Attached files
Exhibit 10.2
FIRST AMENDMENT TO THE AMENDED AND RESTATED
AEMETIS KEYES GRAIN PROCUREMENT AND
WORKING CAPITAL AGREEMENT
THIS FIRST AMENDMENT TO THE AMENDED AND
RESTATED AEMETIS KEYES GRAIN PROCUREMENT AND WORKING CAPITAL
AGREEMENT (this “Amendment”) is executed on this
13th day of May, 2020 (the “Effective Date”) by and
between J.D. Heiskell Holdings, LLC, a California limited liability
company d.b.a. J.D. Heiskell & Co. (“Heiskell”),
and Aemetis Advanced Fuels Keyes, Inc. (formerly known as AE
Advanced Fuels Keyes, Inc.), a Delaware corporation (“Aemetis
Keyes”), Heiskell and Aemetis Keyes collectively referred to
as the “Parties”.
RECITALS
A.
The Parties entered
into a certain Amended and Restated Aemetis Keyes Grain Procurement
and Working Capital Agreement on or about May 2, 2013 (the
“Agreement”), outlining certain terms and conditions of
a business transaction in which Heiskell sells and Aemetis Keyes
buys certain Grain (as defined in the Agreement) for the production
of ethanol at their property in Keyes, California.
B.
The Parties wish to
amend certain terms of the Agreement to cover, among other things,
new terms related to the Purchase of Grain and the Credit
Limit.
C.
In connection with
this Amendment, the Parties have taken steps to eliminate any
payments outstanding to the other party by Friday, April 24,
2020.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, agree as
follows:
1.
Definitions and Interpretations.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to such terms in the
Agreement.
2.
Deletion of the Fourth and Fifth
Recitals. As of the Effective Date, the fourth and fifth
recitals of the Agreement are hereby deleted in their
entirety.
3.
Amendment to the Sixth Recital. As of
the Effective Date, the sixth recital is hereby amended by deleting
the sixth recital in its entirety and replacing it with the
following:
WHEREAS
the parties now desire to amend and restate the Original
Procurement Agreement to cover, among others, the purchase of
Grain, and the terms and conditions of such purchases;
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4.
Amendment to the Eighth Recital. As of
the Effective Date, the eighth recital is hereby amended by
deleting the eighth recital in its entirety and replacing it with
the following:
WHEREAS, the
parties have entered into the following agreements to set forth
agreed-upon terms and conditions: (a) this Agreement,
including any Sales Contract (as defined below) entered into
pursuant to this Agreement; (b) a Security Agreement (the
“Security Agreement”) pursuant to which, among other
things, Aemetis Keyes will grant a lien on its Grain and other
collateral in favor of Heiskell; (c) the Heiskell Purchasing
Agreement (the “Heiskell Purchasing Agreement”)
pursuant to which Heiskell will agree to buy WDGS, CDS/Syrup, and
Corn Oil (as defined in Section 3.02 below) produced by Aemetis
Keyes; (d) the Keyes Corn Tank Lease (the “Lease”)
pursuant to which Aemetis Keyes will lease certain grain and
product storage tanks to Heiskell; (e) the Keyes Corn Handling
Agreement (the “Handling Agreement”) with Gilbert
concerning the unloading and storage of Grain at the Gilbert
facility specified therein (the “Gilbert Facility”);
and (f) the Lender Consent and Agreement, as amended as of the
date hereof in a form acceptable to Heiskell (the “Lender
Consent”), among Heiskell, Aemetis Keyes and the
Aemetis Keyes Lenders under the respective Aemetis Keyes
credit facilities (the “Lenders”) (the documents listed
in clauses (a) through (f) above, as amended, restated and/or
extended from time to time, the “Related Agreements”);
and
5.
Amendment to the Ninth Recital. As of
the Effective Date, the ninth recital of the Agreement is hereby
amended by deleting it its entirety and replacing it with the
following:
WHEREAS, pursuant
to the Lender Consent, the Lenders will acknowledge
Heiskell’s ownership and rights in and to the Grain prior to
its delivery to Aemetis Keyes, and will subordinate, in favor of
Heiskell, their respective security interests in the Collateral (as
defined in the Security Agreement and which include, without
limitation, all products derived from the processing of Corn at the
Plant) to give Heiskell a first priority security interest in such
Collateral (the “First Priority Security
Interest”);
6.
