LIMITED WAIVER AND AMENDMENT NO. 13 TO AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
Exhibit
10.70
LIMITED WAIVER AND AMENDMENT NO. 13 TO
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
This
Limited Waiver and Amendment No. 13 to Amended and Restated Note
Purchase Agreement (this “Amendment”), is dated as of March
1, 2017, is made by and among (i) AEMETIS ADVANCED FUELS XXXXX, INC. (f/k/a AE
Advanced Fuels Xxxxx, Inc.), a Delaware corporation
(“AEAFK”),
AEMETIS FACILITY XXXXX,
INC., a Delaware corporation and successor-in-interest to
Xxxxx Facility Acquisition Corp., a Delaware corporation
(“Xxxxx
Facility”, together with AEAFK, the
“Borrowers”),
AEMETIS, INC. (formerly
known as AE Biofuels, Inc.), a Nevada corporation
(“Parent”), and
(ii) THIRD EYE CAPITAL
CORPORATION, an Ontario corporation, as agent for the
Noteholders (“Administrative Agent”), THIRD EYE CAPITAL CREDIT OPPORTUNITIES FUND
– INSIGHT FUND (“TEC Insight Fund Purchaser”) and
SPROTT PRIVATE CREDIT TRUST
(“Sprott Private Credit Trust
Purchaser”, and together with TEC Insight Fund
Purchaser, the “Noteholders”).
RECITALS
A. The
Borrowers, Administrative Agent and Noteholders entered into the
Amended and Restated Note Purchase Agreement dated as of July 6,
2012, as amended by a Limited Waiver and Amendment No.1 to Amended
and Restated Note Purchase Agreement dated as of October 18, 2012,
as amended by a Limited Waiver and Amendment No. 2 to Amended and
Restated Note Purchase Agreement dated as of February 27, 2013, as
amended by a Limited Waiver and Amendment No. 3 to Amended and
Restated Note Purchase Agreement dated as of April 15, 2013, as
amended by an Amendment No. 4 to Amended and Restated Note Purchase
Agreement dated as of April 19, 2013, as amended by a Limited
Waiver and Amendment No. 5 to Amended and Restated Note Purchase
Agreement dated as of July 26, 2013, as amended by a Limited Waiver
and Amendment No. 6 to Amended and Restated Note Purchase Agreement
dated as of September 30, 2013, as amended by a Limited Waiver and
Amendment No. 7 to Amended and Restated Note Purchase Agreement
dated as of May 14, 2014, as amended by an Amendment No. 8 to
Amended and Restated Note Purchase Agreement dated as of November
7, 2014, as amended by an Amendment No. 9 to Amended and Restated
Note Purchase Agreement dated as of March 12, 2015, as amended by
an Amendment No. 10 to Amended and Restated Note Purchase Agreement
dated as of April 30, 2015, as amended by an Amendment No. 11 to
Amended and Restated Note Purchase Agreement dated as of August 6,
2015 and as amended by an Amendment No. 12 to Amended and Restated
Note Purchase Agreement dated as of March 21, 2016 (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
Borrowers have requested, and the Administrative Agent and
Noteholders have agreed, to amend the Agreement on the terms and
conditions contained herein.
AGREEMENT
SECTION
1. Reaffirmation of
Indebtedness. The Borrowers hereby confirm that as of March
1, 2017 and before giving effect to this Amendment, the outstanding
principal balance of the Notes is $63,772,817.02.
SECTION
2. Limited
Waiver. Subject to the terms, covenants and conditions of
this Amendment, Administrative Agent hereby waives:
(A) the
Event of Default arising from the failure of the Borrowers to
comply with Section 6.2(a) of the Agreement for the Fiscal Quarter
ending December 31, 2016 (failure to maintain trailing Free Cash
Flow); and
(B) the
Event of Default which occurred pursuant to Section 8.1(k) whereby
the Parent failed to pay certain Indebtedness outstanding to Xxxxx
X. Xxxxx (“Xxxxx”) in the aggregate principal
amount of $128,500, which exceeds that $100,000 threshold in
Section 8.1(k), when such amount was due and payable;
(C) the
Parent’s obligations in Section 6.4(u), but only to the
extent required to permit the Parent to issue up to $128,500 worth
of Capital Stock to Xxxxx, or his registered broker or
intermediary, in payment for and in full and final satisfaction and
release of certain Subordinated Debt owed by Parent to Xxxxx
referred to in (A) above.
