; (s) any breach of contract between the shippers or
vendors and ourselves or any of us; or (t) without limiting the foregoing, any
consequences arising from causes beyond your control or any act or omission by
you or any of your correspondents, affiliates or agents not done or omitted
with your bad faith; and none of the above shall affect, impair or prevent the
vesting of any of your rights or powers hereunder. If any Credit provides
that payments are to be made by your correspondent, neither you nor such
correspondent shall be responsible for the failure of any of the documents
specified in such Credit to come into your hands or for any delay in
connection therewith, and our obligations under this agreement shall not be
affected by such failure or delay in the receipt by you of any such documents.
In furtherance and extension and not in limitation of the specified provisions
hereinbefore set forth, we agree that any action taken by you or by any
correspondent of yours under or in connection with any Credit or the relative
drafts or documents, if not taken in bad faith, shall be binding on us and
shall not put you or your correspondent under any resulting liability to us;
and we make like agreement as to any inaction or omission, unless in bad
faith. We agree to hold you and your correspondents indemnified and harmless
against any and all loss, liability, claim, action and expense, including,
without limitation, legal fees and expenses, which you and your correspondents
may suffer or incur howsoever arising from or in connection with any Credit or
any draft or document related thereto, including, without limitation, any of
the foregoing which you may suffer in respect of your obligations or
liabilities to any financial institution which confirms or advises any Credit,
except to the extent involving your bad faith.
12. We agree to procure promptly any necessary import and export or
other licenses for the import or export or shipping of the property and to
comply with all foreign and domestic regulations in regard to the shipment of
the property or the financing thereof, and to furnish such certificates in
that respect as you may at any time require, and to keep the property
adequately covered by insurance satisfactory to you, in companies satisfactory
to you, and to assign the policies or certificates of insurance to you, or to
make the loss or adjustment, if any, payable to you, at your option; and to
furnish you if demanded with evidence of acceptance by the insurers of such
assignment. Should the insurance upon said goods for any reason be
unsatisfactory to you, you may, at our expense, obtain insurance satisfactory
to you.
13. We agree that if any of our obligations and liabilities to you under
this agreement or otherwise shall not be paid or performed when due; or if any
of us shall become insolvent (however such insolvency may be evidenced) or
commit any act of insolvency, or make a general assignment for the benefit of
creditors; or if any of us shall suspend the transaction of his or our usual
business or be expelled or suspended from any exchange; or if an application
is made under Article 52 of the New York Civil Practice Law and Rules by any
judgment creditor of any of us for an order directing you to pay over money;
or if a petition in bankruptcy shall be filed by or against any of us; or if a
petition shall be filed by or against any of us or any proceeding shall be
instituted by or against any of us for any relief under any bankruptcy or
insolvency laws or any laws relating to the relief of debtors, readjustment of
indebtedness, reorganizations, composition or extensions; or if any
governmental authority, or any court at the instance of any governmental
authority, shall take possession of any substantial part of the property of
any of us or shall assume control over the affairs or operations of any of us;
or if a receiver or custodian shall be appointed of, or a writ or order of
attachment or garnishment shall be issued or made against, any of the property
or assets of any of us; or if any material judgment shall be rendered against
any of us; or if any of the foregoing events shall occur with respect to any
guarantor of the obligations of any of us to you; or if any statement,
representation or warranty made by any of us to you herein or in any other
document or financial statement of any of us delivered to you shall prove to
be false in any material respect when made; or if you shall in any way deem
yourself insecure; thereupon, unless you shall otherwise elect, any and all
obligations and liabilities of each of us to you, whether now existing or
hereafter incurred, whether absolute or contingent, shall become and be due
and payable forthwith without further notice or demand; and we shall be
obligated immediately to deposit with you cash collateral in an amount equal
to the aggregate amount available or which may become available for drawing
under all Credits; and each of us expressly authorizes you, in any such event,
to set off and apply the balance of deposits and any sums credited by or due
from you to any or all of us in general accounts or otherwise, to the payment
of any and all of our obligations or liabilities to you, however arising,
including, without limitation, such obligation to deposit cash collateral.
