SECURITY AGREEMENT
SECURITY AGREEMENT (this "Agreement"), dated as of October 25, 2006,
between GS AGRIFUELS CORPORATION, a Delaware corporation ("Grantor"), and THE
STILLWATER ASSET-BACKED FUND LP, a Delaware limited partnership ("Lender"). The
Lender and NextGen Acquisition Inc., a Delaware corporation (the "Borrower") are
concurrently entering into a credit agreement, dated as of even date herewith,
(as amended, modified or supplemented from time to time in accordance with its
terms, the "Credit Agreement") pursuant to which the Lender will make a Term
Loan (as such term is defined in the Credit Agreement) to the Borrower, pursuant
to, and subject to the terms and conditions thereof.
Execution and delivery of this Agreement is a condition precedent to the
making of the Term Loan.
The obligation of the Lender to make the Term Loan is conditioned, among
other things, on the execution and delivery by the Grantor of this Agreement to
secure the Obligations (as such term will be defined in the Credit Agreement),
such Obligations to include, without limitation, the due and punctual payment
and performance of (a) the principal of and interest and fees on the Term Loan,
when and as due, whether at maturity, by acceleration, or otherwise, (b) all
obligations of the Grantor at any time and from time to time under this
Agreement and (c) all other obligations at any time and from time to time under
the Credit Agreement, this Agreement and the other Financing Agreements.
Accordingly, the Grantor and the Lender hereby agree as follows:
1. Definitions of Terms. All capitalized terms used herein, but not defined
herein, shall have the meanings set forth in the Credit Agreement. As used
herein, the following terms shall have the following meanings:
(a) "Account" shall mean all present and future rights of the Grantor to
payment of a monetary obligation, whether or not earned by
performance, which is not evidenced by chattel paper or an instrument,
(i) for services rendered or to be rendered, or (ii) for a secondary
obligation incurred or to be incurred.
(b) "Chattel Paper", "Documents" and "Instruments" shall have the meanings
set forth in the NYUCC.
(c) "Equipment" shall mean all of the equipment of the Grantor, including,
without limitation, all machinery, data processing and computer
equipment (whether owned or licensed and including embedded software),
vehicles, tools, furniture, fixtures, all attachments, accessions and
property now or hereafter affixed thereto or used in connection
therewith, and substitutions and replacements thereof, wherever
located. Without limitation to the generality of the foregoing, such
term shall also include all "Equipment" as defined in the NYUCC.
(d) "General Intangibles" shall mean all of any Grantor's present and
future general intangibles of every kind and description, including,
without limitation, contract rights, payment intangibles, trade names
and trademarks and the goodwill of the business symbolized thereby,
deposit accounts, letters of credit, and federal, state and local tax
refund claims of all kinds. Without limitation to the generality of
the foregoing, such term shall also include all "General Intangibles"
as defined in the NYUCC.
(e) "NYUCC" shall mean the Uniform Commercial Code as in effect in the
State of New York.
(f) "Proceeds" shall mean any consideration received from the sale, lease,
exchange or other disposition of any asset or property which
constitutes Collateral, any other value received as a consequence of
the possession of any Collateral and any payment received from any
insurer or other person or entity as a result of the loss,
nonconformity, or interference with the use of, defects or
infringements of rights, or damage to any asset or property that
constitutes Collateral, and shall include, without limitation, all
cash and negotiable instruments received or held by the Lender
pursuant to any lockbox or similar arrangement relating to the payment
of Accounts or Receivables.
