PLEDGE AGREEMENT made by AEMETIS, INC., as Pledgor in favor of THIRD EYE CAPITAL CORPORATION, as Agent Dated as of July 10, 2017
Exhibit 10.6
made by
as Pledgor
in favor of
THIRD EYE CAPITAL CORPORATION,
as Agent
Dated as of July 10, 2017
PLEDGE
AGREEMENT, dated as of July 10,
2017, by AEMETIS, INC. (the “Pledgor”),
in favor of THIRD EYE CAPITAL CORPORATION, as administrative agent
and collateral agent for and on behalf of the Noteholders (as
defined in the Note Purchase Agreement referred to below) (in such
aforesaid capacities, or any successor or assign in such
capacities, the “Agent”).
PRELIMINARY STATEMENTS:
(1) Goodland
Advanced Fuels, Inc., a Delaware corporation (the
“Issuer”), the Noteholders
from time to time party thereto, and the Agent have entered into
that certain Note Purchase Agreement of even date herewith (as
amended, varied, supplemented, restated, renewed or replaced at any
time and from time to time, the “Note Purchase
Agreement”).
(2) Pursuant
to the Note Purchase Agreement, the Noteholders have agreed to make
Loans from time to time to the Issuer, upon the terms and subject
to the conditions set forth therein.
(3) The
Pledgor has entered into that certain Limited Guaranty of even date
herewith (as amended, varied, supplemented, restated,
renewed or replaced at any time and from time to time, the
“Limited
Guaranty”), to guarantee the Guaranteed Obligations
(as defined and otherwise described in the Limited
Guaranty).
(4) Effective
upon the exercise of the Aemetis Option, Pledgor will become the
owner of the shares of Capital Stock described in Schedule I hereto
(collectively, the “Pledged
Equity”) and issued by
the Issuer.
(5) It
is a condition precedent to the obligation of the Noteholders to
make Loans under the Note Purchase Agreement that the Pledgor shall
have executed and delivered this Agreement to the Agent, for the
benefit of the Agent, the Noteholders from time to time party to
the Note Purchase Agreement and any other holder of any Note
Indebtedness (collectively with the Agent and the Noteholders, the
“Secured
Parties”).
(6) The
Pledgor will derive substantial direct and indirect benefit from
the transactions contemplated by Note Purchase
Agreement.
NOW,
THEREFORE, in consideration of the premises and to induce the
Noteholders to make Loans pursuant to the Note Purchase Agreement
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor hereby
agrees with the Agent, for the benefit of the Secured Parties, as
follows:
1. Definitions.
(a) Unless otherwise defined herein, terms defined in the Note
Purchase Agreement and used herein shall have the meanings given to
them in the Note Purchase Agreement. Furthermore, unless otherwise
defined in this Agreement or the Note Purchase Agreement, terms
defined in Articles 8 or 9 of the UCC (as defined below) are used
in this Agreement as such terms are defined in such Articles 8 or
9.
(b) The
following terms shall have the following
meanings:
“Agreement”
means this Pledge Agreement, as amended, varied,
supplemented, restated, renewed or replaced at any time and from
time to time.
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“Capital Stock” means,
with respect to any Person, (a) any and all of the shares,
interests, rights, participations or other equivalents (however
designated) of capital stock of (or other ownership or profit
interests in) such Person, (b) any and all of the warrants, options
or other rights for the purchase or acquisition from such Person of
shares of capital stock of (or other ownership or profit interests
in) such Person, and (c) all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or
profit interests in) such Person or warrants, rights or options for
the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust
interests therein), in the case of clauses (a) through (c) above,
whether voting or nonvoting, and whether or not such shares,
participations, warrants, options, rights or other interests are
outstanding on any date of determination.
“Collateral”
has the meaning specified in Section 2.
“Collateral
Account” means any
account established to hold money proceeds, maintained under the
sole dominion and control of the Agent, subject to withdrawal by
the Agent for the account of the Secured Parties only as provided
in Section 12(b).
“Issuer”
has the meaning specified in the recitals
hereto.
“Pledged
Equity” has the meaning
specified in the recitals hereto.
“Pledgor”
has the meaning specified in the recitals
hereto.
“Proceeds” shall mean all
“proceeds” as defined in Article 9 of the UCC and, in
any event, includes, without limitation, (i) all payments,
dividends or distributions made with respect to any Pledged Equity
or other Capital Stock of the Issuer constituting Collateral, and
(ii) whatever is receivable or received when Collateral or
proceeds are sold, exchanged, collected or otherwise disposed of,
whether such disposition is voluntary or involuntary.
