amtx_ex101





 







Exhibit 10.1


 



LIMITED WAIVER AND AMENDMENT NO. 17 TO



AMENDED AND RESTATED NOTE PURCHASE AGREEMENT


 

 


This
Limited Waiver and Amendment No. 17 to Amended and Restated Note
Purchase Agreement (this “Amendment”), is dated as of August
___, 2020, is made by and among (i) AEMETIS ADVANCED FUELS KEYES, INC., a
Delaware corporation (“AEFK”), AEMETIS FACILITY KEYES, INC., a Delaware
corporation (“Keyes
Facility”, together with AEFK, the “Borrowers”), AEMETIS, INC., a Nevada corporation
(“Parent”), and
(ii) THIRD EYE CAPITAL
CORPORATION, an Ontario corporation, as agent for the
Noteholders (“Administrative Agent”), THIRD EYE CAPITAL CREDIT OPPORTUNITIES FUND
– INSIGHT FUND and NINEPOINT – TEC PRIVATE
CREDIT FUND (collectively, the “Noteholders”).

 



RECITALS


 


A.           The
Borrowers, Administrative Agent and Noteholders entered into the
Amended and Restated Note Purchase Agreement dated as of July 6,
2012, as amended from time to time including most recently by an
Amendment No. 16 dated as of November 8, 2019 (as the same may be
amended, restated, supplemented, revised or replaced from time to
time, the “Agreement”). Capitalized terms
used but not defined in this Amendment shall have the meaning given
to them in the Agreement.

 


B.           The
Borrowers have requested, and the Administrative Agent has agreed
to waive certain financial covenants included in the Agreement, in
each case on the terms and conditions contained
herein.

 


C.           The
Borrowers have requested, and the Administrative Agent and
Noteholders have agreed to extend the maturity dates of the Notes
indicated in the Agreement, on the terms and conditions contained
herein and in reliance on Section 12.8 of the
Agreement.

 



AGREEMENT


 


SECTION
1.     Reaffirmation of
Indebtedness. The Borrowers hereby confirm that as of July
31, 2020, the outstanding principal balance of the Notes (excluding
accrued interest) is $111,431,228.58.

 


SECTION
2.     Recitals Part of
Agreement. The foregoing recitals are hereby incorporated
into and made a part of the Agreement, including all defined terms
referenced therein.

 


SECTION
3.     Maturity Date
Extension. Section 1.1 of the Agreement is hereby amended by
substituting the following definitions in lieu of the versions of
such terms and related definitions contained in the Agreement, as
applicable, in the appropriate alphabetical order:

 


                       
“Acquisition Notes Stated
Maturity Date” means April 1, 2020; provided that the
Acquisition Notes Stated Maturity Date may be extended twice for
two 1-year terms upon written notice to the Administrative Agent of
the Borrowers’ election to extend not earlier than 60 days,
and not later than 30 days, prior to the then applicable maturity
date, so long as at the time of each such extension (a) no Default
or Event of Default has occurred and is continuing under any
Financing Document and (b) the Borrowers pay to the Administrative
Agent an extension fee in cash in an amount equal to 1% of the Note
Indebtedness in respect to the Acquisition Notes which fee shall be
deemed fully earned and nonrefundable, provided that such fee (in
each instance) may be added to the outstanding principal balance of
the Acquisition Notes on the effective date of each such extension
at the election of the Borrowers.”

 


 




 








 






 


 

 


“Existing Notes Stated Maturity
Date” means April 1, 2020; provided that
the Existing Notes Stated Maturity Date may be extended twice for
two 1-year terms upon written notice to the Administrative Agent of
the Borrowers’ election to extend not earlier than 60 days,
and not later than 30 days, prior to the then applicable maturity
date, so long as at the time of the extension (a) no Default or
Event of Default has occurred and is continuing under any Financing
Document, (b) the Borrowers pay to the Administrative Agent an
extension fee in cash in an amount equal to 1% of the Note
Indebtedness in respect to the Existing Notes which fee shall be
deemed fully earned and nonrefundable, provided that such fee (in
each instance) may be added to the outstanding principal balance of
the Existing Notes on the effective date of such extension at the
election of the Borrowers.”


