AMENDED & RESTATED LIMITED GUARANTY
Exhibit
10.4
AMENDED & RESTATED LIMITED GUARANTY
This
AMENDED & RESTATED LIMITED GUARANTY (this “Limited Guaranty”), dated
as of June 28, 2018, is made by AEMETIS, INC. (the
“Parent
Guarantor”) and Aemetis Advanced Products ▇▇▇▇▇, Inc.
(“AAPK”
and collectively with the Parent Guarantor, the “Guarantors”), in favor of
THIRD EYE CAPITAL CORPORATION, as administrative agent and
collateral agent for and on behalf of the Noteholders (as defined
in the Note Purchase Agreement referred to below) (in such
aforesaid capacities, or any successor or assign in such
capacities, the “Agent”).
PRELIMINARY STATEMENTS:
(1) Goodland
Advanced Fuels, Inc., a Delaware corporation (the
“Borrower”), the
Noteholders from time to time party thereto, and the Agent have
entered into that certain Note Purchase Agreement dated as of June
30, 2017 as amended on the date hereof by the First Amendment (as
may be further amended, varied, supplemented, restated, renewed or
replaced at any time and from time to time, the “Note Purchase
Agreement”).
(2) Pursuant
to the Note Purchase Agreement, the Noteholders have agreed to make
Loans from time to time to the Borrower, upon the terms and subject
to the conditions set forth therein.
(3) The
Borrower and each Guarantor have entered into separate
Intercompany Revolving Promissory Notes of even date herewith (as
amended, varied, supplemented, restated, renewed or replaced at any
time and from time to time, the “Intercompany Revolving
Notes”) pursuant to which the Borrower may, from time
to time, lend a portion of the proceeds of Revolving Advances
incurred under the Note Purchase Agreement to each
Guarantor.
(4) This
Limited Guaranty is secured by a first priority lien, subject to
liens existing in connection with the Existing Agreement, pursuant
to separate General Security Agreements entered into by each
Guarantor.
(5) On
the date hereof, pursuant to the First Amendment, the Noteholders
and the Agent agreed to increase the Term Loan Commitment by an
amount equal to $1,575,000, being the Subsequent Term Loan amount,
and the Borrower agreed to issue Term Notes evidencing such
Subsequent Term Loan amount to the Noteholders in order to provide
working capital to the Parent and its subsidiaries in order to
satisfy and pay certain outstanding property tax arrears. In
connection therewith, each Guarantor agreed to enter into this
Limited Guaranty, thereby guaranteeing the obligations of the
Borrower with respect to such Subsequent Term Loan amount, in
addition to and not in derogation of, their other obligations
herein and in the Note Purchase Documents.
(6) Prior
to the Aemetis Option Exercise Date, this Limited Guaranty
guarantees the Guaranteed Obligations in an amount not to exceed
the Guaranty Limit. On and after the Aemetis Option Exercise Date,
this Limited Guaranty shall guarantee the Guaranteed Obligations
without giving effect to the Guaranty Limit.
(7) It
is a condition precedent to the obligation of the Noteholders to
make Loans under the Note Purchase Agreement that the Guarantors
shall have executed and delivered this Limited Guaranty to the
Agent, for the benefit of the Agent, the Noteholders from time to
time party to the Note Purchase Agreement and any other holder of
any Note Indebtedness (collectively with the Agent and the
Noteholders, the “Secured
Parties”).
(8) The
Guarantors will derive substantial direct and indirect benefit from
the transactions contemplated by the Note Purchase Agreement,
including without limiting the generality of the foregoing, with
respect to the transactions contemplated by the First
Amendment.
(9) Effective
on the date hereof, the original Limited Guaranty dated July 10,
2017 (the “Original
Guaranty”) has been
amended and restated in its entirety hereby pursuant to the terms
and conditions hereof. Such amendment and restatement of the
Original Guaranty shall not be construed to discharge or otherwise
affect any obligations of the Guarantors accrued or otherwise owing
under the Original Guaranty that have not been paid or otherwise
satisfied, it being understood that such obligations shall continue
as obligations under this Limited Guaranty. Without limiting the
generality of the foregoing, this Limited Guaranty is not intended
to and shall not constitute a novation of the Original
Guaranty.
1.
DEFINITIONS. Capitalized terms
used but not otherwise defined herein shall have the meanings
assigned to them in the Note Purchase Agreement. In addition, when
used herein:
“Aemetis Option Exercise
Date” shall mean the date upon which the Aemetis
Option is exercised in accordance with its terms;
“Existing Agreement” shall
mean that certain Amended and Restated Note Purchase Agreement
dated as of July 6, 2012, as amended, restated, supplemented,
revised or replaced from time to time, among the borrowers party
thereto, Parent Guarantor, the noteholders party thereto and Third
Eye Capital Corporation, an Ontario corporation, in its capacity as
agent for and on behalf of the noteholders party thereto and each
document or agreement entered into in connection therewith;
and
“Guaranty Limit” shall
mean an amount equal to the sum of: (a) the aggregate amount of
Note Indebtedness advanced by the Borrower to each Guarantor under
and in accordance with the Intercompany Revolving Notes
(irrespective of which Guarantor is the obligor under any
particular Intercompany Revolving Note); (b) the aggregate amount
of Note Indebtedness with respect to the Subsequent Term Loan
advanced pursuant to the First Amendment on the date hereof; and
(c) the obligations of the Guarantors under Section 4.12
hereof.
2.
THE GUARANTY.
2.1
Limited Guaranty of
Guaranteed Obligations. The Guarantors unconditionally,
jointly and severally, guarantee to the Agent, on behalf of the
Secured Parties, and their respective successors, endorsees,
transferees and assigns, the prompt payment and performance of all
Note Indebtedness, whether such obligations constitute principal,
interest, expenses, indemnification expenses or other obligations
(collectively, the “Guaranteed Obligations”);
provided that prior
to the Aemetis Option Exercise Date, the aggregate obligations and
liabilities of the Guarantor hereunder shall not at any time or in
any event or circumstance exceed the Guaranty Limit and
provided,
further, that on
and after the Aemetis Option Exercise Date, this Limited Guaranty
will no longer give effect to and shall be construed as excluding
the term “Guaranty Limit”. All payments under this
Limited Guaranty shall be made in United States Dollars in
immediately available funds within five (5) Business Days after the
Agent’s demand therefor.