“Secured
Parties” has the meaning
specified in the recitals hereto.
“Securities
Act” has the meaning
specified in Section 13(a)(i).
“Solvent”
when used with respect to any Person, means that, as of any date of
determination, (a) the amount of the “present fair saleable
value” of the assets of such Person will, as of such date,
exceed the amount of all “liabilities of such Person,
contingent or otherwise”, as of such date, as such quoted
terms are determined in accordance with applicable federal and
state laws governing determinations of the insolvency of debtors,
(b) the present fair saleable value of the assets of such Person
will, as of such date, be greater than the amount that will be
required to pay the liability of such Person on its debts as such
debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which
to conduct its business, and (d) such Person will be able to pay
its debts as they mature. For purposes of this definition, (i)
“debt” means liability on a “claim”, and
(ii) “claim” means any (x) right to payment, whether or
not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured or unsecured or (y) right to an equitable remedy
for breach of performance if such breach gives rise to a right to
payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured,
disputed, undisputed, secured or unsecured.
“UCC” means the Uniform
Commercial Code as in effect from time to time in the State of New
York; provided, that if perfection or the effect of perfection or
non-perfection or the priority of any security interest in any
Collateral is governed by the Uniform Commercial Code as in effect
in a jurisdiction other than the State of New York,
“UCC” means the Uniform Commercial Code as in effect
from time to time in such other jurisdiction for purposes of the
provisions hereof relating to such perfection, effect of perfection
or non-perfection or priority.
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(c) The
rules of construction specified in Sections 1.2, 1.3 and 1.4 of the
Note Purchase Agreement shall apply to this Agreement, mutatis mutandis.
(d) The
expressions “payment in full,” “paid in
full” and any other similar terms or phrases when used herein
with respect to the Guaranteed Obligations (as defined in the
Limited Guaranty) shall mean the unconditional, final, indefeasible
and irrevocable payment in full, in immediately available funds, of
all of the Guaranteed Obligations.
(e) No
inference in favor of, or against, any party to this Agreement
shall be drawn from the fact that such party has drafted any
portion of this Agreement.
2. Pledge;
Grant of Security Interest.
Effective upon the exercise of the Aemetis Option, the Pledgor
hereby pledges to the Agent for the benefit of the Secured Parties,
and grants to the Agent for the benefit of the Secured Parties a
security interest in, all of the following property, whether now
owned or existing or hereafter arising or acquired by the
Pledgor or in which the Pledgor now has or at any time in the
future may acquire any right, title or interest (collectively, the
“Collateral”):
(i) the
Pledged Equity and the certificates, if any, representing the
Pledged Equity, and all dividends, distributions, return of
capital, cash, warrants, rights, options, instruments, securities
and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Equity and all subscription warrants,
rights, options or warrants issued thereon or with respect
thereto;
(ii) all
additional Capital Stock issued by the Issuer and from time to time
acquired by the Pledgor in any manner, and the certificates, if
any, representing such additional Capital Stock, and all dividends,
distributions, return of capital, warrants, rights, options,
instruments, securities and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or
in exchange for any or all of such Capital Stock and all
subscription warrants, rights or options issued thereon or with
respect thereto;
(iii) any
interest of the Pledgor in the entries on the books of the Issuer
with respect to any of the foregoing; and
(iv) all
Proceeds of any and all of the foregoing Collateral (including,
without limitation, Proceeds that constitute property of the types
described above).
3. Security
for Guaranteed Obligations.
This Agreement secures the payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) for
the Guaranteed Obligations (as defined in the Limited
Guaranty).
4. Delivery
of Collateral. Effective upon
the exercise of the Aemetis Option:
(a) All
certificates or instruments representing or evidencing the
Collateral shall be delivered to and held by or on behalf of the
Agent pursuant hereto and shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance
satisfactory to the Agent. The Agent shall have the right, at any
time in its discretion and without notice to the Pledgor, to
transfer to or to register in the name of the Agent or any of its
nominees any or all of the Collateral, subject only to the
revocable rights specified in Section 7(a). For the better
perfection of the Agent’s rights in and to the Collateral,
upon the request of the Agent, the Pledgor shall forthwith, upon
the pledge of any Collateral hereunder, cause such Collateral to be
registered in the name of such nominee or nominees of the Agent as
the Agent shall direct, subject only to the revocable rights
specified in Section 7(a). In addition, the Agent shall have the
right at any time to exchange certificates or instruments
representing or evidencing Collateral for certificates or
instruments of smaller or larger denominations.
