COLLATERAL PLEDGE AGREEMENT
Exhibit 10.2
This
Collateral Pledge Agreement (this “Agreement”) dated as of
August 10, 2018, is made by NEW AGE
BEVERAGES CORPORATION, a Washington corporation (“Pledgor”), with an
address at 0000 X 00xx Xxxxxx, Xxxxxx, XX in favor in favor of
SIENA LENDING GROUP LLC (as
originating lender, and after the Closing Date as servicer for
affiliated assignee, Siena Funding LLC, a Delaware limited
liability company (“Siena Funding”), and
together with Siena Funding the “Lender” under the Loan
Agreement (defined below), and herein referred to as the
“Secured
Party”)
Background
A.
To induce Lender to
extend credit to Borrowers (as defined below) pursuant to that
certain Loan and Security Agreement dated as of even date herewith
among Pledgor, NABC, INC., a corporation organized under the laws
of the State of Colorado (“NABC”), NABC PROPERTIES,
LLC, a limited liability company formed under the laws of the State
of Colorado (“NABC
Properties”) and NEW AGE HEALTH SCIENCES, INC., a
corporation formed under the laws of the State of Nevada
(“New Age
Health”, Pledgor, NABC, NABC Properties and each
Person joined to the Loan Agreement as a borrower from time to
time, collectively, the “Borrowers”, and each a
“Borrower”), and Lender
(as amended, restated, supplemented, or replaced from time to time,
the “Loan
Agreement”), Pledgor executes and delivers this
Agreement to Secured Party. All capitalized terms used herein and
not otherwise defined shall have the same meanings assigned to such
terms in the Loan Agreement.
B.
This Agreement is
given and is intended to provide additional security for the
Obligations.
C.
Pledgor will derive
economic benefit from the making of loans and extension of credit
to Borrowers under the Loan Agreement.
NOW
THEREFORE, for other good and sufficient consideration, the receipt
of which is hereby acknowledged, Pledgor, intending to be legally
bound hereby, covenants and agrees as follows:
1.
To secure the payment and
performance of the Obligations, Pledgor does hereby grant to
Secured Party and Secured Party’s successors and assigns a
continuing lien on, and security interest in, the Equity Interests
described on Schedule
I attached hereto and made a part hereof, together with any
additions, exchanges, replacements, and substitutions therefor,
dividends and distributions with respect thereto, and the proceeds
thereof, including, without limitation, all of the stock and/or
membership interests or units in the corporations and/or limited
liability companies listed on Schedule I attached hereto,
whether now owned or hereafter acquired by Pledgor or in which
Pledgor now or hereafter has any rights, options or warrants,
together with any certificates representing such interest and all
rights (but none of the obligations) under or arising out of the
applicable Organic Documents of such corporation and/or limited
liability company (collectively, the “Pledged
Collateral”).
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2.
The pledge and
security interest described herein shall continue in effect to
secure all Obligations from time to time incurred or arising unless
and until all Obligations have been indefeasibly paid and satisfied
in full in cash, the Lender’s commitment to make Loans has
been terminated and the Loan Agreement has been terminated. Any
Liens granted to Lender on the Pledged Collateral shall
automatically be released (a) upon the payment in full of the
Obligations and the termination of the Loan Agreement, (b) at the
time the Pledged Collateral is sold or otherwise disposed of to any
Person to the extent that such sale or other disposition is made in
compliance with the terms of the Loan Agreement, or (c) upon the
effectiveness and to the extent of any written consent by Lender to
a release of such Lien. In connection with any termination or
release of a Lien in the foregoing sentence, Lender shall execute
and deliver to Pledgor, at Pledgor’s expense, all documents
that Pledgor shall reasonably request to evidence such termination
or release.
3.
