Attached files
| file | filename |
|---|---|
| EX-10.6 - PLEDGE AGREEMENT - AEMETIS, INC | amtx_ex106.htm |
| EX-10.5 - PLEDGE AGREEMENT - AEMETIS, INC | amtx_ex105.htm |
| EX-10.4 - GENERAL SECURITY AGREEMENT - AEMETIS, INC | amtx_ex104.htm |
| EX-10.3 - GENERAL SECURITY AGREEMENT - AEMETIS, INC | amtx_ex103.htm |
| EX-10.2 - NOTE PURCHASE AGREEMENT - AEMETIS, INC | amtx_ex102.htm |
| EX-10.1 - LIMITED GUARANTY - AEMETIS, INC | amtx_ex101.htm |
| 8-K - CURRENT REPORT - AEMETIS, INC | amtx_8k.htm |
Exhibit 10.7
INTERCOMPANY REVOLVING PROMISSORY NOTE
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June
__, 2017
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$[TBD]
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FOR
VALUE RECEIVED, and subject to the terms and conditions set forth
herein, Aemetis, Inc., a Delaware corporation (the
“Borrower”),
hereby unconditionally promises to pay to the order of Goodland
Advanced Fuels, Inc., a Delaware corporation, or its assigns (the
“Holder”,
and together with the Borrower, the “Parties”),
the principal amount of [Ten
Million Dollars] ($[10,000,000]) (the “Loan”)
or, if less, then the aggregate of such amounts the Holder has
disbursed to the Borrower pursuant to Section 2.2,
together with all accrued interest thereon, as provided in this
Intercompany Revolving Promissory Note (the “Note”).
1. Definitions. Capitalized terms
used herein shall have the meanings set forth in this Section 1.
“Advance” means
each disbursement made by the Holder to the Borrower pursuant to
Section
2.2.
“Borrowing
Notice” has the meaning set forth in Section 2.2.
“Business
Day” means a day other than a Saturday, Sunday or
other day on which commercial banks in New York, New York are
authorized or required by law to close.
“Commitment
Period” means the period from the date hereof to
the earlier of (a) the Maturity Date, (b) the date, if any, on
which the Noteholders have no further obligation to make loans
under the Note Purchase Agreement or (c) the date of termination in
whole of the Revolving Line Commitment (as defined in the Note
Purchase Agreement) pursuant to the terms of the Note Purchase
Agreement.
“Debt” of
the Borrower, means all (a) indebtedness for borrowed money; (b)
obligations secured by a Lien on property (to the extent of the
fair market value of the related property), whether or not the
obligation secured thereby shall have been assumed and whether or
not the obligation secured is the obligation of the owner or
another party, except trade accounts payable arising in the
ordinary course of business secured by a purchase money security
interest (c) any obligation on account of deposits or advances, (d)
obligations for the deferred purchase price of property or
services, except trade payables arising in the ordinary course of
business; (e) obligations evidenced by notes, bonds, debentures or
other similar instruments; (f) obligations as lessee under capital
leases; (g) obligations in respect of any interest rate swaps,
currency exchange agreements, commodity swaps, caps, collar
agreements or similar arrangements entered into by the Borrower
providing for protection against fluctuations in interest rates,
currency exchange rates or commodity prices or the exchange of
nominal interest obligations, either generally or under specific
contingencies; (h) obligations under acceptance facilities and
letters of credit; (i) guaranties, endorsements (other than for
collection or deposit in the ordinary course of business), and
other contingent obligations to purchase, to provide funds for
payment, to supply funds to invest in any Person, or otherwise to
assure a creditor against loss, in each case, in respect of
indebtedness set out in clauses (a) through (h) of a Person other
than the Borrower; and (j) indebtedness set out in clauses (a)
through (i) of any Person other than Borrower secured by any lien
on any asset of the Borrower, whether or not such indebtedness has
been assumed by the Borrower.