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(b) With
respect to any Collateral in which the Pledgor has any right, title
or interest and that constitutes an uncertified security, the
Pledgor will cause the issuer thereof either (i) to register the
Agent as the registered owner of such security or (ii) to agree in
an authenticated record with the Pledgor and the Agent that such
issuer will comply with instructions with respect to such security
originated by the Agent without further consent of the Pledgor,
such authenticated record to be in form and substance satisfactory
to the Agent.
5. Representations
and Warranties. The Pledgor
represents and warrants to the Agent and the other Secured Parties
as follows:
(a) The
Pledgor is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has the
organizational power and authority and the legal right to own and
operate its property, to lease the property it operates and to
conduct the business in which it is currently
engaged.
(b) The
Pledgor has the organizational power and authority and the legal
right to execute and deliver, and to perform its obligations under
this Agreement, and has taken all necessary organizational action
to duly authorize its execution, delivery and performance of this
Agreement.
(c) Effective
upon the exercise of the Aemetis Option, the Pledgor will be the
full legal and beneficial owner of the Collateral free and clear of
any Lien, claim, option or other charge or encumbrance (including
any restriction on assignment or transfer), except for the security
interest created by this Agreement.
(d) Effective
upon the exercise of the Aemetis Option, this Agreement and the
pledge of the Pledged Equity pursuant to this Agreement creates a
valid and perfected first priority security interest in the
Collateral, securing the payment and performance of the Guaranteed
Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been
duly taken, and there are no outstanding preemptive rights,
warrants, options or other rights to purchase, or shareholder,
voting trust or similar agreements outstanding with respect to, or
property that is convertible into, or that requires the issuance or
sale of, the Pledged Equity.
(e) No
consent of any other Person and no authorization, approval, or
other action by, and no notice to or filing with, any Governmental
Authority is required (i) for the pledge by the Pledgor of the
Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by the Pledgor, (ii) for
the attachment, perfection or maintenance of the security interest
created hereby (including the first priority nature of such
security interest) or (iii) for the exercise by the Agent of the
voting or other rights provided for in this Agreement or the
remedies in respect of the Collateral pursuant to this Agreement
(except as may be required in connection with any disposition of
any portion of the Collateral by laws affecting the offering and
sale of securities generally).
(f) The
execution, delivery and performance of this Agreement will not
violate any provision of any Requirement of Law or contractual
obligation of the Pledgor and will not result in or require the
creation or imposition of any Lien on any of the properties or
revenues of the Pledgor pursuant to any Requirement of Law or
contractual obligation of the Pledgor (except for the Liens created
pursuant to this Agreement).
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(g) This
Agreement constitutes a legal, valid and binding obligation of the
Pledgor enforceable in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting the enforcement of creditors’ rights generally and
general equitable principles.
(j) No
litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or, to the knowledge of the
Pledgor, threatened by or against the Pledgor or against any of its
properties or revenues with respect to this Agreement or any of the
transactions contemplated hereby. Effective upon the exercise of
the Aemetis Option, the Pledged Equity constitutes the percentage
of the issued and outstanding Capital Stock of the Issuer indicated
on Schedule I hereto.
(k) Effective
upon the exercise of the Aemetis Option, all Collateral consisting
of certificated securities and instruments will have been delivered
to the Agent.
(l) There
are no conditions precedent to the effectiveness of this Agreement
that have not been satisfied or waived.
(m) The
Pledgor has, independently and without reliance upon the Agent or
any other Secured Party and based on such documents and information
as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement.
(n) The
Pledgor is and, after giving effect to this Agreement, the
obligations being incurred in connection herewith and the other
transactions contemplated hereby, will be and will continue to be
Solvent.
6. Further
Assurances. (a) The Pledgor
agrees that at any time and from time to time, at the expense of
the Pledgor, the Pledgor will promptly execute and deliver all
further instruments and documents, and take all further action,
that may be necessary or desirable, or that the Agent may request,
in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Agent to exercise
and enforce its rights and remedies hereunder with respect to any
Collateral after the exercise of the Aemetis Option. Without
limiting the generality of the foregoing, the Pledgor will
promptly, (i) xxxx conspicuously each of its records pertaining to
the Collateral with a legend, in form and substance satisfactory to
the Agent, indicating that such Collateral is subject to the
security interest granted hereby; (ii) if any such Collateral shall
be evidenced by a promissory note or other instrument, deliver and
pledge to the Agent hereunder such promissory note or instrument
duly indorsed and accompanied by duly executed instruments of
transfer or assignment, all in form and substance satisfactory to
the Agent; (iii) execute and authenticate and file such financing
or continuation statements, or amendments thereto and such other
instruments or notices, as may be necessary or desirable, or as the
Agent may request, in order to perfect and preserve the security
interest granted or purported to be granted by the Pledgor
hereunder; (iv) deliver and pledge to the Agent, for the benefit of
the Secured Parties, all certificates representing Collateral that
constitutes certificated securities, accompanied by undated stock
or bond powers executed in blank; (v) take all action necessary to
ensure that the Agent has control of the Collateral consisting of
investment property as provided in Section 9-106 of the UCC; and
(vi) deliver to the Agent evidence that all other action that the
Agent may deem reasonably necessary or desirable to perfect and
protect the security interest created by the Pledgor under this
Agreement has been taken.