Except
as expressly provided herein, nothing contained herein shall be
construed as a waiver by Administrative Agent or Noteholders of any
covenant or provision of the Agreement, the other Note Purchase
Documents, or of any other contract or instrument among the
Borrowers, any Company Party, Noteholders and Administrative Agent,
and the failure of Administrative Agent or Noteholders at any time
or times hereafter to require strict performance by the Borrowers
or any Company Party of any provision thereof shall not waive,
affect or diminish any right of Administrative Agent or Noteholders
to thereafter demand strict compliance therewith. Administrative
Agent and Noteholders hereby reserve all rights granted under the
Agreement, the Note Purchase Documents and any other contract or
instrument among the Borrowers, any Company Party, Noteholders and
Administrative Agent.
SECTION
3. Amendments.
The following sections of the Agreement shall be and hereby are
amended as follows:
(A) Recitals
Part of Agreement. The foregoing recitals are hereby
incorporated into and made a part of the Agreement, including all
defined terms referenced therein.
(B) Section
1.1 (Definitions).
Section
1.1 of the Agreement is hereby amended by substituting and adding
the following definitions in lieu of or in addition to the versions
of such terms and related definitions contained in the Agreement,
as applicable, in the appropriate alphabetical order:
“Acquisition Notes” means,
collectively, the amended and restated notes in the principal
amount of $18,554,286.69 issued by the Borrowers made payable to
the Noteholders, together with all other notes accepted from time
to time in substitution, renewal or replacement for all or any part
thereof.
“Acquisition Notes Stated Maturity
Date” means April 1, 2018; provided that the
Acquisition Notes Stated Maturity Date shall be extended to April
1, 2019 upon written notice to the Administrative Agent of the
Borrowers’ election to extend not earlier than 60 days, and
not later than 30 days, prior to April 1, 2018, so long as at the
time of the extension (a) no Default or Event of Default has
occurred and is continuing under any Financing Document and (b) the
Borrowers pay to the Administrative Agent an extension fee in cash
in an amount equal to 5% of the Note Indebtedness in respect to the
Acquisition Notes which fee shall be deemed fully earned and
nonrefundable, provided that such fee may be added to the
outstanding principal balance of the Acquisition Notes on the
effective date of such extension at the election of the
Borrowers.
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“Existing Notes” means,
collectively, the amended and restated notes in the principal
amount of $6,941,946.55 issued by the Borrowers made payable to the
Noteholders, together with all other notes accepted from time to
time in substitution, renewal or replacement for all or any part
thereof.
“Existing Notes Stated Maturity
Date” means April 1, 2018; provided that the Existing
Notes Stated Maturity Date shall be extended to April 1, 2019 upon
written notice to the Administrative Agent of the Borrowers’
election to extend not earlier than 60 days, and not later than 30
days, prior to April 1, 2018, so long as at the time of the
extension (a) no Default or Event of Default has occurred and is
continuing under any Financing Document and (b) the Borrowers pay
to the Administrative Agent an extension fee in cash in an amount
equal to 5% of the Note Indebtedness in respect to the Existing
Notes which fee shall be deemed fully earned and nonrefundable,
provided that such fee may be added to the outstanding principal
balance of the Existing Notes on the effective date of such
extension at the election of the Borrowers.
“Financing” means, collectively,
(i) the issuance and sale by the Borrowers of $6,941,946.55
aggregate principal amount of Existing Notes pursuant to this
Agreement, (ii) the issuance and sale by the Borrowers of
$18,554,286.69 aggregate principal amount of Acquisition Notes
pursuant to this Agreement, (iii) the issuance and sale by the
Borrowers of up to $28,523,013.74 aggregate principal amount of
Revolving Notes (plus any PIK Amount added to the outstanding
principal amount of the Revolving Notes pursuant to Section
2.11(1)), pursuant to this Agreement and (iv) the issuance and sale
by the Borrowers of $11,744,099.19 aggregate principal amount of
Revenue Participation Notes pursuant to this Agreement and (iv) the
entry into by the parties thereto of the other transactions
contemplated by the Financing Documents.
