PLEDGE AGREEMENT
Exhibit 10.5
THIS
PLEDGE AGREEMENT (this "Agreement"), dated as of July 10, 2017 is
made by AEMETIS, INC, a
Nevada corporation ("Pledgor") for the
benefit of THIRD EYE CAPITAL
CORPORATION, as in its capacity as agent (together with its
successors and assigns, “Secured
Party”).
RECITALS
A. Aemetis
Advanced Fuels Xxxxx, Inc., Aemetis Facility Xxxxx, Inc. and
Pledgor (collectively, the “Loan
Parties”), the Secured Party and the Noteholders are
parties to that certain Amended and Restated Note Purchase
Agreement dated as of July 6, 2012 (as amended by a Limited Waiver
and Amendment No.1 to Amended and Restated Note Purchase Agreement
dated as of October 18, 2012, as amended by a Limited Waiver and
Amendment No. 2 to Amended and Restated Note Purchase Agreement
dated as of February 27, 2013, as amended by a Limited Waiver and
Amendment No. 3 to Amended and Restated Note Purchase Agreement
dated as of April 15, 2013, as amended by an Amendment No. 4 to
Amended and Restated Note Purchase Agreement dated as of April 19,
2013, as amended by a Limited Waiver and Amendment No. 5 to Amended
and Restated Note Purchase Agreement dated as of July 26, 2013, as
amended by a Limited Waiver and Amendment No. 6 to Amended and
Restated Note Purchase Agreement dated as of September 30, 2013, as
amended by a Limited Waiver and Amendment No. 7 to Amended and
Restated Note Purchase Agreement dated as of May 14, 2014, as
amended by an Amendment No. 8 to Amended and Restated Note Purchase
Agreement dated as of November 7, 2014, as amended by an Amendment
No. 9 to Amended and Restated Note Purchase Agreement dated as of
March 12, 2015, as amended by an Amendment No. 10 to Amended and
Restated Note Purchase Agreement dated as of April 30, 2015, as
amended by an Amendment No. 11 to Amended and Restated Note
Purchase Agreement dated as of August 6, 2015, as amended by a
Limited Waiver and Amendment No. 12 to Amended and Restated Note
Purchase Agreement dated as of March 21, 2016 and as amended by
that certain Limited Waiver and Amendment No. 13 to Amended and
Restated Note Purchase Agreement dated as of March 1, 2017 (as the
same may be amended, restated, supplemented, revised or replaced
from time to time, the “Note Purchase Agreement”)
pursuant to which the Noteholders have extended loans and other
credit accommodations to the Loan Parties, and may extend
additional loans and/or other credit accommodations to the Loan
Parties from time to time.
B. Pledgor
is required to execute and deliver this Agreement pursuant to the
terms of the Note Purchase Agreement.
ACCORDINGLY, in consideration of the
foregoing, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is
hereby agreed that:
1. Definitions.
When used herein, (a) capitalized terms which are not otherwise
defined have the meanings assigned thereto in the Note Purchase
Agreement; and (b) the following terms have the following meanings
(such meanings to be applicable to both the singular and plural
forms of such terms):
Collateral - see Section 2 of this
Agreement.
Issuer - the issuer of any of
the shares of stock or other securities representing all or any of
the Collateral.
Liens - with respect to any
Person, any interest granted by such Person in any real or personal
property, asset or other right owned or being purchased or acquired
by such Person which secures payment or performance of any
obligation and shall include any mortgage, lien, encumbrance,
charge or other security interest of any kind, whether arising by
contract, as a matter of law, by judicial process or
otherwise.
Person - any individual,
corporation, limited liability company, partnership, joint venture,
firm, association, trust or other enterprise or entity or any
governmental authority.
Secured Obligations -
all present and future obligations and
liabilities (whether actual or contingent, whether owed jointly or
severally or alone or in any other capacity whatsoever) of
Borrowers and each Subsidiary of Borrowers (or any of them) under
or pursuant to each or any of the Note Purchase Documents (as
defined in the Note Purchase Agreement), each as amended or
restated from time to time) together with all costs, charges and
expenses incurred by Secured Party in connection with the
protection, preservation or enforcement of its respective rights
under the Note Purchase Agreement, the Notes defined therein and
any other Note Purchase Documents or any other document evidencing
or securing any such liabilities.