Amendment to Section 1.04 (c). Effective
at the end of business day on the Effective Date, Section 1.04 (c)
is hereby amended by deleting Section 1.04 (c) in its entirety and
replacing it with the following:
(c)
Heiskell requests
that Aemetis Keyes reconcile the inventory (“True Up”)
when the inventory is completely removed from the tank quarterly;
provided, however, that Heiskell and Aemetis Keyes shall True Up
the inventory at least once annually. This True Up could result in
additional sums being owed to Heiskell if .65% Shrink is too low or
sums being owed to Aemetis Keyes if .65% Shrink is too high.
Heiskell and Aemetis Keyes agree to renegotiate the Shrink if it is
consistently over or under.
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7.
Amendment of Section 1.04 (d). Effective
at the end of the business day on the Effective Date, Section 1.04
(d) is hereby amended by deleting Section 1.04 (d) in its entirety
and replacing it with the following:
(d)
The origin weights
of the trains will govern the weights used for the True
Up.
8.
Amendment to Section 1.06. Settlement
Weights. Effective at the end of the business day on the
Effective Date, Section 1.06 is hereby amended by deleting Section
1.06 in its entirety and replacing it with the
following:
Section 1.06. Settlement Weights. The
in-line scale in the Ethanol Plant (located after the Grain Day
Tank) will be used to determine the weights for the Grain delivered
to Aemetis Keyes for daily inventory purposes.
9.
Amendment to Section 1.09. Limitations of Sale
Obligations. Effective at the end of the business day on the
Effective Date, Section 1.09 is hereby amended by deleting Section
1.09 in its entirety and replacing it with the
following:
Section 1.09. Limitations of Sale
Obligations. Subject to the rights of the Lenders under the
Lender Consent, nothing contained in this Agreement will be
construed to require Heiskell to offer or sell Grain to Aemetis
Keyes if (a) such offer or sale is for delivery dates more
than 12 months after the date of the offer or contract;
(b) Aemetis Keyes is in material violation of this Agreement;
(c) Aemetis Keyes is insolvent; (d) Aemetis Keyes is
unable to receive Grain at the Ethanol Plant and has not specified
an alternative delivery location; or (e) Aemetis Keyes would
exceed its Credit Limit (as defined below). For purposes of (b)
above, “material violation of this Agreement” shall
mean any monetary breach by Aemetis Keyes and any other breach
which has a material adverse effect on (i) the rights and
obligations of Heiskell under this Agreement or any Related
Agreement, or (ii) the ability of Aemetis Keyes to perform its
obligations hereunder and under the Related Agreements, including
without limitation if the Lenders cause any of the Aemetis Keyes
credit facilities to be accelerated prior to such agreement’s
stated maturity date or foreclose upon the Collateral (as defined
in the Security Agreement, which includes, but is not limited to,
all products derived from the processing of Corn at the Plant).
Furthermore Aemetis Keyes acknowledges and agrees that Heiskell has
no obligation to enter into Sale Contracts with Aemetis Keyes for
the sale of Milo.
10.
Amendment to Section 1.13. Forward
Contracts. Effective at the end of the business day on the
Effective Date, Section 1.13 is hereby amended by adding the
following language to the end of Section 1.13:
“Additionally,
Heiskell shall be permitted to request from Aemetis Keyes, and
Aemetis Keyes will not unreasonably deny the request, for funds to
cover margins of the Forward Contracts. Heiskell shall be permitted
to retain such funds until the completion of the Forward
Contracts.”
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11.
Amendment to Section 2.03. As of the end
of the business day on the Effective Date, Section 2.03 is hereby
amended by deleting Section 2.03 in its entirety and replacing it
with the following:
Section 2.03. UPRR Incentives. Gilbert
shall earn an unload incentive (the “Unload Incentive”)
equal to any unload incentive paid by the UPRR. Both Heiskell and
Aemetis Keyes agree and understand that Gilbert is responsible for
the majority of the actions that could result in the Unload
Incentive being paid or not paid by the UPRR.