 


“Revenue Participation Notes Stated Maturity
Date” 
means April 1, 2020; provided that the Revenue
Participation Notes Stated Maturity Date may be extended twice for
two 1-year terms upon written notice to the Administrative Agent of
the Borrowers’ election to extend not earlier than 60 days,
and not later than 30 days, prior to the then applicable maturity
date, so long as at the time of the extension (a) no Default or
Event of Default has occurred and is continuing under any Financing
Document and (b) the Borrowers pay to the Administrative Agent an
extension fee in cash in an amount equal to 1% of the Note
Indebtedness in respect to the Revenue Participation Notes which
fee shall be deemed fully earned and nonrefundable, provided that
such fee (in each instance) may be added to the outstanding
principal balance of the Revenue Participation Notes on the
effective date of such extension at the election of the
Borrowers.”

 


“Revolving Notes Stated Maturity
Date” means April 1, 2020; provided that the Revolving
Notes Stated Maturity Date may be extended twice for two 1-year
terms upon written notice to the Administrative Agent of the
Borrowers’ election to extend not earlier than 60 days, and
not later than 30 days, prior to the then applicable maturity date,
so long as at the time of the extension (a) no Default or Event of
Default has occurred and is continuing under any Financing Document
and (b) the Borrowers pay to the Administrative Agent an extension
fee in cash in an amount equal to 1% of the Note Indebtedness in
respect to the Revolving Notes which fee shall be deemed fully
earned and nonrefundable, provided that such fee (in each instance)
may be added to the outstanding principal balance of the Revolving
Notes on the effective date of such extension at the election of
the Borrowers.”

 


SECTION
4. Unfunded Capital Expenditures
Waiver.

 


(1)            Based
on the information provided to the Administrative Agent by the
Borrowers, the Borrowers reported that the Consolidated Unfunded
Capital Expenditures for the Fiscal Quarters ending March 31, 2020
and June 30, 2020 exceeded the $100,000 limit in Section 6.2(d) of
the Agreement which non-compliance, in each instance would, but for
this waiver, constitute an Event of Default under the Agreement
(the “Unfunded Capital
Expenditures Violations”).

 


(2)            Subject
to the terms of this Amendment, the Administrative Agent waives, as
of the Effective Date, the Unfunded Capital Expenditures
Violations; provided that the Borrowers shall be and remain
obligated to comply with their obligations as stated in Section
6.2(d) of the Agreement, on a going forward basis
thereafter.

 


 




 








 






 


 

 


SECTION
5. Permitted Indebtedness Waiver

 


(1)            Based
on the information provided to the Administrative Agent by the
Borrowers, the Borrowers reported that pursuant to an Equipment
Purchase Agreement between the Parent and Mitsubishi Chemical
America Inc., dated August 24, 2018 as amended, the Parent
purchased certain equipment resulting in the Parent owing
Indebtedness of $5,652,375 thereunder which is a violation of
Section 6.4(a) of the Agreement, which non-compliance would, but
for this waiver, constitute an Event of Default under the Agreement
(the “Permitted Indebtedness
Violation”).

 


(2)            Subject
to the terms of this Amendment, the Administrative Agent waives, as
of the Effective Date, the Permitted Indebtedness Violation
provided that the Borrowers shall be and remain obligated to comply
with their obligations as stated in Section 6.4(a) of the
Agreement, on a going forward basis thereafter.

 


SECTION
6. Redemption Event
Waiver

 


(1)            Based
on the information provided to the Administrative Agent by the
Borrowers, the Borrowers reported that in the period of April 2019
through to March 2020 they received $778,268.15 in proceeds from a
government grant under the Joint Bioenergy Institute program, which
grant triggered a Redemption Event under the Agreement, following
which, the Borrowers failed to redeem Notes equal to the amount
required in accordance with Section 4.2(1) of the Agreement, which
non-compliance would, but for this waiver, constitute an Event of
Default under the Agreement (the “Redemption Event
Violation”).

 


(2)            Subject
to the terms of this Amendment, the Administrative Agent waives, as
of the Effective Date, the Redemption Event Violation provided that
the Borrowers shall be and remain obligated to comply with their
obligations as stated in Section 4.2(1) of the Agreement, on a
going forward basis thereafter.

 


SECTION
7. Payroll Waiver

 


(1)            With
respect to the global coronavirus Covid-19 pandemic, each of AEFK
and Parent have indicated their desire to apply for the United
States government’s Payroll Protection Program whereby each
will enter into a loan agreement with Bank of America in the forms
attached as Schedule “A” (collectively, the
“Payroll Loan”).
The entering into and receipt of the Payroll Loan, if not for the
provision of the waiver herein below by the Administrative Agent,
would constitute a breach under Section 6.4(a) of the
Agreement.