Pledgor hereby
represents and warrants to and covenants with Secured Party
that:
(a)
Except as pledged
herein and except as permitted by the Loan Agreement, Pledgor has
not sold, assigned, transferred, pledged or granted any option or
security interest in or otherwise hypothecated the Pledged
Collateral in any manner whatsoever and the Pledged Collateral is
pledged herewith free and clear of any and all liens, security
interests, encumbrances, claims, pledges, restrictions, legends,
and options other than Permitted Liens;
(b)
Pledgor has the
full power and authority to execute, deliver, and perform under
this Agreement and to pledge the Pledged Collateral
hereunder;
(c)
This Agreement
constitutes the legal, valid and binding obligation of Pledgor,
enforceable against Pledgor in accordance with its terms, and the
pledge of the Pledged Collateral referred to herein is not in
violation of and shall not (i) create any default under any
agreement, undertaking or obligation of Pledgor or (ii) conflict
with or violate any applicable law, regulation, judgment, order or
decree of any Governmental Authority binding upon
Pledgor;
(d)
The Pledged
Collateral has been duly and validly authorized and issued by each
issuer thereof and such Pledged Collateral is fully paid for and
non-assessable;
(e)
Pledgor is pledging
hereunder all of Pledgor’s interest and ownership in the
Equity Interests described on Schedule I attached
hereto;
(f)
Simultaneously upon
execution and delivery hereof, Pledgor shall deliver to Secured
Party all certificates representing or evidencing the Pledged
Collateral in the corporations and limited liability companies
listed on Schedule
I hereto, accompanied by duly executed instruments of
transfer or assignments in blank, to be held by Secured Party in
accordance with the terms hereof, together with a copy of each
shareholder, member or operating agreement, as applicable in effect
as of the date hereof with respect to the Pledged
Collateral;
(g)
Pledgor hereby
confirms that Secured Party is authorized to file all UCC-1
financing statements that are required under the UCC (as defined
below) to perfect any security interest granted
hereunder;
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(h)
There are no
restrictions upon the voting rights associated with, or the
transfer of, any of the Pledged Collateral, except as provided by
applicable federal and state laws, the terms of the Organic
Documents of the respective issuers and the Loan
Documents;
(i)
Pledgor has
delivered to each entity listed on Schedule I attached hereto, a
Pledge Instruction, substantially in the form of Exhibit A attached
hereto, and has caused such entity to register the security
interest granted hereunder on its books and records and to deliver
to Secured Party an Acknowledgment of Registration Statement,
substantially in the form of Exhibit B attached thereto.
Notwithstanding the foregoing, any failure of Pledgor to comply
with its understanding in this paragraph shall not impair, reduce
or affect the validity, enforceability or effectiveness of the
pledge described herein; and
(j)
with respect to any
Pledged Collateral that is issued from an entity that is not a
corporation (a “Non-Corporate Issuer”),
either (x) such Non-Corporate Issuer has not “opted-in”
to Article 8 of the UCC with respect to the Equity Interests issued
by it or any other part of the Pledged Collateral by providing in
any of its certificate or articles of organization, partnership
agreement, operating agreement, limited liability company agreement
or any other entity governance document or any other document
governing or evidencing the equity interests issued by it or any
other part of the Pledged Collateral that the equity interests
issued by it or any other part of the Pledged Collateral shall be
“securities” as governed by and defined in Article 8 of
the UCC, or (y) such Non-Corporate Issuer has
“opted-in” to Article 8 of the UCC, and Pledgor shall
deliver to Secured Party all certificates evidencing the Equity
Interests issued by such Non-Corporate Issuer, together with an
original executed instrument of transfer endorsed in blank, within
two (2) Business Days of the date first written above.
4.
If an Event of
Default occurs and is continuing under the Loan Agreement then
Secured Party may, at its sole option, or shall at the direction of
Lender, exercise from time to time with respect to the Pledged
Collateral any and/or all rights and remedies available to it
hereunder, under the Loan Agreement and/or under the Uniform
Commercial Code, or otherwise available to Secured Party, at law or
in equity, including, without limitation, the right to dispose of
the Pledged Collateral at public or private sale(s) or other
proceedings, and Pledgor agrees that, if permitted by law, Secured
Party or Secured Party’s nominee(s) may become the purchaser
at any such sale(s) at any prices and upon such terms as the
Secured Party deems advisable, in its discretion. To the extent
permitted by applicable law, Pledgor hereby waives all of its
rights of redemption from any such sale(s).
5.