-1-
“Default” means
any of the events specified in Section 8 which constitutes an
Event of Default or which, upon the giving of notice, the lapse of
time, or both pursuant to Section 8 would, unless cured
or waived, become an Event of Default.
“Default Rate” means a
rate of interest per annum equal to the Interest Rate plus six
percent (6%) per annum.
“Event of
Default” has the meaning set forth in
Section
8.
“GAAP” means
generally accepted accounting principles in the United States of
America as in effect from time to time.
“Interest Rate” for each
Advance shall be equal to the interest rate payable as of the date
of such Advance to the Noteholders pursuant to the Note Purchase
Agreement or, if the Note Purchase Agreement shall not be in
effect, a rate of interest per annum equal to twelve percent
(12%).
“Lien” means
any mortgage, pledge, hypothecation, encumbrance, lien (statutory
or other), charge or other security interest.
“Loan” has
the meaning set forth in the introductory paragraph.
“Material Adverse
Effect” means any condition or circumstance which
has had, or could reasonably be expected to have, a material
adverse effect on (i) the property, nature of assets, business,
results of operations, prospects, performance, liabilities or
condition (financial or otherwise) of the Borrower; (ii) the rights
or remedies of the Holder hereunder, (iii) the ability of the
Borrower to perform its obligations hereunder or otherwise in
connection with the Loan, or (v) the validity or enforceability of
any of this Note.
“Maturity
Date” means the Maturity Date (as such term is
defined in the Note Purchase Agreement).
“Note Purchase Agreement”
means that certain Note Purchase Agreement (including all exhibits
and schedules hereto, as the same may be amended, supplemented,
modified and/or restated from time to time entered into as of June
__, 2017, by and among the Holder, as borrower, the noteholders
party thereto or which thereafter become parties thereto by means
of assignment and assumption as described therein (the
“Noteholders”), and Third
Eye Capital Corporation, as administrative agent and collateral
agent for the Noteholders (the “Agent”).
“Outstanding Amount” means
the sum of the outstanding principal amount of the Revolving
Advances, the unpaid
interest thereon, and all other Note Indebtedness relating to the
Revolving Line under the Note Purchase Agreement. All defined terms
used in this definition of “Outstanding Amounts” shall
have the meaning ascribed thereto under the Note Purchase
Agreement.
-2-
“Parties” has
the meaning set forth in the introductory paragraph.
“Person” means
any individual, corporation, limited liability company, trust,
joint venture, association, company, limited or general
partnership, unincorporated organization, governmental authority or
other entity.
2. Loan Disbursement
Mechanics.
2.1 Commitment. Subject to
Section 2.2, the
Holder shall make available to the Borrower one or more Advances
during the Commitment Period in an aggregate amount not to exceed
the Loan less the Outstanding Amount. During the Commitment Period
the Borrower may repay and reborrow in accordance with the
provisions hereof.
2.2 Advances. As a condition to the
disbursement of any Advance, the Borrower shall, at least seven (7)
Business Days prior to the requested disbursement date, deliver to
the Holder and to Agent a written notice (the “Borrowing
Notice”) in substantially in the form set out in
Schedule A hereto
setting out (a) that no Default has occurred and is continuing; (b)
the amount of the Advance and a description of how the Advance will
be used by the Borrower; and (c) the date on which the Advance is
to be disbursed. Each Borrowing Notice shall be deemed to repeat
the Borrower's representations and warranties in Section 6 as of the date of
such Borrowing Notice. Upon receipt of the Borrowing Notice, the
Holder may, but is under no obligation to, make available to the
Borrower on the disbursement date the amount set out in the notice
in immediately available funds.
3. Final Payment Date; Optional
Prepayments.
3.1 Final Payment Date. The
aggregate unpaid principal amount of the Loan, all accrued unpaid
interest and all other amounts payable under this Note shall be due
and payable on the Maturity Date, unless otherwise provided in
Section
9.
