amtx_ex1080





 











Exhibit 10.80




LIMITED WAIVER AND AMENDMENT NO. 19 TO



AMENDED AND RESTATED NOTE PURCHASE AGREEMENT


 


This
Limited Waiver and Amendment No. 19 to Amended and Restated Note
Purchase Agreement (this “Amendment”), is dated as of March
14, 2021, 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. 18 dated as of November 5, 2020 (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.

 



AGREEMENT


 


SECTION
1.                                Reaffirmation
of Indebtedness. The Borrowers hereby confirm that as of
February 28, 2021, the outstanding principal balance of the Notes
(including accrued interest) is $121,538,393.25.

 


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 Fee
Amendment.

 

(1) Definitions. Section 1.1 of the
Agreement is hereby by substituting the following definition in
lieu of the versions of such terms and related definitions
contained in the Agreement:

 




a)

“Acquisition Notes Stated Maturity
Date” means April 1, 2021; provided that the
Acquisition Notes Stated Maturity Date may be extended to April 1,
2022 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 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 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 half of such fee may be added to the
outstanding principal balance of the Acquisition Notes on the
effective date of such extension at the election of the Borrowers
and the balance shall be due and payable in cash or common stock of
the Parent (equivalent to 110% of the relevant half of such
extension fee) within 60 days of the date of such relevant
extension.”





 




b)

“Existing Notes Stated Maturity
Date” means April 1, 2021; provided that
the Existing Notes Stated Maturity Date may be extended to April 1,
2022 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 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 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 half of such fee 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
and the balance shall be due and payable in cash or common stock of
the Parent (equivalent to 110% of the relevant half of such
extension fee) within 60 days of the date of such relevant
extension.”






 



 







 






 




c)

“Revenue Participation Notes Stated Maturity
Date” 
means April 1, 2021; provided that the Revenue
Participation Notes Stated Maturity Date may be extended to April
1, 2022 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 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 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 half of such fee 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 and the balance shall be due and payable
in cash or common stock of the Parent (equivalent to 110% of the
relevant half of such extension fee) within 60 days of the date of
such relevant extension.”





 




d)

“Revolving Notes Stated Maturity
Date” means April 1, 2021; provided that the Revolving
Notes Stated Maturity Date may be extended to April 1, 2022 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 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 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 half of such fee 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
and the balance shall be due and payable in cash or common stock of
the Parent (equivalent to 110% of the relevant half of such
extension fee) within 60 days of the date of such relevant
extension.”





 


SECTION
4.                                 Note
Indebtedness to Keyes Plant Values Waiver and
Amendment.

 

(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 Quarter
ending December 31, 2021, which non-compliance will, but for this
waiver, 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 (as amened
hereby), on a going forward basis thereafter.

 


(3)            Section
6.2(b) of the Agreement is hereby deleted in its entirety and
replaced with the following:

 


“Ratios of
Note Indebtedness to Keyes Plant Values. The Parent will not permit
the ratio of Note Indebtedness (excluding, for purposes of this
covenant only, the Redemption Fee) to the Keyes Plant Market Value
to exceed 70%, tested quarterly as of the last day of each Fiscal
Quarter, and commencing with the Fiscal Quarter ending March 31,
2022, the Parent will not permit the ratio of Note Indebtedness
(excluding, for purposes of this covenant only, the Redemption Fee)
to the Keyes Plant Market Value to exceed 100%, tested quarterly as
of the last day of each Fiscal Quarter; and”

 


SECTION
5.                                 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 September 30,
2020, December 31, 2020 and March 31, 2021 exceeded the $100,000
limit in Section 6.2(c) 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
Violation”).

 


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

 



 







 





 


SECTION
6.                                 Redemption
Event Waiver.


 

(1) Based on
information provided to the Administrative Agent by the Borrowers,
the Borrowers reported that in the period from October 2020 to
February 2021, net proceeds of $23,731,746.11 was received by the
Parent from the completion of various equity offerings of Capital
Stock, which 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. Blocked Account
Agreement Waiver.


 

(1) Based on the
information provided to the Administrative Agent by the Borrowers,
the Borrowers failed to deliver Blocked Account Control Agreements
by August 31, 2020, in contravention of Section 6.3 of the
Agreement, which non-compliance would, but for this waiver,
constitute an Event of Default (the "Blocked Account Agreement
Violation").

 

(2) Subject to the
terms of this Amendment, the Administrative Agent waives, as of the
Effective Date, the Blocked Account Agreement Violation; provided
that the Borrowers shall be and remain obligated to comply with
their obligations as stated in Section 6.3 of the Agreement by no
later than March 31, 2021.

 


SECTION
8.                                 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
$100,000 in cash on the date of this Amendment, which fee shall be
deemed fully earned and nonrefundable on the effective date of this
Amendment.

 


(A)            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.

 


(B)           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
9.                                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
10.                                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
11. 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 donee, 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

	
 


	
 

	
 

	
Eric A.
McAfee

	
 


	
 

	
 

	
Chief Executive
Officer

	
 







	
 

	
  
 


	
 


	
 

	
 AEMETIS
FACILITY KEYES, INC. 


	
 


	
 

	
 

	
 

	
 


	



	
By:  

	
/s/ Eric A.
McAfee

	
 


	
 

	
 

	
Eric A.
McAfee

	
 


	
 

	
 

	
Chief Executive
Officer

	
 






 


	
 

	
PARENT:

	
 


	
 

	
AEMETIS,
INC. 


	
 


	
 

	
 

	
 

	
 


	



	
By:  

	
/s/ Eric A.
McAfee

	
 


	
 

	
 

	
Eric A.
McAfee

	
 


	
 

	
 

	
Chief Executive
Officer

	
 






 


	

 

	
ADMINISTRATIVE
AGENT:  




	

 


	

 

	
 THIRD
EYE CAPITAL CORPORATION  




	

 


	

 

	

 

	

 

	

 


	



	
By:  

	
/s/ Arif N.
Bhalwani

	

 


	

 

	

 

	
Arif N.
Bhalwani	

 


	

 

	

 

	Managing
Director