Attached files
Exhibit 10.75
AMENDED AND RESTATED PROMISSORY NOTE
March
6, 2020
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 (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 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 Borrower’s use during the term and prior
to the Maturity Date, total credit of up to, but not exceeding, the
principal amount of Eighteen Million ($18,000,000) Dollars (the
“Principal
Amount”) plus the Capitalized Interest (collectively,
herein referred to as the “Aggregate Principal
Amount”).
2.
Use of Proceeds. The Principal Amount of
this Note advanced to the Obligors shall be used for working
capital purposes and to pay the Fee (as defined
below).
3.
Advances. The Obligors may receive
advances under this Note up to the Principal Amount 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 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.
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 at the earlier to occur
of: (a) the closing of any new debt or equity financing,
refinancing or other similar transaction between the Lender or any
fund or entity arranged by the Lender and any Obligor or any
Affiliate thereof; (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; and (c) April 1,
2021 (the “Maturity
Date”).
6.
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 and shall be payable from the proceeds of such
initial Advance made pursuant to this Note.
7.
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.
8.
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.
9.
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.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
[Remainder of page left intentionally blank]
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.
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
|
Signature Page to A&R Promissory Note dated March 6,
2020
|
Accepted
and Acknowledged by:
THIRD EYE CAPITAL CORPORATION
By: /s/ Arif N.
Bhalwani
Name:
Arif N. Bhalwani
Title:
Managing Director
|
|
Signature Page to A&R Promissory Note dated March 6,
2020