UCC - the Uniform Commercial
Code as in effect in the State of Delaware.
2. Pledge.
As security for the payment of the Secured Obligations, Pledgor
hereby pledges to Secured Party, and grants to Secured Party, a
continuing security interest in, all of the following:
A. All
of the shares of stock, ownership interests, membership interests
and other equity interests and securities described in Schedule I hereto, all of the
certificates and/or instruments representing such shares of stock,
ownership interests, membership interests and other equity
interests and securities, and all cash, securities, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such shares, ownership interests,
membership interests and other equity interests and securities; and
all additional shares of stock or ownership interests or membership
interests and other equity interests and securities of any of the
Issuers listed in Schedule
I hereto at any time and from time to time acquired by
Pledgor in any manner, all of the certificates and/or instruments
representing such additional shares or ownership interests,
membership interests and other equity interests and securities and
all cash, securities, dividends, rights and other property at any
time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such
shares or ownership interests, membership interests and other
equity interests and securities;
B. All
other property hereafter delivered to Secured Party in substitution
for or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such property, and all cash,
securities, interest, dividends, rights and other property at any
time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof;
and
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C. All
products and proceeds of all of the foregoing.
All of
the foregoing are herein collectively called the "Collateral".
Pledgor
agrees to deliver to Secured Party promptly upon receipt and in due
form for transfer (i.e., endorsed in blank or accompanied by stock
or bond powers executed in blank), any Collateral (other than
dividends which Pledgor is entitled to receive and retain pursuant
to Section 5
hereof) which may at any time or from time to time come into the
possession or control of Pledgor; and prior to the delivery thereof
to Secured Party, such Collateral shall be held by Pledgor separate
and apart from its other property and in express trust for Secured
Party.
3. Warranties;
Further Assurances. Pledgor warrants to Secured Party and
each of the Noteholders that: (a) Pledgor is (or at the time of any
other future delivery, pledge, assignment or transfer thereof, will
be) the legal and equitable owner of the Collateral free and clear
of all Liens of every description whatsoever other than the
security interest created hereunder; (b) the pledge and delivery of
the Collateral pursuant to this Agreement creates a valid perfected
security interest in the Collateral in favor of Secured Party; (c)
all shares of stock or ownership interests, membership interests
and other equity interests and securities referred to in
Schedule I hereto
are duly authorized, validly issued, fully paid and non-assessable;
(d) as to each Issuer whose name appears in Schedule I hereto, the
Collateral represents on the date hereof not less than the
applicable percentage (as shown in Schedule I hereto) of the total
shares of capital stock or ownership interests, membership
interests and other equity interests and securities issued and
outstanding of such Issuer; and (e) the information contained in
Schedule I hereto
is true and accurate in all respects.
So long
as any of the Secured Obligations shall be outstanding or any
commitment shall exist on the part of Secured Party or any of the
Noteholders with respect to the creation of any Secured
Obligations, Pledgor: (i) shall not, without the express prior
written consent of Secured Party or as permitted under the Note
Purchase Documents, sell, assign, exchange, pledge or otherwise
transfer, encumber, or grant any option, warrant or other right to
purchase the stock or other equity interests of any Issuer which is
pledged hereunder; (ii) shall deliver all original stock or similar
certificates relating to the Collateral to Secured Party and hereby
authorizes Secured Party to file such Uniform Commercial Code
financing statements (and Pledgor shall pay the costs of filing and
recording or re-filing and re-recording the same in all public
offices reasonably deemed necessary or appropriate by Secured
Party) and do such other acts and things, all as Secured Party may
from time to time reasonably request, to establish and maintain a
valid, perfected security interest in the Collateral (free of all
other Liens whatsoever other than Permitted Liens) to secure the
performance and payment of the Secured Obligations; (iii) will
execute and deliver to Secured Party such stock powers and similar
documents relating to the Collateral, satisfactory in form and
substance to Secured Party, as Secured Party may reasonably
request; and (iv) will permit Secured Party or any designee of
Secured Party, from time to time at reasonable times and on
reasonable notice (or at any time without notice during the
occurrence and continuation of an Event of Default), to inspect,
audit and make copies of and extracts from all records and all
other papers in the possession of Pledgor which evidence the
ownership of the Collateral, and will, upon the occurrence and
continuation of an Event of Default, deliver to Secured Party
copies of all of such records and papers.
