LIMITED WAIVER AND AMENDMENT NO. 14 TO AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
Exhibit
10.71
LIMITED WAIVER AND AMENDMENT NO. 14 TO
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
This
Limited Waiver and Amendment No. 14 to Amended and Restated Note
Purchase Agreement (this “Amendment”), is dated as of March
27, 2018, is made by and among (i) AEMETIS ADVANCED FUELS ▇▇▇▇▇, INC., a
Delaware corporation (“AEAFK”), AEMETIS FACILITY ▇▇▇▇▇, INC., a Delaware
corporation (“▇▇▇▇▇
Facility”, together with AEAFK, 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 SPROTT PRIVATE CREDIT TRUST
(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. 13 dated as of March 1, 2017 (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 provided written notice to the Administrative Agent
of their election to extend each of: (i) the Acquisition Notes
Stated Maturity Date; (ii) the Existing Notes Stated Maturity Date;
(iii) the Revenue Participation Notes Stated Maturity Date; and
(iv) the Revolving Notes Stated Maturity Date not earlier than 60
days, and not later than 30 days, prior to April 1, 2018 as
required by the Agreement, and the Borrowers have requested that
the Administrative Agent waive the requirement in the Agreement for
the Borrowers to either pay an extension fee in cash in an amount
equal to 5% of the Note Indebtedness in respect of each extension
election noted herein above or add such extension fee amount to the
outstanding principal balance of the applicable Notes on the
effective date of such extension at the election of the Borrowers
and instead extend the respective maturity dates for an additional
year beyond that otherwise provided for in consideration for the
payment of an additional fee, all as indicated below.
C. The
Borrowers have requested, and the Administrative Agent and
Noteholders have agreed, to amend certain of the provisions and
requirements of the Agreement related to: (i) the term of the
extension and payment and accrual of the extension fee noted in
Recital (B) above, and (ii) 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 March
16, 2018 and before giving effect to this Amendment, the
outstanding principal balance of the Notes is
$76,931,173.61.
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 Stated Maturity
Date” means April 1, 2020; provided that the
Acquisition Notes Stated Maturity Date shall be extended to April
1, 2021 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, 2020, 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.
“Amendment 14” means that Limited
Waiver and Amendment No. 14 to this Agreement, dated as of March
27, 2018.
“Existing Notes Stated Maturity
Date” means April 1, 2020; provided that the Existing
Notes Stated Maturity Date shall be extended to April 1, 2021 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, 2020, 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.
“Fee Letter” means the amended and
restated letter agreement dated the date hereof among the
Borrowers, the Parent and the Administrative Agent, as such may be
amended or restated from time to time.
“Revenue
Participation Notes Stated Maturity Date” means April
1, 2020; provided that the Revenue Participation Notes Stated
Maturity Date shall be extended to April 1, 2021 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, 2020, 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.
2
“Revolving
Notes Stated Maturity Date” means April 1, 2020;
provided that the Revolving Notes Stated Maturity Date shall be
extended to April 1, 2021 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, 2020, 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.
(C) Section
1.1 (Definitions) Continued.
The
defined term “Acquisition
Notes Redemption Fee”, and each reference or use of
such defined term in the Agreement are each hereby deleted and
replaced with the following:
“Redemption Fee” has the meaning set forth in the
Fee Letter.
(D) Section
6.2 (Financial Covenants).
Section
6.2(b) of the Agreement is hereby deleted in its entirety and
replaced with the following:
“(b)
Ratios of Note Indebtedness to ▇▇▇▇▇
Plant Values. The Parent will not permit the ratio of Note
Indebtedness (excluding, for purposes of this covenant only, the
Redemption Fee) to the ▇▇▇▇▇ Plant Market Value to exceed seventy
percent (70%), tested quarterly as of the last day of each Fiscal
Quarter; provided
that from the date of the Amendment 14 until January 1, 2019 the
Parent may elect, with respect to any Fiscal Quarter ending during
such period, to have the requirement to comply with this Section
6.2(b) waived by providing prior written notice to the Agent no
later than the last day of such applicable Fiscal Quarter during
the period indicated above, and providing payment, in each case, of
$250,000 to the Agent, which amount may, at the election of the
Parent, be added to the outstanding principal balance of the
Revolving Notes on the applicable last day of such Fiscal Quarter
for which such election is being triggered; and”
SECTION
4. Fee Letter
Amendment. Subsection 4(a) of the Fee Letter is hereby
deleted in its entirety and replaced with the
following:
“(a)
The defined term
“Redemption Fee” in the Purchase Agreement shall mean
the amount of $5,994,000 payable on redemption in full of the Notes
on the Maturity Date or otherwise in accordance with this
Agreement.”
SECTION
5. Conditions to
Effectiveness. This Amendment shall be effective on the date
first written above but subject to satisfaction of the following
conditions precedent:
3
(A) Administrative
Agent shall have been paid an amendment fee in the amount of
$500,000 which 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 nonrefundable.
(B)
Administrative Agent shall have received a signed
Agent Advance Promissory Note dated the date hereof in the amount
of $6,000,000 from the Borrowers.
(C) Administrative
Agent shall have received this Amendment duly executed by the
parties hereto.
(D)
Administrative Agent shall have received a Reaffirmation of
Unconditional Personal Guaranty, duly executed by the
Chairman.
(E) Administrative
Agent shall have received a Reaffirmation of Guaranty, duly
executed by the Company Parties (other than the
Borrowers).
(F) Administrative
Agent shall have received a Reaffirmation of Guaranty, duly
executed by McAfee Capital, LLC.
(G) 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.
(H) 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.
4
SECTION
6.
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
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.
SECTION
7.
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
8. 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.
5
(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.}
6
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first noted above.
BORROWERS:
AEMETIS
ADVANCED FUELS ▇▇▇▇▇, INC.
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Chief
Executive Officer
AEMETIS
FACILITY ▇▇▇▇▇, INC.
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Chief
Executive Officer
PARENT:
By:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Chief
Executive Officer
AEMETIS
ADVANCED FUELS ▇▇▇▇▇, INC.
Signature Page to Limited Waiver and Amendment No. 14
ADMINISTRATIVE AGENT:
|
|
THIRD
EYE CAPITAL CORPORATION
|
|
|
By: /s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Title: Managing
Director
|
|
|
NOTEHOLDERS:
|
|
|
SPROTT-TEC
PRIVATE CREDIT FUND by its manager SPR & CO LP, by its general partner 2573322 ONTARIO INC. |
|
|
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Chief
Compliance Officer
|
|
|
THIRD
EYE CAPITAL CREDIT
OPPORTUNITIES
S.ar.l, it its capacity as
Managing
General Partner of THIRD EYE
CAPITAL
CREDIT OPPORTUNITIES FUND –
INSIGHT
FUND
|
|
|
By: /s/
▇▇▇▇ ▇▇
▇▇▇▇▇
|
|
|
Name:
▇▇▇▇ ▇▇
▇▇▇▇▇
Title:
Director
|
|
|
|
|
|
By: /s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title:
Director
|
Signature Page to Limited Waiver and Amendment No. 14