GUARANTY AGREEMENT
GUARANTY AGREEMENT
(this "Agreement"), dated as of October 25, 2006,
by
GREENSHIFT
CORPORATION, a
Delaware corporation,
GS AGRIFUELS
CORPORATION, a
Delaware corporation,
GS ENERGY CORPORATION, a Delaware corporation and GS
CLEANTECH
CORPORATION, a
Delaware corporation (each a "Guarantor" and
collectively, the "Guarantors") in favor or THE STILLWATER
ASSET-BACKED FUND LP,
a Delaware
limited partnership (the "Lender"). The Lender and NextGen
Acquisition Inc.,
a Delaware
corporation
(the "Borrower") are parties to a
Credit Agreement, dated as of the date hereof, (as modified and
supplemented and
in effect from time to time, the "Credit Agreement"), providing, subject to the
terms and conditions thereof, for extensions of credit (by the
making of a Term
Loan) to be made by the Lender to the Borrower in the principal amount of
$6,000,000.
To
induce the
Lender to enter
into the Credit Agreement and to extend
credit thereunder, and
for other good and valuable consideration, the receipt
and sufficiency
of which are hereby
acknowledged,
the Guarantor have
agreed,
subject to the terms and conditions of the Intercreditor
Agreement,
to jointly
and severally guarantee the Guaranteed Obligations (as hereinafter
defined) on
the terms and conditions set forth in this Agreement. Accordingly, the parties
hereto hereby agree as follows:
Section 1.
Definitions. 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:
"Costs" shall have the
meaning ascribed thereto in Section 2.01
hereof.
"Guaranteed
Obligations" shall
mean the obligations described in
Section 2.01 hereof.
Section 2. The Guarantee.
2.01 The Guarantee. (a) Each Guarantor, hereby absolutely, unconditionally and
irrevocably guarantees to the Lender, the full and prompt payment
when due,
whether at
maturity or earlier, by reason of acceleration, mandatory
prepayment or otherwise, and at all times thereafter,
the principal
owing
by
the Borrower
to the Lender on the Loans, and all fees, costs and
expenses under the Credit Agreement or any other Financing
Agreements.
(b)
Each Guarantor further agrees to pay, upon demand, all costs and
expenses ("Costs"), including, without limitation, all court costs
and
reasonable attorneys'
fees and expenses, paid or incurred by the
Lender (a)
in endeavoring to collect all or any part of the
Obligations from, or in prosecuting any action against, such
Guarantor
or (b) in endeavoring to realize upon (whether by judicial,
nonjudicial or other proceedings) any collateral securing any of such
Guarantor's liabilities under this Guaranty ("Guarantor
Collateral").
2.02 Obligations Unconditional. The obligations of each Guarantor
under Section
2.01
hereof are absolute
and unconditional, irrespective of the value,
genuineness,
validity,
regularity or
enforceability
of the Credit
Agreement, the
Note or any
other agreement or instrument (including,
without limitation,
any other Financing
Agreements) referred to herein or
therein, or any
substitution,
release or exchange of
any other Financing
Agreements of or security for any of the Guaranteed Obligations or for the
obligations of
such Guarantor hereunder, and, to the fullest extent
permitted by
applicable
law, irrespective of any other circumstance
whatsoever which might otherwise constitute a legal or equitable
discharge
or
defense of a surety or
guarantor, it being
the intent of this
Section
2.02
that the obligations of such Guarantor hereunder shall be absolute
and
unconditional, under
any and all circumstances. Without limiting the
generality of the foregoing, it is agreed that the occurrence of
any one or
more
of the following
shall not alter or impair the liability of each
Guarantor hereunder
which shall
remain absolute and unconditional as
described above:
(i)
at any time or from
time to time, without
notice to such
Guarantor,
the time for any performance of or compliance with any of the
Guaranteed Obligations
shall be extended, or such performance or
compliance shall be waived;
(ii)
any of the acts
mentioned in any of the provisions of the Credit
Agreement or the Note or any other agreement or instrument referred
to
herein or therein (including, without limitation, any other
Financing
Agreements) shall be done or omitted;
(iii) the maturity
of any of the Guaranteed Obligations shall be
accelerated, or any of
the Guaranteed
Obligations shall be modified,
supplemented or amended in any respect, or any right under the Credit
Agreement or the Note or any other agreement or instrument referred
to
herein or therein (including, without limitation, any other
Financing
Agreements) shall be
waived or any other guarantee of any of the
Guaranteed Obligations
or any security
therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(iv)
any lien granted to,
or in favor of the Lender as security for any of
the Guaranteed Obligations shall be released, exchanged, enforced or
shall fail to be perfected.