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If at
any time the Collateral constitutes a “security” as
defined in Article 8 of the UCC, Pledgor shall, or shall
permit Secured Party to, promptly take all action necessary or
appropriate to cause Secured Party to have sole and exclusive
“control” over the Collateral, as such term is defined
in Article 9 of the UCC (or any other then-applicable
provision of the UCC). Pledgor agrees to comply with instructions
originated by Secured Party with respect to the Collateral without
further consent by Pledgor, provided, however, that this shall not
affect the classification of the membership interests as
“general intangibles” or “uncertificated
securities” as such terms are defined in Articles 8 and
9 of the UCC, it being the understanding and intent of the parties
hereto that the membership interests are “general
intangibles” and are not “uncertificated
securities” under Articles 8 and 9 of the
UCC.
4. Holding
in Name of Secured Party, etc. Except as otherwise provided
in the Note Purchase Agreement, Secured Party may from time to time
upon the occurrence and continuation of an Event of Default,
without notice to Pledgor, take all or any of the following
actions: (a) transfer, in accordance with all applicable securities
laws and the UCC, as applicable, all or any part of the Collateral
into the name of Secured Party or any nominee or sub-agent for
Secured Party, with or without disclosing that such Collateral is
subject to the Lien hereunder, (b) appoint one or more sub-agents
or nominees for the purpose of retaining physical possession of the
Collateral, (c) notify the parties obligated on any of the
Collateral to make payment to Secured Party of any amounts due or
to become due thereunder, (d) endorse any checks, drafts or other
writings in the name of Pledgor to allow collection of the
Collateral, (e) enforce any and all rights and privileges of
Pledgor against any party with respect to the Collateral by suit or
otherwise, and surrender, release or exchange all or any part
thereof, or compromise or renew for any period (whether or not
longer than the original period) any obligations of any nature of
any party with respect thereto, and (f) take control of any
proceeds of the Collateral.
5. Voting
Rights, Dividends, etc. (a) Notwithstanding certain
provisions of Section
4 hereof, so long as Secured Party has not given the written
notice referred to in paragraph (b)
below:
(i) Pledgor
shall be entitled to exercise any and all voting or consensual
rights and powers and stock purchase, stockholder or subscription
rights relating or pertaining to the Collateral or any part thereof
for any purpose; provided that Pledgor agrees
that it will not exercise any such right or power in any manner
which would have a Material Adverse Effect.
(ii) Pledgor
shall be entitled to receive and retain any and all lawful
dividends payable in respect of the Collateral which are paid in
cash by any Issuer if such dividends are permitted by the Note
Purchase Agreement, but all dividends and distributions in respect
of the Collateral or any part thereof made in shares of stock or
other ownership interests, whether resulting from a subdivision,
combination or reclassification of Collateral or any part thereof
or received in exchange for Collateral or any part thereof or as a
result of any merger, consolidation, acquisition or other exchange
of assets to which any Issuer may be a party or otherwise or as a
result of any exercise of any stock purchase or subscription right,
shall be and become part of the Collateral hereunder and, if
received by Pledgor, shall be forthwith delivered to Secured Party
in due form for transfer (i.e., endorsed in blank or accompanied by
stock or bond powers executed in blank) to be held for the purposes
of this Agreement.
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(iii) Secured
Party shall promptly upon request from Pledgor execute and deliver,
or cause to be executed and delivered, to Pledgor all such proxies,
powers of attorney, dividend orders and other instruments as
Pledgor may request for the purpose of enabling Pledgor to exercise
the rights and powers which it is entitled to exercise pursuant to
clause (i) above
and to receive the dividends which it is authorized to retain
pursuant to clause
(ii) above.
(b) Upon
written notice from Secured Party upon the occurrence and
continuation of an Event of Default, and so long as the same shall
be continuing, all rights and powers which Pledgor is entitled to
exercise pursuant to Section 5(a)(i) hereof, and all
rights of Pledgor to receive and retain dividends pursuant to
Section 5(a)(ii)
hereof, shall forthwith cease, and all such rights and powers shall
thereupon become vested in Secured Party which shall have, upon the
occurrence and continuation of an Event of Default, the sole and
exclusive authority to exercise such rights and powers and to
receive such dividends. Any and all money and other property paid
over to or received by Secured Party pursuant to this paragraph (b) shall be retained
by Secured Party as additional Collateral hereunder and applied to
the Indebtedness evidenced by the Notes.
