Blueprint





Exhibit 10.1







PROMISSORY NOTE

 


	


$2,100,000.00

	


 February 27, 2018






 


FOR VALUE RECEIVED, the undersigned, AEMETIS
ADVANCED FUELS KEYES, INC., a Delaware corporation
(“AAFK”),
AEMETIS FACILITY KEYES, INC., a Delaware corporation and
successor-in-interest to Keyes Facility Acquisition Corp., a
Delaware corporation (“Keyes
Facility”, and together
with AAFK, “Borrowers”)
and AEMETIS, INC., a Nevada corporation (“Parent”,
and together with Borrowers, the “Obligors”)
jointly and severally promise to pay to the order of THIRD EYE
CAPITAL CORPORATION (the “Lender”)
the principal amount of Two Million One Hundred Thousand Dollars,
together with interest thereon as set forth below, at its offices
or such other place as the Lender may designate in
writing.

 


This promissory note (the
“Note”) is being issued to the Lender in
connection with the Amended and Restated Note Purchase Agreement
made as of July 6, 2012 (as amended, restated, supplemented,
revised, or replaced from time to time, the
“NPA”) by and among the Obligors, Third Eye
Capital Corporation, as agent for the Noteholders (the
“Agent”) and the Noteholders.



Capitalized terms used but not defined herein shall have the
meaning given to them in the NPA. Notwithstanding anything
indicated herein or in the NPA, this Note is deemed to be one of
the Notes under the NPA, is a Note Purchase Document and this Note
and the obligations hereunder are subject to the provisions of the
NPA.

 



1. 

Use of Proceeds.
The proceeds of this Note shall be
used by the Obligors as approved by the Lender in its sole
discretion to: (i) repay intercompany advances to Goodland Advanced
Fuels, Inc. for the purposes of servicing interest owed pursuant to
its senior credit facility and for general operating expenses, (ii)
finance operating expenses related to the Keyes Plant, (iii)
purchase process equipment related to its operations in Kakinada,
India, (iv) service payables and engineering costs of Aemetis
Advanced Products Keyes, Inc., (v) cover certain other expenses
related to its proposed digester project with Maas Energy Works,
Inc., and (vi) to pay the Fee (as defined
below).





 



2. 

Interest. From the date hereof until the repayment of this
Note in full, interest on the principal amount outstanding shall be
calculated at the rate of 14% per annum, and paid monthly in
arrears; provided, however, that upon and during the occurrence of
an Event of Default under the NPA or the non-payment of this Note
by the Maturity Date, the interest rate shall be increased to 20%
per annum.





 



3. 

Maturity Date.
The outstanding principal balance of
the indebtedness evidenced hereby, plus any accrued but unpaid
interest, obligations, fees and any other sums owing hereunder,
shall be due and payable in full at the earlier to occur of: (a)
the closing of any new debt or equity financing, refinancing or
other similar transaction between the Lender or any fund or entity
arranged by the Lender and any Obligor or any Affiliate thereof;
(b) the receipt by an Obligor or Affiliate thereof of proceeds from
any sale, merger, equity or debt financing, refinancing or other
similar transaction from any third party; and (c) April 30, 2018
(the “Maturity
Date”).





 


 




 








Exhibit
10.1






 

 

 



4. 

Upfront Fee.
The Obligors shall pay to the Lender a
fee (the “Fee”) in the amount of $100,000 which shall be
deemed earned and non-refundable on the date hereof and shall be
payable from the proceeds of this Note.





 



5. 

Acknowledgement of
Security. The Obligors hereby
acknowledge, confirm and agree that this Note, and the obligations
hereunder, are secured by valid and enforceable liens and security
interests upon and in the property and assets of the Obligors as
described in the NPA and the other Note Purchase Documents and
reaffirm their obligations pursuant to all applicable Note Purchase
Documents to which they are a party.





 



6. 

Additional Obligations of the
Obligors. As further
consideration of the Lender providing the funds contemplated under
this Note, the Obligors hereby agree, upon the request of the
Lender, to take such action, and execute and deliver such further
documents as may be reasonably necessary or appropriate to give
effect to the provisions and intent of this
Note.





 



7. 

Waivers. Each Obligor hereby waives demand, presentment
for payment, notice of dishonor, protest, and notice of protest and
diligence in collection or bringing suit. Time is of the
essence.





 



8. 

Attorneys’
Fees. Each Obligor agrees to
pay the reasonable attorneys’ fees and costs incurred by the
Lender in collecting on or enforcing the terms of this Note,
whether by suit or otherwise.





 



9. 

Paramountcy.
In the event of any conflicts between
the provisions of this Note and any provisions of the NPA, solely
in connection with this Note, the provisions of this Note shall
prevail and be paramount.





 



10. 

Severability. In the event any one or more of the provisions
of this Note shall for any reason be held to be invalid, illegal,
or unenforceable, in whole or in part or in any respect, or in the
event that any one or more of the provisions of this Note operate
or would prospectively operate to invalidate this Note, then and in
any such event, such provision(s) only shall be deemed null and
void and shall not affect any other provision of this Note and the
remaining provisions of this Note shall remain operative and in
full force and effect and in no way shall be affected, prejudiced,
or disturbed thereby.





 



11. 

Miscellaneous.
This Note and the obligations hereunder may not be assigned by
Obligors without the prior written consent of the Lender. This Note
and the rights hereunder may be assigned by Lender without the
consent of the Obligors. As used herein, the terms
“Obligors” and “Lender” shall be deemed to
include their respective successors, legal representatives and
assigns, whether by voluntary action of the parties or by operation
of law. Each Obligor hereby submits to jurisdiction in the State of
Delaware and this Note shall be governed by and be construed in
accordance with the laws of the State of Delaware. This Note may
not be modified except by written agreement signed by the Obligors
and the Lender.





 


 




 








Exhibit
10.1






 

 


IN WITNESS
WHEREOF, each Obligor has
caused this Note to be executed and delivered under seal as of the
date first set forth above.

 


 


	

 

	

BORROWERS:

AEMETIS
ADVANCED FUELS KEYES, INC.  


	

 


	

 

	

 

	

 

	

 


	
 

	
By:  

	
/s/
Eric
A. McAfee

	

 


	

 

	Name:	
Eric
A. McAfee

	

 


	

 

	Title:	Chief
Executive Officer	

 


	

 

	 	 	

 


	

 

	 	 	

 


	

 

	
AEMETIS FACILITY KEYES, INC.	

 


	

 

	 	 	

 


	

 

	By:	
/s/
Eric
A. McAfee	

 


	

 

	Name:	Eric
A. McAfee	

 


	

 

	Title:	Chief
Executive Officer	

 


	

 

	 	 	

 


	

 

	 	 	

 


	

 

	





PARENT:



AEMETIS, INC.



	

 


	

 

	 	 	

 


	

 

	By:	
/s/
Eric
A. McAfee	

 


	

 

	Name:	Eric
A. McAfee	

 


	

 

	Title:	Chief
Executive Officer	

 


	

 

	 	 	

 


	

 

	 	 	

 






 






 







 

 


 

 



Signature Page to Promissory Note dated February 26,
2018