In addition to all
other rights granted to Secured Party herein or otherwise available
at law or in equity, and after written notice to Pledgor, Secured
Party shall have the following rights, each of which may be
exercised in Secured Party’s sole discretion (but without any
obligation to do so), or at the direction of Lender, at any time
during the continuance of an Event of Default under the Loan
Agreement, without further consent of Pledgor: (i) the right to
transfer the whole or any part of the Pledged Collateral into the
name of itself or its nominee or to conduct a sale of the Pledged
Collateral pursuant to the UCC or pursuant to any other applicable
law; (ii) the right to vote the Pledged Collateral (including the
right to vote for board members or the equivalent thereof); (iii)
the right to notify, in the name of Pledgor, the Persons obligated
on any of the Pledged Collateral to make payment to Secured Party
of any amounts due or to become due thereon; and (iv) the right to
release, surrender or exchange any of the Pledged Collateral at any
time, or to compromise any dispute with respect to the same.
Secured Party may proceed against the Pledged Collateral, or any
other collateral securing the Obligations, in any order, and
against Pledgor and any other obligor (including, without
limitation, the Borrowers, jointly and/or severally), in any order
to satisfy the Obligations. To the extent permitted by applicable
law, Pledgor waives and releases any right to require Secured Party
to first collect any of the Obligations secured hereby from any
other collateral of Pledgor or any other party (including, without
limitation, the Borrowers) securing the Obligations under any
theory of marshalling of assets, or otherwise. All rights and
remedies of Secured Party are cumulative, not
alternative.
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6.
Pledgor hereby
irrevocably appoints Secured Party, Secured Party’s nominee,
or any other Person whom the Secured Party may designate, as
Pledgor’s attorney-in-fact, subject to the terms hereof,
during the continuance of an Event of Default under the Loan
Agreement at Secured Party’s option: (i) to effectuate the
transfer of the Pledged Collateral on the books of the issuer
thereof to the name of Secured Party or to the name of Secured
Party’s nominee, designee or assignee; (ii) to endorse and
collect checks, notes, drafts, money orders and other forms of
payment or security payable to Pledgor representing distributions
or other payments on the Pledged Collateral; (iii) to demand,
collect, receive and xxx for any and all sums or properties which
may become due or payable in respect of the Pledged Collateral of
Pledgor with full power to settle, adjust or compromise any claim
thereunder as fully as Pledgor could do itself; and (iv) to carry
out the terms and provisions hereof. Pledgor hereby ratifies and
approves all acts of such attorney-in-fact made in accordance with
this Agreement and agrees that such attorney-in-fact will not be
liable for any such acts, omissions, errors of judgment or mistakes
of law or fact other than by such Person’s bad faith, gross
negligence or willful misconduct.
7.
The proceeds of any
Pledged Collateral received by Secured Party at any time during the
continuance of an Event of Default, whether from the sale of
Pledged Collateral or otherwise, may be applied to or on account of
the Obligations in accordance with the Loan Agreement. In addition,
Secured Party may, in its discretion, apply any such proceeds to or
on account of the payment of all reasonable costs, fees and
expenses (including, without limitation, reasonable
attorneys’ fees) which may be incurred by Secured Party to
the extent so provided in the Loan Agreement.
8.
Pledgor recognizes
that Secured Party may be unable to effect, or may effect only
after such delay which would adversely affect the value that might
be realized from the Pledged Collateral, a public sale of all or
part of the Pledged Collateral by reason of certain prohibitions
contained in the Securities Act of 1933, as amended
(“Securities
Act”) and may be compelled to resort to one or more
private sales to a restricted group of purchasers who will be
obliged to agree, among other things, to acquire such securities
for their own account, for investment and not with a view to the
distribution or resale thereof. Pledgor agrees that any such
private sale may be at prices and on terms less favorable to
Secured Party or the seller than if sold at public sales, and
therefore recognizes and confirms that such private sales shall not
be deemed to have been made in a commercially unreasonable manner
solely because they were made privately. Pledgor agrees that
Secured Party has no obligation to delay the sale of any such
securities for the period of time necessary to permit the issuer of
such securities to register such securities for public sale under
the Securities Act.
9.
In the event that
any reclassification, readjustment or other change is made or
declared in the capital structure of any entity listed on
Schedule I attached
hereto or Pledgor acquires or in any other manner receives
additional Equity Interests in any such entity, or any option
included within the Pledged Collateral is exercised, any and all
new, substituted or additional Equity Interests, or other
securities, issued by reason of any such change or exercise, shall
be delivered to and held by Secured Party under the terms hereof in
the same manner as the Pledged Collateral originally pledged
hereunder; provided, however, that with respect to any entity
listed on Schedule
I attached hereto that is a foreign Subsidiary, the Pledged
Collateral shall not in any case represent more than 66% (or such
greater percentage that, due to a change in applicable law after
the date hereof, (x) could not reasonably be expected to cause the
undistributed earnings of such foreign Subsidiary as determined for
United States federal income tax purposes to be treated as a deemed
dividend to Pledgor and (y) could not reasonably be expected to
cause any material adverse tax consequences) of such Equity
Interests in such entity. No distribution on account of Pledged
Collateral may be paid to or retained by Pledgor unless expressly
permitted in the Loan Agreement.