6. Remedies.
Upon the occurrence and continuation of an Event of Default,
Secured Party may exercise from time to time any rights and
remedies available to it under the UCC or otherwise available to it
by applicable law. Without limiting the foregoing, upon the
occurrence and continuation of an Event of Default, Secured Party
(a) may, to the fullest extent permitted by applicable law, without
notice, advertisement, hearing or process of law of any kind,
subject to applicable securities laws and the UCC, as applicable,
(i) sell any or all of the Collateral, free of all rights and
claims of Pledgor therein and thereto, at any public or private
sale or brokers' board and (ii) bid for and purchase any or all of
the Collateral at any such public sale and (b) shall have the
right, for and in the name, place and stead of Pledgor, to execute
endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the
Collateral. Any notification of intended disposition of any of the
Collateral shall be deemed reasonably and properly given if given
at least ten (10) days before such disposition. Any proceeds of any
of the Collateral shall be applied by Secured Party to the payment
of expenses in connection with the Collateral, including, without
limitation, reasonable attorneys' fees and legal expenses, and any
balance of such proceeds shall be applied by Secured Party toward
the payment of such of the Secured Obligations, and in such order
of application, as Secured Party shall (and, after payment in full
of all Secured Obligations, any excess shall be delivered to
Pledgor or as a court of competent jurisdiction shall
direct).
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Secured
Party is hereby authorized to comply with any limitation or
restriction in connection with any sale of Collateral as it may be
advised by counsel is necessary in order to (a) avoid any violation
of applicable law (including, without limitation, compliance with
such procedures as may restrict the number of prospective bidders
or purchasers and/or further restrict such prospective bidders or
purchasers to persons or entities who will represent and agree that
they are purchasing for their own account for investment and not
with a view to the distribution or resale of such Collateral) or
(b) obtain any required approval of the sale or of the purchase by
any governmental regulatory authority or official, and Pledgor
agrees that such compliance shall not result in such sale being
considered or deemed not to have been made in a commercially
reasonable manner and that Secured Party shall not be liable or
accountable to Pledgor for any discount allowed by reason of the
fact that such Collateral is sold in compliance with any such
limitation or restriction.
7. Notice.
All notices or other communications hereunder shall be given in the
manner and deemed to be effective as set forth in the Note Purchase
Agreement or to such other addresses as Pledgor and Secured Party
may provide to the other from time to time in writing.
8. General.
Secured Party shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral if it takes such
action for that purpose as Pledgor shall request in writing, but
failure of Secured Party to comply with any such request shall not
of itself be deemed a failure to exercise reasonable care, and no
failure of Secured Party to preserve or protect any rights with
respect to the Collateral against prior parties, or to do any act
with respect to preservation of the Collateral not so requested by
Pledgor, shall be deemed a failure to exercise reasonable care in
the custody or preservation of any Collateral.
No
delay on the part of Secured Party in exercising any right, power
or remedy shall operate as a waiver thereof, and no single or
partial exercise of any such right, power or remedy shall preclude
any other or further exercise thereof, or the exercise of any other
right, power or remedy. No amendment, modification or waiver of, or
consent with respect to, any provision of this Agreement shall be
binding against Secured Party unless the same shall be in writing
and signed and delivered by Secured Party and Pledgor, and then
such amendment, modification, waiver or consent shall be effective
as against Secured Party or Pledgor, as the case may be, only in
the specific instance and for the specific purpose for which
given.
All
obligations of Pledgor and all rights, powers and remedies of
Secured Party expressed herein are in addition to all other rights,
powers and remedies possessed by them, including, without
limitation, those provided by applicable law or in any other
written instrument or agreement relating to any of the Secured
Obligations or any security therefor. When all of the Secured
Obligations have been paid in full and all of the conditional
obligations, if any, of Pledgor and the other obligors under the
Note Purchase Documents (including, without limitation, commitments
to make loans or other advances thereunder) shall have expired or
been sooner terminated, this Agreement shall terminate and the
security interest granted herein shall be automatically released
without any further action on the part of any Person. Upon
termination of this Agreement or any release of Collateral in
accordance with the provisions of the Note Purchase Agreement,
Secured Party shall, upon the request and at the sole cost and
expense of Pledgor, forthwith assign, transfer and deliver to
Pledgor, against receipt and without recourse to or warranty by
Secured Party, such of the Collateral to be released as may be in
the possession of Secured Party and as shall not have been sold or
otherwise applied pursuant to the terms hereof, and, with respect
to any other Collateral, proper documents and instruments
(including, without limitation, UCC-3 termination statements)
acknowledging the termination of this Agreement or the release of
such Collateral, as the case may be.