(g) "Receivable" shall mean all of the following property of the Grantor:
(a) all Accounts; (b) all interest, fees, late charges, penalties,
collection fees and other amounts due or to become due or otherwise
payable in connection with any Account; (c) all payment intangibles;
(d) letters of credit, indemnities, guarantees, security or other
deposits and proceeds thereof issued and payable to the Grantor or
otherwise in favor of or delivered to the Grantor in connection with
any Account; or (e) all other accounts, contract rights, chattel
paper, instruments, notes, general intangibles and other forms of
obligations owing to the Grantor, whether from the rendition of
services or otherwise associated with any Accounts, or general
intangibles of the Grantor (including, without limitation, choses in
action, causes of action, tax refunds, tax refund claims, any funds
which may become payable to the Grantor in connection with the
termination of any Plan or other employee benefit plan and any other
amounts payable to the Grantor from any Plan or other employee benefit
plan, rights and claims against insurance carriers, rights to
indemnification, business interruption insurance and proceeds thereof,
casualty or any similar types of insurance and any proceeds thereof
and proceeds of insurance covering the lives of employees on which the
Grantor is a beneficiary).
(h) "Records" shall mean all of the Grantor's files, present and future
books of account of every kind or nature, invoices, ledger cards,
statements, correspondence, memoranda, and other data relating to the
Collateral or any account debtor, together with the tapes, disks,
diskettes and other data and software storage media and devices, file
cabinets or containers in or on which the foregoing are stored
(including any rights of the Grantor with respect to the foregoing
maintained with or by any other person).
2. Grant and Perfection of Security Interest.
(a) As security for the payment or performance, as the case may be, of the
Obligations, the Grantor hereby creates and grants to the Lender, its
successors and its assigns, a continuing security interest in, lien
upon, and right of setoff against, and hereby assigns to the Lender,
all personal property and fixtures and interests of the Grantor,
whether now owned or hereafter acquired or existing and wherever
located (together with all other collateral security for the
Obligations at any time granted to or held or acquired by the Lender),
collectively the "Collateral", including, without limitation, all of
the Grantor's right, title and interest in the following:
(i) all Receivables;
(ii) all General Intangibles;
(iii) all goods, including, without limitation, Equipment;
(iv) Chattel Paper, including, without limitation, all tangible and
electronic chattel paper;
(v) all Instruments, including, without limitation, all promissory
notes;
(vi) all Documents;
(vii) all deposit accounts;
(viii) all letters of credit, banker's acceptances and similar
instruments and including all letter-of-credit rights;
(ix) all supporting obligations and all present and future liens,
security interests, rights, remedies, title and interest in, to
and in respect of any Collateral, including (A) rights and
remedies under or relating to guaranties, contracts of
suretyship, letters of credit and credit and other insurance
related to the Collateral, and (B) deposits by and property of
account debtors or other persons securing the obligations of
account debtors;
(x) all (A) investment property (including securities, whether
certificated or uncertificated, securities accounts, security
entitlements, commodity contracts or commodity accounts) and (B)
monies, credit balances, deposits and other property of the
Grantor now or hereafter held or received by or in transit to the
Lender or at any other depository or other institution from or
for the account of the Grantor, whether for safekeeping, pledge,
custody, transmission, collection or otherwise;
(xi) all commercial tort claims;
(xii) all Records; and
(xiii) all products and Proceeds of the foregoing, in any form,
including insurance proceeds and all claims against third parties
for loss or damage to or destruction of or other involuntary
conversion of any kind or nature of any or all of the other
Collateral.
(b) The Grantor irrevocably and unconditionally authorizes the Lender (or
its agent) to file at any time and from time to time such financing
statements with respect to the Collateral naming the Lender as the
secured party and the Grantor as debtor, as the Lender may require,
and including any other information with respect to the Grantor or
otherwise required by Article 9 of the Uniform Commercial Code of such
jurisdiction as the Lender may determine in good faith, together with
any amendment and continuations with respect thereto, which
authorization shall apply to all financing statements filed on, prior
to or after the date hereof. The Lender hereby ratifies and approves
all financing statements naming the Lender as secured party and the
Grantor as debtor with respect to the Collateral (and any amendments
with respect to such financing statements) filed by or on behalf of
the Lender prior to the date hereof and ratifies and confirms the
authorization of the Lender to file such financing statements (and
amendments, if any). The Grantor hereby authorizes the Lender to adopt
on behalf of the Grantor any symbol required for authenticating any
electronic filing. In the event that the description of the collateral
in any financing statement naming the Lender as the secured party and
the Grantor as debtor includes assets and properties of the Grantor
that do not at any time constitute Collateral, whether hereunder,
under any of the other Financing Agreements or otherwise, the filing
of such financing statement shall nonetheless be deemed authorized by
the Grantor to the extent of the Collateral included in such
description and it shall not render the financing statement
ineffective as to any of the Collateral or otherwise affect the
financing statement as it applies to any of the Collateral, provided,
that, in such event, upon the Grantor's written request and at the
Grantor's expense, the Lender shall file such amendments to its
financing statements to change the assets described therein so as to
constitute the Collateral. In no event shall the Grantor at any time
file, or permit or cause to be filed, any correction statement or
termination statement with respect to any financing statement (or
amendment or continuation with respect thereto) naming the Lender as
secured party and the Grantor as debtor so long as this Agreement has
not been terminated or all of the Obligations have not been paid and
satisfied in full in immediately available funds.