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10.
So long as no Event
of Default has occurred and is continuing under the Loan Agreement,
and, until Secured Party notifies Pledgor in writing of its intent
to exercise its rights hereunder, Pledgor shall retain the sole
right to vote the Pledged Collateral and exercise all rights of
ownership with respect to all corporate or company questions for
all purposes not inconsistent with the terms hereof.
11.
Secured Party shall
have no obligation to take any steps to preserve, protect or defend
the rights of Pledgor or Secured Party in the Pledged Collateral
against other parties. Secured Party shall have no obligation to
sell or otherwise deal with the Pledged Collateral at any time for
any reason, whether or not upon request of Pledgor, and whether or
not the value of the Pledged Collateral, in the opinion of Secured
Party or Pledgor, is more or less than the aggregate amount of the
Obligations secured hereby, and any such refusal or inaction by
Secured Party shall not be deemed a breach of any duty which
Secured Party may have under law to preserve the Pledged
Collateral. Except as provided by applicable law, no duty,
obligation or responsibility of any kind is intended to be
delegated to or assumed by Secured Party at any time with respect
to the Pledged Collateral.
12.
To the extent
Secured Party is required by law to give Pledgor prior notice of
any public or private sale, or other disposition of the Pledged
Collateral, Pledgor agrees that ten (10) Business Days prior
written notice to Pledgor shall be a commercially reasonable and
sufficient notice of such sale or other intended disposition.
Pledgor further recognizes and agrees that if the Pledged
Collateral, or a portion thereof, threatens to decline speedily in
value or is of a type customarily sold on a recognized market,
Pledgor shall not be entitled to any prior notice of sale or other
intended disposition. Pledgor agrees that, in connection with any
sale or other disposition of the Pledged Collateral, Secured Party
may, at Secured Party’s option, disclaim any and all
warranties regarding the Pledged Collateral and that any such
disclaimer shall constitute commercially reasonable conduct on the
part of Secured Party.
13.
Pledgor shall
defend, protect, indemnify, pay and save harmless Secured Party and
its respective officers, directors, Affiliates, attorneys,
employees and agents (each an “Indemnified Party”) for
and from and against any and all claims, demands, liabilities,
obligations, losses, damages, penalties, fines, actions, judgments,
suits, costs, charges, expenses and disbursements of any kind or
nature whatsoever (including fees and disbursements of counsel
(including allocated costs of internal counsel)), but excluding
opportunity costs and consequential damages (collectively,
“Claims”) which may be
imposed on, incurred by, or asserted against any Indemnified Party
in arising out of or in any way relating to or as a consequence,
direct or indirect, of: (i) this Agreement and/or the
transactions contemplated hereby, (ii) any action or failure to act
or action taken only after delay or the satisfaction of any
conditions by any Indemnified Party in connection with and/or
relating to the negotiation, execution, delivery or administration
of the Agreement and/or the transactions contemplated hereby, (iii)
Pledgor’s failure to observe, perform or discharge any of its
covenants, obligations, agreements or duties under or breach of any
of the representations or warranties made in this Agreement, (iv)
the enforcement of any of the rights and remedies of Secured Party
under the Agreement, (v) any threatened or actual imposition of
fines or penalties, or disgorgement of benefits, for violation of
any applicable anti-terrorism law by Pledgor or any Affiliate or
Subsidiary of Pledgor, and (vi) any claim, litigation, proceeding
or investigation instituted or conducted by any Governmental
Authority or instrumentality or any other Person with respect to
any aspect of, or any transaction contemplated by, or referred to
in, or any matter related to, this Agreement, whether or not
Secured Party is a party thereto, except to the extent that any of
the foregoing arises out of the bad faith, willful misconduct or
gross negligence of an Indemnified Party (as determined by a court
of competent jurisdiction in a final and non-appealable
judgment).
