false0000748790
0000748790
2023-07-05
2023-07-05
SECURITIES AND EXCHANGE COMMISSION
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 5, 2023
GLOBAL CLEAN ENERGY HOLDINGS, INC.
(Exact Name of Registrant as Specified in Charter)
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| | (I.R.S. Employer Identification No.) |
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2790 Skypark Drive, Suite 105, Torrance, California | | |
(Address of Principal Executive Offices) | | |
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(Registrant’s Telephone Number, Including Area Code) |
Check the appropriate box below if the Form 8‑K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425). |
| | Soliciting material pursuant to Rule 14a‑12 under the Exchange Act (17 CFR 240.14a‑12). |
| | Pre-commencement communications pursuant to Rule 14d‑2(b) under the Exchange Act (17 CFR 240.14d-2(b)). |
| | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)). |
Securities registered pursuant to Section 12(b) of the Act
| | | | Name of Each Exchange on Which Registered |
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
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Item 1.01. Entry Into a Material Definitive Agreement
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On July 5, 2023, certain subsidiaries of Global Clean Energy Holdings, Inc. (“we,” “us,” “our” and the “Company”) entered into Amendment No. 13 to the senior secured term loan Credit Agreement (“Senior Credit Agreement”), by and among BKRF OCB, LLC, as the borrower, BKRF OCP, LLC, as the pledgor, Bakersfield Renewable Fuels, LLC, Orion Energy Partners TP Agent, LLC, in its capacity as the administrative agent (the “Administrative Agent”), and the Tranche A, Tranche B, Tranche C and Tranche D lenders party thereto (“Amendment No. 13
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). Amendment No. 13 provides for, among other things, a new $110 million Tranche D term loan facility (which may be increased up to $140 million upon the consent of the Required Lenders (as defined therein)), of which $36 million has been committed. Such committed amounts include $7 million funded on or about July 5, 2023, and $29 million of Tranche C term loans that were converted into Tranche D term loans on July 5, 2023. The availability period for the Tranche D facility is through July 31, 2023, which may be extended by the Administrative Agent until September 30, 2023.
Amendment No. 13 extends the outside date for which the Company is required to complete a $10 million capital raise to July 31, 2023, and also provides that the outside date for completing a second $170 million capital raise is July 31, 2024. Amendment No. 13 also extends the deadlines for implementing certain governance and management related matters until August 15, 2023.
Pursuant to Waiver No. 8, the lenders agreed to waive certain Defaults and Events of Default (each as defined under the Senior Credit Agreement), if any, arising prior to, or based on events or circumstances existing prior to, the effective date of Amendment No. 13.
In connection with Amendment No. 13 and the conversion of Tranche C term loans to Tranche D term loans, certain outstanding warrants that were previously issued to the lenders were cancelled and reissued as new warrants to purchase up to 10,875,000
shares of the Company’s common stock, exercisable until December 23, 2028 at an exercise price of $0.075 per share (the “Lender Warrants”). These Lender Warrants also
amendments necessary to reflect a reallocation
of outstanding warrants, as further set forth in that certain amendment agreement, dated as of July 5, 2023, by and among the Company and the lenders party thereto (the “Amendment Agreement”). The Company has agreed to register the resale of the shares of common stock underlying the Lender Warrants pursuant to an amendment to that certain registration rights agreement, dated July 5, 2023, by and among the Company and the lenders party thereto (the “Amendment to Registration Rights Agreement”).
The foregoing descriptions of Amendment No. 13, Waiver No. 8
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the Lender Warrants, Amendment Agreement and Amendment to Registration Rights Agreement are qualified in their entirety by reference to those agreements, copies of which are filed herewith as Exhibits 10.1, 10.2, 10.3, 10.4 and 10.5, respectively, and incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The description in Item 1.01 above regarding the Senior Credit Agreement, including Amendment No. 13 thereto, which relates to the creation of a direct financial obligation of certain of the Company’s subsidiaries, is incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
The description in Item 1.01 above regarding the issuance and sale of the Lender Warrants is incorporated herein by reference. The securities were offered and sold by us in a transaction not involving a public offering and in compliance with exemptions from registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended, and Rule 506 of Regulation D promulgated thereunder, as they were offered and sold to qualified institutional investors and accredited investors only, without a view to distribution, and not by means of any general solicitation or advertisement.
Item 9.01 Financial Statements and Exhibits.
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| Amendment No. 13 to Credit Agreement, dated as of July 5, 2023, by and among BKRF OCB, LLC, BKRF OCP, LLC, Bakersfield Renewable Fuels, LLC, Orion Energy Partners TP Agent, LLC, in its capacity as the administrative agent, and the lenders referred to therein |
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| Waiver No. 8 to Credit Agreement, dated as of July 5, 2023, by and among BKRF OCB, LLC, BKRF OCP, LLC, Bakersfield Renewable Fuels, LLC, Orion Energy Partners TP Agent, LLC, in its capacity as the administrative agent, and the lenders referred to therein |
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Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Exhibit 10.1
Execution Version
AMENDMENT NO. 13 TO CREDIT AGREEMENT
This AMENDMENT NO. 13 TO CREDIT
AGREEMENT (this “Agreement”), dated as of July 5, 2023 (the “Signing Date”), is entered into
by and among BKRF OCB, LLC, a Delaware limited liability company (the “Borrower”), BKRF OCP, LLC, a Delaware limited
liability company (“Holdings”), Bakersfield Renewable Fuels, LLC, a Delaware limited liability company (the “Project
Company”), Orion Energy Partners TP Agent, LLC, in its capacity as the administrative agent (in such capacity, the “Administrative
Agent”), and the Tranche A Lenders, Tranche B Lenders, Tranche C Lenders and Tranche D Lenders party hereto, constituting 100%
of the Tranche A Lenders, the Tranche B Lenders, the Tranche C Lenders and Tranche D Lenders party to the Credit Agreement (as defined
below) (the “Signatory Lenders”). As used in this Agreement, capitalized terms which are not defined herein shall have
the meanings ascribed to such terms in the Credit Agreement unless otherwise specified.
W I T N E S S E T H
WHEREAS, the Borrower, Holdings,
the Administrative Agent, Orion Energy Partners TP Agent, LLC, in its capacity as the collateral agent, and each Tranche A Lender, Tranche
B Lender and Tranche C Lender from time to time party thereto have entered into that certain Credit Agreement, dated as of May 4, 2020
(as amended, amended and restated, modified and supplemented on or prior to the date hereof, the “Credit Agreement”
and the Credit Agreement as expressly amended by this Agreement, the “Amended Credit Agreement”);
WHEREAS, the Borrower and the
Lenders entered into the Credit Agreement based on certain estimated costs to install, develop and construct the Project;
WHEREAS, pursuant to Amendment
No. 10 to Credit Agreement, dated as of January 30, 2023 (the “Tenth Amendment”), by and among the Borrower, Holdings,
the Project Company, the Administrative Agent and the Lenders party thereto, the parties established a term loan facility of up to $40,000,000
(the “Tranche C Facility”);
WHEREAS, pursuant to Amendment
No. 11 to Credit Agreement, dated as of May 19, 2023 (the “Eleventh Amendment”), by and among the Borrower, Holdings,
the Project Company, the Administrative Agent and the Lenders party thereto, the parties increased the Tranche C Facility to $47,000,000;
WHEREAS, pursuant to Amendment
No. 12 to Credit Agreement, dated as of June 20, 2023 (the “Twelfth Amendment”), by and among the Borrower, Holdings,
the Project Company, the Administrative Agent and the Lenders party thereto, the parties increased the Tranche C Facility to $54,000,000;
WHEREAS, prior to the date hereof,
Tranche C Lenders had funded $51,000,000 of Tranche C Loans under the Tranche C Facility;
WHEREAS, the Credit Agreement
needs to be revised to more accurately reflect the updated scope and cost estimates to install, develop and construct the Project;
WHEREAS, in order to fund the
installation, development, construction and operation of the Project, the parties hereto have determined that the following modifications
to the Credit Agreement are required: (a) a new term loan facility with a principal amount of up to $110,000,000 (which may be increased
up to $140,000,000 subject to the Required Lenders’ reasonable discretion) (the “Tranche D Facility” and the
commitments in respect thereof, the “Tranche D Commitments”) needs to be established, a portion of which will be funded
on or around the date hereof as specified herein; and (b) $29,000,000 of the Tranche C Loans funded under the Tranche C Facility need
to be allocated to the Tranche D Facility as specified on Exhibit A hereto.
WHEREAS, each Lender identified
on such Lender’s signature page as a “Tranche D Lender” (each, a “Tranche D Lender”) is willing to
provide the Tranche D Commitments or has funded Tranche C Loans which are being converted to Tranche D Loans as provided herein, in each
case, subject to the terms herein and in the Amended Credit Agreement;
WHEREAS, pursuant to this Agreement,
the Borrower has requested, and the parties hereto have agreed, subject to the satisfaction of the conditions precedent set forth in this
Agreement, to amend the Credit Agreement effective as of the Thirteenth Amendment Effective Date as set forth herein; and
WHEREAS, the Borrower, Holdings,
the Project Company, the Administrative Agent and the Signatory Lenders entered into that certain Waiver No. 8 to Credit Agreement, dated
as of the date hereof (the “Waiver”), pursuant to which the Signatory Lenders waived the Specified Defaults (as defined
in the Waiver).
NOW, THEREFORE, in consideration
of the mutual agreements, provisions and covenants contained herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Tranche
C Commitments; Tranche D Commitments.
(a) Subject
to the satisfaction of all of the conditions precedent set forth in Section 5 hereof, as of the Thirteenth Amendment Effective
Date:
(i) each
of the parties hereto agrees to the creation of a new Tranche D Facility term loan facility in an amount up to $110,000,000;
(ii) each
of the parties hereto acknowledges and agrees that the Tranche D Facility may be increased by the Borrower and the Required Lenders (without
the consent of any other Person) in amounts up to an aggregate of $140,000,000, so long as (A) the Required Lenders have reasonably determined
that such increase is required by the Borrower to reach Substantial Completion, (B) no Lender shall be forced to participate in such increase
without its written consent and (C) participation in any such increase shall have been offered to all of the Lenders on a ratable basis;
(iii) each
Tranche C Lender, Tranche D Lender, the Administrative Agent and the Loan Parties acknowledge and agree that a portion of the Tranche
C Loans funded prior to the date hereof are being recharacterized as Tranche D Loans and the warrants previously granted pursuant to the
Tenth Amendment and Eleventh Amendment in respect of such Loans are hereby reallocated to other Lenders so that the warrants are allocated
among the Lenders as specified on Exhibit C-1 and Exhibit C-2; and
(iv) each
Tranche D Lender hereby severally commits to make one or more Tranche D Loans to the Borrower pursuant to the provisions of, and subject
to the conditions contained in, the Amended Credit Agreement in an amount up to the commitment amount set forth next to such Tranche D
Lender’s name on Exhibit A attached hereto under the caption “Total Tranche D Commitments”.
(b) Each
Tranche D Lender with commitments in respect of the Tranche D Facility hereby agrees to make Tranche D Loans in the amount set forth next
to such Lender’s name on Exhibit A attached hereto under the caption “Tranche D Loans to be Funded within 3 BDs of
the Thirteenth Amendment Effective Date” notwithstanding the notice period required by Section 2.01(d) of the Credit Agreement and
to be funded within three (3) Business Days of the Thirteenth Amendment Effective Date.
(c) As
of the Thirteenth Amendment Effective Date, Tranche D Lenders have only provided commitments for $36,000,000 of the Tranche D Facility
(inclusive of any Tranche C Loans being converted to Tranche D Loans). The parties hereto acknowledge and agree that one or more Lenders
may become a Tranche D Lender for any uncommitted portion of the Tranche D Facility (any such upsizing Lender, a “Tranche D Upsizing
Lender”) subject to the written consent of such Lender (in its sole discretion) and the Administrative Agent, and the Administrative
Agent shall promptly thereafter deliver an updated Exhibit A to this Agreement to the other parties hereto thereafter; provided that,
any and all Tranche D Loans shall have the same terms and covenants (other than any differences in interest amounts due based on the date
such Tranche D Loans were funded). After execution of any such amendment, each Tranche D Upsizing Lender agrees, subject to the satisfaction
of the conditions set forth in Section 4.03 of the Amended Credit Agreement and the other provisions of the Financing Documents, to make
Tranche D Loans to the Borrower pursuant to the Amended Credit Agreement in one or more draws from the date of such future amendment to
this Agreement until the expiration of the Availability Period in an aggregate amount not to exceed the commitment amount set forth next
to such Lender’s name on the updated Exhibit A delivered by the Administrative Agent to the other parties hereto.
(d) Subject
to the satisfaction of all the conditions precedent set forth in Section 5 hereof, as of the Thirteenth Amendment Effective Date,
each Lender, the Administrative Agent and each of the Loan Parties hereby:
(i) consents
to the upsizing and incurrence by Borrower of the Tranche D Commitments (including any Tranche D Loans incurred in respect thereof);
(ii) agrees
that the Tranche D Commitments, and any Tranche D Loans incurred in respect thereof, shall be Commitments and Loans for all purposes under
the Credit Agreement; and
(iii) agrees
that the Required Lenders and any Tranche D Upsizing Lender may amend Exhibit A to this Agreement to have such Tranche D Upsizing Lender’s
commitments (up to a total amount of Tranche D Commitments not to exceed $110,000,000, which may be increased up to $140,000,000 in accordance
with Section 1(a)(ii) above) reflected on Exhibit A and become effective (without the consent of any other Lender).
2. Amendments.
Subject to the satisfaction of the conditions precedent set forth in Section 5 hereof, as of the Thirteenth Amendment Effective
Date, the Borrower, the other Loan Parties, the Administrative Agent and the Signatory Lenders, who constitute all of the Lenders under
the Credit Agreement, hereby agree that the Credit Agreement is amended as follows:
(a) Section
1.01 of the Credit Agreement is hereby amended by replacing the definition of “Availability Period,” “Post-Default Rate,”
“Prepayment Premium,” “Tranche C Priority Premium” and “Tranche C Subordinated Premium” with the following:
“Availability
Period” means the period from the Thirteenth Amendment Effective Date to and including the earliest to occur of (a) July 31,
2023, (or, with the consent of the Administrative Agent, in its sole discretion, a date after July 31, 2023 notified by the Administrative
Agent to the Lenders and Borrower so long as such date is prior to September 30, 2023) (b) the Term Conversion Date and (c) the Maturity
Date.
“Post-Default
Rate” means a rate per annum which is equal to the sum of (a)(i) prior to the Maturity Date, 2.00% per annum and (ii) on and
after the Maturity Date, 5.00% per annum plus (b) the Interest Rate.
“Prepayment Premium”
means:
(a) with respect to the
Tranche A Loans and Tranche B Loans, with respect to any Called Principal, an amount necessary to cause the Tranche A Lenders holding
Tranche A Loans or Tranche B Lenders holding Tranche B Loans, as applicable, to earn a fixed income return (taking into account any principal,
interest or other amounts paid in cash to such Lender up to date of the prepayment and repayment of any Tranche A Loan or Tranche B Loan,
as applicable) of 1.40 multiplied by the Called Principal, as reasonably calculated by the Administrative Agent;
(b) with respect to the
Tranche C Loans, with respect to any Called Principal, an amount equal to the sum of (i) the Tranche C Priority Premium plus (ii) the
Tranche C Subordinated Premium, in each case, as reasonably calculated by the Administrative Agent; and
(c) with respect to the
Tranche D Loans, with respect to any Called Principal an amount required to meet the applicable Tranche D Minimum Return, as reasonably
calculated by the Administrative Agent.
An example of the Prepayment
Premium calculation for the Tranche A Loans, Tranche B Loans and Tranche C Loans is set forth on Part A of Annex II (Prepayment Premium
and Tranche D Minimum Return Calculations). An example of the Tranche D Minimum Return calculation for the Tranche D Loans is set
forth on Part B of Annex II (Prepayment Premium and Tranche D Minimum Return Calculations).
“Tranche C Priority
Premium” means, in respect of any Tranche C Loan, an amount necessary to cause the Tranche C Lenders holding Tranche C Loans
to earn a fixed income return (taking into account any principal, interest or other amounts paid in cash to such Lender up to date of
the prepayment and repayment of any Tranche C Loan) of 1.40 multiplied by the Called Principal.
“Tranche C Subordinated
Premium” means, in respect of any Tranche C Loan, an amount necessary to cause the Tranche C Lenders holding Tranche C Loans
to earn a fixed income return (taking into account any principal, interest or other amounts paid in cash to such Lender up to date of
the prepayment and repayment of any Tranche C Loan) of 2.00 multiplied by the Called Principal (but in any event, without duplication
of the Tranche C Priority Premium).
(b) Section
1.01 of the Credit Agreement is hereby amended by inserting the following new definitions:
“Thirteenth Amendment”
means that certain Amendment No. 13 to Credit Agreement, dated as of July 5, 2023, by and among the Borrower, Holdings, the Project Company,
the Administrative Agent and the Lenders party thereto.
“Thirteenth Amendment
Effective Date” has the meaning assigned to such term in the Twelfth Amendment.
“Tranche A/B/C
Obligations” means any Obligations owing to a Secured Party in respect of Tranche A Loans, Tranche B Loans, Tranche C Loans,
Tranche A Commitments, Tranche B Commitments, Tranche C Commitments or interest, fees and Prepayment Premium in respect thereof.
“Tranche D Commitment”
means, with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Annex I under the caption
“Tranche D Commitment” or, if such Lender has entered into one or more Assignment and Assumptions following the Thirteenth
Amendment Effective Date, the amount set forth for such Lender in the Register maintained by the Administrative Agent as such Lender’s
“Tranche D Commitment”.
“Tranche D Lender”
means (a) a lender that holds Tranche D Loans and/or Tranche D Commitments and (b) each Person that shall become a Tranche D Lender hereunder
pursuant to an Assignment and Assumption that assumes Tranche D Loans and/or Tranche D Commitments, in each case, so long as such lender
continues to hold such Tranche D Loans and/or Tranche D Commitments.
“Tranche D Loan”
has the meaning assigned to such term in Section 2.01(bbbb).