“Non-Revolving Portion” means the
Thirteenth Amendment Advance and the Revolving Notes Extension Fee
Advance (together with any PIK Amounts added to the Revolving Notes
pursuant to Section 2.11(1)) in the aggregate principal amount,
inclusive of PIK Amounts as of March 1, 2017, of
$10,523,013.73.
“Principal Waterfall” means the
order in which payments are applied in respect of the repayment and
redemption of the principal outstanding under the Notes, as
follows: (i) first, to the components of the Non-Revolving Portion
of the Revolving Notes as follows: (A) the portion of the Revolving
Notes issued in respect of the Thirteenth Amendment Advance, (B)
the portion of the Revolving Notes issued in respect of the
Revolving Notes Extension Fee Advance and (C) any PIK Amounts added
to the principal amount of the Revolving Notes, (ii) second, to the
Existing Notes, (iii) third, to the Acquisition Notes, (iv) fourth,
to the Revenue Participation Notes and (v) fifth, to the Revolving
Portion of Revolving Notes.
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“Redemption Event” means any of the
following events: (i) the completion of any equity offering of
Capital Stock of any Company Party that results in gross proceeds
of at least $2,000,000, (ii) the consummation of, or the receipt of
any proceeds in respect of, a Program by any Company Party, (iii)
if any Company Party receives proceeds from any government grants
and credits, including the California Energy Commission granted
provided under the California Producer Incentive Program, and (iv)
if any Company Party receives any insurance proceeds of any kind;
provided, that so long as no Default or Event of Default has
occurred and is continuing and the amount of loss does not exceed
$250,000, this clause (iv) shall not be a Redemption Event to the
extent such Company Party reinvests all such insurance proceeds in
productive assets of a kind then used in the Business within 180
days after the event of loss with respect to such insurance
proceeds.
“Revenue Participation Notes”
means, collectively, the amended and restated notes in the
principal amount of $11,744,099.19 issued by the Borrowers made
payable to the Noteholders, together with all other notes accepted
from time to time in substitution, renewal or replacement for all
or any part thereof.
“Revenue Participation Notes Stated Maturity
Date” means April 1, 2018; provided that the Revenue
Participation Notes Stated Maturity Date shall be extended to April
1, 2019 upon written notice to the Administrative Agent of the
Borrowers’ election to extend not earlier than 60 days, and
not later than 30 days, prior to April 1, 2018, so long as at the
time of the extension (a) no Default or Event of Default has
occurred and is continuing under any Financing Document and (b) the
Borrowers pay to the Administrative Agent an extension fee in cash
in an amount equal to 5% of the Note Indebtedness in respect to the
Revenue Participation Notes which fee shall be deemed fully earned
and nonrefundable, provided that such fee may be added to the
outstanding principal balance of the Revenue Participation Notes on
the effective date of such extension at the election of the
Borrowers.
“Revolving Notes” means,
collectively, the amended and restated notes in the principal
amount of $28,523,013.74 (plus any PIK Amount added to the
outstanding principal amount of the Revolving Notes pursuant to
Section 2.11(1)) issued by the Borrowers made payable to the
Noteholders, together with all other notes accepted from time to
time in substitution, renewal or replacement for all or any part
thereof.
“Revolving Notes Extension Fee” has
the meaning set forth in Section 2.4
“Revolving Notes Stated Maturity
Date” means April 1, 2018; provided that the Revolving
Notes Stated Maturity Date shall be extended to April 1, 2019 upon
written notice to the Administrative Agent of the Borrowers’
election to extend not earlier than 60 days, and not later than 30
days, prior to April 1, 2018, so long as at the time of the
extension (a) no Default or Event of Default has occurred and is
continuing under any Financing Document and (b) the Borrowers pay
to the Administrative Agent an extension fee in cash in an amount
equal to 5% of the Note Indebtedness in respect to the Revolving
Notes which fee shall be deemed fully earned and nonrefundable,
provided that such fee may be added to the outstanding principal
balance of the Revolving Notes on the effective date of such
extension at the election of the Borrowers.