(c) In the event that any goods, documents of title are at any time after
the date hereof in the custody, control or possession of another
person, the Grantor shall promptly notify the Lender thereof in
writing. Promptly upon the Lender's request, the Grantor shall
promptly obtain an acknowledgment from such other person, in form and
substance satisfactory to the Lender, that such other person, inter
alia, acknowledges the security interest of the Lender in such
collateral, agrees to waive any and all claims such other person may,
at any time, have against such collateral, and agrees to permit the
Lender access to, and the right to remain on, the premises of such
other person so as to exercise the Lender's rights and remedies and
otherwise deal with such collateral and in the case of any person who
at any time has custody, control or possession of any Collateral,
holds such collateral for the benefit of the Lender and shall agrees
to act upon the instructions of the Lender, without the further
consent of the Grantor.
(d) The Grantor agrees at all times to keep in all material respects
accurate and complete accounting records with respect to the
Collateral, including, but not limited to, a record of all payments
and Proceeds received.
3. Further Assurances. The Grantor agrees to take any other actions reasonably
requested by the Lender to insure the attachment, perfection of, and the
ability of the Lender to enforce, the security interest of the Lender in
any and all of the Collateral, including, without limitation, (i)
executing, delivering and, where appropriate, filing financing statements
and amendments relating thereto under the NYUCC or other applicable law, to
the extent, if any, that the Grantor's signature thereon is required
therefor, (ii) causing the Lender's name to be noted as secured party on
any certificate of title for a titled good if such notation is a condition
to attachment, perfection or priority of, or ability of the Lender to
enforce, the security interest of the Lender in such Collateral, (iii)
complying with any provision of any statute, regulation or treaty of the
United States as to any Collateral if compliance with such provision is a
condition to attachment, perfection or priority of, or ability of the
Lender to enforce, the security interest of the Lender in such Collateral,
(iv) obtaining the consents and approvals of any governmental and other
third party consents and approvals, including, without limitation, any
consent of any other person obligated on Collateral, (v) paying any fees
and taxes required in connection with the execution and delivery of this
Agreement or the granting of the security interest of the Grantor, and (vi)
taking all actions required by any earlier versions of the NYUCC or by
other law, as applicable in any relevant jurisdiction.
4. Inspection and Verification. The Lender and such persons as the Lender may
designate shall have the right, at any reasonable time or times, and upon
reasonable notice (which may be telephonic), to inspect the Collateral
owned by the Grantor, all records related thereto (and to make extracts and
copies from such records), and the premises upon which any such Collateral
is located, to discuss the Grantor's affairs with the officers of the
Grantor and its independent accountants and to verify under reasonable
procedures the validity, amount, quality, quantity, value, and condition of
or any other matter relating to, such Collateral, including, in the case of
Receivables or Collateral in the possession of a third person, contacting
account debtors or a third person possessing such Collateral for the
purpose of making such a verification. The provisions of this Section 4
shall not be deemed to limit the Lender's rights under the Credit
Agreement.