2.2 Guarantee
Absolute. The Guarantors
guarantee that the Guaranteed Obligations will be paid strictly in
accordance with their terms regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Agent and/or Secured Parties
with respect thereto. The liability of the Guarantors hereunder
shall be primary, absolute and unconditional irrespective
of:
(a) any
lack of validity or enforceability of the Note Indebtedness
or the Guaranteed Obligations or any
agreement or instrument relating thereto;
(b) any
change in the time, manner or place of the payment of, or in any
other term of, all or any of the Note Indebtedness
or the Guaranteed Obligations, or any
amendment or modification of or any consent to departure from this
Limited Guaranty or any other Note Purchase
Document;
(c) any
exchange, release, unopposability or nonperfection of any
Collateral or any release or amendment to, waiver of, or consent to
departure from, or any guarantee for, all or any part of the Note
Indebtedness or the Guaranteed Obligations;
(d) any
whole or partial termination of this Limited Guaranty;
or
(e) any
other circumstance which might otherwise constitute a defense
available to, or a discharge of, any Obligor in respect of
the Note Indebtedness.
2.3 Consents,
Waivers and Renewals. The Guarantors hereby renounce the
benefits of division and discussion. The Guarantors hereby waive
promptness, diligence, notice of the acceptance hereof, notice of
intent to accelerate and notice of acceleration and any other
notice with respect to any of the Note Indebtedness or the
Guaranteed Obligations, this Limited
Guaranty or the other Note Purchase Documents and any
requirement that the Agent and/or Secured Parties protect, secure,
perfect, render opposable or insure any Agent’s Lien or Lien
on any Property subject thereto or exhaust any right or take any
action against any other Person or any Collateral before proceeding
hereunder. The Guarantors agree that the Agent and/or Secured
Parties may at any time and from time to time, either before or
after the maturity of the Note Indebtedness, without notice to or
further consent of any Guarantor or any other Person extend the
time of payment of, exchange or surrender any Collateral for, or
renew any of the Note Indebtedness or the Guaranteed Obligations,
and may also make any agreements with any other party to or Person
liable on any of the Note Indebtedness, or interested therein, for
the extension, renewal, payment, compromise, discharge, or release
thereof, in whole or in part, or for any modification of the terms
thereof or of any agreement between the Agent and/or any
Noteholders and the Borrower or any such other party or Person,
without in any way impairing or affecting this Limited Guaranty.
The Guarantors agree to make payment to the Agent, for the ratable
benefit of the Secured Parties, of any of the Note Indebtedness and
the Guaranteed Obligations whether or not the Agent and/or any
Secured Parties shall have resorted to any collateral security, or
shall have proceeded against any other obligor principally or
secondarily obligated with respect to any of the Note Indebtedness
or the Guaranteed Obligations. Each Guarantor hereby irrevocably
renounces every right it may acquire to be released from its
guarantee pursuant to applicable law. At the request of the Agent
or any Secured Party, made at any time, the Guarantors shall renew
the Limited Guaranty hereunder by executing such documents for this
purpose as may be reasonably requested by the Agent.
2.4 Reinstatement.
If at any time any payment in respect of any of the Guaranteed
Obligations is rescinded or must otherwise be returned for any
reason whatsoever, in whole or in part, the Guarantors’
obligations hereunder shall (x) revive and remain in full force and
effect or (y) be reinstated (as the case may be) with respect to
such Guaranteed Obligations, in any case, subject to the Guaranty
Limit.
2.5 Payments.
All payments made by, or on behalf of, the Guarantors hereunder
will be made without setoff, counterclaim or other
defense.
2.6 Subrogation.
The Guarantors shall not exercise any rights which it may acquire
by way of subrogation under this Limited Guaranty or the other Note
Purchase Documents, by any payment made hereunder or otherwise,
until all the Note Indebtedness and the Guaranteed Obligations
shall have been paid in full. If any amount shall be paid to the
Borrower on account of such subrogation rights in violation of the
foregoing restriction, such amount shall be held in trust and as
mandatary for the benefit of the Agent (for itself and the other
Secured Parties) and shall forthwith be paid to the Agent (for
itself and the other Secured Parties) to be credited and applied to
the Note Indebtedness, whether matured or unmatured.
2.7 Postponement
and Subordination. Guarantors hereby postpone any right of
enforcement, remedy and action and subordinate any claims,
including any right of payment, subrogation, contribution and
indemnity that they may have at any time against any Obligor or any
other guarantor, howsoever arising, to irrevocable payment in full
of the Note Indebtedness. Any such claims (whether secured or
unsecured) and any such remedial rights are hereby assigned or
hypothecated to Agent and the Secured Parties (and shall be
assigned or hypothecated pursuant to documentation satisfactory to
Agent), and any such claims owing and paid to the Guarantors in
contravention of the terms of this Limited Guaranty shall be received and held
by such Guarantor in trust and as agent and mandatary for the
benefit of Agent and the Secured Parties and the proceeds thereof
shall forthwith be paid over to Agent to be credited and applied to
the Note Indebtedness, whether matured or unmatured, in accordance
with the terms of this Limited
Guaranty. In furtherance of the foregoing, any and all Liens
held by the Guarantors shall for all purposes be, and at all times
remain, inferior, junior and subordinate to the Liens from time to
time held by the Agent under the Security Documents; without
limiting the generality of the foregoing, the foregoing priority
shall prevail in all circumstances and irrespective of: (i) the
priorities otherwise accorded to any such Liens by any applicable
law; (ii) the time or order of the creation, granting, execution or
delivery of the Note Indebtedness, the Note Purchase Documents or
any other deed, document, instrument, act or notice; (iii) the time
or order of the attachment or perfection or setting-up of the
security interests and hypothecs constituted by any such Liens;
(iv) the time or order of registration, notification or publication
of any such Liens or the filing of financing statements or other
instruments and documents with respect thereto; (v) the time of the
making of advances and other credits under the Note Indebtedness;
or (vi) the giving of, or the failure to give, any notice to the
Guarantors or the time of giving of any such notice; in addition,
the Guarantors hereby cede priority of rank and payment to the
Agent and the Secured Parties in all respects to the extent
necessary to give full effect to the foregoing.