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This
Agreement and all related instruments and documents and the rights
and obligations of the parties hereunder and thereunder shall, in
all respects, be governed by, and construed in accordance with, the
internal laws of the State of Delaware, without regard to conflicts
of law principles, regardless of the location of the Collateral,
excepting, however, that the UCC (or decisional law) of a
jurisdiction other than Delaware may provide the method of
perfection, the effect of perfection or non-perfection, or the
priority of liens and security interests created under this
Agreement. Wherever possible each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
This
Agreement shall be binding upon Pledgor and Secured Party and their
respective successors and assigns, and shall inure to the benefit
of Pledgor, Secured Party, each of the Noteholders and their
respective successors and assigns.
This
Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such
counterpart shall be deemed an original but all such counterparts
shall together constitute but one and the same
Agreement.
PLEDGOR
IRREVOCABLY AGREES THAT, SUBJECT TO SECURED PARTY’S SOLE AND
ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR
RESPECT, ARISING OUT OF OR FROM OR RELATED TO THIS AGREEMENT SHALL
BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF DELAWARE OR
FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE STATE
OF DELAWARE; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE
DEEMED OR OPERATE TO PRECLUDE SECURED PARTY FROM BRINGING SUIT OR
TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION. PLEDGOR HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS
OF THE STATE OF DELAWARE AND OF FEDERAL COURT OF THE UNITED STATES
OF AMERICA SITTING IN THE STATE OF DELAWARE FOR THE PURPOSE OF ANY
SUCH LITIGATION OR ACTION AS SET FORTH ABOVE. PLEDGOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE
OF DELAWARE. PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF
PLEDGOR AND SECURED PARTY IRREVOCABLY CONSENT TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL POSTAGE PREPAID, TO IT AT THE ADDRESS SET FORTH FOR
NOTICES IN THIS AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE THIRTY
(30) DAYS AFTER THE DATE OF MAILING. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF SECURED PARTY TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR TO OTHERWISE
PROCEED AGAINST PLEDGOR OR ANY OTHER PERSON IN ANY OTHER
JURISDICTION.
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SECURED
PARTY AND PLEDGOR, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY
TO CONSULT WITH COUNSEL, EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE IRREVOCABLY, ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT, THE COLLATERAL, OR ANY AMENDMENT, INSTRUMENT, DOCUMENT
OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING
RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, OR
ANY COURSE OF CONDUCT OR COURSE OF DEALING IN WHICH SECURED PARTY
AND PLEDGOR ARE ADVERSE PARTIES, AND EACH AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.
PLEDGOR
HEREBY WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR TO
THE EXERCISE BY SECURED PARTY OF ITS RIGHTS TO REPOSSESS THE
COLLATERAL OF PLEDGOR WITHOUT JUDICIAL PROCESS OR TO REPLEVY,
ATTACH OR LEVY UPON SUCH COLLATERAL WITHOUT PRIOR NOTICE OR
HEARING.
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page intentionally blank]
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IN
WITNESS WHEREOF, this Agreement has been duly executed and
delivered as of the day and year first written above.
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AEMETIS, INC., as Pledgor
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/s/ Xxxx
X. XxXxxx
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Name: Xxxx X.
XxXxxx
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Title:
Chief Executive Officer
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THIRD EYE CAPITAL CORPORATION, as
Secured Party
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/s/
Xxxx X.
Xxxxxxxx
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Name: Xxxx X.
Xxxxxxxx
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Title:
Managing
Partner
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SCHEDULE I
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Issuer
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Class of Stock
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Certificate
No(s).
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Number of
Shares
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Percentage
Ownership
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Aemetis Advanced
Biorefinery Xxxxx, Inc., a Delaware corporation
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Common
Stock
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1
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1,000
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100%
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