Attached files
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| EX-10.4 - AMENDED AND RESTATED LIMITED GUARANTY - AEMETIS, INC | amtx_ex104.htm |
| EX-10.3 - STOCK APPRECIATION RIGHTS AGREEMENT - AEMETIS, INC | amtx_ex103.htm |
| 8-K - CURRENT REPORT - AEMETIS, INC | amtx_8k.htm |
Exhibit
10.2
AMENDMENT NO. 1 TO
NOTE PURCHASE AGREEMENT
This
Amendment No. 1 to Note Purchase Agreement (this
“Amendment”), is
dated as of June 28, 2018, by and among (i) GOODLAND ADVANCED FUELS, INC., a
Delaware corporation (the “Borrower”) and (ii) THIRD EYE CAPITAL CORPORATION, an
Ontario corporation, as agent for the Noteholders (the
“Agent”),
THIRD EYE CAPITAL CREDIT
OPPORTUNITIES FUND – INSIGHT FUND, THIRD EYE CAPITAL ALTERNATIVE CREDIT
TRUST, and MBI/TEC PRIVATE
DEBT OPPORTUNITIES FUND I, L.P. (collectively, the
“Noteholders”),
and is acknowledged and agreed by the Guarantors, AEMETIS, INC., a Nevada corporation
(“Parent”) and
AEMETIS ADVANCED PRODUCTS KEYES,
INC., a Delaware corporation (“AAPK”, together with the Parent
and the Borrower, the “Obligors”).
RECITALS
A. The
Borrower, Agent and Noteholders entered into the Note Purchase
Agreement dated as of June 30, 2017 (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
Borrower has requested, and the Agent and Noteholders have agreed,
to amend the Agreement on the terms and conditions contained
herein.
AGREEMENT
SECTION
1. Amendments.
The following sections of the Agreement shall be and hereby are
amended as follows:
(A) Section
1.1 (Definitions).
Section
1.1 of the Agreement is hereby amended by substituting the
following definitions or adding the following definitions, as
applicable, in the appropriate alphabetical order:
“First Amendment” means that
Amendment No. 1 to the Note Purchase Agreement dated June 28, 2018
as between the Borrower, the Agent and the Noteholders and
acknowledged and agreed by the Guarantors.
“Guaranty” means that certain
Amended & Restated Limited Guaranty, dated as of the date of
the First Amendment, by the Parent and AAPK in favor of the Agent,
that guarantees the Note Indebtedness other than the Initial Term
Loan only (unless and until the recourse pursuant to such Limited
Guaranty becomes unlimited pursuant to the terms
thereof).
“Initial Term Loan” has the meaning
set forth in Section 2.1 hereof.
“Subsequent Term Loan” has the
meaning set forth in Section 2.1 hereof.
(B) Section
2.1 (Term Loan).
Section
2.1 of the Agreement is hereby deleted in its entirety and replaced
with the following:
“Term Loan. Subject to the terms and
conditions of this Agreement, and relying on each of the
representations and warranties set forth in each of the Note
Purchase Documents, the Noteholders agree, individually as joint
obligors, and not as joint and several obligors, to make a term
loan to the Borrower:
(a)
on the Closing Date
in an aggregate amount of Fifteen Million Dollars ($15,000,000)
(the “Initial Term
Loan”); and
(b)
on the date of the
First Amendment in an aggregate amount of One Million Five Hundred
Seventy Five Thousand Dollars ($1,575,000) (the “Subsequent Term Loan” and together
with the Initial Term Loan, the “Term Loan”),
in each
case according to each Noteholder’s Term Loan Commitment and
such Indebtedness shall be evidenced by secured promissory notes
issued to each Noteholder (each, a “Term Note”). After repayment, the
Term Loan may not be re-borrowed.”
(C) Section
2.5 (Interest).
The
phrase “Term Loan”, where it appears in Subsection
2.5(c) and in Subsection 3.1(p) of the Agreement, is hereby deleted
and replaced in each case with the phrase “Initial Term
Loan”.
(D) Section
2.13 (Fee Letter).
Section
2.13 of the Agreement is hereby deleted in its entirety and
replaced with the following:
“Fee Letter. The Borrower agrees to pay
to the Agent, for itself or for and on behalf of the Noteholders,
as applicable, the fees described in the Fee Letter and, at the
date of the First Amendment, the amount of $75,000. All such fees
may be withheld from, and payable from, the proceeds of the Loans,
including on the Closing Date and on the date of the First
Amendment, as applicable, in connection with those fees then
due.”