Except as expressly provided in this Agreement, each Guarantor hereby
expressly
waives diligence,
presentment,
demand of payment, protest and all notices
whatsoever, and any
requirement
that the Lender
exhaust any right,
power or
remedy to proceed against the Borrower under the Credit Agreement
or the Note or
any other agreement
or instrument referred to herein or therein
(including,
without limitation, any other Financing Agreements), or against any
other person
under any other guarantee of, or security for, any of the
Guaranteed Obligations
or any of the obligations of such Guarantor hereunder.
2.03 Reinstatement. The obligations of each Guarantor under this
Section 2 shall
be
automatically
reinstated
if and to the extent
that for any reason any
payment by or on
behalf of the
Borrower in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any
holder of any
of
the Guaranteed
Obligations, whether
as a result of any
proceedings in
bankruptcy or reorganization or otherwise, and such Guarantor agrees that
it
will indemnify
the Lender on demand for all reasonable costs and
expenses (including,
without limitation, reasonable fees of counsel)
incurred by
the Lender in connection with any such rescission or
restoration, including
any such costs and
expenses incurred in
defending
against any claim
alleging that such
payment constituted
a preference,
fraudulent transfer or similar payment under any bankruptcy,
insolvency or
similar law.
The provisions of this Section 2.03 shall survive the
termination of this Agreement.
2.04 Subrogation. Each
Guarantor hereby waives all rights of
subrogation
or
contribution, whether
arising by contract or
operation of law (including,
without limitation,
any such right arising
under the Federal
Bankruptcy
Code) or otherwise by reason of any payment by such Guarantor pursuant to
the
provisions of this
Section 2 and further
agrees with the Borrower for
the
benefit of such
Guarantor's creditors
that any such
payment by such
Guarantor shall
constitute a
contribution of capital by such Guarantor to
the
Borrower.
2.05 Remedies. Each
Guarantor agrees that, as between such
Guarantor and the
Lender, the
obligations of the Borrower under the Credit Agreement and the
Note
may be declared
to be forthwith due and payable as provided in
the
Credit Agreement (and shall be deemed to have become automatically due and
payable in the circumstances provided therein) for purposes of
Section 2.01
hereof notwithstanding any stay, injunction or other prohibition
preventing
such
declaration (or such obligations from becoming automatically due and
payable) as against
the Borrower and that, in the event of such declaration
(or
such obligations
being deemed to have become automatically due and
payable), such obligations (whether or not due and payable by the
Borrower)
shall forthwith
become due and payable
by such Guarantor for
purposes of
said
Section 2.01.
2.06 Continuing
Guarantee. The
guarantee in this Section 2 is a continuing
guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
2.07 Interest on Defaulted Guaranteed Obligations. If any Guarantor
fails to pay
any
amount when due pursuant to Section 2.01 hereof, such Guarantor agrees
to
pay interest
on the amount of such
payment not so paid from said due
date
until such payment
shall be paid in full at a rate per annum equal to
the
rate set forth in
Section 2.3 of the
Credit Agreement, payable on
demand of the Lender.
2.08 Application of
Payments. Cash at the time held by the Lender shall be
applied by