 


(2)            Subject
to the terms of this Amendment, the Administrative Agent hereby
consents to the Payroll Loan on the terms indicated in Schedule
“A” hereto provided that: (i) the Company Parties
hereby covenant and agree not to amend any term of the Payroll Loan
or extend the maturity date without the prior written consent of
the Administrative Agent; (ii) the Company Parties agree to take
advantage of and apply for all debt forgiveness and relief
opportunities offered under the Payroll Loan, as more particularly
outlined in Section 8 of the Payroll Loan; and (iii) the Company
Parties hereby acknowledge their obligations under Section 6.4(c)
of the Agreement and covenant and agree not to create, incur,
assume or suffer to exist any Lien with respect to the Payroll
Loan.

 


SECTION
8. Subordinated Debt
Waiver

 


(1)            Based
on the information provided to the Administrative Agent by the
Borrowers, on June 29, 2020 the Borrowers remitted $250,000 in
repayment of a Subordinated Debt owed to David Lies, a subordinated
debt holder, in contravention of Section 6.4(u) of the Agreement,
which non-compliance would, but for this waiver, constitute an
Event of Default (the "Subordinated
Debt Violation").

 


 




 








 






 


 

 


(2)            Subject
to the terms of this Amendment, the Administrative Agent waives, as
of the Effective Date, the Subordinated Debt Violation; provided
that the Borrowers shall be and remain obligated to comply with
their obligations as stated in Section 6.4(u) of the Agreement, on
a going forward basis thereafter.

 

SECTION
9.        
Note Indebtedness to Keyes Plant Values Waiver

 


(1)            Based
on the information provided to the Administrative Agent by the
Borrowers, the Borrowers reported that they will not comply with
the “Note Indebtedness to Keyes Plant Values”
requirement pursuant to Section 6.2(b) of the Agreement for the
Fiscal Quarters ending March 31, 2021 and June 30, 2021, which
non-compliance will, but for this waiver, in each case constitute
an Event of Default under the Agreement (the “Note Indebtedness
Violation”).

 


(2)            Subject
to the terms of this Amendment, the Administrative Agent waives, as
of the Effective Date, the Note Indebtedness Violation provided
that the Borrowers shall be and remain obligated to comply with
their obligations as stated in Section 6.2(b) of the Agreement, on
a going forward basis thereafter.

 


SECTION
10.   Blocked Account
Agreements Amendment. Section 6.3 of the Agreement is hereby
amended by inserting the new paragraph, in the appropriate roman
numeral order:

 

“(cc)            
In addition to, and not in derogation or replacement of any other
provision of this Agreement, by August 31, 2020, the Borrowers
shall deliver Blocked Account Control Agreements, in form and
substance satisfactory to the Administrative Agent, with Bank of
America which shall be subject to an activation notice and daily
sweep mechanism and which shall require that the Borrowers obtain
the Administrative Agent’s consent for any disbursements from
such Blocked Account greater than $100,000 (excluding any payments
of feedstock, utility costs or payroll, in each case in the
ordinary course), with respect to the deposit accounts of each
Company Party as dictated by the Administrative
Agent.”

 


SECTION
11.        Conditions to Effectiveness. This
Amendment shall be effective on the date first written above but
subject to satisfaction of the following conditions
precedent:

 


(A)            Administrative
Agent shall have been paid an amendment fee in the amount of either
(i) $300,000 in cash or (ii) $400,000 in shares of Parent valued at
the 10-day value-weighted average price on the date of this
Amendment, which fee shall be deemed fully earned and nonrefundable
on the effective date of this Amendment.

 


(B)            Borrowers
shall, and will cause the other Company Parties to, have performed
and complied with all of the covenants and conditions required by
this Amendment and the Note Purchase Documents to be performed and
complied with upon the effective date of this
Amendment.

 


(C)           Administrative
Agent shall have received all other approvals, opinions, documents,
agreements, instruments, certificates, schedules and materials as
Administrative Agent may reasonably request.