3.2 Optional Prepayment. The
Borrower may prepay the Loan in whole or in part at any time or
from time to time without penalty or premium by paying the
principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Subject to the other terms and
conditions hereof, amounts borrowed may be repaid and reborrowed
from time to time.
4. Interest.
4.1 Interest Rate. The outstanding
principal of the Advances made hereunder (including, to the extent
permitted by law, on interest thereon not paid when due) shall from
the date made or incurred until indefeasibly paid in full in cash
shall bear interest at a per annum rate equal to the Interest Rate,
but not to exceed the maximum rate described in Section 4.4
hereof.
4.2 Default
Rate. If an Event of Default
shall have occurred and be continuing, all outstanding principal of
and, to the fullest extent permitted by law, all past due interest
on the Advances shall bear interest at a rate per annum equal to
the Default Rate. Interest payable at the Default Rate shall be
payable from time to time on demand.
-3-
4.3 Interest Payment
Dates. Interest on the
Advances shall be payable on the
outstanding principal of the Advances in arrears for the preceding
calendar month on the first Business Day of each calendar month,
commencing on first Business Day of the calendar month following
the disbursement of an Advance under Section 2.2
hereunder.
4.4
Interest Rate Limitation. If at
any time and for any reason whatsoever, the interest rate payable
on any Advance shall exceed the maximum rate of interest permitted
to be charged by the Holder to the Borrower under applicable law,
such interest rate shall be reduced automatically to the maximum
rate of interest permitted to be charged under applicable
law.
5. Payment Mechanics.
5.1 Manner of Payments. All
payments of interest and principal shall be made in lawful money of
the United States of America no later than 3:00 PM Pacific Time on
the date on which such payment is due by wire transfer of
immediately available funds to the Holder's account at a bank
specified by the Holder in writing to the Borrower from time to
time.
5.2 Application of Payments. All
payments made hereunder shall be applied first to the payment of
any fees or charges outstanding hereunder, second to accrued
interest, and third to the payment of the principal amount
outstanding under the Note.
5.3 Business Day Convention.
Whenever any payment to be made hereunder shall be due on a day
that is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension will be taken into
account in calculating the amount of interest payable under this
Note.
5.4 Evidence of Debt. The Holder is
authorized to record on its books and records each Advance made to
the Borrower and each payment or prepayment thereof. The entries
made by the Holder shall, to the extent permitted by applicable
law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the failure of
the Holder to record such payments or prepayments, or any
inaccuracy therein, shall not in any manner affect the obligation
of the Borrower to repay (with applicable interest) the Advances in
accordance with the terms of this Note.
5.5 Rescission of Payments. If at
any time any payment made by the Borrower under this Note is
rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy or reorganization of the Borrower or
otherwise, the Borrower's obligation to make such payment shall be
reinstated as though such payment had not been made.
6. Representations and Warranties.
The Borrower hereby represents and warrants to the Holder on the
date hereof as follows:
6.1 Existence; Compliance With
Laws. The Borrower is (a) a company duly formed, validly
existing and in good standing under the laws of the State of
Delaware and has the requisite power and authority, and the legal
right, to own, lease and operate its properties and assets and to
conduct its business as it is now being conducted and (b) in
compliance with all laws.
-4-
6.2
Power and Authority. The
Borrower has the power and authority, and the legal right, to
execute and deliver this Note and to perform its obligations
hereunder.
6.3
Authorization; Execution and
Delivery. The execution and delivery of this Note by the
Borrower and the performance of its obligations hereunder have been
duly authorized by all necessary corporate action in accordance
with all applicable laws. The Borrower has duly executed and
delivered this Note.
6.4
No Approvals. No consent or
authorization of, filing with, notice to or other act by, or in
respect of, any governmental authority or any other Person is
required in order for the Borrower to execute, deliver, or perform
any of its obligations under this Note.