“Tranche D Minimum
Return” means the Tranche D Priority Minimum Return plus the Tranche D Subordinated Minimum Return. An example of the Tranche
D Minimum Return calculation for the Tranche D Loans is set forth on Part B of Annex II.
“Tranche D Priority
Minimum Return” means an amount necessary to cause the Tranche D Lenders holding Tranche D Loans to earn a fixed income return
(taking into account any principal, interest or other amounts paid in cash to such Lender up to date of the prepayment and repayment of
any Tranche D Loan) of 1.25 multiplied by the Called Principal.
“Tranche D Subordinated
Minimum Return” means (a) on or prior to the date that is six (6) months after the Thirteenth Amendment Effective Date, $0 and
(b) after the date that is six (6) months after the Thirteenth Amendment Effective Date, an amount necessary to cause the Tranche D Lenders
holding Tranche D Loans to earn a fixed income return (taking into account any principal, interest or other amounts paid in cash to such
Lender up to date of the prepayment and repayment of any Tranche D Loan) of 1.60 multiplied by the Called Principal (but in any event,
without duplication of the Tranche D Priority Minimum Return).
“Tranche D Obligations”
means any Obligations owing to a Secured Party in respect of Tranche D Loans, Tranche D Commitments, Tranche D Minimum Return or interest
and fees in respect thereof.
(c) The
following definitions in Section 1.01 of the Credit Agreement are hereby amended and restated as follows:
“Commitment” means, (i)
with respect to each Lender, the commitment of such Lender to make Loans to the Borrower pursuant to Section 2.01, in an aggregate
principal amount not to exceed the amount set forth opposite such Lender’s name on Annex I under the heading “Commitment”,
(ii) with respect to each Tranche B Lender, its Tranche B Commitment, (iii) with respect to each Tranche C Lender, its Tranche C
Commitment and (iv) with respect to each Tranche D Lender, its Tranche D Commitment.
“Loan” has the meaning
assigned to such term in Section 2.01(bbb).
(d) Section
2.01 of the Credit Agreement is hereby amended by restating clauses (b) and (bb) as follows, adding the following clause (bbb) immediately
after clause (bb) therein:
(b) Tranche
B Loans. Subject to the terms and conditions set forth in this Agreement (including Section 4.03) and in reliance upon the
representations and warranties of the Loan Parties set forth herein, each Tranche B Lender severally, but not jointly, agrees to advance
to Borrower from time to time during the Availability Period such loans as Borrower may request pursuant to this Section 2.01 (exclusive
of the Tranche A Loan, individually, a “Tranche B Loan” and, collectively, the “Tranche B Loans”)
in an aggregate principal amount which, when added to the aggregate principal amount of all prior Tranche B Loans made by such Lender
under this Agreement, does not exceed such Tranche B Lender’s Tranche B Commitment.
(bb) Tranche C Loans.
Subject to the terms and conditions set forth in this Agreement (including Section 4.03) and in reliance upon the representations
and warranties of the Loan Parties set forth herein, each Tranche C Lender severally, but not jointly, agrees to advance to Borrower from
time to time during the Availability Period such loans as Borrower may request pursuant to this Section 2.01 (exclusive of the
Tranche A Loan and Tranche B Loans, individually, a “Tranche C Loan” and, collectively, the “Tranche C Loans”)
in an aggregate principal amount which, when added to the aggregate principal amount of all prior Tranche C Loans made by such Lender
under this Agreement, does not exceed such Tranche C Lender’s Tranche C Commitment.
As of the Thirteenth Amendment
Effective Date, all Tranche A Loans, Tranche B Loans and Tranche C Loans under the Credit Agreement have been funded.
(bbb) Tranche D Loans.
Subject to the terms and conditions set forth in this Agreement (including Section 4.03) and in reliance upon the representations
and warranties of the Loan Parties set forth herein, each Tranche D Lender severally, but not jointly, agrees to advance to Borrower from
time to time during the Availability Period such loans as Borrower may request pursuant to this Section 2.01 (exclusive of the
Tranche A Loan, Tranche B Loans and Tranche C Loans, individually, a “Tranche D Loan” and, collectively, the “Tranche
D Loans” and, together with the Tranche A Loans, the Tranche B Loans, the Tranche C Loans, the “Loans”) in
an aggregate principal amount which, when added to the aggregate principal amount of all prior Tranche D Loans made by such Lender under
this Agreement, does not exceed such Tranche D Lender’s Tranche D Commitment.
(e) Section
2.06(b)(vi) is hereby deleted in its entirety and replaced with the following:
“(vi) Additional Capital Raises.
The Borrower shall prepay the Loans of each Lender in an amount equal to the amount of the Second Required Additional Capital Raise, which
amount shall be applied in accordance with Section 7.02 within three (3) Business Days of the Loan Parties’ receipt of any
such proceeds, accompanied by payment of all accrued interest on the amount prepaid.”
(f) Section
2.06(c)(iv) of the Credit Agreement is hereby amended by replacing the words “the Obligations are accelerated or otherwise become
due prior to their maturity date” with “the Obligations are accelerated, otherwise become due prior to the Maturity Date or
are still outstanding as of the Maturity Date”.
(g) Sections
2.12(a)(i) of the Credit Agreement is hereby amended and restated as follows:
“(i) to the extent
any such payments are associated with Orion Energy Partners or its Affiliates, at: Orion Energy Partners TP Agent, LLC (payment instructions:
Bank Name: JP Morgan, ABA/Routing No.: 021000021, Account Name: ORION ENERGY PARTNERS TP AGENT, LLC, Account No.: 741999020, Reference:
BKRF OCB, LLC).”
(h) Section
3.06 of the Credit Agreement is hereby amended and restated as follows:
“Section 3.06 Litigation.(a) Except
as set forth on Schedule 3.06 (as such schedule may be updated by the Borrower from time to time in writing by the Borrower to
the Administrative Agent), there is no pending or, to the knowledge of any Authorized Representative of any Loan Party, threatened (in
writing) litigation, investigation, action or proceeding of or before any court, arbitrator or Governmental Authority (in the case of
any of the foregoing not involving the Loan Parties, to the knowledge of any Authorized Representative of any Loan Party) (i) seeking
to restrain or prohibit the consummation of the transactions contemplated by the Transaction Documents, (ii) purporting to affect
the legality, validity or enforceability of any of the Transaction Documents or (iii) that affects the Project or any material part of
the Site; and
(b) As
of any date on which the representation and warranty set forth in this Section 3.06(b) is made, there is no pending or, to the
knowledge of any Authorized Representative of any Loan Party, threatened (in writing) litigation, investigation, action or proceeding
of or before any court, arbitrator or Governmental Authority (in the case of any of the foregoing not involving the Loan Parties, to the
knowledge of any Authorized Representative of any Loan Party) (i) seeking to restrain or prohibit the consummation of the transactions
contemplated by the Transaction Documents, (ii) purporting to affect the legality, validity or enforceability of any of the Transaction
Documents or (iii) that affects the Project or any material part of the Site, which in any such case (either individually or in the aggregate)
under the foregoing clauses (i) through (iii) could reasonably be expected to have a Material Adverse Effect.”
(i) Section
3.29(b) of the Credit Agreement is hereby amended and restated as follows:
“(b) On each Funding Date that
occurs after the Thirteenth Amendment Effective Date and after giving effect to the funding of the Tranche D Loans, but, in each case,
prior to the Final Completion Date, the sum of (i) the amounts on deposit in the Collateral Accounts, plus (ii) Project Revenues reasonably
anticipated to be received by the Project Company prior to Final Completion (up to a cap, in the case of this clause (ii) of the Cash
Flow Utilization Cap, if applicable) plus (iii) the proceeds of any Permitted Working Capital Facility and any Permitted Prepaid Sale
Arrangement plus (iv) the amount of any unfunded Commitments is expected to be sufficient to cause the Project to achieve Substantial
Completion and Final Completion.”
(j) Section
4.03(g) of the Credit Agreement is hereby amended and restated as follows:
“(g) Equity Kicker. In connection
with each Funding Date (other than with respect to any Tranche C Loans or Tranche D Loans), (i) such Lender (or the Lender Equity Owner
Affiliated with such Lender) shall have been granted Class B Units on the terms set forth in the HoldCo Borrower LLC Agreement so that
such Lender (or its Affiliated Lender Equity Owner) holds a proportion of Class B Units (relative to all Class B Units) equal to the proportion
of Tranche A Loans and Tranche B Loans of such Lender (relative to all Tranche A Loans and Tranche B Loans then outstanding) (and, if
required under the Holdco Borrower LLC Agreement, such Lender shall sign a joinder to such agreement), (ii) such Lender and Borrower shall
have agreed in writing as to the portion of such Loan allocated to the purchase of the corresponding Equity Kicker as required pursuant
to Section 2.01(f) and (iii) if the HoldCo Borrower LLC Agreement has been amended since the Closing Date, such amendment shall be in
form reasonably satisfactory to the Required Lenders.”
(k) Section
4.03(h) of the Credit Agreement is hereby amended and restated as follows:
“(h) In respect of any borrowing
of Tranche D Loans, (i) the Administrative Agent (in its sole discretion) has consented to such borrowing and the use of proceeds relating
to such Loans, (ii) Borrower has delivered to the Administrative Agent a funds flow memorandum detailing the proposed flow, and use, of
the Loan proceeds within three (3) Business Days of such date of borrowing, in form and substance reasonably satisfactory to the Administrative
Agent and (iii) the Borrower has paid, or caused to be paid, to each Tranche D Lender an upsize premium in the form of warrants to obtain
the shares of common equity of the Sponsor at the strike prices set forth in Exhibit C-2 to the Thirteenth Amendment in the amount
specified in the column titled “Additional Warrants – Unfunded Tranche D Commitments”, substantially in the form attached
as Exhibit D to the Thirteenth Amendment, which warrants shall be payable to each Tranche D Lender (or its designated Affiliate)
ratably.”
(l) Section
5.30(a) of the Credit Agreement is hereby amended and restated as follows:
“(a) Additional Capital Raises.
(i) The Loan Parties shall (A) as promptly as reasonably practicable, but in any event on or prior to July 31, 2023, complete an Additional
Capital Raise in an aggregate amount equal to at least $10,000,000 (such additional capital raise, the “First Required Additional
Capital Raise”); provided, that the Loan Parties shall use commercially reasonable efforts to complete such First Required Additional
Capital Raise in an aggregate amount equal to at least $30,000,000 and (B) cause the proceeds of the First Required Additional Capital
Raise to be deposited into the Construction Account and (ii) in addition, the Loan Parties shall (A) as promptly as reasonably practicable,
but in any event on or prior to July 5, 2024, complete an Additional Capital Raise in an aggregate amount equal to at least $170,000,000
in excess of the First Required Additional Capital Raise (such additional capital raise, the “Second Required Additional Capital
Raise”) and (B) cause the Second Required Additional Capital Raise to be used to repay the loans in accordance with Section 2.06(b)(vi).”
(m) Section
5.30(b)(ii) of the Credit Agreement is hereby amended by replacing the reference therein from “Commencing no later than June 30,
2023” to “Commencing no later than September 1, 2023”.
(n) Section
5.30(b)(iv) of the Credit Agreement is hereby amended by replacing the reference therein from “No later than June 30, 2023”
to “No later than August 15, 2023”.
(o) Section
5.30(b)(v) of the Credit Agreement is hereby amended by replacing the reference therein from “No later than June 30, 2023”
to “No later than August 15, 2023”.
(p) Section
5.30(b) of the Credit Agreement is hereby amended to add a new clause (vi) as follows:
“(vi) No later than
August 15, 2023, the Borrower shall use its best efforts to cause the Sponsor and the Sponsor’s board of directors to implement
an executive incentive plan relating to the management of the Sponsor and its subsidiaries, which plan shall be acceptable to the Administrative
Agent in its sole discretion.”
(q) Section
5.30 of the Credit Agreement is hereby amended to add new clauses (c) and (d) as follows:
“(c) Working Capital Facility.
The Loan Parties shall as promptly as reasonably practicable, but in any event on or prior to October 1, 2023, incur a Permitted Working
Capital Facility in an aggregate amount at least equal to $100,000,000.
(d) Commercial
Execution Plan. The Loan Parties shall, within five (5) days of the Tranche D Effective Date, have a third-party that is reasonably
acceptable to the Administrative Agent develop a commercial execution plan, which plan shall be subject to the approval of the Loan Parties
and acceptable to the Administrative Agent, in its sole discretion. Thereafter, the Loan Parties (i) shall promptly, and in any event
within thirty (30) days, implement such plan in a manner that is acceptable to the Administrative Agent, in its sole discretion and (ii)
acknowledge that time is of the essence and, as a result, shall provide the Administrative Agent with regular updates (no less frequently
than once per 7 days) as to its status of implementing such plan.”
(r) Section
7.01(r) of the Credit Agreement is hereby amended and restated as follows:
“(r) the outstanding
principal amount of the Loans exceeds (i) $470,000,000 on or after June 30, 2024 or (ii) $370,000,000 on or after June 30, 2025.”
(s) Section
7.01(s) of the Credit Agreement is hereby amended and restated as follows:
“(s) (i) Loan
Parties shall fail to complete the First Required Additional Capital Raise on or before July 31, 2023 or (ii) Loan Parties shall fail
to complete the Second Required Additional Capital Raise on or before July 5, 2024.”
(t) Section
7.02 to the Credit Agreement is hereby amended and restated as follows:
Section
7.02 Application of Proceeds. Subject to the terms of the ABL Intercreditor Agreement or the Term Intercreditor Agreement,
the proceeds of (a) any collection, sale or other realization of all or any part of the Collateral and (b) any Obligations repaid or
prepaid pursuant to this agreement (excluding (x) repayments of interest and (y) mandatory repayments of the ECF Sweep Amount in accordance
with Section 2.06(b)(v), which shall, in both cases, be applied to Loans of all tranches ratably, but otherwise including any other repayments
and prepayments made in accordance with Section 2.06) shall be applied in the following order of priority:
(a) first,
to any fees, costs, charges, expenses and indemnities then due and payable to Agents under any Financing Document pro rata based
on such respective amounts then due to such Persons;
(b) second,
to the respective outstanding fees, costs, charges, expenses and indemnities then due and payable to the other Secured Parties under any
Financing Document pro rata based on such respective amounts then due to such Persons;
(c) third,
to any accrued but unpaid interest on the Tranche D Obligations owed to the Secured Parties pro rata based on such respective amounts
then due to the Secured Parties;
(d) fourth,
to any principal amount of the Tranche D Obligations (excluding the Tranche D Minimum Return but including any amounts previously paid
in kind pursuant to Section 2.08(e)) owed to the Secured Parties pro rata based on such respective amounts then due to the Secured
Parties;
(e) fifth,
to the Tranche D Priority Minimum Return owed to the Secured Parties pro rata based on such respective amounts then due to the
Secured Parties;
(f) sixth,
to any accrued but unpaid interest on the Tranche A/B/C Obligations owed to the Secured Parties pro rata based on such respective
amounts then due to the Secured Parties;
(g) seventh,
to any principal amount of the Tranche A/B/C Obligations (excluding any Prepayment Premium in respect thereof, but including any amounts
previously paid in kind pursuant to Section 2.08(e)) owed to the Secured Parties pro rata based on such respective amounts then
due to the Secured Parties;
(h) eighth,
to the Tranche D Subordinated Minimum Return owed to the Secured Parties pro rata based on such respective amounts then due to
the Secured Parties;
(i) ninth,
ratably, to (i) Prepayment Premium in respect of Tranche A Loans and Tranche B Loans and (ii) in respect of the Tranche C Loans, to the
Tranche C Priority Premium, in each case, owed to the Secured Parties pro rata based on such respective amounts then due to the
Secured Parties;
(j) tenth,
ratably, to, in respect of the Tranche C Loans, to the Tranche C Subordinated Premium owed to the Secured Parties pro rata based on such
respective amounts then due to the Secured Parties;
(k) eleventh,
to any other unpaid Obligations then due and payable to Secured Parties, pro rata based on such respective amounts then due to
the Secured Parties; and
(l) twelfth,
after final payment in full of the amounts described in clauses first through eleventh above and the Discharge of Secured
Obligations (as defined in the Security Agreement) shall have occurred, to the Borrower or as otherwise required by Applicable Law.
It is understood that
the Loan Parties shall remain liable to the extent of any deficiency between the amount of the proceeds of the Collateral and the aggregate
of the sums referred to in clauses first through eleventh above.
(u) A
new Section 7.03 to the Credit Agreement is hereby added as follows:
Section
7.03 Agent Rights to Cause a Drawing of Loans. If (a) an Event of Default has occurred
and is continuing or (b) the Administrative Agent determines that the Borrower does not have sufficient funds in its accounts to achieve
Substantial Completion, the Administrative Agent is hereby authorized by the Borrower and the Lenders to, from time to time in the Administrative
Agent’s sole discretion, to (i) submit a Borrowing Request on behalf of the Borrower to satisfy Section 4.03(a) and (ii) waive
the requirement to deliver a Note in accordance with Section 4.03(b) for such Funding Date. Any loans funded in accordance with the foregoing
will be Tranche D Loans for all purposes in accordance with the Credit Agreement. The provisions of this Section 7.03 are for the exclusive
benefit of the Administrative Agent and are not intended to benefit any other Person in any way.
(v) Section
10.02(b) of the Credit Agreement is hereby amended by adding the following sentence at the end thereof:
“Notwithstanding the foregoing, (a)
until the date of Substantial Completion, the Required Lenders (and not any individual Lender) may elect to permit the Borrower to pay
all of the Interest Rate due and payable during such period in kind (in lieu of payment in cash) as long as such payment in kind is applied
ratably among the Loans and (b) in connection with amendments to certain Material Project Documents, the Required Lenders (and not any
individual Lender) shall be permitted to reduce the Interest Rate for all of the Loans to an amount not lower than 10.00%.”
(w) Annex
II (Prepayment Premium) to the Credit Agreement is hereby deleted in its entirety and replaced in its entirety by Annex II (Prepayment
Premium and Tranche D Minimum Return Calculations) as set forth in Exhibit B-1 attached hereto.
(x) Annex
III (Target Debt Balances) to the Credit Agreement is hereby deleted in its entirety and replaced in its entirety as set forth
in Exhibit B-2 attached hereto.