(E) Schedule
1.1(a) (Commitments Schedule).
Schedule 1.1(a) of
the Agreement is hereby deleted in its entirety and replaced with
Schedule 1.1(a) attached hereto.
(F) Schedule
5.1(i) (Use of Proceeds).
Schedule 5.1(i) of
the Agreement is hereby deleted in its entirety and replaced with
Schedule 5.1(i) attached hereto.
SECTION 2.
Conditions to
Effectiveness. This Amendment shall be effective on the date
first written above and subject to satisfaction of the following
conditions precedent:
(A) The
Agent shall have received this Amendment duly executed by the
parties hereto.
(B) The
Agent shall have received Term Notes evidencing the Subsequent Term
Loan, in favor of each Noteholder in accordance with their
respective Term Loan Commitment Percentage, duly executed by the
Borrower.
(C)
The Agent shall have received (i) evidence satisfactory to it,
including a definitive signed agreement with the applicable parties
thereto, of the issuance of 1,050,000 Stock Appreciation Rights to
the Agent on behalf of the Noteholders in accordance with their
Term Loan Commitment Percentage, which shall provide for a put
option in favour of the Agents at an exercise price of $1.00 per
unit, and a call option in favour of the Parent at an exercise
price of $2.00 per unit, and any ancillary documents with respect
thereto, and (ii) any applicable registrations, certificates,
approvals, opinions or registration statements required or
desirable pursuant to applicable U.S. or Canadian securities laws
with respect to such securities.
(C)
The Agent shall have received the Guarantee, dated the date hereof,
from AAPK and the Parent in form and substance satisfactory to the
Agent in its sole discretion.
(D)
The Agent shall have received a true and complete copy of
resolutions duly adopted by the board of directors of the Parent
authorizing the execution, delivery and performance of this
Amendment and the matters included herein, including issuance of
the Tracking Units.
(E)
Each Obligor shall 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 by it upon the
effective date of this Amendment.
(F)
The Agent shall have received all other approvals, opinions,
documents, agreements, instruments, certificates, schedules and
materials as the Agent may reasonably request.
Each
Obligor 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 Agent and Noteholders shall have the right to demand the
immediate repayment in full in cash of all outstanding Note
Indebtedness owing to 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, the Borrower hereby: (i) ratifies and confirms all
of the obligations and liabilities of it Borrower owing pursuant to
the Agreement and the other Note Purchase Documents, and (ii)
agrees to pay all costs, fees and expenses of Agent and the
Noteholders in connection with this Amendment.
SECTION
3. 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 Agent or Noteholders thereunder, nor constitute
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 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
4. Representations
Obligors. Each Obligor hereby represents and warrants to
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 Authority 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
5. 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 Borrower and 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 ANY WAIVER OF JURY TRIAL AND
NOTICE PROVISIONS OF THE AGREEMENT.
(E) No
Obligor 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 Obligors. Nothing
contained in this Amendment shall be construed as a delegation to
Agent or Noteholders of the Obligors’ duty of performance,
including any duties under any account or contract in which Agent
or Noteholders have a security interest or lien. This Amendment
shall be binding upon the parties hereto 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 Agent or Noteholders shall affect such representations or
warranties or the right of Agent or Noteholders to rely upon
them.
(G)
THE OBLIGORS 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 NOTE INDEBTEDNESS OR TO SEEK AFFIRMATIVE RELIEF OR
DAMAGES OF ANY KIND OR NATURE FROM AGENT OR ANY NOTEHOLDER. THE
OBLIGORS HEREBY VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER
DISCHARGE AGENT AND EACH NOTEHOLDER AND THEIR RESPECTIVE
PREDECESSORS, 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.
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BORROWER:
GOODLAND
ADVANCED FUELS, INC. |
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By:
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/s/
Michael
Peterson
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Name:
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Michael Peterson
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Title:
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Chief
Executive Officer
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Acknowledged and
agreed by the Guarantors:
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AEMETIS
ADVANCED PRODUCTS KEYES, INC.
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By:
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/s/
Eric
A. McAfee
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Name:
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Eric
A. McAfee
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Title:
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Chief
Executive Officer
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AEMETIS, INC.