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(b) The
Pledgor hereby authorizes the Agent to file one or more financing
statements, continuation statements, and assignments and amendments
thereto in such form and in such offices as the Agent
determines appropriate to perfect or maintain the perfection of the
security interests of the Agent under this Agreement, including, without limitation, one or more
financing statements indicating that such financing statements
cover the Collateral, in each case without the signature of the
Pledgor. A photocopy or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof
shall be sufficient as a financing statement where permitted by
law.
7. Voting
Rights; Dividends, Etc. (a)
Effective upon the exercise of the Aemetis Option, so long as no
Event of Default shall have occurred and be
continuing:
(i) The
Pledgor shall be entitled to exercise or refrain from exercising
any and all voting and other consensual rights pertaining to the
Collateral or any part thereof for any purpose not inconsistent
with the terms of this Agreement or the Note Purchase Agreement;
provided, however, that the Pledgor shall not exercise or refrain
from exercising any such right if such action would have a material
adverse effect on the value of the Collateral or any part
thereof.
(ii) The
Pledgor shall be entitled to receive and retain any and all
dividends and other distributions paid in respect of the Collateral
if and to the extent that the payment thereof is not otherwise
prohibited by the terms of this Agreement or any of the other Note
Purchase Documents, provided, however, that any and
all:
(A) dividends
and other distributions paid or payable other than in cash in
respect of, and instruments and other property received, receivable
or otherwise distributed in respect of, or in exchange for, any
Collateral,
(B) dividends
and other distributions paid or payable in cash in respect of any
Collateral in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital
surplus or paid-in-surplus, and
(C) cash
paid, payable or otherwise distributed in respect of principal of,
or in redemption of, or in exchange for, any Collateral, shall be,
and shall be forthwith delivered to the Agent to hold as,
Collateral and shall, if received by Pledgor, be received in trust
for the benefit of the Agent and the other Secured Parties, be
segregated from the other property or funds of Pledgor, and be
forthwith delivered to the Agent as Collateral in the same form as
so received (with any necessary endorsement or
assignment).
(iii) The
Agent shall execute and deliver (or cause to be executed and
delivered) to the Pledgor all such proxies and other instruments as
the Pledgor may reasonably request for the purpose of enabling the
Pledgor to exercise the voting and other rights which it is
entitled to exercise pursuant to paragraph (i) above and to receive
the dividends and other distributions which it is authorized to
receive and retain pursuant to paragraph (ii)
above.
(b) Effective
upon the exercise of the Aemetis Option, if an Event of Default
shall have occurred and be continuing:
(i) All
rights of the Pledgor (x) to exercise or refrain from exercising
the voting and other consensual rights which it would otherwise be
entitled to exercise pursuant to Section 7(a)(i) shall, upon notice
to the Pledgor by the Agent, cease and (y) to receive the dividends
and other distributions that it would otherwise be authorized to
receive and retain pursuant to Section 7(a)(ii) shall automatically
cease, and all such rights shall thereupon become vested in the
Agent who shall thereupon have the sole right to exercise or
refrain from exercising such voting and other consensual rights and
to receive and hold as Collateral such dividends and other
distributions.
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(ii) All
dividends and other distributions that are received by the Pledgor
contrary to the provisions of Section 7(b)(i) shall be received in
trust for the benefit of the Agent, shall be segregated from other
funds of the Pledgor and shall be forthwith paid over to the Agent
as Collateral in the same form as so received (with any necessary
indorsement or assignment).
8. Transfers
and Other Liens; Additional Shares; Etc. Effective upon the exercise of the Aemetis
Option, (a) The Pledgor agrees that it will not (i) sell, transfer,
assign (by operation of law or otherwise), exchange or otherwise
dispose of, or grant any option with respect to, any of the
Collateral, (ii) create or permit to exist any Lien, claim, option
or other charge or encumbrance upon or with respect to any of the
Collateral, except for the security interest under this Agreement,
or (iii) agree or consent to any amendment, modification or waiver
with respect to any of the Collateral.