(y) Schedule
3.06 (Litigation) to the Credit Agreement is hereby deleted in its entirety and replaced in its entirety as set forth in Exhibit
B-3 attached hereto.
3. Amendment
No. 13 Premium; Warrant Allocation.
(a) As
consideration for entry into this Agreement and the Waiver, the Borrower hereby agrees to pay, or cause to be paid, to each Tranche D
Lender an Amendment and Upsize Premium in the form of warrants to obtain the shares of common equity at the strike price set forth in
Exhibit C-2 hereto in the numbers set forth under the column “Additional Warrants – Unfunded Tranche D Commitments”,
substantially in the form attached hereto as Exhibit D (the “Tranche D GCEH Warrants”), which Tranche D GCEH
Warrants shall be payable to each Tranche D Lender (or its designated Affiliate) ratably (the “Amendment and Upsize Premium”).
The Amendment and Upsize Premium shall be due, earned and payable on the date Tranche D Loans in respect of such unfunded Tranche D Commitments
are funded pursuant to Section 4.03 of the Credit Agreement.
(b) The
Borrower hereby agrees that the Amendment and Upsize Premium shall be paid without set-off, deduction or counterclaim and free and clear
of, and without deduction by reason of, any taxes.
(c) All
fees and premiums hereunder, once paid, are nonrefundable and are in addition to and not creditable against any other fee or premium payable
to any Lender and/or its affiliates in connection with the transactions contemplated by the Credit Agreement or otherwise.
(d) For
U.S. federal income tax purposes, (a) the Tranche D Loans made after the date hereof, together with the Tranche D GCEH Warrants, shall
be treated as an investment unit in accordance with Code Section 1273(c)(2) and (b) a portion of the purchase price of the investment
unit shall, for U.S. federal income tax purposes, be allocated to the purchase of the corresponding Tranche D GCEH Warrants as mutually
agreed by the parties. Each of the parties hereto agrees to file tax returns consistent with such treatment.
(e) Solely
for U.S. federal income, and applicable state and local, purposes, the net fair market value received by the applicable Tranche A Lender,
Tranche B Lender and Tranche C Lender resulting from the issuance of the Amendment and Upsize Premium earned on the borrowing date of
the applicable Tranche D Loans, plus or minus any increase or decrease in value, respectively, to the Existing Warrants resulting from
the Rebalancing of Existing Warrants, shall be treated as a payment on the Tranche A Loans, Tranche B Loans and Tranche C Loans held by
such Lenders (in accordance with the ordering provisions of Treasury Regulations Section 1.1275-2(a)). The value of the payments described
in the preceding sentence with respect to each such Lender and Loan shall be determined jointly by the Administrative Agent and Borrower
(each acting reasonably) and communicated to the other parties reasonably promptly following the date hereof. Within the scope of existing
tax law at the filing date, the parties hereto agree to file tax returns consistent with the treatment in this Section 3(e). For
clarity, the parties agree that this Section 3(e) shall not affect the amount advanced or paid to any Lender under the Credit Agreement
for all non-tax purposes.
For purposes of this Amendment,
(x) “Existing Warrants” shall mean those warrants specified in the column titled “Warrants – Before Twelfth
Amendment” in Exhibits C-1 and C-2 and (y) “Rebalancing of Existing Warrants” shall mean the reallocation of
the Existing Warrants in accordance with the Omnibus Warrant Amendment to reflect the updates to the amount of warrants specified in the
column titled “Rebalancing of Existing Warrants” in Exhibits C-1 and C-2.
4. Representations
and Warranties. As of the Thirteenth Amendment Effective Date, each Loan Party hereby represents and warrants to the other parties
hereto that:
(a) Each
Loan Party has full corporate, limited liability company or other organizational powers, authority and legal right to enter into, deliver
and perform its respective obligations under this Agreement, and has taken all necessary corporate, limited liability company or other
organizational action to authorize the execution, delivery and performance by it of this Agreement. This Agreement has been duly executed
and delivered by the Loan Parties, is in full force and effect and constitutes a legal, valid and binding obligation of the Loan Parties,
enforceable against such Loan Party in accordance with its respective terms, except as enforcement may be limited (i) by Bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) by general principles
of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of
good faith and fair dealing.
(b) The
execution, delivery and performance by each Loan Party of this Agreement does not and will not (i) conflict with the Organizational Documents
of such Loan Party, (ii) conflict with or result in a breach of, or constitute a default under, any indenture, loan agreement, mortgage,
deed of trust or other instrument or agreement to which such Loan Party is a party or by which it is bound or to which such Loan Party’s
property or assets are subject (other than any Material Project Document to which such Loan Party is a party), except where such contravention
or breach could not reasonably be expected to be material and adverse to the Loan Parties or Lenders, (iii) conflict with or result in
a breach of, or constitute a default under, any Material Project Document to which such Loan Party is a party, (iv) conflict with or result
in a breach of, or constitute a default under, in any material respect, any Applicable Law, except where such contravention or breach
could not reasonably be expected to have a Material Adverse Effect, or (v) with respect to each Loan Party, result in the creation or
imposition of any Lien (other than a Permitted Lien) upon any of such Loan Party’s property or the Collateral.
(c) After
giving effect to the waivers set forth in the Waiver and the amendments set forth in this Agreement, no Default or Event of Default has
occurred and is continuing or would result from the transactions contemplated in this Agreement.
(d) After
giving effect to the waivers set forth in the Waiver and the amendments set forth in this Agreement, the representations and warranties
of each of the Loan Parties set forth in Article III of the Credit Agreement and in each other Financing Document are true and correct
in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations
and warranties are true and correct in all respects) on and as of the Thirteenth Amendment Effective Date (unless stated to relate solely
to an earlier date, in which case such representations and warranties were true and correct as of such earlier date).
5. Effectiveness;
Conditions Precedent. This Agreement, including the increased Tranche C Commitments and the Tranche D Commitments, shall become effective
on the first date on which each of the following conditions have been satisfied or waived (such date, the “Thirteenth Amendment
Effective Date”):
(a) This
Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory
Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each
which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower
has arranged for payment on the Thirteenth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then
due and payable pursuant to the Financing Documents and the funds flow memorandum delivered pursuant to clause (f) below.
(c) The
Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Thirteenth
Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 5 have been satisfied in accordance with
the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations
and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except
where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct
in all respects) on and as of the Thirteenth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case
such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth
in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Thirteenth
Amendment Effective Date.
(d) As
consideration for the amendments set forth herein and the waivers set forth in the Waiver, as of the Thirteenth Amendment Effective Date,
each Lender shall have received the Tranche D GCEH Warrants as set forth in Section 3.
(e) The
Administrative Agent and the Lenders shall have received an executed copy of a Borrowing Request for Tranche D Loans in an aggregate amount
equal to $7,000,000.
(f) Borrower
shall have delivered to the Administrative Agent a funds flow memorandum detailing the proposed flow, and use, of the Loan proceeds within
three (3) Business Days of the Thirteenth Amendment Effective Date, in form and substance reasonably satisfactory to the Administrative
Agent.
(g) The
Administrative Agent shall have received an amendment, dated as of the Thirteenth Amendment Effective Date, to that certain Registration
Rights Agreement, dated as of February 23, 2022, by and among the Sponsor and certain investors party thereto, which shall be in form
and substance reasonably satisfactory to the Administrative Agent.
(h) Borrower
shall have delivered to the Administrative Agent an update to the 2023 Operating Budget, which shall be in form and substance reasonably
acceptable to the Administrative Agent.
(i) The
Administrative Agent shall have received an executed assignment and assumption agreement, dated as of the Thirteenth Amendment Effective
Date, by and among certain Lenders party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(j) The
Administrative Agent shall have received an executed amendment agreement, dated as of the Thirteenth Amendment Effective Date, by and
among the Sponsor and certain investors party thereto, to complete the Rebalancing of Existing Warrants, which shall be in form and substance
reasonably satisfactory to the Administrative Agent (the “Omnibus Warrant Amendment”).
(k) The
Administrative Agent shall have received an executed assignment agreement, dated as of the Thirteenth Amendment Effective Date, by and
among certain Lenders party thereto, in respect of the assignment of certain preferred equity held by such Lenders in the Sponsor, which
shall be in form and substance reasonably satisfactory to the Administrative Agent.
6. Reaffirmation
of Guarantees and Security Interests.
The Borrower, Holdings and Project
Company (each, a “Reaffirming Party”) hereby acknowledges that it (a) has reviewed the terms and provisions of this
Agreement, (b) consents to the amendments to the Credit Agreement effected pursuant to this Agreement and consents to the terms, conditions
and other provisions of this Agreement, and (c) consents to each of the transactions contemplated hereby. Each Reaffirming Party hereby
confirms that each Financing Document to which it is a party or otherwise bound and all Collateral encumbered thereby will continue to
guarantee or secure, as the case may be, to the fullest extent possible in accordance with the Financing Documents the payment and performance
of all Obligations under and as defined in the Amended Credit Agreement (including all such Obligations as amended and reaffirmed pursuant
to this Amendment) under each of the Financing Documents to which it is a party.
Without limiting the generality
of the foregoing, each Reaffirming Party hereby confirms, ratifies and reaffirms its payment obligations, guarantees, pledges, grants
of security interests and other obligations, as applicable, under and subject to the terms of each of the Financing Documents to which
it is a party. For the avoidance of doubt, nothing in this Agreement shall constitute a new grant of security interest. Each Reaffirming
Party hereby confirms that no additional filings or recordings need to be made, and no other actions need to be taken, by such Reaffirming
Party as a consequence of this Agreement in order to maintain the perfection and priority of the security interests created by the Financing
Documents to which it is a party.
Each Reaffirming Party acknowledges
and agrees that each of the Financing Documents to which it is a party or otherwise bound shall continue in full force and effect and
that all of its payment obligations, guarantees, pledges, grants of security interests and other obligations, as applicable, under and
subject to the terms of such Financing Documents shall be valid and enforceable and shall not be impaired or limited by the execution
or effectiveness of this Amendment or any of the transactions contemplated hereby.
7. Miscellaneous.
(a) Effect
of Amendments. From and after the Thirteenth Amendment Effective Date, the Credit Agreement shall be construed after giving effect
to the amendments set forth in Section 2 hereof and all references to the Credit Agreement in the Financing Documents shall be
deemed to refer to the Amended Credit Agreement.
(b) No
Other Modification. Except as expressly modified by this Agreement and the Waiver, the Credit Agreement and the other Financing Documents
are and shall remain unchanged and in full force and effect, and nothing contained in this Agreement shall, by implication or otherwise,
limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, or any of
the other parties, or shall alter, modify, amend or in any way affect any of the other terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement which are not by the terms of this Agreement being amended, or alter, modify or amend or in any way
affect any of the other Financing Documents.
(c) Successor
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors
and permitted assigns.
(d) Incorporation
by Reference. Sections 10.07 (Severability), 10.11 (Headings), 10.09 (Governing Law; Jurisdiction; Etc.) and
10.17 (Electronic Execution of Assignments and Certain Other Documents) of the Credit Agreement are hereby incorporated by reference
herein, mutatis mutandis.
(e) Financing
Document. This Agreement shall be deemed to be a Financing Document.
(f) Counterparts;
Integration. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single contract. The Amended Credit Agreement and
the other Financing Documents to which a Loan Party is party constitute the entire contract between and among the parties relating to
the subject matter hereof and thereof and supersede any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Delivery of an executed counterpart of a signature page to this Agreement by telecopy or scanned electronic transmission
shall be effective as delivery of a manually executed counterpart of this Agreement.
(g) Electronic
Signatures. The words “execution,” “execute”, “signed,” “signature,” and words of
like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall
be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms
approved by the parties hereto, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity
or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent
and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York
State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(h) Severability.
Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any
other jurisdiction.
(i) Release.
IN ORDER TO INDUCE THE ADMINISTRATIVE AGENT AND THE LENDERS TO ENTER INTO THIS AGREEMENT, EACH OF THE LOAN PARTIES AND THEIR RESPECTIVE
SUCCESSORS-IN-TITLE AND ASSIGNEES AND, TO THE EXTENT THE SAME IS CLAIMED BY RIGHT OF, THROUGH OR UNDER ANY OF THE LOAN PARTIES, FOR THEIR
RESPECTIVE PAST, PRESENT AND FUTURE EMPLOYEES, AGENTS, REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, AND TRUSTEES
(EACH, A “RELEASING PARTY,” AND COLLECTIVELY, THE “RELEASING PARTIES”), DOES HEREBY REMISE, RELEASE
AND DISCHARGE, AND SHALL BE DEEMED TO HAVE FOREVER REMISED, RELEASED AND DISCHARGED, THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS,
AND THE ADMINISTRATIVE AGENT’S AND EACH LENDER’S RESPECTIVE SUCCESSORS-IN-TITLE, LEGAL REPRESENTATIVES AND ASSIGNEES, PAST,
PRESENT AND FUTURE OFFICERS, DIRECTORS, AFFILIATES, SHAREHOLDERS, MEMBERS, MANAGERS, TRUSTEES, AGENTS, EMPLOYEES, BOARD OBSERVERS, CONSULTANTS,
EXPERTS, ADVISORS, ATTORNEYS AND OTHER PROFESSIONALS AND ALL OTHER PERSONS AND ENTITIES TO WHOM ANY OF THE FOREGOING WOULD BE LIABLE IF
SUCH PERSONS OR ENTITIES WERE FOUND TO BE LIABLE TO ANY RELEASING PARTY, OR ANY OF THEM (COLLECTIVELY HEREINAFTER, THE “RELEASED
PARTIES”), FROM ANY AND ALL MANNER OF ACTION AND ACTIONS, CAUSE AND CAUSES OF ACTION, CLAIMS, CHARGES, DEMANDS, COUNTERCLAIMS,
OFFSET RIGHTS, RIGHTS OF RECOUPMENT, DEFENSES, SUITS, DEBTS, DUES, SUMS OF MONEY, ACCOUNTS, RECKONINGS, BONDS, BILLS, SPECIALTIES, COVENANTS,
CONTRACTS, CONTROVERSIES, DAMAGES, JUDGMENTS, EXPENSES, EXECUTIONS, LIENS, CLAIMS OF LIENS, CLAIMS OF COSTS, PENALTIES, ATTORNEYS’
FEES, OR ANY OTHER COMPENSATION, RECOVERY OR RELIEF ON ACCOUNT OF ANY LIABILITY, OBLIGATION, DEMAND OR CAUSE OF ACTION OF WHATEVER NATURE,
WHETHER IN LAW, EQUITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, ANY SO CALLED “LENDER LIABILITY” CLAIMS, INTEREST OR OTHER
CARRYING COSTS, PENALTIES, LEGAL, ACCOUNTING AND OTHER PROFESSIONAL FEES AND EXPENSES AND INCIDENTAL, CONSEQUENTIAL AND PUNITIVE DAMAGES
PAYABLE TO THIRD PARTIES, OR ANY CLAIMS FOR AVOIDANCE OR RECOVERY UNDER ANY OTHER FEDERAL, STATE OR FOREIGN LAW EQUIVALENT), WHETHER KNOWN
OR UNKNOWN, FIXED OR CONTINGENT, JOINT AND/OR SEVERAL, SECURED OR UNSECURED, DUE OR NOT DUE, PRIMARY OR SECONDARY, LIQUIDATED OR UNLIQUIDATED,
CONTRACTUAL OR TORTIOUS, DIRECT, INDIRECT, OR DERIVATIVE, ASSERTED OR UNASSERTED, FORESEEN OR UNFORESEEN, SUSPECTED OR UNSUSPECTED, NOW
EXISTING, HERETOFORE EXISTING OR WHICH MAY HERETOFORE ACCRUE AGAINST ANY OF THE RELEASED PARTIES SOLELY IN THEIR CAPACITIES AS SUCH UNDER
THE FINANCING DOCUMENTS, WHETHER HELD IN A PERSONAL OR REPRESENTATIVE CAPACITY, AND WHICH ARE BASED ON ANY ACT, FACT, EVENT OR OMISSION
OR OTHER MATTER, CAUSE OR THING OCCURRING AT OR FROM ANY TIME PRIOR TO AND INCLUDING THE DATE HEREOF IN ANY WAY, DIRECTLY OR INDIRECTLY
ARISING OUT OF, CONNECTED WITH OR RELATING TO THE AMENDED CREDIT AGREEMENT OR ANY OTHER FINANCING DOCUMENT AND THE TRANSACTIONS CONTEMPLATED
THEREBY, AND ALL OTHER AGREEMENTS, CERTIFICATES, INSTRUMENTS AND OTHER DOCUMENTS AND STATEMENTS (WHETHER WRITTEN OR ORAL) RELATED TO ANY
OF THE FOREGOING (EACH, A “CLAIM,” AND COLLECTIVELY, THE “CLAIMS”), IN EACH CASE, EXCLUDING
ANY CLAIM TO THE EXTENT SUCH CLAIM AROSE OUT OF, OR WAS CAUSED BY, THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF, OR MATERIAL BREACH OF
THE AMENDED CREDIT AGREEMENT OR ANY OTHER FINANCING DOCUMENT BY, SUCH RELEASED PARTIES. EACH RELEASING PARTY FURTHER STIPULATES AND AGREES
WITH RESPECT TO ALL SUCH CLAIMS, THAT IT HEREBY WAIVES ANY AND ALL PROVISIONS, RIGHTS, AND BENEFITS CONFERRED BY ANY LAW OF ANY STATE
OF THE UNITED STATES.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed and delivered by their duly authorized signatories as of the day and year first
above written.