2.8 Waivers.
In addition to the waivers contained in Section 2.3 hereof, the
Guarantors waive, and agree to the fullest extent permitted by law
that they shall not at any time insist upon, plead or in any manner
whatever claim or take the benefit or advantage of, any appraisal,
valuation, stay, extension, marshaling of assets or redemption
laws, or exemption, whether now or at any time hereafter in force,
which may delay, prevent or otherwise affect the performance by the
Guarantors of the Guaranteed Obligations hereunder (subject to the
Guaranty Limit) or the enforcement by the Agent of, this Limited
Guaranty. The Guarantors hereby waive, to the fullest extent
permitted by law, diligence, presentment and demand (whether for
the benefit of any statute of limitations affecting each
Guarantor’s liability hereunder or the enforcement hereof,
non-payment or protest or of acceptance, extension of time, change
in nature or form of the Guaranteed Obligations, acceptance of
further security, release of further security, composition or
agreement arrived at as to the amount of, or the terms of, the
Guaranteed Obligations, notice of adverse change in the
Borrower’s financial condition or any other fact which might
increase the risk to the Guarantors) with respect to any of the
Guaranteed Obligations or all other demands whatsoever and waives,
to the fullest extent permitted by law, the benefit of all
provisions of law which are or might be in conflict with the terms
of this Limited Guaranty.
3.
REPRESENTATIONS AND
WARRANTIES.
3.1 To
induce the Agent and the other Secured Parties to enter into the
transactions contemplated by the Note Purchase Documents, each
Guarantor makes the following representations and warranties to the
Agent and each Secured Party, each and all of which shall survive
the execution and delivery of this Limited Guaranty: Each Guarantor
(i) has relied exclusively on such Guarantor’s own
independent investigation of the Borrower for such
Guarantor’s decision to guarantee the Guaranteed Obligations
now existing or thereafter arising (subject to the Guaranty Limit),
(ii) has sufficient knowledge of the Borrower to make an informed
decision about this Limited Guaranty, and neither the Agent nor any
other Secured Party has any duty or obligation to disclose any
information in its possession or control about the Borrower to any
Guarantor, and (iii) has adequate means to obtain from the Borrower
on a continuing basis information concerning the financial
condition of the Borrower and is not relying on the Agent or any
other Secured Party to provide such information either now or in
the future.
3.2 In
addition, each Guarantor represents and warrants to the Agent and
the Secured Parties as follows:
(a) Each
Guarantor has had the opportunity to discuss the terms and
conditions of the Note Purchase Documents and the Aemetis Option
with its own counsel and has relied on such counsel’s advice
with respect to the Note Purchase Documents and the Aemetis Option
in conjunction with the execution of this Limited
Guaranty.
(b)
Each Guarantor makes the additional representations and warranties
set forth on Exhibit
A hereto.
4.
OTHER TERMS.
4.1 Covenants.
(a) Each
Guarantor makes the covenants set forth on Exhibit B hereto.
(b) Subject
to the terms of the Existing Agreement, each Guarantor shall be required to, and hereby
agrees to, contribute 100% of the net cash proceeds received by
such Guarantor from the EB-5 Program Issuance to the Borrower and
thereafter cause the Borrower to use 100% of such proceeds to make
a mandatory prepayment on the Term Loan under and in accordance
with Section 2.4(b)(ii) of the Note Purchase
Agreement.
4.2 Amendments.
This Limited Guaranty may not be amended or modified except by the
written agreement of the Guarantors and the Agent.
4.3 Waiver.
No waiver of any provision of this Limited Guaranty, and no consent
to any departure by the Guarantors herefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
No failure on the part of the Agent or any other Secured Party to
exercise, and no delay in exercising any right hereunder, shall
operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right.
4.4 Notices.
All notices, requests and demands and other communications to or
upon the Agent or any Obligor hereunder shall be effected in the
manner provided for in Section 8.2 of the Note
Purchase Agreement; provided that any notice, request, demand or
other communication to the Guarantors shall be addressed to each
Guarantor at its address on the signature page to this Limited Guaranty. Notices sent by hand or
overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices
sent by facsimile shall be deemed to have been given when sent
(except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of
business on the next Business Day for the recipient).
4.5 Severability.
Any provision of this Limited Guaranty
which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
4.6 Section
Headings. The Section headings
used in this Limited Guaranty are for convenience of reference only
and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
4.7 Counterparts.
This Limited Guaranty may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page of this
document by facsimile or other electronic means shall be effective
as delivery of a manually executed counterpart of this Limited
Guaranty.
4.8 Submission
to Jurisdiction; Waivers.
(a) Jurisdiction.
EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL
NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR
DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN
TORT OR OTHERWISE, AGAINST ANY SECURED PARTY OR ANY RELATED PARTY
OF ANY SECURED PARTY IN ANY WAY RELATING TO THIS LIMITED GUARANTY
OR ANY OTHER NOTE PURCHASE DOCUMENT OR THE TRANSACTIONS RELATING
HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE
OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY
APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH
COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION,
LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL
BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS LIMITED GUARANTY OR IN ANY OTHER NOTE PURCHASE DOCUMENT SHALL
AFFECT ANY RIGHT THAT ANY SECURED PARTY MAY OTHERWISE HAVE TO BRING
ANY ACTION OR PROCEEDING RELATING TO THIS LIMITED GUARANTY OR ANY
OTHER NOTE PURCHASE DOCUMENT AGAINST THE PLEDGOR OR ANY OTHER
OBLIGOR OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(b) Waiver
of Venue. Each Guarantor
irrevocably and unconditionally waives, to the fullest extent
permitted by applicable law, any objection that it may now or
hereafter have to the laying of venue of any action or proceeding
arising out of or relating to this Limited Guaranty in any court
referred to in paragraph (a) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted
by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such
court.
(c) Service
of Process. Each party
irrevocably consents to service of process in the manner provided
for notices in Section
4.4. Nothing in this Limited
Guaranty will affect the right of any party hereto to serve process
in any other manner permitted by applicable
law.
(d) Waiver.
Each Guarantor hereby waives, to the maximum extent not prohibited
by law, any right it may have to claim or recover in any legal
action or proceeding referred to in this Section any special,
exemplary punitive or consequential damages.
