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Exhibit 10.1


PROMISSORY
NOTE


	
 $2,100,000.00

	
 

	
 January 31, 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 the THIRD EYE
CAPITAL CORPORATION (the “Lender”) the
principal amount of Two Million Dollars and one hundred thousand
dollars ($2,100,000.00),
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, Third Eye Capital Corporation, as agent for
certain Noteholders (“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 for the purposes of: (i)
repurchasing 274,557 common shares of Parent from Third Eye Capital
Special Opportunities S.A.R.L for total proceeds of $466,746; (ii)
satisfying accounts payable and working capital requirements as
approved by Lender; and (ii) paying the Lender fees
hereunder.








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 in the event of
default under the NPA or 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 and any other sums due hereunder, shall be due and
payable in full at the earlier to occur of (a) receipt of proceeds
from any financing, refinancing or other similar transaction, (b)
extension of credit by the Lender, or Agent on behalf of certain
lenders, to the Debtors or their affiliates, and (c) May 30, 2017
(the “Maturity
Date”).








4.

Upfront Fee. The Debtors shall pay to
the Lenders a fee (the “Fee”) in the amount of $133,254
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.







 

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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 as described in the NPA and the
other Note Purchase Documents.








6.

Additional Obligations of the Debtors.
As further consideration of 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.
Time is of the essence.








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.
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.







{Signature appears on following page}




 

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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	

 


	

 

	

 

	 	

 






 









Signature Page to Promissory Note dated January 31,
2017