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BKRF OCB, LLC, |
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as the Borrower |
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By: |
/s/ Richard Palmer |
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Name: |
Richard Palmer |
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Title: |
President |
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|
|
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BKRF OCP, LLC, |
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as Holdings |
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By: |
/s/ Richard Palmer |
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Name: |
Richard Palmer |
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Title: |
President |
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BAKERSFIELD RENEWABLE FUELS, LLC, |
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as Project Company |
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|
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By: |
/s/ Richard Palmer |
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Name: |
Richard Palmer |
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Title: |
President |
[Signature
Page to Amendment No. 13 to Credit Agreement]
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ORION ENERGY PARTNERS TP AGENT, LLC, |
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as Administrative Agent |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
[Signature
Page to Amendment No. 13 to Credit Agreement]
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ORION ENERGY CREDIT OPPORTUNITIES |
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FUND II, L.P. |
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as a Lender and as a Tranche C Lender |
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By: |
Orion Energy Credit Opportunities Fund II GP, L.P.,
its general partner |
|
|
|
|
By: |
Orion Energy Credit Opportunities Fund II |
|
Holdings, LLC, its general partner |
|
|
|
|
By: |
/s/ Gerrit Nicholas |
|
Name: |
Gerrit Nicholas |
|
Title: |
Managing Partner |
|
|
|
|
ORION ENERGY CREDIT OPPORTUNITIES |
|
FUND II PV, L.P., |
|
as a Lender and as a Tranche C Lender |
|
|
|
|
By: |
Orion Energy Credit Opportunities Fund II GP, L.P.,
its general partner |
|
|
|
|
By: |
Orion Energy Credit Opportunities Fund II |
|
Holdings, LLC, its general partner |
|
|
|
|
By: |
/s/ Gerrit Nicholas |
|
Name: |
Gerrit Nicholas |
|
Title: |
Managing Partner |
[Signature
Page to Amendment No. 13 to Credit Agreement]
|
ORION ENERGY CREDIT OPPORTUNITIES |
|
FUND II GPFA, L.P., |
|
as a Lender and as a Tranche C Lender |
|
|
|
|
By: |
Orion
Energy Credit Opportunities Fund II GP, L.P., its general partner |
|
|
|
|
By: |
Orion
Energy Credit Opportunities Fund II |
|
Holdings, LLC, its general partner |
|
|
|
|
By: |
/s/
Gerrit Nicholas |
|
Name: |
Gerrit
Nicholas |
|
Title: |
Managing
Partner |
|
|
|
|
ORION ENERGY CREDIT OPPORTUNITIES |
|
GCE CO-INVEST, L.P., |
|
as a Lender |
|
|
|
|
By: |
Orion
Energy Credit Opportunities Fund II GP, L.P., its general partner |
|
|
|
|
By: |
Orion
Energy Credit Opportunities Fund II |
|
Holdings, LLC, its general partner |
|
|
|
|
By: |
/s/
Gerrit Nicholas |
|
Name: |
Gerrit
Nicholas |
|
Title: |
Managing
Partner |
|
|
|
|
ORION ENERGY CREDIT OPPORTUNITIES |
|
GCE CO-INVEST B, L.P. |
|
as a Lender |
|
|
|
|
By: |
Orion
Energy Credit Opportunities Fund II GP, L.P., its general partner |
|
|
|
|
By: |
Orion
Energy Credit Opportunities Fund II |
|
Holdings, LLC, its general partner |
|
|
|
|
By: |
/s/
Gerrit Nicholas |
|
Name: |
Gerrit
Nicholas |
|
Title: |
Managing
Partner |
[Signature
Page to Amendment No. 13 to Credit Agreement]
|
ORION ENERGY CREDIT OPPORTUNITIES |
|
FUND III. L.P., |
|
as a Lender and as a Tranche C Lender |
|
|
|
|
By: |
Orion Energy Credit Opportunities Fund III GP, |
|
L.P., its general partner |
|
|
|
|
By: |
Orion Energy Credit Opportunities Fund III |
|
Holdings, LLC, its general partner |
|
|
|
|
By: |
/s/ Gerrit Nicholas |
|
Name: |
Gerrit Nicholas |
|
Title: |
Managing Partner |
|
|
|
|
ORION ENERGY CREDIT OPPORTUNITIES |
|
FUND III PV., L.P., |
|
as a Lender and as a Tranche C Lender |
|
|
|
|
By: |
Orion Energy Credit Opportunities Fund III GP, |
|
L.P., its general partner |
|
|
|
|
By: |
Orion Energy Credit Opportunities Fund III |
|
Holdings, LLC, its general partner |
|
|
|
|
By: |
/s/ Gerrit Nicholas |
|
Name: |
Gerrit Nicholas |
|
Title: |
Managing Partner |
[Signature
Page to Amendment No. 13 to Credit Agreement]
|
ORION ENERGY CREDIT OPPORTUNITIES |
|
FUND III GPFA, L.P., |
|
as a Lender and as a Tranche C Lender |
|
|
|
|
By: |
Orion Energy Credit Opportunities Fund III GP, |
|
L.P., its general partner |
|
|
|
|
By: |
Orion Energy Credit Opportunities Fund III |
|
Holdings, LLC, its general partner |
|
|
|
|
By: |
/s/ Gerrit Nicholas |
|
Name: |
Gerrit Nicholas |
|
Title: |
Managing Partner |
|
|
|
|
ORION ENERGY CREDIT OPPORTUNITIES |
|
FUND III GPFA PV., L.P. , |
|
as a Lender and as a Tranche C Lender |
|
|
|
|
By: |
Orion Energy Credit Opportunities Fund III GP, |
|
L.P., its general partner |
|
|
|
|
By: |
Orion Energy Credit Opportunities Fund III |
|
Holdings, LLC, its general partner |
|
|
|
|
By: |
/s/ Gerrit Nicholas |
|
Name: |
Gerrit Nicholas |
|
Title: |
Managing Partner |
[Signature
Page to Amendment No. 13 to Credit Agreement]
|
VOYA RENEWABLE ENERGY |
|
INFRASTRUCTURE ORIGINATOR L.P.,
as Lender |
|
VOYA RENEWABLE ENERGY |
|
INFRASTRUCTURE ORIGINATOR I LLC, |
|
as a Lender |
|
|
|
|
By: |
Voya Alternative Asset Management LLC, as Agent |
|
|
|
|
By: |
/s/ Edward Levin |
|
Name: |
Edward Levin |
|
Title: |
Senior Vice President |
[Signature
Page to Amendment No. 13 to Credit Agreement]
|
LIF AIV 1, L.P. |
|
as a Lender |
|
|
|
|
By: |
GCM Investments GP, LLC, its General Partner |
|
|
|
|
By: |
/s/ Todd Henigan |
|
Name: |
Todd Henigan |
|
Title: |
authorized signatory |
[Signature
Page to Amendment No. 13 to Credit Agreement]
Exhibit A
to Amendment
No. 13
ANNEX I
TO
CREDIT AGREEMENT
Commitments and Existing Loans
| |
Outstanding
Tranche A
Loans as of
Amendment
No. 13 | | |
Outstanding
Tranche B
Loans as of
Amendment
No. 13 | | |
Outstanding
Tranche C
Loans as of
Amendment
No. 13 | | |
Tranche C
Loans to be
Converted to
Tranche D
Loans as of Amendment
No. 13 | | |
Tranche D
Loans to be
Funded within 3
BDs of the
Thirteenth
Amendment
Effective Date1 | | |
Remaining
Unfunded
Tranche D
Commitments | | |
Total Tranche D
Commitments | |
Orion Energy Credit Opportunities Fund II, L.P. | |
$ | 23,242,477.14 | | |
$ | 6,701,302.71 | | |
$ | 4,457,432.60 | | |
$ | 5,494,171 | | |
$ | 383,721 | | |
| - | | |
$ | 5,877,892 | |
Orion Energy Credit Opportunities Fund II PV, L.P. | |
$ | 37,349,407.49 | | |
$ | 10,768,634.79 | | |
$ | 7,162,853.39 | | |
$ | 8,464,561 | | |
$ | 578,476 | | |
| - | | |
$ | 9,043,037 | |
Orion Energy Credit Opportunities Fund II GPFA, L.P. | |
$ | 2,289,772.37 | | |
$ | 660,190.66 | | |
$ | 439,131.93 | | |
$ | 541,268 | | |
$ | 37,803 | | |
| - | | |
$ | 579,071 | |
Orion Energy Credit Opportunities GCE Co-Invest, L.P. | |
$ | 35,035,167.98 | | |
$ | 122,814,572.71 | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | |
Orion Energy Credit Opportunities GCE Co-Invest B, L.P. | |
| - | | |
$ | 5,266,687.15 | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | |
Orion Energy Credit Opportunities Fund III PV, L.P. | |
| - | | |
$ | 24,116,506.64 | | |
$ | 3,656,686.88 | | |
$ | 4,303,005 | | |
$ | 293,409 | | |
| - | | |
$ | 4,596,413 | |
Orion Energy Credit Opportunities Fund III GPFA, L.P. | |
| - | | |
$ | 1,831,351.28 | | |
$ | 277,255.20 | | |
$ | 336,458 | | |
$ | 23,315 | | |
| - | | |
$ | 359,773 | |
Orion Energy Credit Opportunities Fund III, L.P. | |
| - | | |
$ | 52,678,706.36 | | |
$ | 7,975,246.61 | | |
$ | 9,678,229 | | |
$ | 670,644 | | |
| - | | |
$ | 10,348,872 | |
Orion Energy Credit Opportunities Fund III GPFA PV, L.P. | |
| - | | |
$ | 992,305.33 | | |
$ | 150,229.22 | | |
$ | 182,308 | | |
$ | 12,633 | | |
| - | | |
$ | 194,941 | |
LIF AIV 1, L.P. | |
| - | | |
$ | 98,826,066.78 | | |
| - | | |
| - | | |
$ | 5,000,000 | | |
| - | | |
$ | 5,000,000 | |
Voya Renewable Energy Infrastructure Originator I LLC | |
| - | | |
$ | 18,219,148.87 | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | |
Voya Renewable Energy Infrastructure Originator L.P. | |
| - | | |
$ | 29,474,958.10 | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | |
Total | |
$ | 97,916,824.98 | | |
$ | 372,350,431.38 | | |
$ | 24,118,835.83 | | |
$ | 29,000,000 | | |
$ | 7,000,000 | | |
| - | | |
$ | 36,000,000 | |
| 1 | Note: Lenders affiliated with Orion intend to fund on the Thirteenth
Amendment Effective Date. |
Exhibit B-1
to Amendment
No. 13
ANNEX II
TO
CREDIT AGREEMENT
Prepayment Premium and Tranche D Minimum Return
Calculations
[Attached]
Part A: Prepayment Premium
Tranche A+B
Annual
Interest Rate (Rate) |
15.00% |
|
|
|
|
|
Days
per Year (Days) |
360 |
|
|
|
|
|
Prepayment Premium Sample Calculation | |
Example 1 | |
Example 2 | |
Example 3 | |
Example 4 | |
Examples 5 | |
Example 6 |
Date of Prepayment | |
| 9/25/2020 | | |
| 9/25/2022 | | |
| 9/25/2022 | | |
| 12/6/2022 | | |
| 1/23/2023 | | |
| 1/23/2023 | |
Funding Dates | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Loan 1 | |
| 5/7/2020 | | |
| 5/7/2020 | | |
| 5/7/2020 | | |
| 5/7/2020 | | |
| 5/7/2020 | | |
| 5/7/2020 | |
Loan 2 | |
| | | |
| 7/29/2020 | | |
| 7/29/2020 | | |
| 7/29/2020 | | |
| 7/29/2020 | | |
| 7/29/2020 | |
End of Prepayment Premium Window | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Loan 1 | |
| 1/7/2023 | | |
| 1/7/2023 | | |
| 1/7/2023 | | |
| 1/7/2023 | | |
| 1/7/2023 | | |
| 1/7/2023 | |
Loan 2 | |
| | | |
| 3/29/2023 | | |
| 3/29/2023 | | |
| 3/29/2023 | | |
| 3/29/2023 | | |
| 3/29/2023 | |
Davs Remaining in Window | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Loan 1 | |
| 835 | | |
| 105 | | |
| 105 | | |
| 33 | | |
| - | | |
| - | |
Loan 2 | |
| - | | |
| 186 | | |
| 186 | | |
| 114 | | |
| 66 | | |
| 66 | |
Total Amount of Called Principal | |
| 50,000,000 | | |
| 50,000,000 | | |
| 50,000,000 | | |
| 50,000,000 | | |
| 50,000,000 | | |
| 100,000,000 | |
Outstanding Balance | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Loan 1 | |
| 50,000,000 | | |
| 50,000,000 | | |
| 30,000,000 | | |
| - | | |
| 50,000,000 | | |
| 50,000,000 | |
Loan 2 | |
| | | |
| 200,000,000 | | |
| 180,000,000 | | |
| 180,000,000 | | |
| 200,000,000 | | |
| 200,000,000 | |
Called Principal | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Loan 1 | |
| 50,000,000 | | |
| 50,000,000 | | |
| 30,000,000 | | |
| - | | |
| 50,000,000 | | |
| 50,000,000 | |
Loan 2 | |
| - | | |
| - | | |
| 20, 000,000 | | |
| 50,000,000 | | |
| - | | |
| 50,000,000 | |
Prepayment Premium Amount | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Loan 1 | |
| 17,395,833 | | |
| 2,187,500 | | |
| 1,312,500 | | |
| - | | |
| - | | |
| - | |
Loan 2 | |
| - | | |
| - | | |
| 1,550,000 | | |
| 2,375,000 | | |
| - | | |
| 1,375,000 | |
Tranche C
Annual
Interest Rate (Rate) |
15.00% |
|
|
|
|
|
Days
per Year (Days) |
360 |
|
|
|
|
|
Prepayment Premium Sample Calculation | |
Example 1 | |
Example 2 | |
Example 3 | |
Example 4 | |
Example 5 |
Date of Prepayment | |
| 3/31/2023 | | |
| 3/31/2025 | | |
| 3/31/2025 | | |
| 12/31/2025 | | |
| 10/1/2026 | |
Funding Dates | |
| | | |
| | | |
| | | |
| | | |
| | |
Tranche C | |
| 1/31/2023 | | |
| 1/31/2023 | | |
| 1/31/2023 | | |
| 1/31/2023 | | |
| 1/31/2023 | |
End of Prepayment Premium Window | |
| | | |
| | | |
| | | |
| | | |
| | |
Tranche C | |
| 8/31/2029 | | |
| 8/31/2029 | | |
| 8/31/2029 | | |
| 8/31/2029 | | |
| 8/31/2029 | |
Days Remaining in Window | |
| | | |
| | | |
| | | |
| | | |
| | |
Tranche C | |
| 2,346 | | |
| 1,615 | | |
| 1,615 | | |
| 1,340 | | |
| 1,066 | |
Total Amount of Called Principal | |
| 22,000,000 | | |
| 22,000,000 | | |
| 22,000,000 | | |
| 22,000,000 | | |
| 22,000,000 | |
Outstanding Balance | |
| | | |
| | | |
| | | |
| | | |
| | |
Tranche C | |
| 22,000,000 | | |
| 22,000,000 | | |
| 22,000,000 | | |
| 22,000,000 | | |
| 22,000,000 | |
Called Principal | |
| | | |
| | | |
| | | |
| | | |
| | |
Tranche C | |
| 22,000,000 | | |
| 22,000,000 | | |
| 22,000,000 | | |
| 22,000,000 | | |
| 22,000,000 | |
Prepayment Premium Amount | |
| | | |
| | | |
| | | |
| | | |
| | |
Tranche C | |
| 21,459,167 | | |
| 14,758,333 | | |
| 14,758,333 | | |
| 12,237,500 | | |
| 9,725,833 | |
Part B: Tranche D Minimum Return
Minimum Return Sample Calculation | |
Calculations | |
Example 1 | |
Example 2 | |
Example 3 | |
Example 4 | |
Example 5 | |
Example 6 |
Date of Repayment | |
| | | |
| 10/31/2023 | | |
| 11/30/2023 | | |
| 12/31/2023 | | |
| 1/31/2024 | | |
| 2/29/2024 | | |
| 3/31/2024 | |
Funding Dates | |
| | | |
| 6/30/2023 | | |
| 6/30/2023 | | |
| 6/30/2023 | | |
| 6/30/2023 | | |
| 6/30/2023 | | |
| 6/30/2023 | |
Months Since Funding Date | |
| Repayment less Funding Date | | |
| 4 | | |
| 5 | | |
| 6 | | |
| 7 | | |
| 8 | | |
| 9 | |
Total Amount of Called Principal | |
| | | |
| 85,000,000 | | |
| 85,000,000 | | |
| 85,000,000 | | |
| 85,000,000 | | |
| 85,000,000 | | |
| 85,000,000 | |
Applicable Prepayment Premium | |
| | | |
| 1.25 | x | |
| 1.25 | x | |
| 1.25 | x | |
| 1.60 | x | |
| 1.60 | x | |
| 1.60 | x |
Minium Return Amount | |
| Premium x Called Principal | | |
| 106,250,000 | | |
| 106,250,000 | | |
| 106,250,000 | | |
| 136,000,000 | | |
| 136,000,000 | | |
| 136,000,000 | |
Exhibit B-2
to Amendment
No. 13
ANNEX III
TO
CREDIT AGREEMENT
Target Debt Balances
Date | |
Target Debt Balance | | |
Payment | |
9/30/2023 | |
| 542,542,441.06 | | |
| | |
12/31/2023 | |
| 519,403,626.17 | | |
| (23,138,814.89 | ) |
3/31/2024 | |
| 495,161,405.19 | | |
| (24,242,220.98 | ) |
6/30/2024 | |
| 470,000,000.00 | | |
| (25,161,405.19 | ) |
9/30/2024 | |
| 446,517,684.41 | | |
| (23,482,315.59 | ) |
12/31/2024 | |
| 422,135,213.40 | | |
| (24,382,471.02 | ) |
3/31/2025 | |
| 396,466,301.65 | | |
| (25,668,911.75 | ) |
6/30/2025 | |
| 370,000,000.00 | | |
| (26,466,301.65 | ) |
9/30/2025 | |
| 188,479,149.63 | | |
| (181,520,850.37 | ) |
12/31/2025 | |
| - | | |
| (188,479,149.63 | ) |
3/31/2026 | |
| - | | |
| - | |
6/30/2026 | |
| - | | |
| - | |
9/30/2026 | |
| - | | |
| - | |
12/31/2026 | |
| - | | |
| - | |
3/31/2027 | |
| - | | |
| - | |
6/30/2027 | |
| - | | |
| - | |
9/30/2027 | |
| - | | |
| - | |
Exhibit 10.2
Execution Version
WAIVER NO. 8 TO CREDIT AGREEMENT
This WAIVER NO. 8 TO CREDIT
AGREEMENT, dated as of July 5, 2023 (this “Waiver”), is entered into by and among BKRF OCB, LLC, a Delaware limited
liability company (the “Borrower”), BKRF OCP, LLC, a Delaware limited liability company (“Holdings”),
Bakersfield Renewable Fuels, LLC, a Delaware limited liability company (the “Project Company”), Orion Energy Partners
TP Agent, LLC, in its capacity as the administrative agent (in such capacity, the “Administrative Agent”), and the
Tranche A Lenders, Tranche B Lenders, Tranche C Lenders and Tranche D Lenders party hereto , constituting 100% of the Tranche A Lenders,
Tranche B Lenders, Tranche C Lenders and Tranche D Lenders party to the Credit Agreement (as defined below) (the “Signatory Lenders”).