You shall not be bound to take any steps necessary to preserve any rights in
any such cash collateral against prior parties, which the undersigned hereby
assumes to do. In addition, in any such event, each of us expressly
authorizes you to sell immediately, without demand for payment and without
advertisement which are hereby expressly waived, any and all Collateral,
arrived or to arrive, at private sale or at public auction or at brokers'
board or otherwise, at your option, in such parcel or parcels and at such time
or times and at such place or places and for such price or prices and upon
such terms and conditions as you may deem proper, and to apply the net
proceeds of such sale or sales, together with any balance of deposits and any
sums credited by or due from you to us in general account or otherwise, to the
payment of any and all of our obligations or liabilities to you, however
arising. You shall not be bound to take any steps necessary to preserve any
rights in such Collateral against prior parties, which the undersigned hereby
assumes to do. If any such sale be at brokers' board or at public auction,
you may yourself be a purchaser at such sale, free from any right of
redemption, which each of us hereby expressly waives and releases. Unless
such Collateral is perishable or threatens to decline steadily in value or is
of a type customarily sold on a recognized market, you will give the
undersigned reasonable notice of the time and place of any public sale thereof
or of the time after which any private sale or other intended disposition is
to be made. The requirement of reasonable notice shall be met if mailed
postage prepaid to the undersigned at the last address appearing on your
records at least five days before the time of such sale or disposition.
14. In the event that any action taken under or in connection with any
Credit could, in your sole judgment, have the effect of violating any law,
regulation or decree or order of the United States or of the State of New
York, or of any other jurisdiction, or of any court or governmental agency,
you may take or refuse to take any action as you deem necessary, including
dishonoring any draft, demand or acceptance presented thereunder, and you will
be indemnified and held harmless by us from any claim arising out of such
action or non-action on your part.
15. (a) If you shall have determined that the applicability of any
law, rule, regulation or guideline (domestic or foreign) adopted (whether
before or after the date hereof) pursuant to or arising out of the July 1988
report of the Basle Committee on Banking Regulations and Supervisory Practices
entitled "International Convergence of Capital Measurement and Capital
Standards", or the adoption after the date hereof of any other law, rule,
regulation or guideline (domestic or foreign) regarding capital adequacy, or
any change in any of the foregoing or in the enforcement or interpretation or
administration of any of the foregoing by any court or any governmental
authority, central bank or comparable agency charged with the enforcement or
interpretation or administration thereof, or compliance by you or any
corporation or other entity which directly or indirectly controls you (each
such corporation or other entity is hereinafter referred to as a "Controlling
Person") (or any lending office of yours or any Controlling Person) with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on your capital or on the
capital of a Controlling Person, if any, as a consequence of the issuance or
maintenance of any Credit or your commitment or obligations (if any) under
this Agreement to a level below that which you or such Controlling Person
could have achieved but for such applicability, adoption, change or compliance
(taking into consideration your policies and the policies of such Controlling
Person with respect to capital adequacy) by an amount deemed by you to be
material, then, upon demand by you, we shall pay to you from time to time as
specified by you such additional amount or amounts as will compensate you or
such Controlling Person for any such reduction suffered.