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“Subsequent Closing” means, at the
option of the Borrowers, one or more Closings for the purchase and
sale of Revolving Notes following the First Closing, in each case
as contemplated herein, provided that no more than $28,523,013.74
principal amount of Revolving Notes (plus any PIK Amount added to
the outstanding principal amount of the Revolving Notes pursuant to
Section 2.11(1)), shall be issued and outstanding at any
time.
“Thirteenth Amendment Advance” has
the meaning set forth in Section 2.4.
(C) Section
2.3 (Creation and Issuance of the Notes). Section 2.3 of the
Agreement is deleted in its entirety and replaced with the
following:
“2.3
Creation and
Issuance of the Notes. The Borrowers hereby create and
authorize the Notes for issuance in the aggregate principal amount
of up to $65,763,346.17 (plus any PIK Amount added to the
outstanding principal amount of the Revolving Notes pursuant to
Section 2.11(1)). The Notes shall be dated as of their applicable
Issue Date (including all replacement certificates issued in
accordance with this Agreement) and will become due and payable,
together with all accrued and unpaid interest thereon, on the
Maturity Date. Other than the Revolving Portion of the Revolving
Notes, which may be re-issued once redeemed, neither the
Non-Revolving Portion of the Revolving Notes nor any other Notes,
may be re-issued once redeemed.”
(D) Section
2.4 (Subsequent Closings and Revolving Notes). Section 2.4
of the Agreement is deleted in its entirety and replaced with the
following:
“2.4
Subsequent Closings
and Revolving Notes. Subject to the terms and
conditions set forth in Section 2.2, on and after the date of this
Agreement and upon written notice by the Borrowers to the
Administrative Agent of not less than ten Business Days in
substantially the form attached hereto as Exhibit B (each, a
“Revolving Loan
Request”), the Borrowers, jointly and severally, agree
to issue Revolving Notes in an aggregate amount not to exceed at
any time outstanding the amount identified in the Allocation
Notice; provided, however, that (i) after giving effect to any
outstanding Revolving Notes, the aggregate principal amount of all
outstanding Revolving Notes shall not exceed $28,523,013.74 (plus
any PIK Amount added to the outstanding principal amount of the
Revolving Notes pursuant to Section 2.11(1)), (ii) $750,000 of the
Revolving Notes may only be used by the Borrowers to pay the
Thirteenth Amendment and Waiver Fee (the “Thirteenth Amendment Advance”),
(iii) up to (A) $1,322,524.46 of the Revolving Notes may only be
used by the Borrowers to pay the fee in connection with the
extension of the Revolving Notes Stated Maturity Date to April 1,
2018 in accordance with the terms set forth in the definition of
Revolving Notes Stated Maturity Date in effect on March 1, 2017
(the “Revolving Notes
Extension Fee Advance”) and (iv) once the portion of
the Revolving Notes representing the Thirteenth Amendment Advance
and the Revolving Notes Extension Fee Advance, together with any
accrued but unpaid PIK Amounts thereon, have been redeemed, such
amounts shall not be re-issued. The aggregate principal amount of
any new Revolving Notes issued at any Subsequent Closing must be at
least $500,000 and in increments of $100,000. At each Subsequent
Closing, the Borrowers shall deliver an officer’s certificate
to the Administrative Agent and such other evidence reasonably
acceptable to the Administrative Agent that the conditions
precedent set forth in Section 2.2 have been met. The proposed use
of proceeds in each Revolving Loan Request shall be acceptable to
the Administrative Agent in its sole
discretion.”
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(E) Section
6.2(a) (Free Cash Flow Financial Covenant). Section 6.2(a)
of the Agreement is deleted in its entirety.
SECTION
4.
Redemption on
Occurrence of Certain Events. Section 4.2(1) of the
Agreement is deleted in its entirety and replaced with the
following:
“Partial Redemption. Upon
the occurrence of a Redemption Event, the Borrowers shall redeem
Notes, or that portion of the Notes, equal to the net proceeds
received by the Borrowers or Company Parties, as applicable, from
such Redemption Event. Upon the occurrence of any Redemption Event
or in the event the Borrowers elect to redeem the Notes pursuant to
this Agreement, the Borrowers shall redeem the Notes in the order
of priority in accordance with the Principal
Waterfall.”