(b) Effective
upon the exercise of the Aemetis Option, the Pledgor agrees that it
will (i) not, without the prior written consent of the Agent,
permit the Issuer to issue any Capital Stock or other securities in
addition to or in substitution for the Pledged Equity, except to
the Pledgor or Agent and (ii) pledge hereunder, immediately upon
its acquisition (directly or indirectly) thereof, any and all
additional shares of Capital Stock or other securities of the
Issuer.
9. Agent
Appointed Attorney-in-Fact.
Effective upon the exercise of the Aemetis Option, the Pledgor
hereby appoints the Agent as the Pledgor’s attorney-in-fact,
with full authority in the place and stead of the Pledgor and in
the name of the Pledgor or otherwise, from time to time in the
Agent’s discretion to take any action and to execute any
instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement (subject to the rights of
the Pledgor under Section 7), including, without limitation, to
receive, indorse and collect all instruments made payable to the
Pledgor representing any dividend or other distribution in respect
of the Collateral or any part thereof and to give full discharge
for the same.
10. Agent
May Perform. If the Pledgor
fails to perform any agreement contained herein, the Agent may
itself perform, or cause performance of, such agreement, and the
expenses of the Agent incurred in connection therewith shall be
payable by the Pledgor under Section 14.
11. The
Agent’s Duties. The
powers conferred on the Agent hereunder are solely to protect its
interest in the Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the safe custody of any
Collateral in its possession and the accounting for moneys actually
received by it hereunder, the Agent shall have no duty as to any
Collateral, as to ascertaining or taking action with respect to
calls, conversions, exchanges, maturities, tenders or other matters
relative to any Collateral, whether or not the Agent or any Secured
Party has or is deemed to have knowledge of such matters, or as to
the taking of any necessary steps to preserve rights against any
parties or any other rights pertaining to any Collateral. The Agent
shall be deemed to have exercised reasonable care in the custody
and preservation of any Collateral in its possession if such
Collateral is accorded treatment substantially equal to that which
it accords its own property.
12. Remedies
upon Default. Effective upon
exercise of the Aemetis Option, if any Event of Default shall have
occurred and be continuing:
(a) The
Agent may exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on
default under the UCC (whether or not the UCC applies to the
affected Collateral), and may also, without notice except as
specified below, sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any exchange,
broker’s board or at any of the Agent’s offices or
elsewhere, for cash, on credit or for future delivery, and upon
such other terms as the Agent may deem commercially reasonable. The
Pledgor agrees that, to the extent notice of sale shall be required
by law, at least ten (10) days’ notice to the Pledgor of the
time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable
notification. The Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The
Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which
it was so adjourned. To the extent permitted by applicable law, the
Pledgor waives all claims, damages and demands it may acquire
against the Agent or any other Secured Party arising out of the
exercise by them of any rights or remedies
hereunder.
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(b) Any
cash held by the Agent as Collateral and all cash proceeds received
by the Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral may, in the
discretion of the Agent, be held by the Agent in a Collateral
Account as collateral for, and/or then or at any time thereafter be
applied (after payment of any amounts payable to the Agent pursuant
to Section 14) in whole or in part by the Agent for the benefit of
the Secured Parties against, all or any part of the Guaranteed
Obligations in such order and manner as the Agent may elect in its
sole discretion or as otherwise required under the Note Purchase
Agreement. Any surplus of such cash or cash proceeds held by the
Agent and remaining after payment in full of all Guaranteed
Obligations shall be paid over to the Pledgor or to whomsoever may
be lawfully entitled to receive such surplus.
(c) The
Pledgor shall remain liable for any deficiency if the proceeds of
any sale or other disposition of Collateral are insufficient to pay
the Guaranteed Obligations and the fees and disbursements of any
attorneys employed by the Agent or any other Secured Party to
collect such deficiency.
13. Registration
Rights; Private Sales. (a) If
the Agent shall determine to exercise its right to sell all or any
of the Collateral pursuant to Section 12 the Pledgor agrees that,
upon request of the Agent, the Pledgor will, at its own
expense:
(i) execute
and deliver, and cause the issuer of the Collateral contemplated to
be sold and the directors and officers thereof to execute and
deliver, all such instruments and documents, and do or cause to be
done all such other acts and things, as may be necessary or, in the
opinion of the Agent, advisable to register such Collateral under
the provisions of the Securities Act of 1933, as from time to time
amended (the “Securities
Act”), and to cause the
registration statement relating thereto to become effective and to
remain effective for such period as prospectuses are required by
law to be furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion of the
Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of
the Securities and Exchange Commission applicable thereto
and Pledgor agrees to cause Issuer to comply with the
provisions of the securities or “Blue Sky” laws of any
and all jurisdictions which the Agent shall designate and to make
available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy
the provisions of Section 11(a) of the Securities Act;
and
(ii) do
or cause to be done all such other acts and things as may be
necessary to make such sale of the Collateral or any part thereof
valid and binding and in compliance with applicable Requirements of
Law.