(b) If any change in law, rule, regulation or guideline
(domestic or foreign) or in the enforcement, interpretation or administration
thereof by any court or any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof shall at any
time (i) impose, modify or deem applicable any reserve, special deposit or
similar requirement (including, without limitation, pursuant to Regulation D
of the Board of Governors of the Federal Reserve System) against letters of
credit issued by you, or (ii) subject letters of credit issued by you to any
assessment or other cost imposed by the Federal Deposit Insurance Corporation
or any successor thereto or (iii) impose on you any other or similar condition
regarding this Agreement or any Credit, your commitment or obligations
hereunder and the result of any event referred to in clause (i), (ii) or (iii)
above shall be to increase the cost to you of agreeing to issue, issuing or
maintaining any Credit or making, funding or maintaining (or agreeing to fund
or maintain) drawings under any Credit by an amount which you shall deem to be
material (which increase in cost shall be the result of the reasonable
allocation by you of the aggregate of such cost increases resulting from such
events), then, upon demand by you, we shall pay to you from time to time as
specified by you, additional amount or amounts as will compensate you for such
increased cost from the date of such change. Our obligation to pay
compensation contained in this subsection (b) shall be applicable as well to
any financial institution which confirms or advises any Credit and which
incurs or is subjected to any increased cost as a result of the imposition,
modification or applicability of any such reserve, special deposit or similar
requirement, the subjecting of Credits to any such assessment or other cost,
or the imposition of any such other or similar condition.
(c) The provisions of this Section 15 shall survive the
termination of this Agreement.
16. We hereby certify and agree that no shipments will be made or other
transactions undertaken under any Credit in violation of the laws of the
United States, any applicable foreign law or the applicable regulations of any
United States or foreign governmental agency or authority.
17. Except as you may otherwise expressly agree in writing, we agree that all
trade transactions made under any acceptance Credit shall be on such terms and
conditions as shall enable the resulting acceptances to satisfy all
requirements for eligibility for discount by Federal Reserve Banks pursuant to
Section 13 of the Federal Reserve Act as such may be amended from time to
time, and all applicable regulations and administrative interpretations having
reference thereto.
18. (a) No single or partial exercise of any power or right hereunder
shall operate as a waiver of any power or right hereunder or preclude other or
further exercise thereof or the exercise of any other power or right. The
rights and remedies herein expressly specified are cumulative and not
exclusive of any other rights or remedies which you may otherwise have
hereunder, under any other agreement and under applicable laws. If any
provision of this agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this agreement.
(b) You shall not be deemed to have modified this agreement or
waived any of your rights hereunder, unless you or your authorized agent shall
have signed such amendment or waiver in writing. No such waiver unless
expressly stated therein shall be effective as to any transaction which occurs
subsequent to the date of such waiver, nor as to any continuance of a breach
after such waiver.
19. The obligations hereunder shall continue in force and apply,
notwithstanding any change in the membership of any of the undersigned which
is a partnership, whether arising from the death or retirement of one or more
partners or the accession of one or more new partners. The obligations
hereunder shall bind the heirs, executors, administrators, successors and
assigns of the undersigned, and all rights, benefits and privileges hereby
conferred on you shall be and hereby are extended to and conferred upon and
may be enforced by your successors and assigns.
20. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW).
Each of us hereby agrees that ANY LEGAL ACTION OR PROCEEDING AGAINST
ANY OF US 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 you may elect, and, by execution and
delivery hereof, each of us accepts and consents to, for ourselves and in
respect to our respective property, generally and unconditionally, the
jurisdiction of the aforesaid courts and agrees that such jurisdiction shall
be exclusive, unless waived by you in writing, with respect to any action or
proceeding brought by any of us against you and any questions relating to
usury. Nothing herein shall limit your right to bring proceedings against us
in the courts of any other jurisdiction. Service of process out of any such
courts may be made by mailing copies thereof by registered or certified mail,
postage prepaid, to us at our address set forth below our signature at the end
of this Agreement and will become effective 30 days after such mailing. Each
of us 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.
AFTER REVIEWING THIS PROVISION SPECIFICALLY WITH ITS RESPECTIVE
COUNSEL, EACH OF US AND YOU HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY AND ALL RIGHTS ANY OF US AND YOU 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 ANY OF US OR YOU. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR YOU TO ISSUE CREDITS TO US.
You shall have all of the rights and remedies of a secured party
under the Uniform Commercial Code of the State of New York in addition to your
rights and remedies hereunder and under other applicable law.