As used in this Waiver, capitalized terms which are not defined herein shall have the meanings ascribed to such terms in the Credit Agreement
(including, as applicable, in the Thirteenth Amendment (as defined below)) unless otherwise specified.
W I T N E S S E T H
WHEREAS, the Borrower, Holdings,
the Administrative Agent, Orion Energy Partners TP Agent, LLC, in its capacity as the collateral agent, and each Tranche A Lender, Tranche
B Lender, Tranche C Lender and Tranche D Lender party thereto have entered into that certain Credit Agreement, dated as of May 4, 2020
(as amended, amended and restated, modified and supplemented on or prior to the date hereof, the “Credit Agreement”);
WHEREAS, the Borrower, Holdings,
the Project Company, the Administrative Agent and the Signatory Lenders entered into that certain Amendment No. 13 to Credit Agreement,
dated as of the date hereof (the “Thirteenth Amendment”), to amend certain terms and conditions of the Credit Agreement
as expressly set forth in the Thirteenth Amendment and subject to the terms and conditions thereof (including the conditions to effectiveness
set forth therein);
WHEREAS, pursuant to this
Waiver, the Borrower has requested a waiver of all Defaults and Events of Default existing as of the Thirteenth Amendment Effective Date
(as defined in the Thirteenth Amendment) (which for the avoidance of doubt shall not include any potential Defaults and Events of Default
set forth in Section 7.01(k) of the Credit Agreement) (all such existing Defaults and Events of Default, collectively, the “Waiver
No. 8 Matters”), and the Signatory Lenders and the Administrative Agent have agreed, subject to the terms and conditions set
forth in this Waiver, to waive such Defaults and Events of Default;
NOW, THEREFORE, in consideration
of the mutual agreements, provisions and covenants contained herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Waivers.
(a) Subject
to the satisfaction of the conditions precedent set forth in Section 3 hereof, as of the Thirteenth Amendment Effective Date, the
Signatory Lenders, who constitute all of the Lenders under the Credit Agreement, and the Administrative Agent (acting on the instructions
of the Signatory Lenders) hereby permanently waive each Waiver No. 8 Matter, it being acknowledged and agreed that the Signatory Lenders
shall retain any and all claims of fraud or intentional misconduct of the Loan Parties or one or more of their parent companies based
on facts and information that are not known to the Signatory Lenders or the Administrative Agent as of the date hereof.
(b) The
waiver contained in the foregoing clause (a) is a limited waiver and (i) shall be limited precisely as written, (ii) shall only be relied
upon and used for the specific purposes set forth herein, (iii) shall not constitute or be deemed to constitute a waiver or consent to
any other Event of Default (other than as expressly noted above) or any other term or condition of the Financing Documents and (iv) shall
not constitute a custom or course of dealing among the parties hereto. Notwithstanding any provision contained herein, nothing contained
herein shall limit any rights or remedies under the Financing Documents or applicable law based on any breaches, failures, defaults or
Events of Default (as defined in each applicable Financing Document) thereunder that has not been waived pursuant to the terms of this
Waiver (other than as expressly noted above).
2. Representations
and Warranties. Each Loan Party hereby represents and warrants to the other parties hereto that:
(a) Each
Loan Party has full corporate, limited liability company or other organizational powers, authority and legal right to enter into, deliver
and perform its respective obligations under this Waiver, and has taken all necessary corporate, limited liability company or other organizational
action to authorize the execution, delivery and performance by it of this Waiver. This Waiver has been duly executed and delivered by
the Loan Parties, is in full force and effect and constitutes a legal, valid and binding obligation of the Loan Parties, enforceable against
such Loan Party in accordance with its respective terms, except as enforcement may be limited (i) by Bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith
and fair dealing.
(b) The
execution, delivery and performance by each Loan Party of this Waiver does not and will not (i) conflict with the Organizational Documents
of such Loan Party, (ii) conflict with or result in a breach of, or constitute a default under, any indenture, loan agreement, mortgage,
deed of trust or other instrument or agreement to which such Loan Party is a party or by which it is bound or to which such Loan Party’s
property or assets are subject (other than any Material Project Document to which such Loan Party is a party), except where such contravention
or breach could not reasonably be expected to be material and adverse to the Loan Parties or Lenders, (iii) conflict with or result in
a breach of, or constitute a default under, any Material Project Document to which such Loan Party is a party, (iv) conflict with or result
in a breach of, or constitute a default under, in any material respect, any Applicable Law, except where such contravention or breach
could not reasonably be expected to have a Material Adverse Effect, or (v) with respect to each Loan Party, result in the creation or
imposition of any Lien (other than a Permitted Lien) upon any of such Loan Party’s property or the Collateral.
(c) After
giving effect to the waivers set forth in this Waiver and the amendments set forth in the Thirteenth Amendment, no Default or Event of
Default has occurred and is continuing or would result from the transactions contemplated in this Waiver.
(d) After
giving effect to the waivers set forth in this Waiver and the amendments set forth in the Thirteenth Amendment, the representations and
warranties of each of the Loan Parties set forth in Article III of the Credit Agreement and in each other Financing Document are
true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such
representations and warranties are true and correct in all respects) on and as of the Thirteenth Amendment Effective Date (unless stated
to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date).
3. Effectiveness;
Conditions Precedent. This Waiver shall become effective on the first date on which each of the following conditions have been satisfied
or waived:
(a) This
Waiver shall have been executed by the Administrative Agent, the Loan Parties and the Signatory Lenders and the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto; and
(b) The
Thirteenth Amendment Effective Date (as defined in the Thirteenth Amendment) shall have occurred.
4. Miscellaneous.
(a) No
Other Modification. Except as expressly modified by this Waiver and the Thirteenth Amendment, the Credit Agreement and the other Financing
Documents are and shall remain unchanged and in full force and effect, and nothing contained in this Waiver shall, by implication or otherwise,
limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, or any of
the other parties, or shall alter, modify, amend or in any way affect any of the other terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement which are not by the terms of this Waiver being amended, or alter, modify or amend or in any way affect
any of the other Financing Documents.
(b) Successor
and Assigns. This Waiver shall be binding upon and inure to the benefit of the parties to this Waiver and their respective successors
and permitted assigns.
(c) Incorporation
by Reference. Sections 10.07 (Severability), 10.09 (Governing Law; Jurisdiction; Etc.), 10.11 (Headings), and
10.17 (Electronic Execution of Assignments and Certain Other Documents) of the Credit Agreement are hereby incorporated by reference
herein, mutatis mutandis.
(d) Financing
Document. This Waiver shall be deemed to be a Financing Document.
(e) Counterparts;
Integration. This Waiver may be executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single contract. This Waiver, the Credit Agreement
and the other Financing Documents to which a Loan Party is party constitute the entire contract between and among the parties relating
to the subject matter hereof and thereof and supersede any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof. Delivery of an executed counterpart of a signature page to this Waiver by telecopy or scanned electronic transmission
shall be effective as delivery of a manually executed counterpart of this Waiver.
(f) Electronic
Signatures. The words “execution,” “execute”, “signed,” “signature,” and words of
like import in or related to any document to be signed in connection with this Waiver and the transactions contemplated hereby shall be
deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved
by the parties hereto, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for
in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties
hereto have caused this Waiver to be duly executed and delivered by their duly authorized signatories as of the day and year first above
written.
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BKRF OCB,
LLC, |
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as the Borrower |
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By: |
/s/ Richard
Palmer |
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Name: |
Richard Palmer |
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Title: |
President |
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BKRF OCP,
LLC, |
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as Holdings |
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By: |
/s/ Richard
Palmer |
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Name: |
Richard Palmer |
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Title: |
President |
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BAKERSFIELD RENEWABLE FUELS, LLC, |
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as Project Company |
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By: |
/s/ Richard
Palmer |
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Name: |
Richard Palmer |
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Title: |
President |
[Signature Page to Waiver No. 8 to Credit Agreement]
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ORION ENERGY PARTNERS TP AGENT, LLC, |
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as Administrative Agent |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
[Signature Page to Waiver No. 8 to Credit Agreement]
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ORION ENERGY CREDIT OPPORTUNITIES FUND II, L.P., |
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as a Lender |
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By: |
Orion Energy Credit Opportunities Fund II GP, L.P., its general partner |
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By: |
Orion Energy Credit Opportunities Fund II Holdings, LLC, its general partner |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
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ORION ENERGY CREDIT OPPORTUNITIES FUND II PV, L.P., |
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as a Lender |
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By: |
Orion Energy Credit Opportunities Fund II GP, L.P., its general partner |
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By: |
Orion Energy Credit Opportunities Fund II Holdings, LLC, its general partner |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
[Signature Page to Waiver No. 8 to Credit Agreement]
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ORION ENERGY CREDIT OPPORTUNITIES FUND II GPFA, L.P., |
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as a Lender |
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By: |
Orion Energy Credit Opportunities Fund II GP, L.P., its general partner |
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By: |
Orion Energy Credit Opportunities Fund II Holdings, LLC, its general partner |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
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ORION ENERGY CREDIT OPPORTUNITIES GCE CO-INVEST, L.P., |
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as a Lender |
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By: |
Orion Energy Credit Opportunities Fund II GP, L.P., its general partner |
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By: |
Orion Energy Credit Opportunities Fund II Holdings, LLC, its general partner |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
[Signature Page to Waiver No. 8 to Credit Agreement]
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ORION ENERGY CREDIT OPPORTUNITIES FUND III, L.P., |
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as a Lender |
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By: |
Orion Energy Credit Opportunities Fund III GP, L.P., its general partner |
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By: |
Orion Energy Credit Opportunities Fund III Holdings, LLC, its general partner |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
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ORION ENERGY CREDIT OPPORTUNITIES FUND III PV, L.P., |
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as a Lender |
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By: |
Orion Energy Credit Opportunities Fund III GP, L.P., its general partner |
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By: |
Orion Energy Credit Opportunities Fund III Holdings, LLC, its general partner |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
[Signature Page to Waiver No. 8 to Credit Agreement]
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ORION ENERGY CREDIT OPPORTUNITIES FUND III GPFA, L.P., |
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as a Lender |
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By: |
Orion Energy Credit Opportunities Fund III GP, L.P., its general partner |
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By: |
Orion Energy Credit Opportunities Fund III Holdings, LLC, its general partner |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
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ORION ENERGY CREDIT OPPORTUNITIES FUND III GPFA PV, L.P., |
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as a Lender |
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By: |
Orion Energy Credit Opportunities Fund III GP, L.P., its general partner |
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By: |
Orion Energy Credit Opportunities Fund III Holdings, LLC, its general partner |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
[Signature Page to Waiver No. 8 to Credit Agreement]
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VOYA RENEWABLE ENERGY INFRASTRUCTURE ORIGINATOR L.P., as Lender |
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VOYA RENEWABLE ENERGY INFRASTRUCTURE ORIGINATOR i llc, as a Lender |
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By: |
Voya Alternative Asset Management LLC, as Agent |
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By: |
/s/ Edward Levin |
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Name: |
Edward Levin |
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Title: |
Senior Vice President |
[Signature Page to Waiver No. 8 to Credit Agreement]
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LIF AIV 1, L.P., |
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as a Lender |
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By: |
GCM Investments GP, LLC, its General Partner |
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By: |
/s/ Todd Henigan |
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Name: |
Todd Henigan |
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Title: |
Authorized Signatory |
[Signature Page to Waiver No. 8 to Credit Agreement]
Exhibit 10.3
WARRANT
THIS WARRANT AND THE SECURITIES ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR QUALIFIED UNDER
ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ASSIGNED
UNLESS (A) A REGISTRATION STATEMENT COVERING THIS WARRANT OR SUCH SECURITIES, AS THE CASE MAY BE, IS EFFECTIVE UNDER THE ACT AND IS QUALIFIED
UNDER APPLICABLE STATE AND FOREIGN LAW OR (B) THE TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS UNDER
THE ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE AND FOREIGN LAW AND, IF THE CORPORATION REQUESTS, AN OPINION SATISFACTORY
TO THE CORPORATION TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.
Warrant Certificate No.: GCEH-[ ●
]
Original Issue Date: [__], 2023
FOR VALUE RECEIVED, GLOBAL CLEAN ENERGY
HOLDINGS INC., a Delaware corporation (the “Company”), hereby certifies that [ ● ] (the
“Holder”) is entitled to purchase from the Company [ ● ] duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock at a purchase price per share equal to $0.075 (subject to adjustment as provided herein) (the
“Exercise Price”), subject to the terms, conditions and adjustments set forth below in this Warrant. Certain
capitalized terms used herein are defined in Section 1.
1. Definitions.
As used in this Warrant, the following terms have the respective meanings set forth below:
“Affiliate”
of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is
under common control with, such Person. The term “control” (including the terms “controlled by” and “under
common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Aggregate
Exercise Price” means an amount equal to the product of (a) the number of Warrant Shares in respect of which this Warrant is
then being exercised pursuant to Section 3 hereof, multiplied by (b) the Exercise Price, in accordance with the terms of
this Warrant.
“Amendment
No. 9 to Credit Agreement” means that certain Amendment No. 9 to the Credit Agreement, dated August 5, 2022, by and among BKRF
OCB, LLC, a Delaware limited liability company, BKRF OCP, LLC, a Delaware limited liability company, Bakersfield Renewable Fuels, LLC,
a Delaware limited liability company, the lenders party thereto and Orion Energy Partners TP Agent, LLC, as the administrative agent and
collateral agent.
“Amendment
No. 10 to Credit Agreement” means that certain Amendment No. 10 to the Credit Agreement, dated January 30, 2023, by and among
BKRF OCB, LLC, a Delaware limited liability company, BKRF OCP, LLC, a Delaware limited liability company, Bakersfield Renewable Fuels,
LLC, a Delaware limited liability company, the lenders party thereto and Orion Energy Partners TP Agent, LLC, as the administrative agent
and collateral agent.
“Amendment
No. 11 to Credit Agreement” means that certain Amendment No. 11 to the Credit Agreement, dated May 19, 2023, by and among BKRF
OCB, LLC, a Delaware limited liability company, BKRF OCP, LLC, a Delaware limited liability company, Bakersfield Renewable Fuels, LLC,
a Delaware limited liability company, the lenders party thereto and Orion Energy Partners TP Agent, LLC, as the administrative agent and
collateral agent.
“Amendment
No. 12 to Credit Agreement” means that certain Amendment No. 12 to the Credit Agreement, dated June 21, 2023, by and among BKRF
OCB, LLC, a Delaware limited liability company, BKRF OCP, LLC, a Delaware limited liability company, Bakersfield Renewable Fuels, LLC,
a Delaware limited liability company, the lenders party thereto and Orion Energy Partners TP Agent, LLC, as the administrative agent and
collateral agent.
“Amendment
No. 13 to Credit Agreement” means that certain Amendment No. 13 to the Credit Agreement, dated July 5, 2023, by and among BKRF
OCB, LLC, a Delaware limited liability company, BKRF OCP, LLC, a Delaware limited liability company, Bakersfield Renewable Fuels, LLC,
a Delaware limited liability company, the lenders party thereto and Orion Energy Partners TP Agent, LLC, as the administrative agent and
collateral agent.
“Board”
means the board of directors of the Company.
“Business
Day” means any day, except a Saturday, Sunday or legal holiday, on which banking institutions in the city of New York, New York
are authorized or obligated by law or executive order to close.
“Camelina”
means camelina, regardless of form (whether seed, grain or oil), developed, cultivated, produced, owned, and sold, by or on behalf of,
the Company or an Affiliate of the Company.
“Common Stock”
means the common stock, par value $0.01 per share, of the Company, and any capital stock into which such Common Stock shall have been
converted, exchanged or reclassified following the date hereof.
“Company”
has the meaning set forth in the preamble.
“Convertible
Securities” means any securities (directly or indirectly) exercisable for, convertible into or exchangeable for Common Stock,
but excluding Options.
“Excluded
Issuances” means any issuance or sale by the Company after the Original Issue Date of (a) shares of Common Stock issued upon
the exercise of this Warrant, (b) Common Stock (or Options with respect thereto) issued or issuable to employees or directors of, or consultants
to, the Company or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors of the Company,
(c) shares of Common Stock issued or issuable pursuant to the terms of securities (including Convertible Securities) issued under the
Purchase Agreement, Amendment No. 9 to Credit Agreement, Amendment No. 10 to Credit Agreement, Amendment No. 11 to Credit Agreement, Amendment
No. 12 to Credit Agreement, Amendment No. 13 to Credit Agreement or the Transaction Agreement (as such securities have been amended),
(d) securities issuable upon the exercise, exchange, or conversion of any Convertible Securities that are issued and outstanding on the
Original Issue Date, provided that such securities are not amended after the date hereof to increase the number of shares of Common
Stock issuable thereunder or to lower the exercise or conversion price thereof or (e) Common Stock, Options or Convertible Securities
with respect thereto, issued as acquisition consideration pursuant to the acquisition of another entity by the Company by merger, purchase
of substantially all of the assets or other reorganization or pursuant to a joint venture agreement. In addition, for the avoidance of
doubt, “Excluded Issuances” also include the filing of any registration statement of the Company with the Securities and Exchange
Commission registering securities of the Company, or the filing of any amendments or supplements thereto, provided that the determination
of whether any sale under any such registration statement is an Excluded Issuance will be determined based on the preceding clauses (a)
to (e) hereof.
