Exhibit 4.47
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT ("Agreement"), dated April 24, 2001, is
made by and between American International Petroleum Corporation, a Nevada
corporation ("Pledgor"), and GCA Strategic Investment fund Limited, a Bermuda
corporation ("Lender").
RECITALS:
WHEREAS, pursuant to that certain Securities Purchase Agreement of even
date herewith, by and between Pledgor and Lender (the "Purchase Agreement"),
Lender has purchased a 3% Convertible Debenture (the "Debenture") in aggregate
principal amount of $3,340,000 issued by Pledgor; and
WHEREAS, Pledgor desires to execute and deliver this Agreement to Lender in
order to induce Lender to purchase the Debenture.
AGREEMENT:
NOW THEREFORE, in consideration of the foregoing, and to induce Lender to
purchase the Debenture and for other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, Pledgor and Lender hereby
agree as follows:
ARTICLE 1. Pledge.
As collateral security for the payment and performance in full of the
obligations contained in the Purchase Agreement and Debenture (the
"Obligations"), Pledgor hereby pledges, hypothecates, assigns, transfers, sets
over and delivers unto Lender, and hereby grants to Lender a security interest
in (i) the securities set forth in Exhibit A here to, together with the proceeds
thereof and all cash, additional securities or other property at any time and
from time to time receivable or otherwise distributable in respect of, in
exchange for, or in substitution for any and all such pledged securities (all
such pledged securities, the proceeds thereof, cash, dividends, additional
securities and other property now or hereafter pledged hereunder are hereinafter
collectively referred to as the "Pledged Securities"),
TO HAVE AND TO HOLD the Pledged Securities, together with all rights,
titles, interests, powers, privileges and preferences pertaining or incidental
thereto, unto Lender, its successors and assigns, subject to the terms,
covenants and conditions hereinafter set forth.
Upon delivery to Lender, the Pledged Securities shall be accompanied by
such other instruments or documents as Lender or its counsel may reasonably
request.
ARTICLE 2. Obligations Secured; Release of Collateral.
This Agreement is made, and the security interest created hereby is granted
to Lender, to secure prompt payment of the Obligations and the prompt
performance of each of the covenants and duties of Pledgor under this Agreement.
The security interest granted herein shall not be terminated and the Pledged
Securities shall not be released from the security interests created hereby
until all of Pledgor's obligations under the Purchase Agreement and the
Debenture have been fully satisfied or without written consent of both Lender
and Pledgor.
ARTICLE 3. Representations and Warranties.
Pledgor hereby represents and warrants to Lender (a) that Pledgor is the
legal and equitable owner of the Pledged Securities, (b) that Pledgor has the
complete and unconditional authority to pledge the Pledged Securities being
pledged by it, and holds the same free and clear of all liens, charges,
encumbrances and security interests of every kind and nature except those set
forth in Schedule 3 hereto, (c) that any consent or approval of any governmental
body or regulatory authority, or of any other party, that was or is necessary to
the validity of this pledge, has been obtained, (d) that the Pledged Securities
are not subject to any limitations, restrictions, or obligations and (e) that
the Pledged Securities represent 10% of the outstanding ownership interests of
American International Petroleum Kazakhstan and 100% of the outstanding
ownership interests of St. Mark's Refinery, Inc.
ARTICLE 4. Registration in Nominee Name.
Lender shall have the right (in its sole and absolute discretion) to hold
the Pledged Securities in its own name or in the name of the Pledgor, endorsed
or assigned in favor of Lender.
ARTICLE 5. Remedies Upon Default.
In the event Pledgor fails to uphold an of its obligations set forth in the
Purchase Agreement or the Debenture, Lender shall have all of the rights,
privileges and remedies of a secured party under the Uniform Commercial Code as
in effect in the State of New York, and without limiting the foregoing, Lender
may (a) collect any and all amounts payable in respect of the Pledged Securities
and exercise any and all rights, privileges, options and remedies of the holder
and owner thereof, and (b) sell, transfer and/or negotiate the Pledged
Securities, or any part thereof, at public or private sale, for cash, upon
credit or for future delivery as Lender shall deem appropriate, including
without limitation, at Lender's option, the purchase of all or any part of said
securities at any public sale by Lender. Upon consummation of any sale, Lender
shall have the right to assign, transfer and deliver to the purchaser or
purchasers thereof the Pledged Securities so sold. Each such purchaser at any
such sale shall hold the property sold absolutely, free from any claim or right
on the part of the Pledgor, and the Pledgor hereby waives (to the extent
permitted by law) all rights of redemption, stay or appraisal that Pledgor now
has or may at any time in the future have under any rule of law or statute now
existing or hereinafter enacted. Pledgor hereby expressly waives notice to
redeem and notice of the time, place and manner of such sale.
ARTICLE 6. Payment of Lender's Fees.
Pledgor agrees to reimburse Lender, upon demand, for all expenses,
including without limitation Lender's attorneys' fees, in connection
with the administration and enforcement of this Agreement, and agrees to
indemnify Lender and hold it harmless from and against any and all liability
incurred by it hereunder or in connection herewith, unless such liability shall
be due to willful misconduct or gross negligence on the part of Lender.