 


 




 








 






 


 

 


Each
Borrower acknowledges and agrees that the failure to perform, or to
cause the performance of, the covenants and agreements in this
Amendment will constitute an Event of Default under the Agreement
and Administrative Agent and Noteholders shall have the right to
demand the immediate repayment in full in cash of all outstanding
Indebtedness owing to Administrative Agent and Noteholders under
the Agreement, the Notes and the other Note Purchase Documents. In
consideration of the foregoing and the transactions contemplated by
this Amendment, each Borrower hereby: (i) ratifies and
confirms all of the obligations and liabilities of such Borrower
owing pursuant to the Agreement and the other Note Purchase
Documents, and (ii) agrees to pay all costs, fees and expenses of
Administrative Agent and Noteholders in connection with this
Amendment.

 


SECTION
12.            
Agreement in Full Force and Effect
as Amended. Except as specifically amended or waived hereby,
the Agreement and other Note Purchase Documents shall remain in
full force and effect and are hereby ratified and confirmed as so
amended. Except as expressly set forth herein, this Amendment shall
not be deemed to be a waiver, amendment or modification of, or
consent to or departure from, any provisions of the Agreement or
any other Note Purchase Document or any right, power or remedy of
Administrative Agent or Noteholders thereunder, nor constitute a
course of dealing or other basis for altering any obligation of the
Borrowers, or a waiver of any provision of the Agreement or any
other Note Purchase Document, or any other document, instrument or
agreement executed or delivered in connection therewith or of any
Default or Event of Default under any of the foregoing, in each
case whether arising before or after the execution date of this
Amendment or as a result of performance hereunder or thereunder.
This Amendment shall not preclude the future exercise of any right,
remedy, power, or privilege available to Administrative Agent or
Noteholders whether under the Agreement, the other Note Purchase
Documents, at law or otherwise. All references to the Agreement
shall be deemed to mean the Agreement as modified hereby. This
Amendment shall not constitute a novation or satisfaction and
accord of the Agreement or any other Note Purchase Documents, but
rather shall constitute an amendment thereof. The parties hereto
agree to be bound by the terms and conditions of the Agreement and
Note Purchase Documents as amended by this Amendment, as though
such terms and conditions were set forth herein. Each reference in
the Agreement to “this Agreement,”
“hereunder,” “hereof,” “herein”
or words of similar import shall mean and be a reference to the
Agreement as amended by this Amendment, and each reference herein
or in any other Note Purchase Documents to “the
Agreement” shall mean and be a reference to the Agreement as
amended and modified by this Amendment.

 


SECTION
13.             
Representations by Parent and
Borrowers. Each of the Parent and the Borrowers hereby
represents and warrants to Administrative Agent and Noteholders as
of the execution date of this Amendment as follows: (A) it is
duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation; (B) the execution,
delivery and performance by it of this Amendment and all other Note
Purchase Documents executed and delivered in connection herewith
are within its powers, have been duly authorized, and do not
contravene (i) its articles of incorporation, bylaws or other
organizational documents, or (ii) any applicable law;
(C) no consent, license, permit, approval or authorization of,
or registration, filing or declaration with any Governmental Entity
or other Person, is required in connection with the execution,
delivery, performance, validity or enforceability of this Amendment
or any other Note Purchase Documents executed and delivered in
connection herewith by or against it; (D) this Amendment and
all other Note Purchase Documents executed and delivered in
connection herewith have been duly executed and delivered by it;
(E) this Amendment and all other Note Purchase Documents
executed and delivered in connection herewith constitute its legal,
valid and binding obligation enforceable against it in accordance
with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights
generally or by general principles of equity; (F) it is not in
default under the Agreement or any other Note Purchase Documents
and no Event of Default exists, has occurred and is continuing or
would result by the execution, delivery or performance of this
Amendment; and (G) the representations and warranties
contained in the Agreement and the other Note Purchase Documents
are true and correct in all material respects as of the execution
date of this Amendment as if then made, except for such
representations and warranties limited by their terms to a specific
date.

 


 




 








 






 


 

 


SECTION
14. Miscellaneous.

 


(A)           This
Amendment may be executed in any number of counterparts (including
by facsimile or email), and by the different parties hereto on the
same or separate counterparts, each of which shall be deemed to be
an original instrument but all of which together shall constitute
one and the same agreement. Whenever the context and construction
so require, all words herein in the singular number herein shall be
deemed to have been used in the plural, and vice versa. The use of
the word “including” in this Amendment shall be by way
of example rather than by limitation. The use of the words
“and” or “or” shall not be inclusive or
exclusive.