6.5
No Violations. The execution
and delivery of this Note and the consummation by the Borrower of
the transactions contemplated hereby do not and will not (a)
violate any provision of the Borrower's organizational documents;
(b) violate any law applicable to the Borrower or by which any of
its properties or assets may be bound; or (c) constitute a default
under any material agreement or contract by which the Borrower may
be bound.
6.6
Enforceability. The Note is a
valid, legal and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms.
6.7
No Litigation. No action, suit,
litigation, investigation or proceeding of, or before, any
arbitrator or governmental authority is pending or threatened by or
against the Borrower or any of its property or assets (a) with
respect to the Note or any of the transactions contemplated hereby
or (b) that would be expected to materially adversely affect the
Borrower's financial condition or the ability of the Borrower to
perform its obligations under the Note.
7. Affirmative Covenants. Until
all amounts outstanding in this Note have been paid in full, the
Borrower shall:
7.1 Maintenance of Existence. (a)
Preserve, renew and maintain in full force and effect its corporate
or organizational existence and (b) take all reasonable action to
maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business, except, in each
case, where the failure to do so would not reasonably be expected
to have a Material Adverse Effect.
7.2 Compliance. Comply with (a) all
of the terms and provisions of its organizational documents; (b)
its obligations under its material contracts and agreements; and
(c) all laws applicable to it and its business, in each case,
except where the failure to do so would not reasonably be expected
to have a Material Adverse Effect.
7.3 Payment Obligations. Pay,
discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all its material obligations
of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings,
and reserves in conformity with GAAP with respect thereto have been
provided on its books.
-5-
7.4 Notice of Events of Default. As
soon as possible and in any event within two (2) Business Days
after it becomes aware that a Default or an Event of Default has
occurred, notify the Holder in writing of the nature and extent of
such Default or Event of Default and the action, if any, it has
taken or proposes to take with respect to such Default or Event of
Default.
7.5 Further Assurances. Upon the
request of the Holder, promptly execute and deliver such further
instruments and do or cause to be done such further acts as may be
necessary or advisable to carry out the intent and purposes of this
Note.
8. Events of Default. The
occurrence and continuance of any of the following shall constitute
an Event of Default hereunder:
8.1 Failure to Pay. The Borrower
fails to pay any principal amount of the Loan when due or interest
or any other amount when due.
8.2 Breach of Representations and
Warranties. Any representation or warranty made or deemed
made by the Borrower to the Holder herein is incorrect in any
material respect on the date as of which such representation or
warranty was made or deemed made.
8.3 Breach of Covenants. The
Borrower fails to observe or perform any covenant, condition or
agreement contained in this Note other than those specified in
Section 8.1 and
such failure continues for 10 days.
8.4 Cross-Defaults. The Borrower
fails to pay when due any of its Debt in excess of $100,000 at any
time outstanding (other than Debt arising under this Note) or any
interest or premium thereon when due (whether by scheduled
maturity, acceleration, demand or otherwise) and such failure
continues after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt.
8.5 Bankruptcy.
(a) the Borrower
commences any case, proceeding or other action (i) under any
existing or future law relating to bankruptcy, insolvency,
reorganization, or other relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to
adjudicate it as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts or (ii)
seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part
of its assets, or the Borrower makes a general assignment for the
benefit of its creditors;
(b) there is commenced
against the Borrower any case, proceeding or other action of a
nature referred to in Section 8.5(a) above which (i)
results in the entry of an order for relief or any such
adjudication or appointment or (ii) remains undismissed,
undischarged or unbonded for a period of 90 days;
(c) there is commenced
against the Borrower any case, proceeding or other action seeking
issuance of a warrant of attachment, execution or similar process
against all or any substantial part of its assets which results in
the entry of an order for any such relief which has not been
vacated, discharged, or stayed or bonded pending appeal within 90
days from the entry thereof;
-6-
(d) the Borrower takes
any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in
Section 8.5(a),
Section 8.5(b) or
Section 8.5(c)
above; or
(e) the Borrower is
generally not, or shall be unable to, or admits in writing its
inability to, pay its debts as they become due.