Section
4.2(3) of the Agreement is deleted in its entirety.
SECTION
5.
Conditions to
Effectiveness. This Amendment shall be effective February
28, 2017 and subject to satisfaction of the following conditions
precedent:
(A) Administrative
Agent shall have received this Amendment duly executed by the
parties hereto.
(B)
Administrative Agent shall have been paid (i) a waiver fee in the
amount of $250,000 (the “Waiver Fee”), and (ii) an
amendment fee in the amount of $500,000 (the “Amendment Fee”), the Waiver Fee
and the Amendment Fee (collectively, the “Thirteenth Amendment and Waiver
Fee”) shall be added to the outstanding principal
balance of the Revolving Notes on the effective date of this
Amendment and deemed fully earned and non-refundable.
(C)
Administrative Agent shall have received a Second Amended and
Restated Revolving Note for Sprott Private Credit Trust Purchaser
duly executed by the Borrowers in the original principal amount of
$22,858,834.07 (which amount includes PIK Amount that has been
added to the outstanding principal amount of the Revolving Notes
pursuant to Section 2.11(1)).
(D)
Administrative Agent shall have received a Thirteenth Amended and
Restated Revolving Note for TEC Insight Fund Purchaser duly
executed by the Borrowers in the original principal amount of
$5,664,179.67 (which amount includes PIK Amount that has been added
to the outstanding principal amount of the Revolving Notes pursuant
to Section 2.11(1)).
(E)
Administrative Agent shall have received a Second Amended and
Restated Existing Note for Sprott Private Credit Trust Purchaser
duly executed by the Borrowers in the original principal amount of
$5,448,017.27.
(F)
Administrative Agent shall have received a Fifth Amended and
Restated Existing Note for TEC Insight Fund Purchaser duly executed
by the Borrowers in the original principal amount of
$1,493,929.28.
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(G)
Administrative Agent shall have received a Second
Amended and Restated Acquisition Note for Sprott Private Credit
Trust Purchaser duly executed by the Borrowers in the original
principal amount of $15,405,435.58.
(H)
Administrative Agent shall have received a Fourth Amended and
Restated Acquisition Note for TEC Insight Fund Purchaser duly
executed by the Borrowers in the original principal amount of
$3,148,851.11.
(I)
Administrative Agent shall have received a Second Amended and
Restated Revenue Participation Note for Sprott Private Credit Trust
Purchaser duly executed by the Borrowers in the original principal
amount of $8,989,968.42.
(J)
Administrative Agent shall have received a Fourth Amended and
Restated Revenue Participation Note for TEC Insight Fund Purchaser
duly executed by the Borrowers in the original principal amount of
$2,754,130.77.
(K)
Administrative Agent shall have received a Reaffirmation of
Unconditional Personal Guaranty, duly executed by the
Chairman.
(L)
Administrative Agent shall have received a Reaffirmation of
Guaranty, duly executed by the Company Parties (other than the
Borrowers).
(M)
Administrative Agent shall have received a Reaffirmation of
Guaranty, duly executed by McAfee Capital, LLC.
(N)
Administrative Agent shall have received a certificate
of a Senior Officer of the Parent and each Borrower certifying (1)
that no change has occurred to the Organizational Documents of such
Person since certified copies thereof were previously delivered to
the Administrative Agent and (2) that attached thereto is a true
and complete copy of resolutions duly adopted by the board of
directors of each such Person authorizing the execution, delivery
and performance of the Note Purchase Documents to which such Person
is a party delivered in connection with this Amendment and that
such resolutions have not been modified, rescinded or amended and
are in full force.
(O)
Administrative Agent 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 upon the
effective date of this Amendment.
(P)
Administrative Agent shall have received all other approvals,
opinions, documents, agreements, instruments, certificates,
schedules and materials as Administrative Agent may reasonably
request.
Each
Borrower 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 Administrative Agent and Noteholders shall have the right to
demand the immediate repayment in full in cash of all outstanding
Indebtedness owing to Administrative 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, each Borrower hereby (a) ratifies and confirms
all of the obligations and liabilities of such Borrower owing
pursuant to the Agreement and the other Note Purchase Documents,
and (b) agrees to pay all costs, fees and expenses of
Administrative Agent and Noteholders in connection with this
Amendment.