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14.
For purposes
hereof, to the extent permitted by applicable law, except as
expressly set forth in this Agreement, Pledgor hereby waives notice
of (a) acceptance of this Agreement, (b) the existence and
incurrence from time to time of any Obligations under the Loan
Agreement, (c) the existence of any Event of Default, the making of
demand, or the taking of any action by Secured Party under the Loan
Agreement and (d) demand and default hereunder.
15.
Pledgor hereby
consents and agrees that Secured Party may at any time or from time
to time pursuant to, and in accordance with, the Loan Agreement (a)
extend or change the time of payment and/or the manner, place or
terms of payment of any and all Obligations, (b) supplement, amend,
restate, supersede, or replace the Loan Agreement or any other Loan
Documents, (c) renew, extend, modify, increase or decrease loans
and extensions of credit under the Loan Agreement, (d) modify the
terms and conditions under which loans and extensions of credit may
be made under the Loan Agreement, (e) settle, compromise or grant
releases for any Obligations and/or any person or persons liable
for payment of any Obligations, (f) exchange, release, surrender,
sell, subordinate or compromise any collateral of any party now or
hereafter securing any of the Obligations and (g) apply any and all
payments received from any source by Secured Party at any time
against the Obligations in accordance with the Loan Agreement; all
of the foregoing in such manner and upon such terms as Secured
Party may determine and without notice to or further consent from
Pledgor and without impairing or modifying the terms and conditions
of this Agreement which shall remain in full force and
effect.
16.
This Agreement
shall remain in full force and effect and shall not be limited,
impaired or otherwise affected in any way by reason of (a) any
delay in making demand on Pledgor or any Borrower for, or delay in
enforcing or failure to enforce, performance or payment of the
Obligations or Pledgor’s obligations hereunder, (b) any
failure, neglect or omission on Secured Party’s part to
perfect any lien upon, protect, exercise rights against, or realize
on, any property of Pledgor or any other party securing the
Obligations, (c) any failure to obtain, retain or preserve, or the
lack of prior enforcement of, any rights against any Person or
Persons (including any Borrower or Pledgor) or in any property, (d)
the invalidity or unenforceability of any Obligations or rights in
any Collateral under the Loan Agreement, (e) the existence or
nonexistence of any defenses which may be available to Borrowers,
or any of them, with respect to the Obligations other than payment
in full, (f) the commencement of any bankruptcy, reorganization,
liquidation, dissolution or receivership proceeding or case filed
by or against any Borrower, or (g) any acceptance by Secured Party
of any other security for guaranty upon any of the
Obligations.
17.
Pledgor covenants
and agrees that Pledgor shall not, without the prior written
consent of Secured Party, sell, encumber or grant any lien,
security interest or option on or with respect to any of the
Pledged Collateral unless and to the extent permitted by the Loan
Agreement.
18.
Pledgor hereby
authorizes and instructs each issuer of the Pledged Collateral to
comply with any instruction received by it from Secured Party in
writing that states that an Event of Default has occurred and is
continuing and without any other or further instructions from
Pledgor, and Pledgor agrees that each such issuer shall be fully
protected in so complying.
19.
Pledgor covenants
and agrees that Pledgor shall not permit any Non-Corporate Issuer
to either (a) adopt any amendments or modifications to any of its
certificate or articles of organization, partnership agreement,
operating agreement or any other entity governance document or any
other document governing or evidencing the membership interests or
equity interests issued by such Non-Corporate Issuer (or any other
part of the Pledged Collateral related thereto) to provide that
such membership interests or equity interest (or any other part of
the Pledged Collateral related thereto) shall be
“securities” as governed by and defined in Article 8 of
the UCC or (b) issue any certificates to evidence the membership
interests or equity interests issued by any such Non-Corporate
Issuer (or any other part of the Pledged Collateral related
thereto).
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20.
Any failure of or
delay by Secured Party to exercise any right or remedy hereunder
shall not be construed as a waiver of the right to exercise the
same or any other right or remedy at any other time.
21.
This Agreement
together with the Loan Agreement and the other Loan Documents
constitutes the entire agreement between the parties hereto
regarding the subject matter hereof and may be modified only by a
written instrument signed by Pledgor and Secured
Party.
22.