“Exercise
Agreement” has the meaning set forth in Section 3(a)(i).
“Exercise
Date” means, for any given exercise of this Warrant, the date on which the conditions to such exercise as set forth in Section
3 shall have been satisfied at or prior to 5:00 p.m., New York, New York time, on a Business Day, including, without limitation, the
receipt by the Company of the Exercise Agreement, the Warrant and the Aggregate Exercise Price.
“Exercise
Period” has the meaning set forth in Section 2.
“Exercise
Price” has the meaning set forth in the preamble.
“Fair Market
Value” means, as of any particular date: (a) the volume weighted average of the closing sales prices of the Common Stock for
such day on all domestic securities exchanges on which the Common Stock may at the time be listed; (b) if there have been no sales of
the Common Stock on any such exchange on any such day, the average of the highest bid and lowest asked prices for the Common Stock on
all such exchanges at the end of such day; (c) if on any such day the Common Stock is not listed on a domestic securities exchange, the
closing sales price of the Common Stock as quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association
for such day; or (d) if there have been no sales of the Common Stock on the OTC Bulletin Board, the Pink OTC Markets or similar quotation
system or association on such day, the average of the highest bid and lowest asked prices for the Common Stock quoted on the OTC Bulletin
Board, the Pink OTC Markets or similar quotation system or association at the end of such day; in each case, averaged over three (3) consecutive
Business Days ending on the Business Day immediately prior to the day as of which “Fair Market Value” is being determined;
provided, that if the Common Stock is listed on any domestic securities exchange, the term “Business Day” as used in
this sentence means Business Days on which such exchange is open for trading. If at any time the Common Stock is not listed on any domestic
securities exchange or quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association, the “Fair
Market Value” of the Common Stock shall be the fair market value per share as determined jointly by the Board and the Holder, or,
if that selection cannot be made within ten (10) days, by a nationally recognized and independent investment banking or valuation firm
selected jointly and approved by the Board and the Holder (including the methodologies to be utilized), or if joint selection and approval
is not achieved within ten (10) days, the American Arbitration Association shall select the independent investment banking or valuation
firm in accordance with its rules. The determination of such firm shall be final and conclusive, and the fees and expenses of such firm
shall be borne equally by the Company and the Holder.
“Holder”
has the meaning set forth in the preamble.
“Options”
means any warrants or other rights or options to subscribe for, or for the purchase of Common Stock or Convertible Securities.
“Original
Issue Date” means the date hereof.
“OTC Bulletin
Board” means the Financial Industry Regulatory Authority OTC Bulletin Board electronic inter-dealer quotation system.
“Person”
means any individual, sole proprietorship, partnership, limited liability company, corporation, joint venture, trust, incorporated organization
or government or department or agency thereof.
“Pink OTC
Markets” means the OTC Markets Group Inc. electronic inter-dealer quotation system, including OTCQX, OTCQB and OTC Pink.
“Purchase
Agreement” means that certain Securities Purchase Agreement, dated as of February 2, 2022, by and between the Company and the
other parties thereto .
“Purchase
Rights” has the meaning set forth in Section 5.
“Securities
Act” has the meaning set forth in Section 10(a).
“Transaction
Agreement” means the Transaction Agreement, dated as of August 5, 2022, by and among ExxonMobil Oil Corporation, ExxonMobil
Renewables LLC and the Company.
“Underlying
Consideration” has the meaning set forth in Section 4(b).
“Warrant”
means this Warrant and all warrants issued upon division or combination of, or in substitution for, this Warrant.
“Warrant
Shares” means the shares of Common Stock of the Company then purchasable upon exercise of this Warrant in accordance with the
terms of this Warrant.
2. Term
of Warrant. Subject to the terms and conditions hereof, at any time or from time to time after the Original Issue Date and
prior to 5:00 p.m., New York, New York time, on December 23, 2028 or, if such day is not a Business Day, on the next preceding Business
Day (the “Exercise Period”), the Holder of this Warrant may exercise this Warrant for all or any part of the Warrant
Shares purchasable hereunder (subject to adjustment as provided herein).
3. Exercise
of Warrant.
(a) Exercise
Procedure. This Warrant may be exercised from time to time on any Business Day during the Exercise Period, for all or any part of
the unexercised Warrant Shares, upon:
(i) delivery
of an Exercise Agreement substantially in the form attached hereto as Exhibit A (each, an “Exercise Agreement”),
duly completed (including specifying the number of Warrant Shares to be purchased) and executed; and
(ii) payment
to the Company of the Aggregate Exercise Price in accordance with Section 3(b).
Notwithstanding
anything to the contrary contained herein, the Holder shall not be required to deliver this Warrant in order to effect an exercise hereunder;
provided, however, that execution and delivery of the Exercise Agreement for the total amount of Common Stock available to the
Holder hereunder shall have the same effect as cancellation of this Warrant. Notwithstanding the foregoing, the Holder shall deliver this
Warrant in the event the right to acquire Warrant Shares pursuant to this Warrant has expired or has been fully exercised.
(b) Payment
of the Aggregate Exercise Price. Payment of the Aggregate Exercise Price shall be made, at the option of the Holder as expressed in
the Exercise Agreement, by the following methods:
(i) by
delivery to the Company of a certified or official bank check payable to the order of the Company or by wire transfer of immediately available
funds to an account designated in writing by the Company, in the amount of such Aggregate Exercise Price;
(ii) by
instructing the Company to withhold a number of Warrant Shares then issuable upon exercise of this Warrant with an aggregate Fair Market
Value as of the Exercise Date equal to such Aggregate Exercise Price;
(iii) by
surrendering to the Company the Warrant Shares previously acquired by the Holder with an aggregate Fair Market Value as of the Exercise
Date equal to such Aggregate Exercise Price; or
(iv) any
combination of the foregoing.
In the event of any
withholding of Warrant Shares or surrender of other equity securities pursuant to clause (ii), (iii) or (iv) above where the number of
shares whose value is equal to the Aggregate Exercise Price is not a whole number, the number of shares withheld by or surrendered to
the Company shall be rounded up to the nearest whole share and the Company shall make a cash payment to the Holder (by delivery of a certified
or official bank check or by wire transfer of immediately available funds) based on the incremental fraction of a share being so withheld
by or surrendered to the Company in an amount equal to the product of (x) such incremental fraction of a share being so withheld or surrendered
multiplied by (y) in the case of Common Stock, the Fair Market Value per Warrant Share as of the Exercise Date.
(c) Use
of Proceeds. The Company shall use the net proceeds from the Aggregate Exercise Price received hereunder to fund the continued development
of biofuels projects in which Holder or its Affiliates participate and the production of Camelina.
(d) Delivery
of Stock Certificates. Upon receipt by the Company of the Exercise Agreement, surrender of this Warrant and payment of the Aggregate
Exercise Price (in accordance with Section 3(a)), the Company shall, as promptly as practicable, and in any event within ten (10)
Business Days thereafter, execute (or cause to be executed) and deliver (or cause to be delivered) to the Holder a certificate or certificates
representing the Warrant Shares issuable upon such exercise, together with cash in lieu of any fraction of a share, as provided in Section
3(e). The stock certificate or certificates so delivered shall be, to the extent possible, in such denomination or denominations as
the exercising Holder shall reasonably request in the Exercise Agreement and shall be registered in the name of the Holder or, subject
to compliance with Section 5, such other Person’s name as shall be designated in the Exercise Agreement. This Warrant shall
be deemed to have been exercised and such certificate or certificates of Warrant Shares shall be deemed to have been issued, and the Holder
or any other Person so designated to be named therein shall be deemed to have become a holder of record of such Warrant Shares for all
purposes, as of the Exercise Date. Notwithstanding anything to the contrary in this Section 3(d), the Warrant Shares may be issued
in uncertificated or book-entry form, at the option of the Holder, with such uncertificated Warrant Shares being evidenced by a book position
either on the Company’s share register or on the books of The Depository Trust Company, at the option of the Holder.
(e) Fractional
Shares. The Company shall not be required to issue a fractional Warrant Share upon exercise of any Warrant. As to any fraction of
a Warrant Share that the Holder would otherwise be entitled to purchase upon such exercise, the Company shall pay to such Holder an amount
in cash (by delivery of a certified or official bank check or by wire transfer of immediately available funds) equal to the product of
(i) such fraction multiplied by (ii) the Fair Market Value of one Warrant Share on the Exercise Date.
(f) Delivery
of New Warrant. Unless the purchase rights represented by this Warrant shall have expired or shall have been fully exercised, the
Company shall, at the time of delivery of the certificate or certificates representing the Warrant Shares being issued in accordance with
Section 3(d), deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unexpired and unexercised
Warrant Shares called for by this Warrant. Such new Warrant shall in all other respects be identical to this Warrant.
(g) Valid
Issuance of Warrant and Warrant Shares; Payment of Taxes. With respect to the exercise of this Warrant, the Company hereby represents,
covenants and agrees:
(i) This
Warrant is, and any Warrant issued in substitution for or replacement of this Warrant shall be, upon issuance, duly authorized and validly
issued.
(ii) All
Warrant Shares issuable upon the exercise of this Warrant pursuant to the terms hereof shall be, upon issuance, and the Company shall
take all such actions as may be necessary or appropriate in order that such Warrant Shares are, validly issued, fully paid and non-assessable,
issued without violation of any preemptive or similar rights of any stockholder of the Company and free and clear of all taxes, liens
and charges.
(iii) The
Company shall take all such actions as may be necessary to ensure that all such Warrant Shares are issued without violation by the Company
of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock
or other securities constituting Warrant Shares may be listed at the time of such exercise (except for official notice of issuance which
shall be immediately delivered by the Company upon each such issuance).
(iv) The
Company shall use its best efforts to cause the Warrant Shares, immediately upon such exercise, to be listed on any domestic securities
exchange upon which shares of Common Stock or other securities constituting Warrant Shares are listed at the time of such exercise.
(v) The
Company shall pay all expenses in connection with, and all taxes and other governmental charges that may be imposed with respect to, the
issuance or delivery of Warrant Shares upon exercise of this Warrant; provided, that the Company shall not be required to pay any
tax or governmental charge that may be imposed with respect to any applicable withholding or the issuance or delivery of the Warrant Shares
to any Person other than the Holder, and no such issuance or delivery shall be made unless and until the Person requesting such issuance
has paid to the Company the amount of any such tax, or has established to the satisfaction of the Company that such tax has been paid.
(h) Conditional
Exercise. Notwithstanding any other provision hereof, if an exercise of any portion of this Warrant is to be made in connection with
a public offering or a sale of the Company (pursuant to a merger, sale of stock, or otherwise), such exercise may at the election of the
Holder be conditioned upon the consummation of such transaction, in which case such exercise shall not be deemed to be effective until
immediately prior to the consummation of such transaction.
(i) Reservation
of Shares. During the Exercise Period, the Company shall at all times reserve and keep available out of its authorized but unissued
Common Stock or other securities constituting Warrant Shares, solely for the purpose of issuance upon the exercise of this Warrant, the
maximum number of Warrant Shares issuable upon the exercise of this Warrant, and the par value per Warrant Share shall at all times be
less than or equal to the applicable Exercise Price. The Company shall not increase the par value of any Warrant Shares receivable upon
the exercise of this Warrant above the Exercise Price then in effect, and shall take all such actions as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this
Warrant.
(j) Maximum
Percentage. Notwithstanding anything to the contrary contained herein, unless all of Orion Energy Credit Opportunities Fund II, L.P.,
Orion Energy Credit Opportunities Fund II PV, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., Orion Energy Credit Opportunities
Fund GCE Co-Invest, L.P., Orion Energy Credit Opportunities Fund GCE Co-Invest B, L.P., Orion Energy Credit Opportunities Fund III PV,
L.P., Orion Energy Credit Opportunities Fund III GPFA, L.P., Orion Energy Credit Opportunities Fund III, L.P., Orion Energy Credit Opportunities
Fund III GPFA PV, L.P., LIF AIV 1, L.P., Voya Renewable Energy Infrastructure Originator I LLC and Voya Renewable Energy Infrastructure
Originator L.P. (the “Lender Holders”), together with any other “attribution parties”, file any Securities
and Exchange Commission reports required as a result of such Lender Holders and such other “attribution parties” collectively
beneficially owning in the aggregate in excess of 4.99% of the number of shares of Common Stock of the Company outstanding, this Warrant
shall not be exercisable by Holder if such Holder together with any other “attribution parties” collectively would beneficially
own in the aggregate in excess of 4.99% (the “Maximum Percentage”) of the number of shares of Common Stock of the Company
outstanding immediately after giving effect to such exercise. For purposes of the foregoing, beneficial ownership shall be calculated
in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended. At any time, upon written notice to the Company,
Holder may increase or decrease the Maximum Percentage to any other percentage; provided that any increase to the Maximum Percentage shall
not be effective until the sixty-first (61st) day after such written notice is delivered to the Company.
4. Adjustment
to Exercise Price and
Warrant Shares. The Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant shall be subject
to adjustment from time to time as provided in this Section 4 (in each case, after taking into consideration any prior adjustments
pursuant to this Section 4).
(a) Adjustment
to Exercise Price and Warrant Shares Upon Dividend, Subdivision or Combination of Common Stock. If the Company shall, at any time
or from time to time after the Original Issue Date, (i) pay a dividend or make any other distribution upon the Common Stock or any other
capital stock of the Company payable in shares of Common Stock or in Options or Convertible Securities, or (ii) subdivide (by any stock
split, recapitalization or otherwise) its outstanding shares of Common Stock into a greater number of shares, the Exercise Price in effect
immediately prior to any such dividend, distribution or subdivision shall be proportionately reduced and the number of Warrant Shares
issuable upon exercise of this Warrant Certificate shall be proportionately increased. If the Company at any time combines (by combination,
reverse stock split or otherwise) its outstanding shares of Common Stock into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall be proportionately increased and the number of Warrant Shares issuable upon exercise of this
Warrant Certificate shall be proportionately decreased. Any adjustment under this Section 4(a) shall become effective at the close
of business on the date the dividend, subdivision or combination becomes effective.
(b) Adjustment
to Exercise Price and Warrant Shares Upon Reorganization, Reclassification, Consolidation or Merger. In the event of any (i) capital
reorganization of the Company, (ii) reclassification of the stock of the Company (other than a change in par value or from par value to
no par value or from no par value to par value or as a result of a stock dividend or subdivision, split-up or combination of shares),
(iii) consolidation or merger of the Company with or into another Person, (iv) sale of all or substantially all of the Company’s
assets to another Person or (v) other similar transaction, in each case which entitles the holders of Common Stock to receive (either
directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock, each Warrant shall,
immediately after such reorganization, reclassification, consolidation, merger, sale or similar transaction, remain outstanding and shall
thereafter, in lieu of or in addition to (as the case may be) the number of Warrant Shares then exercisable under this Warrant, be exercisable
for the kind and number of shares of stock or other securities or assets of the Company or of the successor Person resulting from such
transaction to which the Holder would have been entitled upon such reorganization, reclassification, consolidation, merger, sale or similar
transaction if the Holder had exercised this Warrant in full immediately prior to the time of such reorganization, reclassification, consolidation,
merger, sale or similar transaction and acquired the applicable number of Warrant Shares then issuable hereunder as a result of such exercise
(without taking into account any limitations or restrictions on the exercisability of this Warrant) (collectively, the “Underlying
Consideration”); and, in such case, appropriate adjustment (in form and substance satisfactory to the Holder) shall be made
with respect to the Holder’s rights under this Warrant to insure that the provisions of this Section 4 shall thereafter be
applicable, as nearly as possible, to this Warrant in relation to any shares of stock, securities or assets thereafter acquirable upon
exercise of this Warrant (including, in the case of any consolidation, merger, sale or similar transaction in which the successor or purchasing
Person is other than the Company, an immediate adjustment in the Exercise Price to the value per share for the Common Stock reflected
by the terms of such consolidation, merger, sale or similar transaction, and a corresponding immediate adjustment to the number of Warrant
Shares acquirable upon exercise of this Warrant without regard to any limitations or restrictions on exercise, if the value so reflected
is less than the Exercise Price in effect immediately prior to such consolidation, merger, sale or similar transaction). If any such reorganization,
reclassification, consolidation, merger, sale or similar transaction entitles the holders of Common Stock to receive more than a single
type of consideration (determined based in part upon any form of stockholder election), then for purposes of this Section 4(b),
such consideration shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders
of Common Stock in such transaction. If, immediately after giving effect to any such reorganization, reclassification, consolidation,
merger, sale or similar transaction, shares of common stock that are listed on any domestic securities exchange or quoted on the OTC Bulletin
Board, the Pink OTC Markets or any similar quotation system or association account for less than 90% of the aggregate Fair Market Value
of the Underlying Consideration (assuming the Fair Market Value of any cash is the face amount of such cash), then the Exercise Price
and the amount of the Underlying Consideration shall be adjusted as of the effective date of such transaction to compensate the Holder
for lost time value. Such adjustments shall be determined based on a Black-Scholes option pricing model by a nationally recognized and
independent investment banking or valuation firm selected jointly and approved by the Board and the Holder; provided that (x) if
such joint selection and approval is not achieved within ten (10) days, the American Arbitration Association shall select the independent
investment banking or valuation firm in accordance with its rules and (y) the determination of such firm shall be final and conclusive,
and the fees and expenses of such firm shall be borne equally by the Company and the Holder. The provisions of this Section 4(b)
shall similarly apply to successive reorganizations, reclassifications, consolidations, mergers, sales or similar transactions. The Company
shall not effect any such reorganization, reclassification, consolidation, merger, sale or similar transaction unless, prior to the consummation
thereof, the successor Person (if other than the Company) resulting from such reorganization, reclassification, consolidation, merger,
sale or similar transaction, shall assume, by written instrument substantially similar in form and substance to this Warrant and satisfactory
to the Holder, the obligation to deliver to the Holder such shares of stock, securities or assets which, in accordance with the foregoing
provisions, such Holder shall be entitled to receive upon exercise of this Warrant. Notwithstanding anything to the contrary contained
herein, with respect to any corporate event or other transaction contemplated by the provisions of this Section 4(b), the Holder
shall have the right to receive the same consideration as any other holder of Common Stock if the Holder elects prior to the consummation
of such event or transaction to give effect to the exercise rights contained in Section 2 instead of giving effect to the provisions
contained in this Section 4(b) with respect to this Warrant.