ARTICLE 7. No Waiver.
No failure on the part of 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
Lender preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. All remedies are cumulative and are not exclusive
of any other remedies provided by law.
ARTICLE 8. Limitation of Lender Liability.
Except in the case of their wilful misrepresentation or gross negligence,
neither Lender nor its officers, employees, agents, representatives, or nominees
shall be liable for any loss incurred by Pledgor arising out of any act or
omission of Lender, its officers, employees, agents, representatives or
nominees, with respect to the care, custody or preservation of the Pledged
Securities.
ARTICLE 9. Binding Agreement.
This Agreement and the terms, covenants and conditions hereof shall be
binding upon and inure to the benefit of the parties hereto and to all holders
of the Obligations and their respective successors and assigns.
ARTICLE 10. Governing Law; Amendments.
This Agreement shall in all respects be construed in accordance with and
governed by the laws of the State of New York applicable to contracts to be
wholly performed in such state. This Agreement may not be amended or modified,
nor may any of the Pledged Securities be released except in a writing signed by
the parties hereto. Time is of the essence with respect to the obligations of
Pledgor pursuant to this Agreement.
ARTICLE 11. Further Assurances.
Pledgor agrees to do such further acts and things, and to execute and
deliver such additional conveyances, assignments, agreements and instruments, as
Lender may at any time request in connection with the administration and
enforcement of this Agreement or relative to the Pledged Securities or any part
thereof or in order to better assure and confirm unto Lender its rights and
remedies hereunder.
ARTICLE 12. Headings.
Section numbers and 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.
ARTICLE 13. Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties to this Agreement in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together
shall constitute one and the same Agreement.
ARTICLE 14. Consent to Jurisdiction; Exclusive Venue.
Pledgor hereby irrevocably consents to the Jurisdiction of the United
States District Court for the Southern District of
New York and of all New York state courts sitting in New York, for the purpose
of any litigation to which Lender may be a party and which concerns this
Agreement or the Obligations. It is further agreed that venue for any such
action shall lie exclusively with courts sitting in New York, unless Lender
agrees to the contrary in writing.
ARTICLE 15. Waiver of Trial by Jury.
LENDER AND PLEDGOR HEREBY KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF
COUNSEL WAIVE TRIAL BY JURY IN ANY ACTIONS, PROCEEDINGS, CLAIMS OR
COUNTER-CLAIMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, AT LAW OR IN EQUITY,
ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE DEBENTURE.
ARTICLE 16. Unconditional Obligations of Pledgor.
The obligations of Pledgor under this Agreement are absolute and
unconditional. The validity of this Agreement shall not be impaired by any event
whatsoever, including, but not limited to, (a) the merger, consolidation,
dissolution, cessation of business or liquidation of Pledgor, (b) the financial
decline or bankruptcy of Pledgor, (c) the failure of any other party to
guarantee or to pledge collateral as security for the Obligations, (d) Lender's
compromise or settlement with or without release of Pledgor or any other party
liable for the Obligations, (e) Lender's release of any collateral for the
Obligations, (f) Lender's failure to file suit against Pledgor (regardless of
whether the Pledgor is becoming insolvent, is about to leave the state, or any
other circumstance), (g) Lender's failure to give Pledgor notice of default by
Pledgor, (h) the unenforceability of the Obligations against Pledgor due to
bankruptcy discharge, counterclaim or for any other reason, (i) Lender's
acceleration of the Obligations at any time after a default, (j) the extension,
modification or renewal of the Obligations, (k) Lender's failure to undertake or
exercise diligence in collection efforts against any party or property, (l) the
termination of any relationship of Pledgor with any Pledgor, (m) any Pledgor's
change of name or use of any name other than the name used to identify Pledgor
in this Agreement, or (n) Pledgor's use of the credit extended for any purpose
whatsoever.
ARTICLE 17. Impairment of Collateral; Release of Liable Parties.
Lender may, in its sole discretion and with or without consideration,
release any collateral securing the Obligations or release any party liable
therefor. The defenses of impairment of collateral and impairment of recourse
and any requirement of diligence on Lender's part in collecting the Obligations
are hereby waived.
ARTICLE 18. Pledge as Assurance of Payment.
This Agreement encumbers the Pledged Securities to secure the payment and
performance of the Obligations and not merely to secure the collection thereof.
Accordingly, Lender may enforce this Agreement against the Pledged Securities
without first instituting collection proceedings against Pledgor.
IN WITNESS WHEREOF, Pledgor and Lender have executed this Agreement, or
have caused this Agreement to be duly executed by a duly authorized officer, all
as of the day first above written.
WITNESS: PLEDGOR:
_______________________ AMERICAN INTERNATIONAL
PETROLEUM CORPORATION
By:
Title:
LENDER:
GCA STRATEGIC INVESTMENT FUND
LIMITED
By:
Title:
EXHIBIT A