8.6 Judgments. One or more
judgments for an amount in excess of $100,000 at any time or
decrees shall be entered against the Borrower and all of such
judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within ninety (90) days from the
entry thereof. Notwithstanding the foregoing, the outstanding
judgment against Borrower resulting from the case by Cordillera
Fund and The Industrial Company shall not result in an Event of
Default.
9. Remedies. Upon the occurrence
of any Event of Default and at any time thereafter during the
continuance of such Event of Default, the Holder may at its option,
by written notice to the Borrower (a) terminate its commitment to
make any Advances hereunder; (b) declare the entire principal
amount of this Note, together with all accrued interest thereon and
all other amounts payable hereunder, immediately due and payable;
and/or (c) exercise any or all of its rights, powers or remedies
under applicable law; provided,
however that, if an Event of Default described in
Section 8.5 shall
occur, the principal of and accrued interest on the Loan shall
become immediately due and payable without any notice, declaration
or other act on the part of the Holder.
10. Miscellaneous.
10.1 Governing
Law. This Note and any claim, controversy, dispute or cause
of action (whether in contract or tort or otherwise) based upon,
arising out of or relating to this Note, and the transactions
contemplated hereby shall be governed by the laws of the State of
New York.
10.2 Submission
to Jurisdiction.
(a) The Borrower hereby
irrevocably and unconditionally (i) agrees that any legal action,
suit or proceeding arising out of or relating to this Note may be
brought in the courts of the State of New York or of the United
States of America for the Southern District of New York and (ii)
submits to the jurisdiction of any such court in any such action,
suit or proceeding. Final judgment against the Borrower in any
action, suit or proceeding shall be conclusive and may be enforced
in any other jurisdiction by suit on the judgment.
(b) Nothing in this
Section
10.2 shall
affect the right of the Holder to (i) commence legal proceedings or
otherwise sue the Borrower in any other court having jurisdiction
over the Borrower or (ii) serve process upon the Borrower in any
manner authorized by the laws of any such
jurisdiction.
10.3 Venue.
The Borrower irrevocably and unconditionally waives, to the fullest
extent permitted by applicable law, any objection that it may now
or hereafter have to the laying of venue of any action or
proceeding arising out of or relating to this Note in any court
referred to in Section
10.2(a) and the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such
court.
-7-
10.4
Waiver of Jury Trial. THE
BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY RELATING TO THIS NOTE OR
THE TRANSACTIONS CONTEMPLATED HEREBY WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY.
10.5
Counterparts; Integration;
Effectiveness. This Note and any amendments, waivers,
consents or supplements hereto may be executed in counterparts,
each of which shall constitute an original, but all taken together
shall constitute a single contract. This Note constitutes the
entire contract between the Parties with respect to the subject
matter hereof and supersede all previous agreements and
understandings, oral or written, with respect thereto. Delivery of
an executed counterpart of a signature page to this Note by
facsimile or in electronic (i.e., “pdf” or
“tif”) format shall be effective as delivery of a
manually executed counterpart of this Note.
10.6
Successors and Assigns. This
Note may be assigned or transferred by the Holder to any Person.
The Borrower may not assign or transfer this Note or any of its
rights hereunder without the prior written consent of the Holder.
This Note shall inure to the benefit of, and be binding upon, the
Parties and their permitted assigns.
10.7
Waiver of Notice. The Borrower
hereby waives demand for payment, presentment for payment, protest,
notice of payment, notice of dishonor, notice of nonpayment, notice
of acceleration of maturity and diligence in taking any action to
collect sums owing hereunder.
10.8
Amendments and Waivers. No term
of this Note may be waived, modified or amended except by an
instrument in writing signed by both of the parties hereto. Any
waiver of the terms hereof shall be effective only in the specific
instance and for the specific purpose given.