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(b) The
Pledgor recognizes that the Agent may be unable to effect a public
sale of any or all the Collateral, by reason of certain
prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one
or more private sales thereof to a restricted group of purchasers
which will be obliged to agree, among other things, to acquire such
securities for their own account for investment and not with a view
to the distribution or resale thereof. The Pledgor acknowledges and
agrees that any such private sale may result in prices and other
terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private
sale shall be deemed to have been made in a commercially reasonable
manner. The Agent shall be under no obligation to delay a sale of
any of the Collateral for the period of time necessary to permit
the issuer thereof to register such securities for public sale
under the Securities Act, or under applicable state securities
laws, even if such issuer would agree to do so.
(c) The
Pledgor further agrees to use its best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Collateral pursuant to this
Section valid and binding and in compliance with any and all other
applicable Requirements of Law. The Pledgor further agrees that a
breach of any of the covenants contained in this Section will cause
irreparable injury to the Agent and the Secured Parties, that the
Agent and the Secured Parties have no adequate remedy at law in
respect of such breach and, as a consequence, that each and every
covenant contained in this Section shall be specifically
enforceable against the Pledgor, and the Pledgor hereby waives and
agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of
Default has occurred under the Note Purchase
Agreement.
14. Indemnity
and Expenses. (a) The Pledgor
agrees to indemnify, defend and save and hold harmless each Secured
Party and each of their Related Parties (each, an
“Indemnified
Party”) from and against,
and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, the fees
and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of
or in connection with or resulting from this Agreement (including,
without limitation, enforcement of this Agreement), except to the
extent such claim, damage, loss, liability or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction
to have resulted from such Indemnified Party’s gross
negligence or willful misconduct.
(b) The
Pledgor shall pay and save the Agent and the other Secured Parties
from any and all liabilities with respect to, or resulting from any
delay by Pledgor in paying, any and all stamp, excise, sales or
other taxes that may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
(c) The
Pledgor will upon demand pay to the Agent the amount of any and all
expenses, including, without limitation, the fees and expenses of
its counsel and of any experts and agents, that the Agent may incur
in connection with (i) the administration of this Agreement, (ii)
the custody or preservation of, or the sale of, collection from or
other realization upon, any of the Collateral, (iii) the exercise
or enforcement of any of the rights of the Agent or the other
Secured Parties hereunder or (iv) the failure by the Pledgor to
perform or observe any of the provisions
hereof.
(d) The
agreements in this Section 14 shall survive repayment of the
Guaranteed Obligations.
15. Security
Interest Absolute. The
obligations of the Pledgor under this Agreement are independent of
the Note Indebtedness of the
other Obligors, and a separate action or actions may be brought and
prosecuted against the Pledgor to enforce this Agreement,
irrespective of whether any action is brought against any other
Obligor or whether any other Obligor is joined in any such action
or actions. All rights of the Agent and the security interests
hereunder, and all obligations of the Pledgor hereunder, shall be
absolute and unconditional irrespective of:
(a) any
lack of validity or enforceability of any Note Purchase Document or
any other agreement or instrument relating thereto, any change in
the time, manner or place of payment of, or in any other term of,
all or any of the Note Indebtedness, or any other amendment or waiver of or any
consent to any departure from the Note Purchase Agreement or any
other Note Purchase Document, including, without limitation, any
increase in the Note Indebtedness resulting from the extension of additional credit
to the Company or otherwise;
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(b) any
taking, exchange, release or non-perfection of any other
collateral, or any taking, release or amendment or waiver of or
consent to departure from any guaranty, for all or any of
the Note Indebtedness;
(c) any
manner of application of collateral, or proceeds thereof, to all or
any of the Note Indebtedness,
or any manner of sale or other disposition of any collateral for
all or any part of the Note Indebtedness or any other assets of any
Obligor;
(d) any
change, restructuring or termination of the corporate or
organizational structure or existence any Obligor;
or
(e) any
other circumstance which might otherwise constitute a defense
available to, or a discharge of, any Obligor or a third party
pledgor.