5. Taxes; Encumbrances. At its option, the Lender may discharge past due
taxes, liens, security interests or other encumbrances at any time levied
or placed on the Collateral and not permitted under the Credit Agreement,
and may pay for the maintenance and preservation of the Collateral to the
extent the Grantor fails to do so as required by the Credit Agreement, and
the Grantor agrees to reimburse the Lender on demand for any payment made
or any expense incurred by it pursuant to the foregoing authorization;
provided, however, that nothing in this Section 5 shall be interpreted as
excusing the Grantor from the performance by it of any covenants or other
promises with respect to taxes, liens, security interests or other
encumbrances and maintenances as set forth herein or in the Credit
Agreement.
6. Assignment of Security Interest. If at any time the Grantor shall take and
perfect a security interest in any property of an account debtor or any
other person to secure payment and performance of a Receivable, any
contract right, or payment intangible the Grantor shall promptly assign
such security interest to the Lender. Such assignment need not be filed of
public record unless necessary to continue the perfected status of the
security interest against creditors of and transferees from the account
debtor or other person granting the security interest.
7. Records. The Grantor shall keep or cause to be kept records with respect to
the Collateral, which are complete and accurate in all material respects.
In addition, the Grantor will provide the Lender with such further
schedules and/or information with respect thereto as the Lender may
reasonably require.
8. Priority. The Lender's security interest in the Collateral is and shall
remain a second priority security interest, subject only to (i) the first
priority security interest of Cornell Capital Partners, LP in accordance
with the terms and conditions of the Intercreditor Agreement and (ii) any
security interests granted pursuant to Secondary Guarantor Indebtedness in
accordance with the terms and conditions of the Credit Agreement.
9. Protection of Security. The Grantor shall, at its own cost and expense,
take any and all actions reasonably necessary to defend title to the
Collateral owned by it against all persons and to defend the security
interest of the Lender in such Collateral, and the priority thereof,
against any Lien of any nature whatsoever except for Liens which may be
permitted by the Credit Agreement.
10. Continuing Obligations of the Grantor. The Grantor shall remain liable to
observe and perform all the conditions and obligations to be observed and
performed by it under each contract, agreement, interest or obligation
relating to the Collateral, all in accordance with the terms and conditions
thereof, and shall indemnify and hold harmless the Lender from any and all
such liabilities.
11. Remedies Upon Default. Upon the occurrence and during the continuance of an
Event of Default, it is agreed that the Lender shall have the right to take
any or all of the following actions at the same or different times: with or
without legal process and with or without previous notice or demand for
performance, to take possession of the Collateral and without liability for
trespass (except for actual damage caused by the Lender's gross negligence
or willful misconduct) to enter any premises where such Collateral may be
located for the purpose of taking possession of or removing such Collateral
and, generally, to exercise any and all rights afforded to a secured party
under, and subject to its obligations contained in, the Uniform Commercial
Code as in effect in any state or other applicable law. Without limiting
the generality of the foregoing, the Grantor agrees that the Lender shall
have the right, subject to the mandatory requirements of applicable law, to
sell or otherwise dispose of all or any part of the Collateral, at public
or private sale or at any broker's board or on any securities exchange, for
cash, upon credit or for future delivery as the Lender shall deem
appropriate. Each such purchaser at any such sale shall hold the property
sold absolutely free from any claim or right on the part of the Grantor,
and the Grantor hereby waives (to the extent permitted by law) all rights
of redemption, stay and appraisal which the Grantor now has or may at any
time in the future have under any rule of law or statute now existing or
hereafter enacted.