10.9
Headings. The headings of the
various Sections and subsections herein are for reference only and
shall not define, modify, expand or limit any of the terms or
provisions hereof.
10.10
No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising on the part of
the Holder, of any right, remedy, power or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided
by law.
10.11
Severability. If any term or
provision of this Note is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other term or provision of this Note or invalidate
or render unenforceable such term or provision in any other
jurisdiction.
10.12
Agent Rights. This Note is a
Revolving Intercompany Note referred to in the Note Purchase
Agreement, and, constitutes a Pledged Note (as defined in the
General Security Agreement) of the Holder. The Holder and the
Borrower hereunder hereby acknowledge and agree that the Agent, for
the benefit of the Noteholders, may exercise all rights provided in
the Note Purchase Agreement and the General Security Agreement with
respect to this Note.
[SIGNATURE
PAGE FOLLOWS]
-8-
IN
WITNESS WHEREOF, the Parties have executed this Note as of the date
first set forth above.
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BORROWER:
[AEMETIS
ADVANCED PRODUCTS KEYES, INC./ AEMETIS, INC.]
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By:
______________________
Name:
Title:
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HOLDER:
GOODLAND
ADVANCED FUELS, INC.
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By:
______________________
Name:
Title:
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-9-
Schedule A
Form of Borrowing Notice
TO:
GOODLAND
ADVANCED FUELS, INC.
1.
This Borrowing Notice is delivered to you pursuant
to the Intercompany Revolving Promissory Note, dated as of [__],
2017 (as amended, varied, supplemented, restated, renewed or
replaced at any time and from time to time, the
“Note”),
entered into between AEMETIS, INC./AEMETIS ADVANCED
PRODUCTS KEYES, INC. (the
“Borrower”), and GOODLAND ADVANCED FUELS, INC.
(the “Holder”).
2.
The
Borrower hereby irrevocably requests an Advance in accordance with
the applicable terms and conditions of the Note, as
follows:
(a)
Proposed disbursement date (which
shall be a business day):
●
(b) Aggregate
principal amount of
Advance:
$●
(c) The
proceeds of the Advance will be used
for:
●
3.
All
of the representations and warranties of the Borrower contained in
the Note are true and correct on and as of the date hereof as
though made on and as of the date hereof (and will be true and
correct on and as of the proposed disbursement date specified above
as though made on and as of such date), in any such case, except to
the extent any such representations and warranties specifically
refer to an earlier date, in which case they are true and correct
as of such earlier date.
4.
All
of the covenants of the Borrower contained in the Note have been
performed, and all of the other conditions precedent to the Advance
requested hereby and all other terms and conditions contained in
the Note to be complied with by the Borrower have been fully
met.
5.
No
Default has occurred and is continuing nor will any Default occur
as a result of the Advance being requested or the application of
proceeds thereof.
Dated this ●
day of● 201●.
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AEMETIS, INC./AEMETIS ADVANCED PRODUCTS KEYES, INC.
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By:
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Name:
Title:
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-10-
ALLONGE TO INTERCOMPANY REVOLVING PROMISSORY NOTE
Allonge
to Intercompany Revolving Promissory Note dated as of June __, 2017
made by
Aemetis,
Inc./Aemetis Advanced Products Keyes, Inc. in favor of Goodland
Advanced Fuels Goodland, Inc., in the original principal amount of
$10,000,000.
ENDORSEMENT
This
endorsement is delivered in connection with the Note Purchase
Agreement dated June __, 2017 among Goodland Advanced Fuels, Inc.,
the noteholders listed on the signature pages thereto or which
thereafter become parties thereto by means of assignment and
assumption as described therein, and Third Eye Capital Corporation,
as administrative agent and collateral agent for the noteholders
(as amended, restated, supplemented or otherwise modified from time
to time) and the other documents related thereto.
Pay to
the order of _______________________________.
Dated:
___________________
GOODLAND ADVANCED
FUELS, INC.
By:_______________________
Name:
Title:
-11-