16. Amendments.
No amendment of any provision of this Agreement shall be effective
unless the same shall be in writing and signed by the Agent and the
Pledgor.
17. Waiver.
No waiver of any provision of this Agreement, and no consent to any
departure by the Pledgor herefrom, shall be effective unless the
same shall be in writing and signed by the Agent, and then such
waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No failure on the
part of the Agent or any other Secured Party to exercise, and no
delay in exercising any right hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of
any other right.
18. Notices.
All notices, requests and demands and other communications to or
upon the Agent or any Pledgor hereunder shall be effected in the
manner provided for in Section 8.2 of the Note Purchase Agreement;
provided that any notice, request, demand or other communication to
the Pledgor shall be addressed to the Pledgor at its address on the
signature page to this Agreement. Notices sent by hand or overnight
courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by
facsimile shall be deemed to have been given when sent (except
that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on
the next Business Day for the recipient).
19. Continuing
Security Interest; Assignments.
This Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect until the
payment in full of the Guaranteed Obligations, (ii) be binding upon
the Pledgor, its successors and assigns, and (iii) inure, together
with the rights and remedies of the Agent hereunder, to the benefit
of, and be enforceable by, the Agent, the Secured Parties and their
respective successors, transferees and assigns. Without limiting
the generality of the foregoing, any Noteholder may assign or
otherwise transfer all or any portion of its interest in the Note
Purchase Agreement and the other Note Purchase Documents
(including, without limitation, all or any portion of the
obligations under the Note Purchase Agreement held by it) to any
other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to such Noteholder
herein or otherwise, in each case as provided in Section 8.7 of the
Note Purchase Agreement. Upon the indefeasible payment in full in
cash of the Guaranteed Obligations, the security interest granted
hereby shall terminate and all rights to the Collateral shall
revert to the Pledgor. Upon any such termination, the Agent will,
at the Pledgor’s expense, return to the Pledgor such of the
Collateral as shall not have been sold or otherwise applied
pursuant to the terms hereof and execute and deliver to the Pledgor
such documents as the Pledgor shall reasonably request to evidence
such termination.
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20. Authority
of Agent. The Pledgor
acknowledges that the rights and responsibilities of the Agent
under this Agreement with respect to any action taken by the Agent
or the exercise or non-exercise by the Agent of any option, voting
right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as
between the Agent and the other Secured Parties, be governed by the
Note Purchase Agreement and by such other agreements with respect
thereto as may exist from time to time among them, but, as between
the Agent and the Pledgor, the Agent shall be conclusively presumed
to be acting as agent for Secured Parties with full and valid
authority so to act or refrain from acting, and neither the Pledgor
nor the Issuer shall be under any obligation, or entitlement, to
make any inquiry respect such authority.
21. Execution
in Counterparts. This Agreement
may be executed in any number of counterparts, each of which when
so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this
Agreement by facsimile or other electronic means shall be effective
as delivery of an original executed counterpart of this
Agreement.
22. Severability. Any
provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
23. Section
Headings. The Section headings
used in this Agreement are for convenience of reference only and
are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
24. Irrevocable
Authorization and Instruction to Issuer. Effective upon the exercise of the Aemetis
Option, the Pledgor hereby authorizes and instructs the Issuer to
comply with any instruction received by it from the Agent in
writing that (a) states that an Event of Default or Default has
occurred and (b) is in accordance with the terms of this Agreement,
without any other or further instructions from the Pledgor, and the
Pledgor agrees that the Issuer shall be fully protected in so
complying. The Pledgor shall cause the Issuer to execute and
deliver to the Agent an Acknowledgment and Consent in the form
attached as Exhibit A to this Agreement.
25. Submission
to Jurisdiction; Waivers.
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(a) Jurisdiction.
THE PLEDGOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT
COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR
DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN
TORT OR OTHERWISE, AGAINST ANY SECURED PARTY OR ANY RELATED PARTY
OF ANY SECURED PARTY IN ANY WAY RELATING TO THIS AGREEMENT OR ANY
OTHER NOTE PURCHASE DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR
THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW
YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT
FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS AGREEMENT OR IN ANY OTHER NOTE PURCHASE DOCUMENT SHALL AFFECT
ANY RIGHT THAT ANY SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER NOTE
PURCHASE DOCUMENT AGAINST THE PLEDGOR OR ANY OTHER OBLIGOR OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(b) Waiver
of Venue. The Pledgor
irrevocably and unconditionally waives, to the fullest extent
permitted by applicable law, any objection that it may now or
hereafter have to the laying of venue of any action or proceeding
arising out of or relating to this Agreement in any court referred
to in paragraph (a) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by
applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such
court.