4.9 Governing
Law. THIS
LIMITED GUARANTY AND THE RIGHTS AND OBLIGATIONS HEREUNDER OF THE
GUARANTORS, THE BORROWER AND THE SECURED PARTIES AND ANY CLAIMS,
CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR
TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS
LIMITED GUARANTY AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK.
4.10 WAIVER
OF JURY TRIAL. EACH PARTY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
LIMITED GUARANTY OR ANY
TRANSACTION CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY SECURED PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH SECURED PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT THE SECURED PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS
LIMITED GUARANTY BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
4.11 Assignment.
This Limited Guaranty shall be binding on, and shall inure to the
benefit of the Guarantors, the Agent, each Secured Party and their
respective successors and assigns; provided that no Guarantor may
assign or transfer its rights or obligations under this Limited
Guaranty without the written consent of the Agent.
4.12 Indemnity
and Expenses. (a) The
Guarantors, jointly and severally, agree to indemnify the Agent,
each Noteholder and each Related Party of any of the foregoing
Persons (each such Person being called an
“Indemnitee”)
against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related costs and expenses
(including the fees, charges and disbursements of any counsel for
any Indemnitee), incurred by any Indemnitee or asserted against any
Indemnitee by any Person (including an Obligor) arising out of, in
connection with, or as a result of (i) the execution or delivery of
this Limited Guaranty, any other Note Purchase Document or any
agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations
hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) the use or proposed use of the
proceeds therefrom, or (iii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by any Obligor; provided that
such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related
expenses (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result
from a claim brought by any Obligor against an Indemnitee for a
material breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Note Purchase Document, if any such
Obligor has obtained a final and nonappealable judgment in its
favor on such claim as determined by a court of competent
jurisdiction.
(b) The
Guarantors shall not, without the prior written consent of the
applicable Indemnitee(s), effect any settlement of any pending or
threatened claim, litigation, investigation or proceeding in
respect of which such Indemnitee is a party and indemnity could
have been sought hereunder by such Indemnitee, unless such
settlement (i) includes an unconditional release of such Indemnitee
from all liability or claims that are the subject matter of such
proceeding and (ii) does not include a statement as to or an
admission of fault, culpability, or a failure to act by or on
behalf of such Indemnitee.
(c) The
Guarantors will upon demand, jointly and severally, pay to the
Agent the amount of any and all expenses, including, without
limitation, the fees and expenses of its counsel and of any experts
and agents, that the Agent or any Secured Party may incur in
connection with (i) the exercise or enforcement of any of the
rights of the Agent or the other Secured Parties hereunder or (ii)
the failure by any Guarantor to perform or observe any of the
provisions hereof.
(d) The
agreements in this Section
4.12 shall survive repayment of the Note Indebtedness and
all other amounts payable under the Note Purchase Agreement and the
other Note Purchase Documents.
[SIGNATURE PAGE
FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have executed and delivered
this Limited Guaranty as of the date first above
written.
AEMETIS, INC., as a
Guarantor
By:
/s/ ▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
CEO
Address for Notices to
Guarantor:
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Attention:
Chief Executive Officer
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
AEMETIS
ADVANCED PRODUCTS ▇▇▇▇▇, INC., as a Guarantor
By:
/s/ ▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
CEO
Address for Notices to
Guarantor:
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Attention:
Chief Executive Officer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Signature
Page to Limited Guaranty
Acknowledged and
Agreed:
GOODLAND
ADVANCED FUELS, INC.,
as the
Borrower
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
CEO
Signature
Page to Limited Guaranty
EXHIBIT A
Subject
to the disclosures set forth in the disclosure schedule of the
Guarantors delivered to Agent and Noteholders concurrently with the
execution and delivery of this Limited Guaranty (the
“Disclosure
Schedule”) (each of which disclosures, in order to be
effective, shall clearly indicate the Section and, if applicable,
the Subsection of this Exhibit A to which it relates),
each Guarantor represents and warrants
to the Agent as follows:
(a) Each
Guarantor (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization,
(ii) has the power and authority, and the legal right, to own and
operate its Property and to conduct the business in which it is
currently engaged, (iii) is duly qualified as a foreign corporation
and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of Property or the conduct of its
business requires such qualification and (iv) is in compliance with
all Requirements of Law in all material
respects.
(b) Each
Guarantor has the power and authority, and the legal right, to
make, deliver and perform the Note Purchase Documents to which it
is a party, to consummate the transactions contemplated thereby
and, as the case may be, to obtain extensions of credit hereunder.
Each Guarantor has taken all necessary organizational action to
authorize the execution, delivery and performance of the Note
Purchase Documents to which it is a party and to authorize the
extensions of credit on the terms and conditions of this
Limited Guaranty. No consent or
authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is
required in connection with the transactions contemplated hereunder
or with the execution, delivery, performance, validity or
enforceability of this Limited Guaranty or any of the Note Purchase Documents. Each Note
Purchase Document to which any Guarantor is a party has been duly
executed and delivered on behalf of such Guarantor. This
Limited Guaranty constitutes, and each
other Note Purchase Document upon execution will constitute, a
legal, valid and binding obligation of each Guarantor a party
thereto, enforceable against such Guarantor in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and
by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
(c) The
execution, delivery, and performance by the Guarantors of
this Limited Guaranty and the
other Note Purchase Documents to which each such Guarantor is a
party and compliance with the terms and provisions hereof and
thereof will not (i) violate or conflict with, or result in a
breach of, or require any consent (other than those that have been,
or on the Closing Date will be, duly obtained or made and which
are, or on the Closing Date will be, in full force and effect)
under (A) the Organic Documents of each Guarantor, (B) any
Requirement of Law, or (C) any material agreement or instrument to
which each Guarantor is a party or by which it or any of its
properties is bound or subject, or (ii) result in the creation or
imposition of any Lien upon any of the revenues or assets of any
Guarantor other than the Liens arising under the Note Purchase
Documents.