Without limiting the foregoing, upon the occurrence and during the
continuance of an Event of Default, the Lender may, in its discretion,
enforce the rights of the Grantor against any account debtor or other
obligor in respect of any of the Receivables. Without limiting the
generality of the foregoing, at any time or times that an Event of Default
exists or has occurred and is continuing, the Lender may, in its
discretion, at such time (i) notify any or all account debtors or other
obligors in respect thereof that the Receivables have been assigned to the
Lender and that the Lender has a security interest therein and the Lender
may direct any or all account debtors and other obligors to make payment of
the Receivables directly to the Lender, (ii) extend the time of payment of,
compromise or settle, and upon any terms or conditions, any and all
Receivables and thereby discharge or release the account debtor or any
secondary obligors or other obligors in respect thereof without affecting
any of the Obligations, (iii) demand, collect or enforce payment of any
Receivable or such other obligations, but without any duty to do so, and
the Lender shall not be liable to Grantor (or any Affiliate of Grantor) for
any failure to collect or enforce the payment thereof nor for the
negligence of its agents or attorneys with respect thereto and (iv) take
whatever other action the Lender may deem necessary or desirable for the
protection of its interests. At any time that an Event of Default exists or
has occurred and is continuing, at the Lender's request, any notice or
demand for payment sent to any account debtor shall state that the
Receivables and such other obligations have been assigned to the Lender and
are payable directly and only to the Lender and the Grantor shall deliver
to the Lender such originals of documents evidencing the sale and delivery
of goods or the performance of services giving rise to any Receivables as
the Lender may require.
The Lender shall give the Grantor ten (10) days' written notice (which
the Grantor agrees is reasonable notice within the meaning of Section 9-611
of the NYUCC) of the Lender's intention to make any sale of Collateral.
Such notice, in the case of a public sale, shall state the time and place
for such sale and, in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale
is to be made and the day on which the Collateral, or portion thereof, will
first be offered for sale at such board or exchange. Any such public sale
shall be held at such time or times within ordinary business hours and at
such place or places as the Lender may fix and state in the notice (if any)
of such sale. At any such sale, the Collateral, or portion thereof, to be
sold may be sold in one lot as an entirety or in separate parcels, as the
Lender may (in its sole and absolute discretion, exercised in a
commercially reasonable manner) determine. The Lender shall not be
obligated to make any sale of any Collateral if it shall determine not to
do so, regardless of the fact that notice of sale of such Collateral shall
have been given. The Lender 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 sale, and such sale may,
without further notice, be made at the time and place to which the same was
so adjourned. In case any sale of all or any part of the Collateral is made
on credit or for future delivery, the Collateral so sold may be retained by
the Lender until the sale price is paid by the purchaser or purchasers
thereof, but the Lender shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Collateral so
sold and, in case of any such failure, such Collateral may be sold again
upon like notice. At any public sale made pursuant to this Section 11, the
Lender may bid for or purchase, free (to the extent permitted by law) from
any right of redemption, stay or appraisal on the part of the Grantor (all
said rights being also hereby waived and released to the extent permitted
by law), with respect to the Collateral or any part thereof offered for
sale and the Lender or any such Lender may make payment on account thereof
by using any claim then due and payable to the Lender from the Grantor as a
credit against the purchase price, and the Lender may, upon compliance with
the terms of sale, hold, retain and dispose of such property without
further accountability to the Grantor therefor. For purposes hereof, a
written agreement to purchase the Collateral or any portion thereof shall
be treated as a sale thereof; the Lender shall be free to carry out such
sale and purchase pursuant to such agreement, and the Grantor shall not be
entitled to the return of the Collateral or any portion thereof subject
thereto, notwithstanding the fact that after the Lender shall have entered
into such an agreement all Events of Default shall have been remedied and
the Obligations paid in full. As an alternative to exercising the power of
sale herein conferred upon it, the Lender may proceed by a suit or suits at
law or in equity to foreclose this Agreement and to sell the Collateral
portion thereof pursuant to a judgment or decree of a court or courts
having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver.
12. Application of Proceeds. The proceeds of any collection or sale of
Collateral, as well as any Collateral consisting of cash, shall be applied
by the Lender as follows:
FIRST, to the payment of all reasonable costs and expenses incurred by
the Lender in connection with such collection or sale or otherwise in
connection with this Agreement or any of the Obligations, including, but
not limited to, all court costs and the reasonable fees and expenses of its
agents and legal counsel, the repayment of all advances made by the Lender
hereunder on behalf of the Borrower and any other reasonable costs or
expenses incurred in connection with the exercise of any right or remedy
hereunder;
SECOND, to principal and then interest on the Term Loan and all other
fees, costs, charges and other Obligations arising under the Credit
Agreement; and
THIRD, to the Grantor, its successors and assigns, or as a court of
competent jurisdiction may otherwise direct.
