amtx_ex1079





 











Exhibit 10.79




THIRD AMENDED AND RESTATED PROMISSORY NOTE

 


March
14, 2021

 


FOR
VALUE RECEIVED, the undersigned, AEMETIS ADVANCED FUELS KEYES,
INC., a Delaware corporation (“AAFK”),
AEMETIS FACILITY KEYES, INC., 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 and/or its affiliates including THIRD EYE
CAPITAL MANAGEMENT INC. (the “Lender”) the
Aggregate Principal Amount as set forth below, at its offices or
such other place as the Lender may designate in
writing.

 


This
Amended and Restated Promissory Note (the “Note”) is an amendment and
restatement of that second Amended and Restated Promissory Note
dated March 6, 2020, which was an amendment and restatement of that
Amended and Restated Promissory Note dated March 11, 2019, which
was an amendment and restatement of the original Promissory Note
dated March 27, 2018 (the “Original Note”). All debts and
other obligations under the Original Note shall be continuing with
the only terms thereof being modified as provided in this Note, and
this Note shall not be deemed to evidence or result in a novation
of such debt or other obligations. This 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.

Availability. Subject to all of the
terms and conditions of this Note, the Lender agrees to make
available, for the Borrowers’ use during the term and prior
to the Maturity Date (defined below), total credit of up to, but
not exceeding, Seventy Million ($70,000,000) Dollars (the
“Commitment”)
plus Capitalized Interest and Capitalized Fee (each defined
below)





 




2.

Use of Proceeds. The principal amount of
this Note advanced to the Obligors (the “Principal Amount”) shall be used
for working capital purposes, the repayment of outstanding
indebtedness (whether secured or unsecured and owed to the Lender
or third party) and to pay the Fee (as defined below).





 




3.

Advances. The Obligors may receive
advances under this Note up to the Commitment at their discretion
(each, an “Advance”) by providing five (5)
Business Days’ prior written notice of their request for an
Advance hereunder and the proposed use of proceeds of such Advance,
provided that such Advances shall be in a minimum amount of
$100,000 and in increments of $50,000.





 




4.

Interest. From the date hereof until the
repayment of this Note in full, interest on the Principal Amount
plus any accrued or Capitalized Interest and Capitalized Fee (the
aggregate being the “Aggregate Principal Amount”)
outstanding shall be calculated at the rate of 30% per annum, and
paid monthly in arrears on the last day of each month (each, an
“Interest Calculation
Date”); provided, however, that upon and during the
occurrence of an Event of Default under the NPA or this Note or the
non-payment of this Note by the Maturity Date, the interest rate
shall be increased to 40% per annum.  At the election of the
Obligors, on each Interest Calculation Date, all of the interest
accrued on the then Aggregate Principal Amount and not previously
capitalized as of such Interest Calculation Date (all such interest
being referred to in this Agreement as “Capitalized Interest”), will be
added to the Aggregate Principal Amount advanced to the Borrower
hereunder as of such Interest Calculation Date. The Aggregate
Principal Amount (as so increased by such Capitalized Interest)
will bear interest at the interest rate indicated herein from and
after such Interest Calculation Date.





 




5.

Standby Fee. From the date hereof until
the earlier of: (i) the early termination of this Note by the
parties hereto; (ii) the Maturity Date; and (iii) the date upon
which all Note Indebtedness (as defined therein) owed pursuant to
that Note Purchase Agreement dated June 30, 2017 (as amended from
time to time) is repaid in full by Goodland Advanced Fuels, Inc.
(an affiliate of the Obligors and the borrower thereunder), the
Borrowers hereunder shall pay to the Lender a standby fee
calculated at the rate per annum equal to two percent (2%) of the
difference between the average of the Aggregate Principal Amount
outstanding and the Commitment, calculated and payable monthly in
arrears in cash on the first Business Day following the end of each
month and on the Maturity Date.





 



 







 





 




6.

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 on April 1, 2022 (the
“Maturity
Date”). The Obligors shall be required to repay the
indebtedness under any Advances hereunder from: (a) the proceeds of
the closing of any new debt or equity financings, refinancing or
other similar transaction between the Lender or any fund or entity
arranged by the Lender and any Obligor or any Affiliate thereof;
and (b) the receipt by an Obligor or Affiliate thereof of proceeds
from any sale, merger, equity or debt financing (including without
limitation any EB-5 financing), refinancing or other similar
transaction from any third party, after the repayment of the
indebtedness outstanding pursuant to the NPA. The Obligors may
reborrow any amounts so repaid up until the Maturity Date upon the
terms and conditions hereof.





 




7.

Advance Fee. Upon any Obligor making a
request for an Advance, the Obligor shall pay to the Lender a
one-time fee (the “Fee”) in the amount of $500,000
which shall be deemed earned and non-refundable on the date of such
initial Advance, provided that such Fee may be added to the
Principal Amount on the date of such initial Advance made pursuant
to this Note (the “Capitalized
Fee”).





 




8.

Conditions to Advances. Administrative
Agent shall have received from Aemetis all other approvals,
opinions, documents, agreements, instruments, certificates,
schedules and materials as Administrative Agent may request with
respect to each proposed Advance.





 




9.

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.





 




10.

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.





 




11.

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.





 




12.

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.





 




13.

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.





 




14.

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.





 




15.

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.





 


[Signature
Page Follows]

 




 








 






 

 


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.  


	

 


	

 

	

 

	

 

	

 


	
Date

	
By:  

	
/s/ Eric A.
McAfee

	

 


	

 

	

 

	
Eric A.
McAfee	

 


	

 

	

 

	Chief Executive
Officer	

 









	

 

	
AEMETIS
FACILITY KEYES, INC.


	

 


	

 

	

 

	

 

	

 


	
Date

	
By:  

	
/s/ Eric A.
McAfee

	

 


	

 

	

 

	
Eric A.
McAfee	

 


	

 

	

 

	Chief Executive
Officer	

 






 


	
 

	
PARENT:

	
 


	
 

	
AEMETIS,
INC. 


	
 


	
 

	
 

	
 

	
 


	
Date

	
By:  

	
/s/ Eric A.
McAfee

	
 


	
 

	
 

	
Eric A.
McAfee

	
 


	
 

	
 

	
Chief Executive
Officer

	
 






 






 








 






	

 


Accepted
and Acknowledged by:



THIRD EYE CAPITAL CORPORATION



THIRD EYE CAPITAL MANAGEMENT INC.


 


 


By:
/s/ Arif N.
Bhalwani 


     Name:
Arif N. Bhalwani


     Title:
Managing Director