This Agreement
shall be governed by and construed in accordance with the laws of
the State of New York. Any judicial proceeding brought by or
against Pledgor with respect to any of the Obligations, this
Agreement, the other Loan Documents or any related agreement may be
brought in any court of competent jurisdiction in the State of New
York, United States of America, and, by execution and delivery of
this Agreement, Pledgor accepts for itself and in connection with
its properties, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be
bound by any judgment rendered thereby in connection with this
Agreement. Pledgor hereby waives personal service of any and all
process upon it and consents that all such service of process may
be made by certified or registered mail (return receipt requested)
directed to Pledgor at its address set forth in the preamble above
and service so made shall be deemed completed five (5) days after
the same shall have been so deposited in the mails of the United
States of America, or, at the Secured Party’s option, by
service upon Borrowing Agent which Pledgor irrevocably appoints as
Pledgor’s agent for the purpose of accepting service within
the State of New York. Nothing herein shall affect the right to
serve process in any manner permitted by law or shall limit the
right of Secured Party or any Lender to bring proceedings against
Pledgor in the courts of any other jurisdiction. Pledgor waives any
objection to jurisdiction and venue of any action instituted
hereunder and shall not assert any defense based on lack of
jurisdiction or venue or based upon forum non conveniens. Pledgor
waives the right to remove any judicial proceeding brought against
Pledgor in any state court to any federal court. Any judicial
proceeding by Pledgor against Secured Party or any Lender
involving, directly or indirectly, any matter or claim in any way
arising out of, related to or connected with this Agreement or any
related agreement, shall be brought only in a federal or state
court located in the County of New York, State of New
York.
23.
All communications
which Secured Party may provide to Pledgor herein shall be sent to
Pledgor at the address set forth in the preamble above, and will be
delivered in the same fashion as required by Section 10.1 of the
Loan Agreement.
24.
This Agreement
shall be binding upon and inure to the benefit of the parties
hereto, and their respective successors and permitted
assigns.
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25.
TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION (A) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED
HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND
EACH PARTY HEREBY CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENTS OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
26.
This Agreement may
be executed in original counterparts each of which counterpart
shall be deemed an original document but all of which counterparts
together shall constitute the same agreement. Execution and
delivery via facsimile or PDF shall bind the parties.
[Remainder of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, this Collateral Pledge Agreement has been executed
and delivered as of the date first set forth above.
NEW
AGE BEVERAGES CORPORATION
By:______________________________
Name:
Title:
9
SCHEDULE I
Pledged Collateral
The
following Pledged Collateral is hereby pledged by Pledgor to
Secured Party pursuant to the Collateral Pledge Agreement to which
this Schedule is attached:
Pledged Shares
Name of Entity
|
|
State of Incorporation
|
|
Certificate No. of Shares to be Pledged
|
|
Number of Shares Pledged
|
|
Percentage of Shares Pledged
|
|
Number of Shares Issued and Outstanding
|
|
Class of Shares
|
NABC,
Inc.
|
|
Colorado
|
|
2
|
|
100,000
|
|
100
|
|
100,000
|
|
Common
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Age
Health Sciences, Inc.
|
|
Nevada
|
|
2
|
|
100
|
|
100
|
|
100
|
|
Common
|
Pledged Membership Interests
Name of Entity
|
|
State of Formation
|
|
Certificate No. of Units to be Pledged
|
|
Number of Units Pledged
|
|
Percentage of Interests Pledged
|
|
Number of Units Issued and Outstanding
|
|
Class of Units
|
NABC
Properties, LLC
|
|
Colorado
|
|
N/A
|
|
100
|
|
100
|
|
100
|
|
Membership Interests
|
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EXHIBIT A
Pledge Instruction
BY THIS PLEDGE INSTRUCTION, dated as of the
10th
day of August, 2018, NEW AGE BEVERAGES
CORPORATION, a corporation organized under the laws of the State of
Washington (“Pledgor”),
hereby instructs _________________, a _________________ (the
“Company”),
to register a pledge and security interest in, of and to all of
Pledgor’s right, title and interest in the Equity Interests
of the Company now and hereafter owned by Pledgor and pledged
(“Interests”)
in favor of Siena Lending Group LLC (as originating lender, and
after the Closing Date as servicer for affiliated assignee, Siena
Funding LLC, a Delaware limited liability company
(“Siena
Funding”), and together
with Siena Funding, collectively, “Secured
Party”) in accordance
with that certain Collateral Pledge Agreement dated as of August
10, 2018 by Pledgor in favor of Secured Party.