(c) Certain
Events. If any event of the type contemplated by the provisions of this Section 4 but not expressly provided for by such provisions
(including, without limitation, a premium self-tender offer, a dividend or distribution upon the Common Stock payable in cash or other
assets or property, or the granting of stock appreciation rights, phantom stock rights or other rights with equity features, other than
with respect to any Excluded Issuance) occurs, then the Board shall make an appropriate adjustment in the Exercise Price and the number
of Warrant Shares issuable upon exercise of this Warrant so as to protect the rights of the Holder in a manner consistent with the provisions
of this Section 4; provided, that no such adjustment pursuant to this Section 4(c) shall increase the Exercise Price
or decrease the number of Warrant Shares issuable as otherwise determined pursuant to this Section 4, and for the avoidance of
doubt, no adjustment pursuant to this Section 4(c) shall be made in connection with any Excluded Issuance.
(d) Certificate
as to Adjustment.
(i) As
promptly as reasonably practicable following any adjustment of the Exercise Price, but in any event not later than ten (10) Business Days
thereafter, the Company shall furnish to the Holder a certificate of an executive officer setting forth in reasonable detail such adjustment
and the facts upon which it is based and certifying the calculation thereof.
(ii) As
promptly as reasonably practicable following the receipt by the Company of a written request by the Holder, but in any event not later
than ten (10) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer certifying the Exercise
Price then in effect and the number of Warrant Shares or the amount, if any, of other shares of stock, securities or assets then issuable
upon exercise of the Warrant.
(e) Notices.
In the event:
(i) that
the Company shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon exercise
of the Warrant) for the purpose of entitling or enabling them to receive any dividend or other distribution, to vote at a meeting (or
by written consent), to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities,
or to receive any other security; or
(ii) of
any capital reorganization of the Company, any reclassification of the Common Stock of the Company, any consolidation or merger of the
Company with or into another Person, or sale of all or substantially all of the Company’s assets to another Person; or
(iii) of
the voluntary or involuntary dissolution, liquidation or winding-up of the Company;
then, and in each
such case, the Company shall send or cause to be sent to the Holder at least thirty (30) days prior to the applicable record date or the
applicable expected effective date, as the case may be, for the event, a written notice specifying, as the case may be, (A) the record
date for such dividend, distribution, meeting or consent or other right or action, and a description of such dividend, distribution or
other right or action to be taken at such meeting or by written consent, or (B) the effective date on which such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up is proposed to take place, and the date, if any is to be fixed, as
of which the books of the Company shall close or a record shall be taken with respect to which the holders of record of Common Stock (or
such other capital stock or securities at the time issuable upon exercise of the Warrant) shall be entitled to exchange their shares of
Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up, and the amount per share and character of such exchange applicable
to the Warrant and the Warrant Shares.
5. Purchase
Rights. If at any time the Company grants, issues or sells any shares of Common Stock or rights to purchase stock, warrants,
securities or other property pro rata to the record holders of Common Stock (the “Purchase Rights”), then the
Holder shall be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder
would have acquired if the Holder had held the number of Warrant Shares acquirable upon complete exercise of this Warrant immediately
before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights. Anything
herein to the contrary notwithstanding, the Holder shall not be entitled to the Purchase Rights granted herein with respect to any Excluded
Issuance.
6. Transfer
of Warrant. This Warrant and all rights hereunder are transferable, in whole or in part, by the Holder without charge to the
Holder or consent of the Company, upon surrender of this Warrant to the Company at its then principal executive offices with a properly
completed and duly executed assignment agreement substantially in the form attached hereto as Exhibit B, together with funds sufficient
to pay any transfer taxes described in Section 3(g)(v) in connection with the making of such transfer. Upon such compliance, surrender
and delivery and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee
or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing
the portion of this Warrant, if any, not so assigned and this Warrant shall promptly be cancelled.
7. Holder
Not Deemed a Stockholder; Limitations on Liability. Except as otherwise specifically provided herein, prior to the issuance
to the Holder of the Warrant Shares to which the Holder is then entitled to receive upon the due exercise of this Warrant, the Holder
shall not be entitled to vote or receive dividends or be deemed the holder of shares of capital stock of the Company for any purpose,
nor shall anything contained in this Warrant be construed to confer upon the Holder, as such, any of the rights of a stockholder of the
Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification
of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise.
In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities
(upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company
or by creditors of the Company.
8. Replacement
on Loss; Division and Combination.
(a) Replacement
of Warrant on Loss. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation
of this Warrant and upon delivery of an indemnity reasonably satisfactory to it (it being understood that a written indemnification agreement
or affidavit of loss of the Holder shall be a sufficient indemnity) and, in case of mutilation, upon surrender of such Warrant for cancellation
to the Company, the Company at its own expense shall execute and deliver to the Holder, in lieu hereof, a new Warrant of like tenor and
exercisable for an equivalent number of Warrant Shares as the Warrant so lost, stolen, mutilated or destroyed; provided, that,
in the case of mutilation, no indemnity shall be required if this Warrant in identifiable form is surrendered to the Company for cancellation.
(b) Division
and Combination of Warrant. This Warrant may be divided or, following any such division of this Warrant, subsequently combined with
other Warrants, upon the surrender of this Warrant or Warrants to the Company at its then principal executive offices, together with a
written notice specifying the names and denominations in which new Warrants are to be issued, signed by the respective Holders or their
agents or attorneys. The Company shall at its own expense execute and deliver a new Warrant or Warrants in exchange for the Warrant or
Warrants so surrendered in accordance with such notice. Such new Warrant or Warrants shall be of like tenor to the surrendered Warrant
or Warrants and shall be exercisable in the aggregate for an equivalent number of Warrant Shares as the Warrant or Warrants so surrendered
in accordance with such notice.
9. No
Impairment. The Company shall not, by amendment of its Certificate of Incorporation or Bylaws, or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but shall at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested
by the Holder in order to protect the exercise rights of the Holder against dilution or other impairment, consistent with the tenor and
purpose of this Warrant.
10. Compliance
with the Securities Act.
(a) Agreement
to Comply with the Securities Act; Legend. The Holder, by acceptance of this Warrant, agrees to comply in all respects with the provisions
of this Section 11 and the restrictive legend requirements set forth on the face of this Warrant and further agrees that such Holder
shall not offer, sell or otherwise dispose of this Warrant or any Warrant Shares to be issued upon exercise hereof except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended (the “Securities Act”). This Warrant
and all Warrant Shares issued upon exercise of this Warrant (unless registered under the Securities Act) shall be stamped or imprinted
with a legend in substantially the following form:
“THIS WARRANT AND THE SECURITIES
ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”),
OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
OR ASSIGNED UNLESS (I) A REGISTRATION STATEMENT COVERING THIS WARRANT OR SUCH SECURITIES, AS THE CASE MAY BE, IS EFFECTIVE UNDER THE ACT
AND IS QUALIFIED UNDER APPLICABLE STATE AND FOREIGN LAW OR (II) THE TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS UNDER THE ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE AND FOREIGN LAW AND, IF THE CORPORATION REQUESTS,
AN OPINION SATISFACTORY TO THE CORPORATION TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.”
(b) Representations
of the Holder. In connection with the issuance of this Warrant, the Holder specifically represents, as of the Original Issue Date,
to the Company by acceptance of this Warrant as follows:
(i) The
Holder is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. The Holder
is acquiring this Warrant and the Warrant Shares to be issued upon exercise hereof for investment for its own account and not with a view
towards, or for resale in connection with, the public sale or distribution of this Warrant or the Warrant Shares, except pursuant to sales
registered or exempted under the Securities Act.
(ii) The
Holder understands and acknowledges that this Warrant and the Warrant Shares to be issued upon exercise hereof are “restricted securities”
under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering
and that, under such laws and applicable regulations, such securities may be resold without registration under the Securities Act only
in certain limited circumstances. In addition, the Holder represents that it is familiar with Rule 144 under the Securities Act, as presently
in effect, and understands the resale limitations imposed thereby and by the Securities Act.
(iii) The
Holder acknowledges that it can bear the economic and financial risk of its investment for an indefinite period, and has such knowledge
and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Warrant
and the Warrant Shares. The Holder has had an opportunity to ask questions and receive answers from the Company regarding the terms and
conditions of the offering of the Warrant and the business, properties, prospects and financial condition of the Company.
11. Warrant
Register. The Company shall keep and properly maintain at its principal executive offices books for the registration of the
Warrant and any transfers thereof. The Company may deem and treat the Person in whose name the Warrant is registered on such register
as the Holder thereof for all purposes, and the Company shall not be affected by any notice to the contrary, except any assignment, division,
combination or other transfer of the Warrant effected in accordance with the provisions of this Warrant.
12. Notices.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed
to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by
a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation
of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours
of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 12).
If to the Company: |
Global Clean Energy Holdings, Inc. |
|
2790 Skypark Drive, Suite 105 |
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Torrance, CA 90505 |
|
Attention: Richard Palmer |
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Fax: (310) 929-1139 |
|
Email: rpalmer@gceholdings.com |
|
|
with a copy to: |
King & Spalding LLP |
|
Attention: Stuart Zisman |
|
1100 Louisiana |
|
Suite 4100 |
|
Houston, TX 77002 |
|
Email: szisman@kslaw.com |
|
|
If to the Holder: |
292 Madison Avenue, Suite 2500 |
|
New York, NY 10118 |
|
Attn: Ethan Shoemaker and Mark Friedland |
|
Email: Ethan@OIC.com; Mark@OIC.com; |
|
ProjectGoldenBear@orionenergypartners.com |
13. Cumulative
Remedies. Except to the extent expressly provided in Section 7 to the contrary, the rights and remedies provided in
this Warrant are cumulative and are not exclusive of, and are in addition to and not in substitution for, any other rights or remedies
available at law, in equity or otherwise.
14. Equitable
Relief. Each of the Company and the Holder acknowledges that a breach or threatened breach by such party of any of
its obligations under this Warrant would give rise to irreparable harm to the other party hereto for which monetary damages would not
be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by such party of any such obligations, the
other party hereto shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach,
be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be
available from a court of competent jurisdiction.
15. Entire
Agreement. This Warrant constitutes the sole and entire agreement of the parties to this Warrant with respect to the
subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with
respect to such subject matter.
16. Successor
and Assigns. This Warrant and the rights evidenced hereby shall be binding upon and shall inure to the benefit of the parties
hereto and the successors of the Company and the successors and assigns of the Holder. Such successors and/or assigns of the Holder shall
be deemed to be a Holder for all purposes hereunder.
17. No
Third-Party Beneficiaries. This Warrant is for the sole benefit of the Company and the Holder and their respective successors
and, in the case of the Holder, permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other
Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Warrant.
18. Headings.
The headings in this Warrant are for reference only and shall not affect the interpretation of this Warrant.
19. Amendment
and Modification; Waiver. Except as otherwise provided herein, this Warrant may only be amended, modified or supplemented
by an agreement in writing signed by each party hereto. No waiver by the Company or the Holder of any of the provisions hereof shall
be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed
as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different
character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any rights, remedy, power
or privilege arising from this Warrant shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
20. Severability.
If any term or provision of this Warrant is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other term or provision of this Warrant or invalidate or render unenforceable such term or provision in any other
jurisdiction.
21. Governing
Law. This Warrant shall be governed by and construed in accordance with the internal laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would
cause the application of laws of any jurisdiction other than those of the State of Delaware.
22. Submission
to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Warrant or the transactions contemplated
hereby may be instituted in the state courts of Delaware and to the jurisdiction of the United States District Court for the District
of Delaware, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Service of process, summons, notice or other document by certified or registered mail to such party’s address set forth herein
shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive
and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought
in an inconvenient forum.
23. Waiver
of Jury Trial. Each party acknowledges and agrees that any controversy which may arise under this Warrant is likely to involve
complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial
by jury in respect of any legal action arising out of or relating to this Warrant or the transactions contemplated hereby.
24. Counterparts.
This Warrant may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to
be one and the same agreement. A signed copy of this Warrant delivered by facsimile, e-mail or other means of electronic transmission
shall be deemed to have the same legal effect as delivery of an original signed copy of this Warrant.
25. No
Strict Construction. This Warrant shall be construed without regard to any presumption or rule requiring construction or interpretation
against the party drafting an instrument or causing any instrument to be drafted.
[signature page follows]
IN WITNESS WHEREOF, the Company
has duly executed this Warrant on the Original Issue Date.
|
GLOBAL CLEAN ENERGY HOLDINGS, INC. |
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|
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By: |
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|
Name: |
|
|
Title: |
|
[Signature Page to GCEH Warrant]
Accepted and agreed, |
|
[ ● ] |
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By: |
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Name: |
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Title: |
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[Signature Page to GCEH Warrant]
Exhibit A
NOTICE OF EXERCISE
To: GLOBAL
CLEAN ENERGY HOLDINGS, inc.
(1) The
undersigned hereby elects to purchase [ ] Warrant Shares of the Company pursuant to the terms of the attached Warrant and tenders herewith
payment of the Aggregate Exercise Price in full.
(2) Payment
shall take the form of (check all applicable boxes):
[ ] certified or official bank check
payable to the order of the Company, or by wire transfer of immediately available funds;
[ ] cashless exercise pursuant to the
cashless exercise procedure in Section 3(b)(ii); or
[ ] cashless exercise pursuant to the
cashless exercise procedure in Section 3(b)(iii).
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
[The Warrant Shares shall be delivered to the
following DWAC Account Number:]
[NAME
OF HOLDER]
|
|
Signature of Authorized Signatory of Holder: |
|
|
|
|
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Name of Authorized Signatory: |
|
|
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Title of Authorized Signatory: |
|
|
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Date of Execution: |
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Exhibit B
Assignment and Assumption
Reference
is made to that certain (i) Warrant, dated as of [ ● ],
2023, represented by Warrant Certificate No. GCEH-[
● ] (the “Warrant”), issued by Global Clean Energy
Holdings Inc., a Delaware corporation (the “Company”) to [ ● ] (the
“Assignor”) [and (ii) Registration Rights Agreement, dated February 23, 2022, by and among the Company, the
Assignor and the other parties thereto (as amended, amended and restated, supplemented or otherwise modified, the
“Registration Rights Agreement”)]. Capitalized terms used herein but not otherwise defined shall have the
meanings ascribed to such terms in the Warrant [and the Registration Rights Agreement, as applicable].
FOR VALUE RECEIVED, the Assignor
hereby sells, assigns and transfers that portion of Assignor’s rights under the Warrant and the number of Warrant Shares issuable
pursuant thereto to the Assignee as follows:
Name of Assignee |
Address |
Number of Warrant Shares |
[ ● ] |
[ ● ] |
[ ● ] |
|
Attn: [ ● ] |
|
|
Email: [ ● ] |
|
[In addition, the Assignor
hereby assigns and transfers to the Assignee its rights, duties and obligations under the Registration Rights Agreement to the extent
of Assignee’s interest in the Warrant Shares set forth above (which for the avoidance of doubt are Registrable Securities under
the Registration Rights Agreement), and Assignee hereby accepts and assumes such rights, duties and obligations from the Assignor, including
with respect to its indemnification obligations under Section 7(b) of the Registration Rights Agreement. All notices to be given by the
Company to the Assignee as a Holder of the Warrant shall be sent to the Assignee at the above listed address.]
[In
accordance with Section 6 of the Warrant, the Assignor requests that the Company execute and deliver a new Warrant in the name of
the Assignee representing the number of Warrant Shares set forth above, and a new Warrant representing [ ● ] Warrant Shares in
the name of the Assignor.]
In addition to the making
of the representations and warranties set forth in Section 10(b) of the Warrant, the Assignee represents and warrants that the Assignee
is acquiring the Warrant and the Warrant Shares for its own account or the account of an Affiliate for investment purposes and not with
the view to any sale or distribution, and that the Assignee will not offer, sell or otherwise dispose of the Warrant or the Warrant Shares
except pursuant to the terms of the Warrant and under circumstances as will not result in a violation of applicable securities laws.
[SIGNATURE PAGE FOLLOWS]
Dated Effective: [_______], 2023 |
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ASSIGNOR: |
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[ ● ] |
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By: |
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Name: |
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Title: |
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ASSIGNEE: |
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[ ● ] |
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By: |
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Name: |
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Title: |
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ACKNOWLEDGED:
Global Clean Energy Holdings Inc. |
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By: |
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Name: |
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Title: |
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Exhibit 10.4
Execution Version
AMENDMENT AGREEMENT
This Amendment Agreement (this
“Amendment”) is dated as of July 5, 2023 (the “Effective Date”), by and among Global Clean Holdings
Inc., a Delaware corporation (the “Company”), Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit
Opportunities Fund II PV, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., Orion Energy Credit Opportunities Fund GCE Co-Invest,
L.P., Orion Energy Credit Opportunities Fund GCE Co-Invest B, L.P., Orion Energy Credit Opportunities Fund III PV, L.P., Orion Energy
Credit Opportunities Fund III GPFA, L.P., Orion Energy Credit Opportunities Fund III, L.P., Orion Energy Credit Opportunities Fund III
GPFA PV, L.P., LIF AIV 1, L.P., Voya Renewable Energy Infrastructure Originator I LLC and Voya Renewable Energy Infrastructure Originator
L.P. (collectively, the “Investors”). The Company and the Investors are each referred to herein as a “Party”
and collectively as the “Parties”.