7
SECTION
6. Covenants.
Each Borrower covenants and agrees, for the benefit of the
Administrative Agent and the Noteholders that with respect to the
proposed purchase by Aemetis Advanced Fuels Goodland, Inc., an
affiliate of the Borrower (the “Purchaser”),
of the “Sale Assets” pursuant to that Offer to Purchase
dated September 20, 2016 between the Purchaser and the
Administrative Agent, that time is of the essence and they will
each use their best efforts to cause the Purchaser to close the
transaction on mutually agreed terms on an expedited basis by March
31, 2017
SECTION
7. 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 Administrative 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 Administrative 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
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
8. Representations by
Parent and Borrowers. Each of the Parent and the Borrowers
hereby represents and warrants to Administrative 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 Entity 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.
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SECTION
9. 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. Each party agrees that it will be bound
by its own facsimile or scanned signature and that it accepts the
facsimile or scanned signature of each other party. The descriptive
headings of the various sections of this Amendment are inserted for
convenience of reference only and shall not be deemed to affect the
meaning or construction of any of the provisions hereof or thereof.
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, and the masculine gender shall include
the feminine and neuter and the neuter shall include the masculine
and feminine. 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 Borrowers and
Administrative 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 THE WAIVER OF JURY TRIAL AND
NOTICE PROVISIONS OF THE AGREEMENT.
(E) Neither
the Parent nor any Borrower 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 Borrowers or any Company Party. Nothing
contained in this Amendment shall be construed as a delegation to
Administrative Agent or Noteholders of the Borrowers or any Company
Party’s duty of performance, including any duties under any
account or contract in which Administrative Agent or Noteholders
have a security interest or lien. This Amendment shall be binding
upon the Borrowers, the Parent 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 Administrative Agent or Noteholders shall affect such
representations or warranties or the right of Administrative Agent
or Noteholders to rely upon them.
(G) THE
BORROWERS AND THE PARENT 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 “OBLIGATIONS” OR TO SEEK
AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM
ADMINISTRATIVE AGENT OR ANY NOTEHOLDER. THE BORROWERS AND THE
PARENT HEREBY VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER
DISCHARGE ADMINISTRATIVE AGENT AND EACH NOTEHOLDER AND THEIR
RESPECTIVE PREDECESSORS, ADMINISTRATIVE 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.
BORROWERS:
AEMETIS
ADVANCED FUELS XXXXX, INC.
By: /s/ Xxxx X.
XxXxxx
Name:
Xxxx X. XxXxxx
Title:
Chief Executive Officer
AEMETIS
FACILITY XXXXX, INC.
By: /s/ Xxxx X.
XxXxxx
Name:
Xxxx X. XxXxxx
Title:
Chief Executive Officer
PARENT:
By: /s/ Xxxx X. XxXxxx
Name:
Xxxx X. XxXxxx
Title:
Chief Executive Officer
Signature Page to Limited Waiver and Amendment No. 13
ADMINISTRATIVE AGENT:
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THIRD EYE CAPITAL CORPORATION
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By: /s/
Xxxx X. Xxxxxxxx
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Name:
Xxxx X. Xxxxxxxx
Title:
Managing Director
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NOTEHOLDERS:
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SPROTT ASSET MANAGEMENT GP INC., in
its capacity as general partner of SPROTT
ASSET MANAGEMENT L.P., in its capacity as
Manager of SPROTT PC TRUST
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By: /s/
Xxxxxxx XxXxxxxxx
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Name:
Xxxxxxx XxXxxxxxx
Title:
CFO
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THIRD EYE CAPITAL CREDIT
OPPORTUNITIES S.ar.l, it its capacity as
Managing General Partner of THIRD EYE
CAPITAL CREDIT OPPORTUNITIES FUND –
INSIGHT FUND
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By:
/s/ Xxxxxxx
Xxxxxxx
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Name:
Xxxxxxx
Xxxxxxx
Title:
Manager
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By: /s/
Xxxx xx Xxxxx
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Name:
Xxxx xx Xxxxx
Title:
Manager
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Signature
Page to Limited Waiver and Amendment No. 13
