Blueprint





Exhibit
10.1





 



PROMISSORY NOTE

 


	


$1,500,000

	

April
28, 2017







 


FOR
VALUE RECEIVED, the undersigned, AEMETIS ADVANCED FUELS KEYES, INC,
a Delaware corporation (“AAFK”),
AEMETIS FACILITY KEYES, INC. (formerly known as AE Advanced Fuels
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. (formerly known as AE Biofuels, Inc.), a Nevada
corporation (“Parent”, and
together with Borrowers, the “Debtors”)
jointly and severally promise to pay to the order of THIRD EYE
CAPITAL CORPORATION (the “Lender”) the
principal amount of one million five hundred thousand dollars
($1,500,000.00), 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 Debtors, the Lender, as agent for the Noteholders
thereunder (in such capacity, the “Agent”) and the Noteholders.
Capitalized terms used but not defined herein shall have the
meaning given to them in the NPA. This Note is one of the Notes
under the NPA and is subject to the provisions of the
NPA.

 




1.

Use of Proceeds. The proceeds of this
Note may only be used by the Debtors to pay the Placement Fee in
the amount of $500,000, and a reserve against liquidated damages in
the amount of $500,000 directly or on behalf of Goodland Advanced
Fuels, Inc., as each may be referenced in the Term Sheet dated
April 13, 2017 (“Goodland
Term Sheet”) or as such payments may be described and
defined in the Note Purchase Documentation with respect to the
Financing (as such terms are defined in the Goodland Term Sheet),
and for working capital purposes approved by the Lender in its sole
discretion. At closing of the Financing (as defined in the Goodland
Term Sheet), the reserve against liquidated damages referenced
above will be credited towards the Closing Fee (as defined in the
Goodland Term Sheet).





 




2.

Interest. From the date hereof until the
repayment of this Note in full, interest on $500,000 of the
principal amount outstanding shall be calculated at the rate of 14%
per annum, and paid monthly in arrears; provided, however, that in
the event of default under the NPA or non-payment of this Note by
the Maturity Date: (i) interest on the entire $1,500,000 principal
amount shall be retroactively calculated at the rate of 14% per
annum from the date hereof until the Maturity Date or, as
applicable, the date of an event of default under the NPA; and (ii)
the interest rate on the entire principal amount outstanding shall
be increased to 20% per annum from and after the Maturity Date or,
if applicable, the date of an event of default under the NPA until
the repayment of this Note in full.





 




3.

Maturity Date. The outstanding principal
balance of the indebtedness evidenced hereby, plus any accrued but
unpaid interest and any other sums due hereunder, shall be due and
payable in full at the earlier to occur of (a) closing of the
Financing (as defined in the Goodland Term Sheet), (b) receipt of
proceeds from any financing, refinancing or other similar
transaction, (c) extension of credit by the Lender, or Agent on
behalf of certain lenders or the Noteholders, to the Debtors or
their affiliates, and (c) June 15, 2017 (the “Maturity Date”).





 


 




 








 






 




4.

Upfront Fee. The Debtors shall pay to
the Lender a fee in the amount of $20,000 payable to the Lender
which shall be deemed earned and non-refundable on the date hereof
and shall be payable from the proceeds of the Note.





 




5.

Acknowledgement of Security. The Debtors
hereby acknowledge, confirm and agree that this Note is secured by
valid and enforceable liens and security interests upon and in the
property and assets of the Obligors pursuant to, and as described
in, the NPA and the other Note Purchase Documents.





 




6.

Additional Obligations of the Debtors.
As further consideration for the Lender providing the funds
contemplated under this Note, the Debtors hereby agree to, upon the
request of the Lender, 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 Debtor hereby waives
demand, presentment for payment, notice of dishonor, protest, and
notice of protest and diligence in collection or bringing
suit.





 




8.

Attorneys’ Fees. Each Debtor
agrees to pay reasonable attorneys’ fees and costs incurred
by Agent and Lender in collecting on 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 Debtors without the
prior written consent of the Lender. This Note and the rights
hereunder may be assigned by Lender without the consent of Debtors.
Time is of the essence under this Note. As used herein, the terms
“Debtors” 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 Debtor 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 Debtors and
the Lender.





 


 




 








 






 


IN WITNESS WHEREOF, each Debtor 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