(d) All
factual information taken as a whole (other than forward-looking
information and projections and information of a general economic
nature and general information about the industry of the
Guarantors) furnished by or on behalf of the Guarantors in writing
to the Agent or any Noteholder for purposes of or in connection
with this Limited Guaranty or
any other Note Purchase Document, will be true and accurate in all
material respects, on the date as of which such information is
dated or certified and is not incomplete by omitting to state any
fact necessary to make such information (taken as a whole) not
misleading in any material respect at such time in light of the
circumstances under which such information was provided. The
projections delivered to the Agent represent, the good faith
estimate of the Guarantors, on the date such projections were/are
delivered, of the each such Guarantor’s future performance
for the periods covered thereby based upon assumptions believed by
the Guarantors to be reasonable at the time of the delivery thereof
to the Agent.
(e)
Schedule A(e)
hereto is a correct and complete list
of each Guarantor’s head office, registered office and chief
executive office, the location of its books and records and the
locations of its Property. Each Guarantor enjoys peaceful and
undisturbed possession under all leases material to its business,
if any, and to which it is a party or under which it is operating,
and all such material leases, if any, are valid and subsisting and
no material default by either Guarantor exists under any of
them.
(f) Neither
Guarantor nor to the knowledge of either Guarantor, any of its
respective Affiliates, is (i) in violation of any applicable laws
relating to terrorism or money laundering
(“Anti-Terrorism
Laws”), including, but
not limited to, (x) the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Public Law 107-56, (y) the laws, rules and
regulations comprising or implementing the Bank Secrecy Act, (z)
the laws, rules and regulations administered by the United States
Department of the Treasury’s Office of Foreign Asset Control
(“OFAC”)
(as any of the foregoing laws described in this Section A(f) may
from time to time be amended, renewed, extended, or replaced), or
(ii) currently a Sanctioned Entity. No proceeds from any AAPK
Intercompany Note or Parent Intercompany Note has been used by any
Guarantor to lend, contribute, provide, or has otherwise been made
available by any Guarantor to fund, any activity or business in any
Designated Jurisdiction or to fund any activity or business of any
Sanctioned Entity, or in any other manner that will result in any
violation by any Noteholder, the Agent or any of their respective
Affiliates, of Sanctions.
(g) Neither
Guarantor nor to the knowledge of any Guarantor, any of its
respective Affiliates or any of their respective agents acting in
any capacity in connection with the AAPK Intercompany Note and the
Parent Intercompany Note or other transactions hereunder (i)
conducts any business or engages in making or receiving any
contributions of funds, goods or services to or for the benefit of
any Sanctioned Entity, except to the extent not in violation of
Sanctions or (ii) knowingly engages in or conspires to knowingly
engage in any transaction that evades or avoids, or has the purpose
of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any applicable Anti-Terrorism
Law.
(h) Each
Guarantor is in compliance in all material respects with the
Foreign Corrupt Practices Act, as amended, and rules and
regulations thereunder (“FCPA”).
No part of the proceeds of the AAPK Intercompany Note or the Parent
Intercompany Note will be used directly or indirectly for any
payments to any governmental official or employee, political party,
official of a political party, candidate for political office, or
anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in
violation of the FCPA.
(i) To
the knowledge of either Guarantor, no Guarantor is not in violation
of any Requirement of Law, including all environmental laws, in any
material respect.
(j)
There are no actions, suits,
litigation or proceedings, at law or in equity, pending by or
against either Guarantor before any court, administrative agency,
or arbitrator in which a likely adverse decision could reasonably
be expected to have a Material Adverse Effect.
(k) Each
Guarantor has filed all federal and other material tax returns
required to be filed, including all income, franchise, employment,
property, and sales tax returns, and has paid all of their
respective federal and other material taxes, assessments,
governmental charges, and other levies that are due and payable,
except to the extent such taxes are contested in good faith by
proper proceedings which stay the imposition of any penalty, fine
or Lien resulting from the non-payment thereof and with respect to
which adequate reserves have been set aside for the payment
thereof. No Guarantor has knowledge of any pending investigation of
either Guarantor by any taxing authority or of any pending
unassessed tax liability (other than taxes which are not yet due
and payable) of any Guarantor.
(l) Each
Guarantor has rights in or the power to transfer the Collateral,
and its title to the Collateral is free and clear of Liens, adverse
claims and restrictions on transfer or pledge except as permitted
under this Limited Guaranty or the other Note Purchase
Documents.
(m)
The proceeds of the AAPK Intercompany
Note and the Parent Intercompany Note shall be used by the
respective Guarantor for the purposes described on Schedule 5.1(i)
to the Note Purchase Agreement. Neither Guarantor is engaged
principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulations T, U, or X of the
Board of Governors of the Federal Reserve System), and no part of
the proceeds of any AAPK Intercompany Note and the Parent
Intercompany Note will be used to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing
or carrying margin stock.
(n) No
Guarantor is (i) an “investment company” or a company
“controlled” by an “investment company”
within the meaning of the Investment Company Act of
1940 or (ii) subject to
regulation under any other federal or state statute, rule or
regulation limiting its ability to incur Indebtedness, pledge its
assets or perform its obligations under the Note Purchase
Documents.
(o) All
financial statements related to either Guarantor that are delivered
by such Guarantor to Agent fairly present in all material respects
such Guarantor’s financial condition as of the date thereof
and such Guarantor’s results of operations for the period
then ended. There has not been a material adverse change in the
financial condition of Guarantor since the date of the most recent
of such financial statements submitted to
Agent.
(p)
The properties of the Guarantors are insured with financially
sound and reputable insurance companies which are not Affiliates of
the Guarantors, in such
amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and
owning similar properties in localities where such Guarantor operates.
(q) Each
Guarantor has met the minimum
funding requirements of ERISA with respect to any employee benefit
plans subject to ERISA. No event has occurred resulting from any
Guarantor’s failure to
comply with ERISA that is reasonably likely to result in a
Guarantor incurring any liability that could reasonably be expected
to have a Material Adverse Effect.
(r) Each
Guarantor is able to pay its debts (including trade debts) as they
mature; the fair saleable value of each Guarantor’s assets
(including goodwill minus disposition costs) exceeds the fair value
of such Guarantor’s liabilities; and no Guarantor will not be
left with unreasonably small capital after the transactions
contemplated by this Limited Guaranty and the other Note
Purchase Documents.
(s) The
representations and warranties made in this Exhibit A
shall survive the execution and
delivery of this Limited Guaranty and shall deemed to have been made by each
Guarantor on the Closing Date and repeated by each Guarantor, in
each case with reference to the facts and circumstances then
existing, on each Interest Payment Date and any subsequent Drawdown
Date.