21. We consent that, without notice to or further assent by any of us, the
obligations of any party hereunder or under any guaranty with respect to such
obligations, or any collateral for any of the foregoing obligations, may from
time to time, in whole or in part, be renewed, extended, modified,
compromised, or settled for cash, credit or otherwise upon any terms and
conditions you may deem advisable, and that you may discharge or release any
party from its obligations hereunder or under any such guaranty, and that any
collateral may from time to time, in whole or in part, be exchanged, sold or
surrendered by you, all without in any way releasing the obligations of any of
us hereunder.
22. Any notice to be given hereunder shall be deemed to have been
sufficiently given when mailed, postage prepaid, or when telegraphed, telexed
or telecopied to any of us at the address set forth opposite our respective
names below or at such other address as may be designated by us in writing and
delivered to you.
23. Notice of your acceptance of this agreement is hereby waived.
24. As used in this agreement:
a. the word "property" includes goods, merchandise, securities, funds,
choses in action and any and all other forms of property, whether real,
personal or mixed and any right or interest therein; and
b. "Business Day" shall mean any day other than Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required to
close under the laws of New York.
25. If this agreement is executed by a single entity or individual, the
terms "we", "our" and "us" shall be read throughout as "I", "my" and "me", as
the case may be, and if this agreement is executed by a single entity or
individual, all references herein to the terms "we", "our" and "us" shall be
deemed to be references to such entity or individual. If this agreement is
executed by two or more parties, all references to the terms "we", "our" and
"us" shall mean all or any one or more of such parties, as you may in your
sole discretion elect. In such case, all such parties shall be jointly and
severally liable with respect to all obligations hereunder, and the
agreements, representations and warranties of all such parties shall likewise
be joint and several; and you may avail yourself of all rights and remedies
against any such party and Collateral of such party and against any or all of
other such parties and their Collateral as you may in your sole discretion
elect. Further in such case each of us shall be deemed to be the agent of all
the others of us, and you may, except to the extent expressly otherwise
provided herein, act at the direction or request of any one or more of us,
return or turn over Collateral to any one or more of us, and give any notices,
whether or not required to be given, to any one or more of us, all as you may
elect and without notice to any other of us.
26. We agree that you may act upon oral, telex or facsimile instructions
which are received by you from person(s) purporting to be, or which
instructions appear to be, authorized by any of us. We further agree to
indemnify and hold you harmless from any claims by virtue of your acting upon
such oral, telex or facsimile instructions as such instructions were
understood by you. In the event we send you a manually signed confirmation of
the previously sent oral, telex or facsimile instructions, you shall have no
duty to compare it against the previous instructions received by you nor shall
you have any responsibility should the contents of the written confirmation
differ from the oral, telex or facsimile instructions as acted upon by you.
27. We shall not assign any rights or delegate any obligations hereunder
without your express prior written consent.
28. All payments to be made by us hereunder shall be made to you without
setoff or counterclaim and free and clear of, and without deduction for or on
account of, any present or future stamp or other taxes, levies, imposts,
duties or other charges of any kind now or hereafter imposed through
withholding or deduction. If, notwithstanding the provisions of the
immediately preceding sentence, any such taxes, duties, levies, imposts or
other charges are so levied or imposed on any such payment, we will pay
additional interest or will make additional payments in such amounts as may be
necessary so that the net amount received by you, after withholding or
deduction therefor, will be equal to the amount provided for herein. We agree
to furnish promptly to you official receipts evidencing payment of any taxes,
levies, imposts, duties or other charges so withheld or deducted.
29. Each Credit, except as otherwise herein expressly stated, is subject to
the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, as from time to time
amended, and to the extent not inconsistent therewith, shall also be subject
to the New York Uniform Commercial Code.
Very truly yours,
PENN OCTANE CORPORATION
By /s/ J.B. Richter
------------------
Title: President
Address: 900 Veterans Blvd., Suite 240
Redwood City, CA 94063
Facsimile Number: (415) 368-1505
ACCEPTED:
RZB FINANCE LLC
By /s/ Pearl S. Geffers Vice President
By /s/ F. Dieter Beintrexler President