 


(B)           This
Amendment may not be changed, amended, restated, waived,
supplemented, discharged, canceled, terminated or otherwise
modified without the written consent of the Borrowers and
Administrative Agent. This Amendment shall be considered part of
the Agreement and shall be a Note Purchase Document for all
purposes under the Agreement and other Note Purchase
Documents.

 


(C)           This
Amendment, the Agreement and the Note Purchase Documents constitute
the final, entire agreement and understanding between the parties
with respect to the subject matter hereof and thereof and may not
be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements between the parties, and shall be binding upon and
inure to the benefit of the successors and assigns of the parties
hereto and thereto. There are no unwritten oral agreements between
the parties with respect to the subject matter hereof and
thereof.

 


(D)           This
Amendment and the rights and obligations of the parties under this
Amendment shall be governed by and construed and interpreted in
accordance with the choice of law provisions set forth in the
Agreement and shall be subject to the waiver of jury trial and
notice provisions of the Agreement.

 


(E)           Neither
the Parent nor any Borrower may assign, delegate or transfer this
Amendment or any of their rights or obligations hereunder. No
rights are intended to be created under this Amendment for the
benefit of any third party done, creditor or incidental beneficiary
of the Borrowers or any Company Party. Nothing contained in this
Amendment shall be construed as a delegation to Administrative
Agent or Noteholders of the Borrowers or any Company Party’s
duty of performance, including any duties under any account or
contract in which Administrative Agent or Noteholders have a
security interest or lien. This Amendment shall be binding upon the
Borrowers, the Parent and their respective successors and
assigns.

 


(F)           All
representations and warranties made in this Amendment shall survive
the execution and delivery of this Amendment and no investigation
by Administrative Agent or Noteholders shall affect such
representations or warranties or the right of Administrative Agent
or Noteholders to rely upon them.

 


(G)           THE
BORROWERS AND THE PARENT ACKNOWLEDGE THAT SUCH PERSON’S
PAYMENT OBLIGATIONS ARE ABSOLUTE AND UNCONDITIONAL WITHOUT ANY
RIGHT OF RECISSION, SETOFF, COUNTERCLAIM, DEFENSE, OFFSET,
CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER
THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS
LIABILITY TO REPAY THE “OBLIGATIONS” OR TO SEEK
AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM
ADMINISTRATIVE AGENT OR ANY NOTEHOLDER. THE BORROWERS AND THE
PARENT HEREBY VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER
DISCHARGE ADMINISTRATIVE AGENT AND EACH NOTEHOLDER AND THEIR
RESPECTIVE PREDECESSORS, ADMINISTRATIVE AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASED
PARTIES”), FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES
OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER,
KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR
UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN
EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS
AMENDMENT IS EXECUTED, WHICH SUCH PERSON MAY NOW OR HEREAFTER HAVE
AGAINST THE RELEASED PARTIES, IF ANY, AND IRRESPECTIVE OF WHETHER
ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR
REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY
“LOANS”, INCLUDING ANY CONTRACTING FOR, CHARGING,
TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF
THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER THE AGREEMENT OR OTHER NOTE PURCHASE DOCUMENTS, AND
NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.

 



{Signatures appear on following pages.}

 




 








 






IN
WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first noted 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

 


 



ADMINISTRATIVE AGENT:


 


THIRD
EYE CAPITAL CORPORATION

 



By: /s/ Arif N.
Bhalwani       







Name:
Arif N. Bhalwani


Title:
Managing Director

 


 





Signature Page to Limited Waiver and Amendment No. 17


 


 


 








 






 


 


 


 



LENDER:


 


THIRD EYE CAPITAL CREDIT OPPORTUNITIES FUND
– INSIGHT FUND, by its Managing General Partner, THIRD EYE
CAPITAL CREDIT OPPORTUNITIES S.A.R.L., as a
Noteholder


 


 





By: /s/ Paul De Quant





Name: Paul De
Quant 



Title:
Manager


 

 



By: /s/ Richard
Goddard    







Name:
Richard Goddard


Title:
Manager


 


 



LENDER:


 


NINEPOINT – TEC PRIVATE CREDIT
FUND, by its Manager,
NINEPOINT PARTNERS
LP, by its general
partner, NINEPOINT PARTNERS GP
INC., as a
Noteholder

 

 



By: /s/ Kirstin
McTaggart  







Name:
Kirstin McTaggart


Title:
Chief Compliance Officer