Attached files
Exhibit 99.1
LIMITED WAIVER AND AMENDMENT NO. 18 TO
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
This
Limited Waiver and Amendment No. 18 to Amended and Restated Note
Purchase Agreement (this “Amendment”), is dated as of
November 5, 2020, is made by and among (i) AEMETIS ADVANCED FUELS KEYES, INC., a
Delaware corporation (“AEFK”), AEMETIS FACILITY KEYES, INC., a Delaware
corporation (“Keyes
Facility”, together with AEFK, the “Borrowers”), AEMETIS, 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 and NINEPOINT – TEC PRIVATE
CREDIT FUND (collectively, 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 from time to time including most recently by an Amendment
No. 17 dated as of August 11, 2020 (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 has agreed to waive certain
financial covenants included in the Agreement, in each case on the
terms and conditions contained herein.
AGREEMENT
SECTION
1. Reaffirmation of
Indebtedness. The Borrowers hereby confirm that as of
October 31, 2020, the outstanding principal balance of the Notes
(excluding accrued interest) is $116,999,732.34.
SECTION
2. Recitals Part of
Agreement. The foregoing recitals are hereby incorporated
into and made a part of the Agreement, including all defined terms
referenced therein.
SECTION
3. Note
Indebtedness to Keyes Plant Values Waiver
(1) Based
on the information provided to the Administrative Agent by the
Borrowers, the Borrowers reported that they will not comply with
the “Note Indebtedness to Keyes Plant Values”
requirement pursuant to Section 6.2(b) of the Agreement for the
Fiscal Quarters ending September 30, 2021, which non-compliance
will, but for this waiver, in each case constitute an Event of
Default under the Agreement (the “Note Indebtedness
Violation”).
(2) Subject
to the terms of this Amendment, the Administrative Agent waives, as
of the Effective Date, the Note Indebtedness Violation provided
that the Borrowers shall be and remain obligated to comply with
their obligations as stated in Section 6.2(b) of the Agreement, on
a going forward basis thereafter.
SECTION
4. Conditions to
Effectiveness. This Amendment shall be effective on the date
first written above but subject to satisfaction of the following
conditions precedent:
(A) Administrative
Agent shall have been paid an amendment fee in the amount of
$50,000 in cash on the date of this Amendment, which fee shall be
deemed fully earned and nonrefundable on the effective date of this
Amendment.
(A) Borrowers
shall, and will cause the other Company Parties to, 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.
(B) 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: (i) ratifies and
confirms all of the obligations and liabilities of such Borrower
owing pursuant to the Agreement and the other Note Purchase
Documents, and (ii) agrees to pay all costs, fees and expenses of
Administrative Agent and Noteholders in connection with this
Amendment.
SECTION
5. 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 course of dealing or other basis for altering any
obligation of the Borrowers, or 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 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.
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SECTION
6. 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.
SECTION
7. 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 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.
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(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.}
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first noted above.
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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
ADMINISTRATIVE AGENT:
THIRD
EYE CAPITAL CORPORATION
By: /s/ Arif
N.Bhalwani
Name:
Arif N. Bhalwani
Title:
Managing Director
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Signature Page to Limited Waiver and Amendment No. 18