EXHIBIT B
1.
Affirmative Covenants.
So long as any of the Guaranteed
Obligations shall remain unpaid, each Guarantor will, unless the
Agent shall otherwise consent in writing, in its sole and absolute
discretion:
(a) Maintenance
of Existence; Compliance. (i)
Preserve, renew and keep in full force and effect its
organizational existence and take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the
normal conduct of its business, (ii) comply in all material
respects with all contractual obligations, (iii) comply in all
material respects with all Requirements of Law, and (iv) preserve,
renew and keep in full force and effect all material
contracts.
(b) Payment
of Obligations. Except for
amounts due and payable under the Existing Agreement, pay,
discharge or otherwise satisfy at maturity or before they become
delinquent, as the case may be, all its material obligations of
whatever nature (including all taxes), except where the amount or
validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of such Guarantor
or its Subsidiary, as applicable.
(c) Reporting
Requirements. Furnish to the
Agent (i) written notice of the occurrence of any Default or Event
of Default or any other event or circumstance that may constitute a
Material Adverse Effect and (ii) such information with respect to
the condition or operations, financial or otherwise, of the
Guarantors as the Agent may from time to time reasonably request,
including, without limitation:
(1)
Annual Reporting: within ninety (90) days following the close of
each fiscal year, i) each Guarantor’s annual financial
statements, prepared in accordance with GAAP and reviewed by a
recognized firm of qualified accountants acceptable to the Agent
and presenting fairly the financial condition of such Guarantor and
any of its Subsidiaries as of the date thereof and for the period
then ended (and including a letter from such accountants), and ii)
a copy of the Capital Expenditure budget of such Guarantor and its
Subsidiaries for such following fiscal year;
(2) Quarterly Reporting: within forty-five (45)
days after the close of each fiscal quarter, i) quarterly and
fiscal year-to-date unaudited consolidated financial statements of
each Guarantor and its Subsidiaries, including an income statement,
balance sheet, and statement of cash flow, statement of earnings
prepared in accordance with GAAP (subject to the absence of notes
and annual adjustment) ii)
updates to the current year’s financial projections for each
such remaining fiscal quarters, and (C) updates to the Capital
Expenditure budget for each such remaining fiscal
quarters;
(3) Quarterly Compliance Certificate: forty-five
(45) days after the close of each fiscal quarter, a compliance
certificate, duly executed by a Responsible Officer, demonstrating
compliance with the financial covenants set forth in Section 2(l)
of this Exhibit B and in the form attached hereto as
Schedule
1 or otherwise satisfactory in
form and substance to the Agent;
(4) Annual Budget: As soon as available and in any
event within forty-five (45) days following the commencement of
each fiscal year, the annual business plan of each Guarantor and
its Subsidiaries prepared on a consolidated basis, with financial
projections and budgets on an annual basis, in each case consisting
of a balance sheet, statement of income, statement of cash flows,
proposed Capital Expenditures and a list of assumptions upon which
such projections are based (the “Guarantor Annual
Budget”) for such fiscal
year;
(5)
Guarantor Annual Budget Updates: As soon as practicable and in any
event within (A) sixty (60) days after each fiscal year and (B) two
hundred and forty (240) days after each fiscal year, updates of the
cash flow projections and budget from the Guarantor Annual Budget
with projections for the immediately succeeding twelve-month or
six-month period, as applicable, together with a summary of
variances from the applicable projections providing supplementary
detailed schedules and information supplementary to and consistent
with the Guarantor Annual Budget;
(6)
Material Internal Reports: Immediately upon receipt by any
Guarantor or any its Subsidiaries, copies of any reports, including
material internal reports provided to or by its engineers, other
employees or external consultants with respect to the Riverbank
Project;
(7)
Insurance and Security: From time to time upon request of the
Agent, and in any event at least annually, evidence of (A) the
maintenance of all insurance required to be maintained pursuant to
this Limited Guaranty, including originals or copies as the Agent
may request of policies, certificates of insurance, riders,
endorsements and proof of premium payments, (B) maintenance of
onsite security personal on a 24/7 basis, and (C) the good standing
of all authorizations, permits, licenses, certifications, consents,
registrations and approvals material to either
Guarantor;
(8)
Shareholder Notices: Copies of all notices, reports and other
documents sent to shareholders and directors of a Guarantor or any
of its Subsidiaries as the Agent, on behalf of the Noteholders, may
from time to time reasonably request;
(9)
Riverbank Project Reports: As soon as available and in any event
within fifteen (15) days after the end of each calendar month, an
update on the Riverbank Project prepared by management of AAPK, in
form and substance satisfactory to the Agent;
(10)
SEC Reports: Copies of all notices, reports, press releases,
circulars, offering documents and other documents of each
Guarantors or any of its Subsidiaries filed with, or delivered to,
any stock exchange or securities commission or a similar
Governmental Authority in any applicable jurisdiction;
and
(11)
Other Information: Such other information respecting the condition
or operations, financial or otherwise, of the business of each
Guarantor or any its Subsidiaries, the Collateral, or any other
Obligor as the Agent may from time to time require, including
appraisals and valuations of the Mortgaged Property, the Riverbank
Project.
(d) Environmental
Issues. (i) Comply with all
applicable environmental laws, including obtaining and maintaining
all relevant environmental permits; (ii) promptly notify
Noteholders of any environmental claim, notice or order against it;
and (iii) conduct such environmental audits as may reasonably be
requested by the Agent.
(e) Security.
Do, observe and perform or cause to be done, observed and performed
all of its obligations and all matters and things necessary or
expedient and which may be legally done, observed and performed by
each Guarantor and each
Subsidiary for the purpose of perfecting, setting-up, rendering
opposable, creating or maintaining its rights and interest in all
collateral in which such Person has granted Liens in favor of the
Agent. Each Guarantor and each
Subsidiary shall promptly execute and deliver to the Agent such
additional or complementary security documents, or such
confirmations or such notices or documents containing such further
description of properties charged or intended to be charged by the
Security Documents as may in the reasonable opinion of the Agent be
necessary or advisable to create and maintain its rights in all
such collateral. Without limiting the
generality of the foregoing, upon exercise of the Aemetis Option,
the Parent, as holder of Capital Stock of the Borrower pursuant to
the Aemetis Option, shall take such actions relating thereto that
are requested by the Agent pursuant to this clause 1(e) to
effectuate the terms and provisions of the Pledge Agreement.