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By:
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/s/
Eric
A. McAfee
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Name:
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Eric
A. McAfee
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Title:
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Chief
Executive Officer
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Signature Page to Amendment No. 1
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AGENT:
THIRD
EYE CAPITAL CORPORATION
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By:
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/s/
Arif N.
Bhalwani
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Name:
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Arif N. Bhalwani
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Title:
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Managing Director
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NOTEHOLDER:
MBI/TEC PRIVATE DEBT
OPPORTUNITIES
FUND I, L.P.,
herein acting by its general
partner
MBI/TEC PRIVATE DEBT GP
L.P.,
itself
acting by its general partner
MBI/TEC PRIVATE DEBT GP INC.
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By:
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/s/
Arif N.
Bhalwani
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Name:
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Arif N. Bhalwani
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Title:
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President and
CEO
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Signature Page to Amendment No. 1
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THIRD EYE CAPITAL CREDIT
OPPORTUNITIES FUND – INSIGHT FUND
by its Managing General Partner
THIRD EYE CAPITAL CREDIT
OPPORTUNITIES S.AR.L.
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Per:
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/s/ Richard
Goddard
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Name:
Richard Goddard
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Title:
Manager
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Per:
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/s/ Paul de
Quant
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Name:
Paul de Quant
Title:
Manager
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THIRD EYE CAPITAL ALTERNATIVE CREDIT TRUST
by its Manager
THIRD EYE CAPITAL MANAGEMENT INC.
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Per:
/s/ Arif
Bhalwani
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Name: Arif N. Bhalwani
Title:
Portfolio Manager
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Signature Page to Amendment No. 1
Schedule 1.1(a)
Commitments
Term Loan Commitment
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Name of Noteholder
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Initial Term Loan Commitment
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Subsequent Term Loan Commitment
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Term Loan Commitment Percentage
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Third Eye Capital Credit Opportunities Fund – Insight
Fund
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$750,000
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$78,750
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5.0%
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Third Eye Capital Alternative Credit Trust
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$6,000,000
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$630,000
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40.0%
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MBI/TEC Private Debt Opportunities Fund I, L.P.
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$8,250,000
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$866,250
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55.0%
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Total:
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$15,000,000
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$1,575,000
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100%
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Aggregate Total:
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$16,575,000
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Revolving Line Commitment
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Name of Noteholder
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Revolving Line Commitment
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Revolving Line Commitment Percentage
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Third Eye Capital Credit Opportunities Fund – Insight
Fund
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$500,000
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5.0%
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Third Eye Capital Alternative Credit Trust
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$4,000,000
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40.0%
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MBI/TEC Private Debt Opportunities Fund I, L.P.
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$5,500,000
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55.0%
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Total:
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$10,000,000
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100%
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Schedule 5.1(i)
Use of Proceeds
The Term Loan, the Revolving Advances and other advances or
extensions of credit made to or for the benefit of any Obligor
under the Note Purchase Agreement will be used solely for the
following purposes:
1)
With
respect to the Initial Term Loan made to the Borrower on the
Closing Date, for the purposes of the Borrower paying the purchase
price to acquire the Mortgaged Property.
2)
With
respect to the Subsequent Term Loan made to the Borrower on the
date of the First Amendment, for the purposes of the Borrower
advancing such funds to the Parent in order to permit the Parent to
pay on its behalf certain property taxes owing by one of its
subsidiaries, Aemetis Advanced Fuels Keyes, Inc.
3)
With
respect to any Revolving Advances made to the Borrower for its on
behalf or on behalf of an Obligor pursuant to the Revolving
Intercompany Note, for the purposes of (a) the prepayment of
interests on the Initial Term Loan in accordance with the
Agreement, (b) paying the fees and expenses associated with the
transactions contemplated by the Note Purchase Documents (c) making
Approved Expenditures in accordance with the terms of the
Agreement, which shall be no less than $2,500,000 with respect to
the Riverbank Project, and (d) financing the Borrower’s
working capital and general corporate requirements that are in each
case approved by the Agent, including, without limitation, payments
of interest and other fees and expenses in respect of the Term
Loan, intercompany advances by the Borrower in accordance with the
Revolving Intercompany Note or on its behalf and the payment of
audit, accounting, legal services, physical security, taxes,
utilities, insurance and costs of employees and independent
contractors, and other reasonable expenses of operations and
maintenance related to the Mortgaged Property, the Goodland Project
and the Riverbank Project.