12.
Renaming of Article III. As of the
Effective Date, Article III is hereby renamed to “Cash
Deposit, Payment Terms, Credit Limits”.
13.
Amendment of Section 3.01. Effective at
the end of the business day on the Effective Date, Section 3.01 is
hereby amended by deleting Section 3.01 in its entirety and
replacing it with the following:
Section 3.01. Cash Deposit. Starting on
Saturday, April 25, 2020, and continuing for a period of 24 days,
Aemetis Keyes shall pay, in addition to all other payments owed to
Heiskell, twenty-five thousand dollars ($25,000.00) each day to
build up a cash deposit of six hundred thousand dollars
($600,000.00) (the “Cash Deposit”). The intent of the
Cash Deposit is to cover Grain purchased from Heiskell by Aemetis
Keyes over the weekend, but shall not be applied to any balance
owed to Heiskell by Aemetis Keyes, unless an Event of Default
occurs under this Agreement or any of the Related Agreements, or if
any of the Related Agreements are terminated. The Cash Deposit will
be reviewed by the Parties monthly, and may be increased or
decreased upon mutual consent by the Parties. The Cash Deposit may
be applied to any funds owed by Aemetis Keyes to Heiskell if any
Event of Default as described in this Agreement or the Related
Agreements occurs. Upon an agreed upon increase of the Cash
Deposit, Aemetis Keyes shall deliver to Heiskell additional payment
to match the requested Cash Deposit amount within one (1) business
day. If the Cash Deposit requirement is mutually reduced by the
Parties, Heiskell will apply the excess funds to the next
settlement date. In an Event of Default described herein or in the
Related Agreements, Heiskell shall be permitted to apply the Cash
Deposit to any outstanding payments owed by Aemetis Keyes to
Heiskell. Additionally, Heiskell shall request, and Aemetis shall
deliver to Heiskell within one (1) business day, additional funds
in anticipation of holiday weekends. Such increases due to a
holiday weekend will be reasonably calculated by Heiskell, and any
payments made in anticipation of a holiday weekend will be applied
to the net settlement on the next business day following such
holiday weekend.
14.
Amendment of Section 3.02. Effective at
the end of the business day on the Effective Date, Section 3.02 is
hereby amended by deleting Section 3.02 in its entirety and
replacing it with the following:
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Section 3.02. Payment Terms for Grain.
Aemetis Keyes agrees that the Purchase Price and Service Fee will
be due the day of delivery. Notwithstanding this general rule, in
consideration of Aemetis Keyes’ entering into the Security
Agreement and performing its obligations under this Agreement,
Heiskell agrees that so long as its security interest in Collateral
(as defined in the Security Agreement, which includes, but is not
limited to, all products derived from the processing of Corn at the
Plant) remains a valid First Priority Security Interest, subject to
the terms of this Section 3.02, Heiskell shall permit payment of
the Purchase Price and Service Fee to be payable and settled on the
next business day following the applicable delivery by 4:30 p.m.
local central time. The credit limit described in the preceding
sentence (the “Credit Limit”) shall be in an amount
equal to (a) all delivered Grain since the immediately preceding
business day, plus (b) the applicable Handling Fee, minus (c) WDGS,
Syrup, CDS/Syrup, and Corn Oil (as defined in the Heiskell
Purchasing Agreement) to be purchased by Heiskell since the
immediately preceding business day. The Credit Limit shall cease
immediately if (1) the liens in favor of Heiskell under the
Security Agreement shall at any time cease to constitute a First
Priority Security Interest in the Collateral, (2) the
enforceability of the Security Agreement or Lender Consent shall be
repudiated in writing by Aemetis Keyes or the Lenders, (3) if at
any time, the Cash Deposit or request for additional funds in
anticipation of a holiday weekend fails to meet the levels mutually
agreed upon by the Parties; or (4) any other Event of Default (as
defined below), or any event or condition which with the lapse of
time, the giving of notice, or both, could constitute an Event of
Default, shall occur hereunder, whereupon the Credit Limit shall,
at Heiskell’s sole discretion and without notice, become
$0.00 and Heiskell shall have no obligation to deliver Grain to the
Ethanol Plant.
15.
Amendment of Section 4.01 (a). Effective
at the end of the business day on the Effective Date, Section 4.01
(a) is hereby amended by deleting Section 4.01 (a) in its entirety
and replacing it with the following:
(a) Termination for Convenience
by Aemetis Keyes. Aemetis Keyes has the right to terminate
this Agreement for convenience at any time by providing
30 days’ written notice to Heiskell by registered
mail.
16.
Amendment to Section 4.01 (b). Effect at
the end of the business day on the Effective Date, Section 4.01 (b)
is hereby amended by deleting Section 4.01 (b) in its entirety and
replacing it with the following:
(b) Termination by Heiskell At
the End of the Initial Term. Heiskell may terminate this
agreement at the end of the Initial Term and thereafter by giving
written notice by registered mail or email to Aemetis Keyes of such
termination as follows:
(i) Notice of
termination to be effective at the conclusion of the Initial Term
shall be given 30 days prior to the expiration of the Initial
Term.
(ii) Notice
of termination to be effective at the conclusion of a Renewal Term
shall be give 30 days prior to the expiration of a Renewal
Term.
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17.
Addition of Section 4.01 (e). Effective
at the end of the business day on the Effective Date, Section 4.01
is hereby amended by adding Section 4.01 (e) to the Agreement as
follows:
(e)
Costs Following
Termination. Notwithstanding any other provisions contained
in this Agreement, should Aemetis Keyes terminate this Agreement
pursuant to the provisions contained in Section 4.01 (a) above,
Aemetis Keyes shall be liable to Heiskell for any open contracts
entered into between Heiskell and Aemetis Keyes to satisfy its
obligations of this Agreement, including but not limited to, the
cancellation of any open forward contracts entered into prior to
termination.
18.
Deletion of Section 5.02. Payment and
Determination of Ethanol. Effective at the end of the
business day on the Effective Date, Section 5.02 is hereby deleted
in its entirety.
19.
Amendment to Section 5.04. Net Settlement
Procedures. Effective at the end of the business day on the
Effective Date, Section 5.04 is hereby amended by deleting Section
5.04 in its entirety and replacing it with the
following:
Section 5.04. Net Settlement Procedures.
Heiskell and Aemetis Keyes each will have obligations to the other
resulting from (a) the sale of Grain by Heiskell to Aemetis
Keyes and the handling services of Heiskell and other obligations
of Aemetis Keyes under this Agreement, and (b) payment
obligations under the Purchasing Agreement, including without
limitation handling and marketing services, performance guarantees
from customers and the provision of consulting services. Aemetis
Keyes agrees to notify Heiskell of any pre-planned plant shutdown
or significant reduction of production prior to the shutdown or
reduction. For all other shutdowns or reductions of production,
Aemetis Keyes agrees to notify Heiskell within 24-hours of such
shutdown or reduction of production. The parties agree that,
subject to the Credit Limit set forth in Section 3.02, all
such amounts shall be subject to daily net settlement procedures
whereby all amounts owing under such contracts from one party to
the other will be calculated and the party with a negative balance
based on such settlement calculation will pay the net settlement
amount due to the other party in immediately available funds on the
next business day, provided such net settlement amount is greater
than $10,000. Amounts less than $10,000 will be retained as a
payable for calculating the net settlement amount on the next
business day. Aemetis Keyes shall be responsible for calculating
the net settlement amount for each business day and forwarding a
copy of the net settlement statement to Heiskell electronically at
the Heiskell notice address shown in this Agreement. If Heiskell
does not object to the net settlement statement within three
business days, such net settlement statement will be deemed
conclusive between the parties absent manifest error.
20.
Amendment to Section 6.01 (a). Effective
at the end of the business day on the Effective Date, Section 6.01
(a) is hereby amended by deleting Section 6.01 (a) in its entirety
and replacing it with the following:
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(a)
Aemetis Keyes will
procure and maintain for the benefit of themselves and the other
party property and casualty insurance of the Ethanol Plant and the
Tanks (as defined in the Keyes Corn Lease Agreement) and Heiskell
will procure and maintain for the benefit of themselves and the
other party insurance covering the Grain at the Ethanol Plant.
Aemetis Keyes shall maintain for the benefit of themselves and the
other party, insurance covering all other inventory, including
ethanol, WDGS, CDS/Syrup, and Corn Oil at the Ethanol
Plant.
21.
Amendment to Section 9.09. Effective at
the end of the business day on the Effective Date, Section 9.09 is
hereby amended by adding the following language to the end of
Section 9.09: “Notwithstanding the foregoing, the invocation
of a force majeure shall not excuse any party from the payment or
obligations under this Agreement.”
22.
Amendment to Heiskell Notification
Section. As of the end of the business day on the Effective
Date, all notices for Heiskell shall be sent to the following
address:
17220
Wright St., Suite 200
Omaha,
NE 68130
Telephone:
402-289-5700
Facsimile:
402-289-6774
E-mail:
JDHLegal@Heiskell.com
Attention: Legal
Department
23.
Deletion of Exhibit A and Exhibit B.
Effective at the end of the business day on the Effective Date,
Exhibit A and Exhibit be are hereby deleted in their
entirety.
24.
General Representations and Warranties of
Parties. Each party hereby represents and warrants the
following as of the date hereof:
a.
Organization and Existence. It has been
duly organized, is validly existing and is in good standing under
the laws of its state of formation.
b.
Power of Authority. It has the power
and authority to execute, deliver and perform its obligations under
this Amendment and has taken all action necessary to authorize it
to execute and deliver this Amendment and perform its obligations
hereunder.
c.
Binding Effect. This Amendment, when
executed and delivered, will constitute the valid and binding
obligations of such party, enforceable against such party in
accordance with its terms, except as the enforceability thereof may
be limited by (i) bankruptcy, reorganization, moratorium or other
similar laws affecting the enforcement of creditors’ rights
generally and (ii) general equitable principles regardless of
whether the issue of enforceability is considered in a proceeding
in equity or at law.
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25.
Miscellaneous
Provisions
a.
Affirmation of Agreement. On and after
the Effective Date hereof, each reference in the Agreement to
“this Agreement,” “hereunder,”
“hereof,” or words of like import referring to the
Agreement shall mean and be a reference to the Agreement as amended
hereby. Except as specifically amended hereby, the Agreement shall
remain in full force and effect and is hereby ratified and
confirmed in all respects.
b.
Headings. The headings of the sections
of this Amendment are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of
this Amendment.
c.
Governing Law. This Amendment is and shall be
governed by, and shall be construed and interpreted in accordance
with LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO THE
CONFLICT OF LAW PROVISIONS THEREOF.
d.
Counterparts. This Amendment may be
executed in any number of counterparts and by the different parties
hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together
constitute one and the same instrument. To evidence its execution
of an original counterpart of this Amendment, a party may deliver
via facsimile or pdf transmission a copy of its original executed
counterpart signature page to the other party, and such
transmission shall constitute delivery of an original, executed
copy of this Amendment to the receiving party for purposes of
determining execution and effectiveness of this Amendment.
Notwithstanding the foregoing, any party delivering such
counterpart signature by facsimile or pdf transmission agrees to
provide an original executed signature page to the receiving party
by express delivery promptly upon request thereof.
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IN WITNESS
WHEREOF, each of the parties hereto has duly executed this
Amendment as of the Effective Date.
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J.D.
HEISKELL HOLDINGS, LLC
By:
/s/ Aaron J.
Reid
Name:
Aaron J. Reid
Title:
Chief Operating Officer/SVP
AEMETIS
ADVANCED FUEL KEYES, INC.
By:
/s/ Eric
McAfee
Name:
Eric McAfee
Title:
Chief Executive Officer
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