Each Guarantor shall cause to be promptly made all registrations,
publications and filings (including any renewals thereof) and to be
delivered all opinions, necessary, in the reasonable opinion of the
Agent, to render the Security Documents, and the Liens made in
favor of the Agent, to be fully effective as security. The
Guarantors shall promptly notify the Agent of the establishment of
any deposit account, securities account or other bank account by
such Guarantor or any Subsidiary and, at the request of the Agent,
enter into any control agreements with respect thereto as may be
requested by the Agent. The Guarantors shall notify the Agent of
the acquisition by such Guarantor or any Subsidiary of any material
assets, the formation or acquisition of any new Subsidiaries of
such Person and the acquisition of any interests in any real
property, and shall take such actions relating thereto that are
requested by the Agent pursuant to this clause 1(e), including,
without limitation, causing any such new Subsidiary to become a
Guarantor and/or causing any such assets to become subject to a
Lien securing the Note Indebtedness.
(f)
Maintenance
of Properties. Keep and
maintain all Property material to the conduct of its business in
good working order and condition, ordinary wear and tear
excepted.
(g) Insurance.
(1)
Maintain, with financially sound and reputable insurers having a
rating acceptable to the Agent in its reasonable discretion,
covering, except as permitted by the Agent, all of their Property,
insurance against loss or damage by fire with extended coverage;
theft, burglary, pilferage and loss in transit; public liability
and third party property damage; larceny, embezzlement or other
criminal liability; public liability and third party property
damage; and such other hazards or of such other types as is
customary for Persons engaged in the same or similar business, as
the Agent, in its discretion, shall specify, in amounts, and under
policies acceptable to the Agent.
(2)
Cause the Agent, for the ratable benefit of the Agent and the
Noteholders, to be named as loss payee or additional insured in
each policy insuring its Property or any part thereof, in a manner
acceptable to the Agent. All premiums for such insurance shall be
paid by each Guarantor, as applicable, when due, and certificates
of insurance and, if requested by the Agent or any Noteholder,
photocopies of the policies, shall be delivered to the Agent, in
each case in sufficient quantity for distribution by the Agent to
each of the Noteholders. If either Guarantor fails to procure such
insurance or to pay the premiums therefor when due, the Agent may
do so from the proceeds of the Loans.
(h) Inspection.
Enable and assist representatives of the Agent to examine (and, if
desired, copy) each Guarantor’s (and any of its
subsidiaries’) records, to inspect any of its properties, to
conduct field examinations, audits and appraisals of any of the
Collateral, the Riverbank Project, and to discuss its business and
affairs with its officers, directors, employees, accountants,
auditors, partners, suppliers and customers all to the extent
reasonably requested by the Agent and all at the Borrower’s
expense. Not in limitation of the foregoing, enable and assist
representatives of the Agent to conduct a monthly review of the
progress of the Riverbank Project.
(i)
Use of
Proceeds. Use the proceeds of
the AAPK Intercompany Note or Parent Intercompany Note solely for
the purposes identified on Schedule 5.1(i)
to the Note Purchase Agreement or as
otherwise agreed to by the Agent in its sole discretion, and not
for personal, family, household or agricultural purposes or
advanced to any Person who is not an Obligor.
(j) Books
and Records. Maintain at all
times, correct and complete books, records and accounts in which
complete, correct and timely entries are made of its transactions
in accordance with GAAP. Each Guarantor and its Subsidiaries shall,
by means of appropriate entries, reflect in such accounts and in
all their financial statements adequate liabilities and reserves
for all taxes and adequate provision for depreciation and
amortization of Property and bad debts, all in accordance with
GAAP. Each Guarantor and its Subsidiaries shall maintain at all
times books and records pertaining to their Property in such
detail, form and scope as the Agent shall reasonably require,
including, without limitation, records of: (i) all payments
received and all credits and extensions granted with respect to
their accounts or claims; and (ii) all other dealings affecting
their Property. Upon request by the Agent, each Guarantor shall
promptly deliver or cause to be delivered (where applicable and
provided such delivery is permitted by law): (i) technical and
engineering reports prepared by independent experts in connection
with the business of the Guarantors; (ii) copies of all material
and selected contracts and authorizations; (iii) organizational
charts for the Guarantors and a summary of compensation of all
personnel of the Guarantors; (iv) copies of reports sent to
shareholders and directors of any of the Guarantors; and (v) such
further schedules, documents, and information as the Agent may
require.
(k) Further
Assurances. At its own cost and
expense, execute and deliver to Agent and Noteholders all such
documents, instruments and agreements and do all such other acts
and things as may be reasonably required, in the opinion of the
Agent, to carry out the purpose of each Note Purchase Document to
which it is a party or to enable the Agent and Noteholders to
exercise and enforce their rights hereunder or
thereunder.
(l)
Taxes. Make due and timely payment or deposit of all
federal, provincial, territorial, state and local taxes,
assessments or contributions required of it by law (including, but
not limited to, those laws concerning income taxes, F.I.C.A.,
F.U.T.A. and state disability), and will execute and deliver to the
Agent, on demand, proof satisfactory to the Agent indicating that
such Person has made such payments or deposits and any appropriate
certificates attesting to the payment or deposit
thereof.
(m)
Additional
Guarantors and Security. Upon
the request of the Agent following the formation or acquisition of
any new direct or indirect Subsidiaries approved by the Agent by
either Guarantor or the acquisition of any property by either
Guarantor, and such property, in the judgment of the Agent, shall
not already be subject to a perfected first priority security
interest in favor of the Agent for the benefit of the Noteholders,
then in each case at such Guarantor’s expense: (i) in
connection with the formation or acquisition of a Subsidiary,
within ten (10) days after such formation or acquisition, cause
each such Subsidiary, and cause each direct and indirect parent of
such Subsidiary (if it has not already done so), to duly execute
and deliver to the Agent a supplement to the Guaranty, or other
similar guaranty in form and substance satisfactory to the Agent,
guaranteeing the Note Indebtedness; and (ii) within fifteen (15)
days after such request, formation or acquisition, duly execute and
deliver, and cause each such Subsidiary and each direct and
indirect parent of such Subsidiary to duly execute and deliver to
the Agent mortgages, pledges, assignments, security interests and
other security agreements, as specified by and in form and
substance satisfactory to Agent (including delivery of all Capital
Stock in and of such Subsidiary, and other instruments requested by
the Agent in connection therewith, in each case, securing payment
of all Note Indebtedness.