WHEREAS, pursuant to that
certain Securities Purchase Agreement, dated as of February 2, 2022, by and among the Company, ExxonMobil Renewables LLC and the Investors,
the Company issued to the Investors warrants Nos. GCEH-002 through GCEH-089 to purchase up to 31,610,937 shares of its common stock
and the other rights described on Exhibit A-3 hereto (as amended by the Omnibus Amendment, effective as of February 23, 2022, as further
amended by the Amendment Agreement, effective as of August 5, 2022, as further amended by the Amendment Agreement, effective as of February
14, 2023, as further amended by the Amendment Agreement, effective as of May 19, 2023, as further amended by the Amendment Agreement,
effective as of June 21, 2023 and as further amended by the Amendment Agreement, effective as of the date hereof, the “Investor
Warrants”); and
WHEREAS, Amendment No. 13
to the Credit Agreement (“Amendment No. 13”) and other various amendments and transactions will be entered into as
of the date hereof by the Company’s affiliates and certain of the Investors, and in connection therewith the Company and the Investors
desire to cause the cancellation of, and reissuance of, the Investor Warrants in the manner set forth herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the Parties agree as follows:
1. Amendments
to Investor Warrants. Effective as of the Effective Date, pursuant to Section 19 of the Investor Warrants, each Party agrees that
each of the Investor Warrants are hereby amended such that the number of warrants issued pursuant to each such Investor Warrants shall
be equal to the number of warrants set forth under the column titled “Rebalanced Number of Warrants” on Exhibits A-1, A-2
and A-3 opposite the description of each such Investor Warrant. In connection with the foregoing amendment, (a) the existing warrants
which add up to the total listed under the column titled “Returned Warrants” on Exhibits A-1, A-2 and A-3 shall be deemed
to have been hereby cancelled and returned to the Company and (b) each individual warrant described under the column titled “Reissued
Warrants” on Exhibits A-1, A-2 and A-3 shall be deemed to have been issued to the applicable Investor whose name is set forth opposite
thereto on Exhibit A-1, A-2 or A-3, as applicable, and pursuant to the applicable Investor Warrant described opposite thereto on Exhibit
A-1, A-2 and A-3, as applicable. Each of the Parties agrees and confirms that by signing this Amendment they have received valid consideration
in connection with this Amendment and the transactions described in this paragraph 1.
2. Effectiveness
of Amendment. This Amendment is entered into, adopted and effective as of the Effective Date.
3. Tax
Treatment. For U.S. federal income tax purposes, the Company and the Investors shall treat the transactions contemplated by this Amendment
in accordance with Section 3 of Amendment No. 13.
4. Entire
Agreement. This Amendment and the Investor Warrants constitute the entire agreement among the Company and the Investors with respect
to the subject matter hereof and thereof and supersedes any prior understandings, negotiations, agreements, statements or representations
among the Investors and Company or any of their respective affiliates of any nature, whether written or oral, to the extent they relate
in any way to the subject matter hereof or thereof.
5. No
Other Amendments. Except as expressly amended by this Amendment, the terms of the Investor Warrants shall remain in full force and
effect.
6. Miscellaneous
Terms. The provisions of Sections 10 (Amendments) and 16 (Miscellaneous) of the RRA, and the provisions of Sections 18 (Headings),
19 (Amendment and Modification; Waiver), 20 (Severability), 21 (Governing Law), 22 (Submission to Jurisdiction), 23 (Waiver of Jury Trial),
24 (Counterparts) and 25 (No Strict Construction) of the Investor Warrants, shall apply mutatis mutandis to this Amendment.
[Signature page follows]
IN WITNESS WHEREOF, each Party has executed this
Amendment effective as of the Effective Date.
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GLOBAL CLEAN ENERGY HOLDINGS, INC. |
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By: |
/s/ Richard Palmer |
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Name: |
Richard Palmer |
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Title: |
Chief Executive Officer |
[Signature Page to Omnibus Warrant Amendment]
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ORION ENERGY CREDIT OPPORTUNITIES FUND II, L.P. |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
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ORION ENERGY CREDIT OPPORTUNITIES FUND II PV, L.P. |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
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ORION ENERGY CREDIT OPPORTUNITIES FUND II GPFA, L.P. |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
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ORION ENERGY CREDIT OPPORTUNITIES GCE CO-INVEST, L.P. |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
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ORION ENERGY CREDIT OPPORTUNITIES GCE CO-INVEST B, L.P. |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
[Signature Page to Omnibus Warrant Amendment]
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ORION ENERGY CREDIT OPPORTUNITIES FUND III, L.P. |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
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ORION ENERGY CREDIT OPPORTUNITIES FUND III PV, L.P. |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
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ORION ENERGY CREDIT OPPORTUNITIES FUND III GPFA, L.P. |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
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ORION ENERGY CREDIT OPPORTUNITIES FUND III GPFA PV, L.P. |
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By: |
/s/ Gerrit Nicholas |
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Name: |
Gerrit Nicholas |
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Title: |
Managing Partner |
[Signature Page to Omnibus Warrant Amendment]
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VOYA RENEWABLE ENERGY INFRASTRUCTURE ORIGINATOR L.P. |
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By: |
Voya Alternative Asset Management LLC, as Agent |
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By: |
/s/ Edward Levin |
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Name: |
Edward Levin |
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Title: |
Senior Vice President |
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VOYA RENEWABLE ENERGY INFRASTRUCTURE ORIGINATOR i llc |
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By: |
Voya Alternative Asset Management LLC, as Agent |
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By: |
/s/ Edward Levin |
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Name: |
Edward Levin |
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Title: |
Senior Vice President |
[Signature Page to Omnibus Warrant Amendment]
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LIF AIV 1, L.P. |
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By: |
GCM Investments GP, LLC, its General Partner |
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By: |
/s/ Todd Henigan |
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Name: |
Todd Henigan |
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Title: |
Authorized Signatory |
[Signature Page to Omnibus Warrant Amendment]
EXHIBIT A-1
Warrant Reallocation (Strike Price $2.25)
Entity Name | |
Existing Number of Warrants | | |
Returned Warrants | | |
Reissued Warrants | |
Orion Energy Credit Opportunities Fund II, L.P. | |
| 1,059,823 | | |
| 228,387 | | |
| - | |
Orion Energy Credit Opportunities Fund II PV, L.P. | |
| 1,703,079 | | |
| 367,006 | | |
| - | |
Orion Energy Credit Opportunities Fund II GPFA, L.P. | |
| 104,411 | | |
| 22,501 | | |
| - | |
Orion Energy Credit Opportunities GCE Co-Invest, L.P. | |
| 2,333,917 | | |
| - | | |
| 1,440,145 | |
Orion Energy Credit Opportunities GCE Co-Invest B, L.P. | |
| 79,116 | | |
| - | | |
| 48,818 | |
Orion Energy Credit Opportunities Fund III PV, L.P. | |
| 869,434 | | |
| 187,359 | | |
| - | |
Orion Energy Credit Opportunities Fund III GPFA, L.P. | |
| 65,922 | | |
| 14,206 | | |
| - | |
Orion Energy Credit Opportunities Fund III, L.P. | |
| 1,896,237 | | |
| 408,629 | | |
| - | |
Orion Energy Credit Opportunities Fund III GPFA PV, L.P. | |
| 35,719 | | |
| 7,697 | | |
| - | |
LIF AIV 1, L.P. | |
| 2,515,864 | | |
| - | | |
| - | |
Voya Renewable Energy Infrastructure Originator I LLC | |
| 696,163 | | |
| 96,714 | | |
| - | |
Voya Renewable Energy Infrastructure Originator L.P. | |
| 1,126,252 | | |
| 156,464 | | |
| - | |
Total | |
| 12,485,937 | | |
| 1,488,963 | | |
| 1,488,963 | |
EXHIBIT A-2
Warrant Reallocation (Strike Price $0.075)
Entity Name | |
Existing Number of Warrants | | |
Returned Warrants | | |
Reissued Warrants | |
Orion Energy Credit Opportunities Fund II, L.P. | |
| 2,199,541 | | |
| 2,199,541 | | |
| 2,199,541 | |
Orion Energy Credit Opportunities Fund II PV, L.P. | |
| 3,439,857 | | |
| 3,439,857 | | |
| 3,439,857 | |
Orion Energy Credit Opportunities Fund II GPFA, L.P. | |
| 216,692 | | |
| 216,692 | | |
| 216,692 | |
Orion Energy Credit Opportunities GCE Co-Invest, L.P. | |
| 3,706,299 | | |
| 3,706,299 | | |
| 3,706,299 | |
Orion Energy Credit Opportunities GCE Co-Invest B, L.P. | |
| 125,637 | | |
| 125,637 | | |
| 125,637 | |
Orion Energy Credit Opportunities Fund III PV, L.P. | |
| 1,751,337 | | |
| 1,751,337 | | |
| 1,751,337 | |
Orion Energy Credit Opportunities Fund III GPFA, L.P. | |
| 135,440 | | |
| 135,440 | | |
| 135,440 | |
Orion Energy Credit Opportunities Fund III, L.P. | |
| 3,895,927 | | |
| 3,895,927 | | |
| 3,895,927 | |
Orion Energy Credit Opportunities Fund III GPFA PV, L.P. | |
| 73,387 | | |
| 73,387 | | |
| 73,387 | |
LIF AIV 1, L.P. | |
| 1,176,471 | | |
| 1,176,471 | | |
| 1,176,471 | |
Voya Renewable Energy Infrastructure Originator I LLC | |
| - | | |
| - | | |
| - | |
Voya Renewable Energy Infrastructure Originator L.P. | |
| - | | |
| - | | |
| - | |
Total | |
| 16,720,588 | | |
| 16,720,588 | | |
| 16,720,588 | |
EXHIBIT A-3
Warrant Reallocation (Preferred Equity)
Entity Name | |
Existing Number of Warrants | | |
Returned Warrants | | |
Reissued Warrants | |
Orion Energy Credit Opportunities Fund II, L.P. | |
| 55,178 | | |
| - | | |
| 69,216 | |
Orion Energy Credit Opportunities Fund II PV, L.P. | |
| 88,669 | | |
| - | | |
| 111,226 | |
Orion Energy Credit Opportunities Fund II GPFA, L.P. | |
| 5,436 | | |
| - | | |
| 6,819 | |
Orion Energy Credit Opportunities GCE Co-Invest, L.P. | |
| 374,795 | | |
| - | | |
| 367,688 | |
Orion Energy Credit Opportunities GCE Co-Invest B, L.P. | |
| 12,705 | | |
| - | | |
| 12,464 | |
Orion Energy Credit Opportunities Fund III PV, L.P. | |
| 45,266 | | |
| - | | |
| 56,782 | |
Orion Energy Credit Opportunities Fund III GPFA, L.P. | |
| 3,432 | | |
| - | | |
| 4,305 | |
Orion Energy Credit Opportunities Fund III, L.P. | |
| 98,725 | | |
| - | | |
| 123,841 | |
Orion Energy Credit Opportunities Fund III GPFA PV, L.P. | |
| 1,860 | | |
| - | | |
| 2,332 | |
LIF AIV 1, L.P. | |
| 388,771 | | |
| - | | |
| - | |
Voya Renewable Energy Infrastructure Originator I LLC | |
| 288,285 | | |
| 288,285 | | |
| - | |
Voya Renewable Energy Infrastructure Originator L.P. | |
| 466,388 | | |
| 466,388 | | |
| - | |
Total | |
| 1,829,510 | | |
| 754,673 | | |
| 754,673 | |
Exhibit 10.5
Execution Version
REGISTRATION RIGHTS AGREEMENT
AMENDMENT
This Registration Rights Agreement
Amendment (this “Amendment”) to that certain RRA (as defined below), is dated as of this July 5, 2023 (the “Effective
Date”), by and among Global Clean Holdings Inc., a Delaware corporation (the “Company”), Orion Energy Credit
Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II PV, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P.,
Orion Energy Credit Opportunities Fund GCE Co-Invest, L.P., Orion Energy Credit Opportunities Fund GCE Co-Invest B, L.P., Orion Energy
Credit Opportunities Fund III PV, L.P., Orion Energy Credit Opportunities Fund III GPFA, L.P., Orion Energy Credit Opportunities Fund
III, L.P., Orion Energy Credit Opportunities Fund III GPFA PV, L.P., LIF AIV 1, L.P., Voya Renewable Energy Infrastructure Originator
I LLC and Voya Renewable Energy Infrastructure Originator L.P. (the “Investors”). The Company and the Investors are
each referred to herein as a “Party” and collectively as the “Parties”. Capitalized terms used but
not otherwise defined have the meanings ascribed to such terms in the RRA.
WHEREAS, the Company and certain
of the Investors previously entered into that certain Registration Rights Agreement, dated as of February 23, 2022, as amended by that
certain Amendment Agreement, dated as of August 5, 2022, that certain Amendment Agreement, dated as of January 30, 2023, that certain
Amendment Agreement, dated as of May 19, 2023 and that certain Amendment Agreement, dated as of June 21, 2023 (the “RRA”);
and
WHEREAS, the Company and the
Investors desire to amend the RRA in the manner set forth herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the Parties agree as follows:
1. Amendments
to RRA. Pursuant to Section 10 of the RRA, the Company and the Investors hereby agree that the RRA is hereby amended as follows:
| a. | Section 1. Certain Definitions of the RRA is hereby amended as follows: |
(i) The
following definitions are hereby added to Section 1a:
“Amendment No. 13 to Credit Agreement”
means that certain Amendment No. 13 to the Credit Agreement, dated as of July 5, 2023, by and among BKRF OCB, LLC, a Delaware limited
liability company, BKRF OCP, LLC, a Delaware limited liability company, Bakersfield Renewable Fuels, LLC, a Delaware limited liability
company, the lenders party thereto and Orion Energy Partners TP Agent, LLC, as the administrative agent and collateral agent.
(ii) amend
and restate the definition of “Warrants” as follows:
“Warrants”
means those warrants issued by the Company to the Investors to purchase Common Stock pursuant to those certain Warrant Certificate Nos.
GCEH-090 through GCEH-111 (or prior to the Omnibus Amendment to the Warrants, Nos. GCEH-002 through GCEH-0089) and the warrants issued
by the Company to the Investors pursuant to Amendment No. 13 to Credit Agreement.
2. Effectiveness
of Amendment. This Amendment is entered into, adopted and effective as of the Effective Date.
3. Entire
Agreement. This Amendment, together with the RRA constitutes the entire agreement among the Company and the Investors with respect
to the subject matter hereof and thereof and supersedes any prior understandings, negotiations, agreements, statements or representations
among the Investors and Company or any of their respective Affiliates of any nature, whether written or oral, to the extent they relate
in any way to the subject matter hereof or thereof.
4. No
Other Amendments. Except as expressly amended by this Amendment, the terms of the RRA shall remain in full force and effect.
5. Miscellaneous
Terms. The provisions of Sections 10 (Amendments) and 16 (Miscellaneous) of the RRA shall apply mutatis mutandis to this Amendment.
[Signature page follows]
IN WITNESS WHEREOF, each Party has executed this
Amendment effective as of the Effective Date.
|
GLOBAL CLEAN ENERGY HOLDINGS, INC. |
|
|
|
By: |
/s/ Richard Palmer |
|
|
Name: |
Richard Palmer |
|
|
Title: |
President & CEO |
[Signature Page to Registration Rights Amendment
Agreement]
|
ORION ENERGY CREDIT OPPORTUNITIES FUND II, L.P. |
|
|
|
By: |
/s/ Gerrit Nicholas |
|
|
Name: |
Gerrit Nicholas |
|
|
Title: |
Managing Partner |
|
|
|
ORION ENERGY CREDIT OPPORTUNITIES FUND II PV, L.P. |
|
|
|
By: |
/s/ Gerrit Nicholas |
|
|
Name: |
Gerrit Nicholas |
|
|
Title: |
Managing Partner |
|
|
|
ORION ENERGY CREDIT OPPORTUNITIES FUND II GPFA, L.P. |
|
|
|
By: |
/s/ Gerrit Nicholas |
|
|
Name: |
Gerrit Nicholas |
|
|
Title: |
Managing Partner |
|
|
|
ORION ENERGY CREDIT OPPORTUNITIES GCE CO-INVEST, L.P. |
|
|
|
By: |
/s/ Gerrit Nicholas |
|
|
Name: |
Gerrit Nicholas |
|
|
Title: |
Managing Partner |
|
|
|
ORION ENERGY CREDIT OPPORTUNITIES GCE CO-INVEST B, L.P. |
|
|
|
By: |
/s/ Gerrit Nicholas |
|
|
Name: |
Gerrit Nicholas |
|
|
Title: |
Managing Partner |
[Signature Page to Registration Rights Amendment
Agreement]
|
ORION ENERGY CREDIT OPPORTUNITIES FUND III, L.P. |
|
|
|
By: |
/s/ Gerrit Nicholas |
|
|
Name: |
Gerrit Nicholas |
|
|
Title: |
Managing Partner |
|
|
|
ORION ENERGY CREDIT OPPORTUNITIES FUND III PV, L.P. |
|
|
|
By: |
/s/ Gerrit Nicholas |
|
|
Name: |
Gerrit Nicholas |
|
|
Title: |
Managing Partner |
|
|
|
ORION ENERGY CREDIT OPPORTUNITIES FUND III GPFA, L.P. |
|
|
|
By: |
/s/ Gerrit Nicholas |
|
|
Name: |
Gerrit Nicholas |
|
|
Title: |
Managing Partner |
|
|
|
ORION ENERGY CREDIT OPPORTUNITIES FUND III GPFA PV, L.P. |
|
|
|
By: |
/s/ Gerrit Nicholas |
|
|
Name: |
Gerrit Nicholas |
|
|
Title: |
Managing Partner |
[Signature Page to Registration Rights Amendment
Agreement]
|
VOYA RENEWABLE ENERGY |
|
INFRASTRUCTURE ORIGINATOR I LLC |
|
|
|
By: |
Voya Alternative Asset Management LLC, as Agent |
|
|
|
By: |
/s/ Edward Levin |
|
Name: |
Edward Levin |
|
Title: |
Senior Vice President |
|
|
|
VOYA RENEWABLE ENERGY |
|
INFRASTRUCTURE ORIGINATOR L.P. |
|
|
|
By: |
Voya Alternative Asset Management LLC, as Agent |
|
|
|
By: |
/s/ Edward Levin |
|
Name: |
Edward Levin |
|
Title: |
Senior Vice President |
[Signature Page to Registration Rights Amendment
Agreement]
|
LIF AIV 1, L.P |
|
|
|
By: |
GCM Investments GP, LLC, its General Partner |
|
|
|
By: |
/s/ Todd Henigan |
|
Name: |
Todd Henigan |
|
Title: |
Authorized Signatory |
[Signature Page to Registration Rights Amendment
Agreement]
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- DefinitionIndicate if registrant meets the emerging growth company criteria.
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