Upon any sale of the Collateral by the Lender (including, without
limitation, pursuant to a power of sale granted by statute or under a
judicial proceeding), the receipt of the Lender or of the officer making
the sale shall be a sufficient discharge to the purchaser or purchasers of
the Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid
over to the Lender or such officer or be answerable in any way for the
misapplication thereof.
13. Additional Covenants as to the Collateral.
(a) The Grantor shall keep the Collateral at locations specified in
Schedule I attached hereto and the Grantor will not remove the
Collateral from such locations without providing at least thirty (30)
days' prior written notice to the Lender.
(b) Without providing at least thirty (30) days' prior written notice to
the Lender, the Grantor will not change (i) its name, its chief
executive office or the location of its records from the locations
specified in Schedule I attached hereto or (ii) its type of
organization, jurisdiction of organization or other legal structure.
(c) The Grantor shall cause its Equipment to be maintained in the same
condition, repair and working order as when new, ordinary wear and
tear excepted, and shall forthwith, or in the case of any loss or
damage to any such Equipment as quickly as practicable after the
occurrence thereof, make or cause to be made all repairs, replacements
and other improvements in connection therewith which are necessary or
desirable to such end. The Grantor shall promptly furnish to the
Lender a statement respecting any loss or damage to any of its
Equipment.
14. Security Interest Absolute. All rights of the Lender hereunder, the
security interest created hereby, and all obligations of the Grantor
hereunder, shall be absolute and unconditional irrespective of (i) any lack
of validity or enforceability of the Credit Agreement, any other agreement
with respect to any of the Obligations or any other agreement or instrument
relating to any of the foregoing, (ii) any change in the time, manner or
place of payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or consent to any
departure from the Credit Agreement, or any other agreement or instrument,
(iii) any exchange, release or nonperfection of any other Collateral, or
any release or amendment or waiver of or consent to or departure from any
guarantee, for all or any of the Obligations, or (iv) any other
circumstance which might otherwise constitute a defense available to, or
discharge of, the Grantor or any other obligor in respect of the
Obligations or in respect of this Agreement.
15. No Waiver. No failure on the part of the Lender to exercise, and no delay
in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy by the Lender preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. All remedies
hereunder are cumulative and are not exclusive of any other remedies
provided by law. The Lender shall not be deemed to have waived any rights
hereunder or under any other agreement or instrument unless such waiver
shall be in writing and signed by such parties.
16. Lender Appointed Attorney-in-Fact. The Grantor hereby appoints the Lender
the attorney-in-fact of the Grantor solely for the purpose of carrying out
the provisions of this Agreement and taking any action and executing any
instrument which the Lender may deem necessary or advisable to accomplish
the purposes hereof, which appointment is irrevocable and coupled with an
interest.
17. Fees and Expenses. The Grantor shall be obligated to, within ten (10) days
after demand, pay to the Lender the amount of any and all expenses,
including the reasonable fees and expenses of its counsel and of any
experts or agents which the Lender may incur in connection with (i) the
administration of this Agreement, including the cost and expenses of the
Lender's Collateral examination as provided in the Credit Agreement, (ii)
the custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement
of any of the rights of the Lender hereunder, or (iv) the failure by the
Grantor to perform or observe any of the provisions hereof. In addition,
the Grantor indemnifies and holds the Lender harmless from and against any
and all liability incurred by the Lender hereunder or in connection
herewith, unless such liability shall be due to the gross negligence or
willful misconduct of the Lender, as the case may be. Any such amounts
payable as provided hereunder or thereunder shall be additional Obligations
secured hereby and by the other Financing Agreements.