Pledge
Instructions. The Company is
hereby instructed by Pledgor to register all of Pledgor’s
right, title and interest in and to all of Pledgor’s
Interests as subject to a pledge and security interest in favor of
Secured Party who, upon such registration of pledge, shall become a
registered pledgee of the Interests with all rights incident
thereto.
Acknowledgment of
Registration Statement. The
Company is hereby instructed by Pledgor to promptly inform Secured
Party of the registration of the pledge by sending an
Acknowledgment of Registration Statement, substantially in the form
of Exhibit B attached hereto, to Secured Party at the address of
Secured Party set forth in that certain Loan and Security Agreement
dated as of August 10, 2018, among Pledgor, NABC, INC., a
corporation organized under the laws of the State of Colorado
(“NABC”),
NABC PROPERTIES, LLC, a limited liability company formed under the
laws of the State of Colorado (“NABC
Properties”) and NEW AGE
HEALTH SCIENCES, INC., a corporation organized under the laws of
the State of Nevada (“New Age
Health”, Pledgor, NABC,
NABC Properties and each Person joined to the Loan Agreement as a
borrower from time to time, collectively, the
“Borrowers”, and each a “Borrower”),
and Secured Party (as amended, restated, supplemented, or replaced
from time to time, the (“Loan
Agreement”). All
capitalized terms used herein and not otherwise defined shall have
the same meanings assigned to such terms in the Loan
Agreement.
Warranties of
Pledgor. Pledgor hereby
represents and warrants to Secured Party that Pledgor is (i) an
appropriate Person to originate this instruction, and (ii) entitled
to effect the instruction here given.
[signature page follows]
11
IN
WITNESS WHEREOF, Pledgor has caused this Pledge Instruction to be
duly executed and delivered as of the date first above
written.
NEW AGE BEVERAGES CORPORATION
By:
__________________________________
Name: ____________________________
Title:______________________________
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EXHIBIT
B
Acknowledgment of Registration Statement
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEE AS
OF THE TIME OF ISSUANCE. DELIVERY OF THIS STATEMENT, OF ITSELF,
CONFERS NO RIGHTS ON THE RECIPIENT. THIS STATEMENT IS NEITHER A
NEGOTIABLE INSTRUMENT NOR A SECURITY.
Siena Lending Group LLC
0 X Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Email: xxxxxxxxx@xxxxxxxxxxxx.xxx
On the 10th
day of August, 2018, the undersigned
(the “Company”),
caused the pledge of the Interests (as defined in Exhibit A of that
certain Collateral Pledge Agreement dated as of the date hereof and
executed by Pledgor in favor of SIENA LENDING GROUP LLC (as
originating lender, and after the Closing Date as servicer for
affiliated assignee, Siena Funding LLC, a Delaware limited
liability company (“Siena
Funding”), and together
with Siena Funding, collectively, “Secured
Party”) in the Company,
which as of the date hereof is 100% of the total outstanding Equity
Interests of the Company, pledged by NEW AGE BEVERAGES CORPORATION
(the “Pledgor”),
in favor of Secured Party, to be registered on the books and
records of the Company. There are no other liens, restrictions or
adverse claims to which the interests identified herein are, or may
be subject, as of the date hereof except to the extent permitted by
that certain Loan and Security Agreement dated as of August 10,
2018 among Pledgor, NABC, INC., a corporation organized under the
laws of the State of Colorado (“NABC”),
NABC PROPERTIES, LLC, a limited liability company formed under the
laws of the State of Colorado (“NABC
Properties”) and NEW AGE
HEALTH SCIENCES, INC., a corporation organized under the laws of
the State of Nevada (“New Age
Health”, Pledgor, NABC,
NABC Properties and each Person joined to the Loan Agreement as a
borrower from time to time, collectively, the
“Borrowers”, and each a “Borrower”)
and Secured Party.
[signature page follows]
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The
Company hereby agrees that it will comply with instructions
originated by Secured Party, in accordance with that certain
Collateral Pledge Agreement dated as of August 10, 2018 executed by
Pledgor in favor of Secured Party, without further consent by or
from Pledgor.
[___________]
By:
__________________________________
Name: ____________________________
Title:______________________________
14