(c) Service
of Process. The parties
irrevocably consent to service of process in the manner provided
for notices in Section 18. Nothing in this Agreement will affect
the right of any party hereto to serve process in any other manner
permitted by applicable law.
(d) Waiver.
The Pledgor waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or
proceeding referred to in this Section any special, exemplary
punitive or consequential damages.
26. Acknowledgments.
The Pledgor acknowledges that:
(a) it
has been advised by counsel in the negotiation, execution and
delivery of this Agreement;
(b) neither
the Agent nor any other Secured Party has any fiduciary
relationship with or duty to the Pledgor arising out of or in
connection with this Agreement or any of the other Note Purchase
Documents, and the relationship between Agent and other Secured
Parties, on one hand, and the Pledgor, on the other hand, in
connection herewith or therewith is solely that of debtor and
creditor; and
(c) no
joint venture is created hereby or by the other Note Purchase
Documents or otherwise exists by virtue of the transactions
contemplated hereby among Secured Parties or among Pledgor and the
Secured Parties.
27. Governing
Law. THIS AGREEMENT AND THE
RIGHTS AND OBLIGATIONS HEREUNDER OF THE PLEDGOR, THE ISSUER AND THE
SECURED PARTIES AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF
ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON,
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
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28. WAIVER
OF JURY TRIAL. PLEDGOR WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY SECURED PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH SECURED PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT THE SECURED PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
29. INTEGRATION.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT OF THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO PROMISES,
UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES BY THE AGENT OR ANY
OTHER SECURED PARTY RELATIVE TO THE SUBJECT MATTER HEREOF NOT
EXPRESSLY SET FORTH OR REFERRED TO HEREIN. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS AMONG THE PARTIES.
30. Time
is of the Essence. Time is of the essence of this
Agreement.
31. Survival.
All covenants, agreements, representations and warranties made by
the Pledgor herein and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the Secured Parties and
shall survive the execution and delivery of this Agreement and the
making of the Loans, regardless of any investigation made by any
Secured Party or on its behalf and notwithstanding that any Secured
Party may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on the Loans or any other
Guaranteed Obligations are outstanding and
unpaid.
[Signature Page Follows]
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IN
WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above
written.
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ADDRESS FOR NOTICES
TO
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PLEDGOR:
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00000 Xxxxxxx Xxxxx
Xxxx, Xxxxx 000
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By:
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/s/
Xxxx X.
XxXxxx
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Xxxxxxxxx,
XX 00000
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Name: Xxxx X.
XxXxxx
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Attn: Chief
Executive Officer
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Title:
President and CEO
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AGENT:
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THIRD
EYE CAPITAL CORPORATION
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By:
/s/ Xxxx X.
Xxxxxxxx
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Name:
Xxxx X. Xxxxxxxx
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Title:
Managing Director
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SCHEDULE I
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Issuer
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Issuer’s Jurisdiction of Incorporation
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Class of Capital Stock
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Certificate No.
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Number of Shares Pledged by Pledgor
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Percentage of Outstanding Shares held by Pledgor that are
Pledged
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Goodland Advanced
Fuels, Inc.**
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Delaware
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Common
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CS-1
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1,000
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100%
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** Pledge of Goodland Advanced Fuels, Inc. Capital Stock to be
effective upon the exercise of the Aemetis Option.
Exhibit A
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a
copy of the Pledge Agreement, dated June__, 2017 (as
amended, varied, supplemented, restated, renewed or replaced at any
time and from time to time, the
“Pledge
Agreement”), made by
AEMETIS, INC. for the benefit of Third Eye Capital Corporation, as
Agent. The undersigned agrees for the benefit of the Agent and the
other Secured Parties as follows:
1. The
undersigned (a) consents to the Pledge Agreement and the
transactions contemplated thereby, including the pledge and grant
of a security interest in all of the Collateral thereunder, and (b)
agrees to be bound by the terms of the Pledge Agreement and agrees
that the undersigned will comply with such terms insofar as such
terms are applicable to the undersigned.
2. The
undersigned will notify the Agent promptly in writing of the
occurrence of any of the events described in Section 7(a)(ii) of
the Pledge Agreement.
3. The
terms of Section 24 of the Pledge Agreement shall apply to it,
mutatis mutandis, with respect to all actions that may be required
of it under or pursuant to or arising out of Section 24 of the
Pledge Agreement.
GOODLAND ADVANCED
FUELS, INC.
By:
Name:
Title:
[Acknowledgement
and Consent – Pledge Agreement]