18. Submission to Jurisdiction.
(a) Any legal action or proceeding with respect to this Agreement may be
brought in the courts of the State of New York (located in New York
County) or of the United States of America for the Southern District
of New York, and, by execution and delivery of this Agreement, the
Grantor hereby accepts for itself and in respect of his property,
generally and unconditionally, the jurisdiction of the aforesaid
courts.
(b) The Grantor hereby irrevocably waives, in connection with any such
action or proceeding, any objection, including, without limitation,
any objection to the laying of venue or based on the grounds of forum
non conveniens, which it may now or hereafter have to the bringing of
any such action or proceeding in such respective jurisdictions.
(c) The Grantor hereby irrevocably consents to the service of process of
any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified mail, postage
prepaid, to it, as the case may be, at its address set forth in the
Credit Agreement.
(d) Nothing herein shall affect the right of the Lender to serve process
in any other manner permitted by law or to commence legal proceedings
or otherwise proceed against the Grantor in any other jurisdiction
which the Lender deems necessary or appropriate in order to realize on
the Collateral or to otherwise enforce its rights against the Grantor
or its property.
19. Entire Agreement; Waiver of Jury Trial, etc.
(a) This Agreement and the other Financing Agreements constitute the
entire contract between the parties hereto relative to the subject
matter hereof. Except as expressly provided herein or in the other
Financing Agreements, nothing in this Agreement or in the other
Financing Agreements, expressed or implied, is intended to confer upon
any party, other than the parties hereto, any rights, remedies,
obligations or liabilities under or by reason of this Agreement the
other Financing Agreements.
(b) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY WAIVES ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND THE OTHER FINANCING AGREEMENTS.
(c) Except as prohibited by law, each party hereto hereby waives any right
it may have to claim or recover in any litigation arising under the
Financing Agreements, any special, exemplary, punitive or
consequential damages or any damages other than, or in addition to,
actual damages.
(d) Each party hereto (i) certifies that no representative, Lender or
attorney of the Lender has represented, expressly or otherwise, that
the Lender would not, in the event of litigation, seek to enforce the
foregoing waivers and (ii) acknowledges that it has been induced to
enter into this Agreement or the other Financing Agreements, as
applicable, by, among other things, the mutual waivers and
certifications herein.
20. Binding Agreement; Assignments. This Agreement, and the terms, covenants
and conditions hereof, shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, except that
the Grantor shall not be permitted to assign this Agreement or any interest
herein or in the Collateral, or any part thereof, or any cash or property
held by the Lender as Collateral under this Agreement, except as
contemplated by this Agreement or the Credit Agreement.
21. Applicable Law. This Agreement shall be construed in accordance with and
governed by the law of the State of New York (other than the conflicts of
laws principles thereof) except to the extent that the validity or
perfection of the security interest hereunder, or remedies hereunder, in
respect of any particular collateral are governed by the laws of a
jurisdiction other than the State of New York.
22. Notices. All communications and notices hereunder shall be in writing and
given as provided in the Credit Agreement.
23. Severability. In the event any one or more of the provisions contained in
this Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
24. Section Headings. Section headings used herein are for convenience only and
are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
25. Counterparts; Facsimile Signatures. This Agreement may be executed in
counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective when copies hereof which, when taken together, bear the
signatures of each of the parties hereto shall be delivered to the Lender.
Delivery of an executed counterpart of a signature page to this Agreement
by telecopier shall be effective as delivery of a manually executed
signature page hereto.
26. Termination. This Agreement shall terminate when (a) all the Obligations
have been fully and indefeasibly paid in immediately available funds and
(b) the Credit Agreement has been terminated.
27. Credit Agreement. The Grantor acknowledges that this Agreement does not and
shall not be construed as requiring the Lender to enter into the Credit
Agreement or make the Term Loan.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Security Agreement as of the day and year first above written.
GS AGRIFUELS CORPORATION
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chairman and Chief Executive Officer
THE STILLWATER ASSET-BACKED FUND LP
By: /s/
Name:
Title:
