FIRST AMENDMENT TO THE AMENDED AND RESTATED HEISKELL PURCHASING AGREEMENT
Exhibit 10.1
FIRST AMENDMENT TO THE
AMENDED AND RESTATED
XXXXXXXX PURCHASING AGREEMENT
THIS FIRST AMENDMENT TO THE AMENDED AND
RESTATED XXXXXXXX PURCHASING AGREEMENT (this
“Amendment”) is made on this 13th day of May, 2020 (the
“Effective Date”) by and between X.X. Xxxxxxxx
Holdings, LLC, a California limited liability company doing
business as X.X. Xxxxxxxx & Co. (“Xxxxxxxx”) and
Aemetis Advanced Fuel Xxxxx, Inc. (formerly known as AE Advance
Fuel Xxxxx, Inc.), a Delaware corporation (“Aemetis
Xxxxx”), Xxxxxxxx and Aemetis Xxxxx collectively referred to
as the “Parties”.
RECITALS
A.
The Parties entered
into a certain Amended and Restated Xxxxxxxx Purchasing Agreement
on or about May 16, 2013 (the “Agreement” covering,
among other things, the marketing of animal feed, including WDGS,
CDS/Syrup and Corn Oil (as defined in the Agreement).
B.
The Parties wish to
amend the Agreement, in part, to remove Xxxxxxxx’x obligation
to purchase and market ethanol produced at the Plant.
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.
Amendment to the Third Recital. As of
the end of the business day on the Effective Date, the third
recital of the Agreement is hereby amended by deleting the
provision in its entirety and replacing it with the
following:
WHEREAS, the
parties desire to enter into and execute this Agreement for the
purpose of setting forth agreed upon terms and conditions for the
marketing of WDGs, CDS/Syrup, and Corn Oil production from the
Plant.
3.
Amendment of Section 1. As of the end of
the business day on the Effective Date, Section 1 is hereby amended
by deleting Section 1 in its entirety and replacing it with the
following:
1.
First Purchasing Rights.
AEMETIS XXXXX gives XXXXXXXX exclusive rights to purchase WDGS,
CDS/Syrup and Corn Oil.
4.
Deletion of Section 2 B. As of the end
of the business day on the Effective Date, Section 2 B. is hereby
deleted from the Agreement.
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5.
Amendment to Section 2 C. As of the end
of the business day on the Effective Date, Section 2 C is hereby
amended by deleting Section 2 C in its entirety and replacing it
with the following:
B.
Marketing of WDGS, CDS/Syrup and Corn
Oil. XXXXXXXX shall use its best efforts to market and sell
all WDGS, CDS/Syrup and Corn Oil production from the Plant in an
economical manner and so as to allow AEMETIS XXXXX to clear WDGS,
CDS/Syrup and Corn Oil storage. All sales made by XXXXXXXX to
XXXXXXX (defined below) shall be on XXXXXXXX contracts, with
XXXXXXXX responsible for invoicing and credit management. XXXXXXXX
agrees that X.X. Xxxxxxx ("XXXXXXX") will be the primary
customer and exclusive marketer for the WDGS. AEMETIS Xxxxx may
direct XXXXXXXX to sell all of the WDGS to XXXXXXX. As to any WDGS,
CDS/Syrup and Corn Oil not directed to XXXXXXX by AEMETIS XXXXX,
XXXXXXXX may also sell WDGS, CDS/Syrup and Corn Oil to any customer
that meets XXXXXXXX'x credit and delivery requirements. XXXXXXXX
agrees to permit AEMETIS XXXXX to enter into contracts on behalf of
HEISKEL with XXXXXXX or any other customer, with prior consent from
XXXXXXXX, for the purchase and sale of WDGS, CDS/Syrup, and Corn
Oil.
6.
Amendment of Section 2 D. As of the end
of the business day on the Effective Date, Section 2 D. is hereby
amended by deleting Section 2 D. in its entirety and replacing it
with the following:
C.
Scheduling and
Distribution. AEMETIS XXXXX will be responsible for
scheduling shipments of all of AEMETIS XXXXX’X WDGS,
CDS/Syrup and Corn Oil, marketed by XXXXXXXX. At the discretion of
XXXXXXXX and the consent of AEMETIS XXXXX, XXXXXXXX may allow
customers or other marketers to utilize their own trucks to pick up
WDGS, CDS/Syrup and Corn Oil FOB the Plant. AEMETIS XXXXX shall be
responsible for loading and weighing all WDGS, CDS/Syrup and Corn
Oil.
7.
Amendment to Section 2 E. As of the end
of the business day on the Effective Date, Section 2 E. is hereby
amended by deleting Section 2 E. in its entirety and replacing it
with the following:
D.
Freight. Except
when an approved customer or other marketer provides its own
trucks, XXXXXXXX will arrange transportation for all WDGS,
CDS/Syrup and Corn Oil.
8.
Amendment to Section 2 F. As of the end
of the business day on the Effective Date, Section 2 F. is hereby
amended by deleting Section 2 F. in its entirety and replacing it
with the following:
E.
Customer
Creditworthiness. XXXXXXXX will consult with AEMETIS XXXXX
before making forward contracts of WDGS, CDS/Syrup or Corn Oil
sales for delivery terms greater than one (1) week.
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9.
Amendment to Section 2 G. As of the end
of the business day on the Effective Date, Section 2 G. is hereby
amended by deleting Section 2 G. in its entirety and replacing it
with the following:
F.
Title To and Risk of
Loss. Title to and risk of loss of WDGS, CDS/Syrup and Corn
Oil shall pass from AEMETIS XXXXX to XXXXXXXX (i) upon loading of
the truck in the case of WDGS, CDS/Syrup and Corn Oil.
10.
Amendment to Section 2 H. As of the end
of the business day on the Effective Date, Section 2 H. is hereby
amended by deleting Section 2 H. in its entirety and replacing it
with the following:
G.
Forward Contracts.
XXXXXXXX is hereby authorized to enter into forward contracts
(“Forward Contracts”) regarding delivery of WDGS,
CDS/Syrup and Corn Oil to be acquired hereunder. AEMETIS XXXXX
shall be liable to XXXXXXXX for losses incurred in connection with
early termination of such Forward Contracts as a result of AEMETIS
XXXXX’ default under this Agreement or Related Agreements.
Additionally, XXXXXXXX shall be permitted to request from AEMETIS
XXXXX, and AEMETIS XXXXX will not unreasonably deny the request,
for funds to cover margins of the Forward Contracts. XXXXXXXX shall
be permitted to retain such funds until the completion of the
Forward Contracts.
11.
Amendment to Section 3. As of the end of
business day on the Effective Date, Section 3 is hereby amended by
replacing any reference to Wednesday to Friday.
12.
Amendment to Section 4. As of the end of
the business day on the Effective Date, Section 4 is hereby amended
by deleting Section 4 in its entirety and replacing it with the
following:
4.
Payment. XXXXXXXX
shall make payment to AEMETIS XXXXX for all WDGS, CDS/Syrup and
Corn Oil produced by the AEMETIS XXXXX plant pursuant to this
Agreement on a daily basis. XXXXXXXX and AEMETIS XXXXX each will
have obligations to the other resulting from (i) the sale of
corn by XXXXXXXX to AEMETIS XXXXX and the handling services of
XXXXXXXX and other obligations of AEMETIS XXXXX under the Corn
Procurement and Working Capital Agreement, dated as of the date
hereof (the “Corn
Procurement Agreement”), between AEMETIS XXXXX and
XXXXXXXX, and (ii) payment obligations under this Agreement,
including without limitation obligations related to the purchase of
WDGS, CDS/Syrup and Corn Oil (as defined herein), handling and
marketing services, performance guarantees from customers and the
provision of consulting services. The parties agree that, subject
to the Credit Limit set forth in Section 3.02 of the Corn
Procurement Agreement, 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 by, 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 XXXXX shall be
responsible for calculating the net settlement amount for each
business day and forwarding a copy of the net settlement statement
to XXXXXXXX no later than 11:00 a.m. (Central time) electronically
at the XXXXXXXX notice address shown in this Agreement. If XXXXXXXX
does not object to the net settlement statement within three
(3) business days, such net settlement statement will be
deemed conclusive between the parties absent manifest
error.
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13.
Amendment to Section 5. As of the end of
the business day on the Effective Date, Section 5 is hereby amended
by deleting Section 5 in its entirety and replacing it with the
following:
Section
5. Pursuant to Section 5, XXXXXXXX shall be entitled to offset the
amount due to XXXXXXXX for Corn (as defined in the Corn Procurement
Agreement) against any amount due to AEMETIS XXXXX for WDGS,
CDS/Syrup or Corn Oil acquired by XXXXXXXX.
14.
Amendment to Section 9 A. As of the end
of the business day on the Effective Date, Section 9 A is hereby
amended by deleting the reference to “Initial Contract
Year” and replacing it with “Initial
Term”.
15.
Addition of Section 9 F. As of the end
of the business day on the Effective Date, Section 9 F. is hereby
added to the Agreement as follows:
F.
Shut off Following
Termination as a Result of a Default. If this or any related
agreement is terminated as a result of default, XXXXXXXX shall be
permitted to enter the property of AEMETIS XXXXX to prevent the
movement or utilization of any of its 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)
including, but not limited to, all products derived from the
processing of Corn at the Plant (as defined in the Security
Agreement) and the proceeds thereof.
16.
Amendment to Section 9 B. As of the end
of the business day on the Effective Date, Section 9 B is hereby
amended by deleting Section 9B in its entirety and replacing it
with the following:
B.
Termination for
Convenience by AEMETIS XXXXX. In addition to its right of
termination of XXXXXXXX'x services as marketer for the WDGS,
CDS/Syrup and Corn Oil under Section 3 hereof, AEMETIS XXXXX
has the right to terminate this Agreement for convenience at any
time by providing 30 days written notice to XXXXXXXX by registered
mail.
17.
Amendment to Section 9 C. As of the end
of the business day on the Effective Date, Section 9 C is hereby
amended by deleting Section 9 C in its entirety and replacing it
with the following:
C.
Termination at the end of the Initial
Term. Either party has the right to terminate this Agreement
for convenience at the end of the Initial Term and any Renewal Term
by giving written notice by registered mail to the other party of
such termination as follows:
(1) 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;
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(2) Notice of
termination to be effective at the conclusion of a Renewal Term
shall be given 30 days prior to the expiration of a Renewal
Term.
18.
Addition of Section 9 G. As of the end
of the business day on the Effective Date, Section 9 of the
Agreement is hereby amended by adding a new section, Section 9 G,
to Section 9 of the Agreement as follows:
G.
Costs Following
Termination. Notwithstanding any other provisions contained
in this Agreement, should AEMETIS XXXXX terminate this Agreement
pursuant to the provisions contained in Sections 9 B and 9 C above,
AEMETIS XXXXX shall be liable to XXXXXXXX for any open contracts
entered into between XXXXXXXX and AEMETIS XXXXX to satisfy its
obligations under this Agreement, including but not limited to, the
cancellation of any open forward contracts entered into prior to
the termination.
19.
Amendment of Section 14. As of the end
of the business day on the Effective Date, Section 14 is hereby
amended by adding the following at the end of the Section:
“Notwithstanding the foregoing, the invocation of a force
majeure shall not excuse any party from the payment or obligations
under this Agreement.”
20.
Amendment to Xxxxxxxx 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:
00000
Xxxxxx Xx., Xxxxx 000
Xxxxx,
XX 00000
Telephone:
000-000-0000
Facsimile:
000-000-0000
E-mail:
XXXXxxxx@Xxxxxxxx.xxx
Attention: Legal
Department
21.
Deletion of Exhibit A. As of the end of
the business day on the Effective Date, Exhibit A is hereby deleted
from the Agreement.
22.
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.
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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.
23.
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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X.X.
XXXXXXXX HOLDINGS, LLC
By:
/s/ Xxxxx X.
Xxxx
Name:
Xxxxx X. Xxxx
Title:
Chief Operating Officer/SVP
AEMETIS
ADVANCED FUEL XXXXX, INC.
By:
/s/ Xxxx
XxXxxx
Name:
Xxxx XxXxxx
Title:
Chief Executive Officer
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