(n)
Compensation
Agreements. Prior to entering
into or modifying any compensation agreements for key officers or
directors of either Guarantor or any their respective Subsidiaries,
each Guarantor shall provide the terms thereof to the Agent, and
such terms must be satisfactory to the Agent, acting
reasonably.
(o)
Control
Agreement. Within thirty (30)
days following a request of Agent from time to time with respect to
any Guarantor, execute and deliver to Agent, one or more control
agreements over such Guarantor’s deposit accounts
countersigned by the applicable bank or third party, in each case,
in a form acceptable to Agent in its sole
discretion.
2. Negative
Covenants. So long as any of
the Guaranteed Obligations shall remain unpaid, no Guarantor will,
directly or indirectly, without the prior written consent of the
Agent, in its sole and absolute discretion:
(a) Liens.
Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired,
except:
(i) Liens
for taxes not yet due or that are being contested in good faith by
appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the applicable
Person in conformity with GAAP;
(ii)
carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s or other
like Liens arising in the ordinary course of business that are not
overdue for a period of more than 30 days or that are being
contested in good faith by appropriate
proceedings;
(iii)
pledges or deposits in connection with
workers’ compensation, unemployment insurance and other
social security legislation;
(iv)
easements, rights-of-way, restrictions
and other similar encumbrances incurred in the ordinary course of
business that, in the aggregate, are not substantial in amount and
that do not in any case materially detract from the value of the
Property subject thereto or materially interfere with the ordinary
conduct of the business of such Person; and
(v)
Liens created pursuant to the Security Documents.
(b) Indebtedness.
Create, incur, assume or suffer to
exist any Indebtedness, except Permitted Indebtedness. Without the
consent of the Agent, amend, modify or change any term or condition
of any documentation entered into in connection with any
Indebtedness (i) in any manner (i) if the effect of such amendment,
modification or change is to restrict in any manner the ability of
any Agent or the Noteholders to exchange, extend, renew, replace or
refinance, in whole or part, the Term Loan, Revolving Advances or
any other Indebtedness under the Note Purchase Documents, or (ii)
in any other manner that could be adverse to the interests, rights
or remedies of the Agent or any Noteholder under the Note Purchase
Documents.
(c) Capital
Stock, Dividends, Etc. (i)
Declare or make any Distribution or other dividend payment or
distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of Capital Stock
of any Guarantor, (ii) purchase, redeem or otherwise acquire for
value any shares of any class of Capital Stock of any Guarantor or
any of its Subsidiaries or any warrants, rights or options to
acquire any such shares, now or hereafter outstanding or (iii) make
any distributions, remuneration or payment (including any
Distributions) in violation of the terms of any applicable
subordination terms applicable to any Permitted Indebtedness.
Notwithstanding any other term of this Limited Guaranty, each
Guarantor and its Subsidiaries shall not, without the prior written
consent of the Agent, make any transfer of funds, transfer of
Property, or any distributions, remuneration or payment (including
any Distributions) to any Person, other than (x) payments of cash
made in accordance with an approved Annual Budget, Authorized
Expenditures, or as otherwise required by applicable Governmental
Authorities, (y) payments on account of the Guaranteed Indebtedness
in accordance with the terms hereof, and (z) to the extent not
otherwise prohibited by any Note Purchase Document, in the ordinary
course of business and not in connection with or on account of any
Indebtedness.
(d) Investments.
Make any Investment after the Closing Date except Permitted
Investments.
(e) Business,
Management, Mergers, etc. (i)
make any change in (A) board of directors or senior management of
either Guarantor, (B) the compensation arrangements of any key
officer or director of either Guarantor or any of their respective
Subsidiaries, or (C) the capital structure of the either Guarantor
or any of their respective Subsidiaries, (ii) make any material
change in the nature of the business presently conducted by either
Guarantor or any of their respective Subsidiaries; (iii)
make any payments on account of
bonuses or new retainers greater than $50,000 or establish or
create any trust accounts, (iv) change its name; (v) change
its jurisdiction of incorporation or its type of organization (that
is, from a corporation) or otherwise amend, modify or change any of
its Organic Documents, as in effect on the Closing Date;
(vi) merge, amalgamate or consolidate with or into, or convey,
transfer, lease or otherwise dispose of or alienate (whether in one
transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) to, or
acquire all or substantially all of the assets of, any Person, or
dissolve or liquidate or terminate its legal existence, or (vii)
make any change in (A) its accounting policies or reporting
practices, except as required or permitted by GAAP, or (B) its
fiscal year.
(f) Change
of Control. Cause, permit, or
suffer, directly or indirectly, any of the following (other than to
the extent caused by the exercise of the Aemetis Option or the
exercise of the Warrant):
(i) the
acquisition of ownership (other than by Persons who are Obligors as
of the Closing Date), directly or indirectly, as the
“beneficial owner” (as defined in Rules 13d−3 and
13d−5 under the Exchange Act) or owner of record, by any
“person” or “group” (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act) of Capital Stock
of the Parent Guarantor representing more than 50% of the aggregate
ordinary voting power represented by the issued and outstanding
Capital Stock of the Parent Guarantor (it being understood that to
the extent that any Capital Stock of the Parent Guarantor held by
any such person or group are disregarded for ordinary voting
purposes pursuant to the terms of the Parent Guarantor’s
Organic Documents, such Capital Stock shall not be included for
purposes of determining whether the threshold set forth in this
clause (i) has been met), (ii) occupation of a majority of the
seats (other than vacant seats) on the board of directors or other
governing body of the Parent Guarantor by Persons who were not (A)
a member of such board or other governing body as of the Closing
Date, (B) nominated by such board or other governing body after the
Closing Date, or (C) appointed or elected by at least a majority of
directors or other equivalent managers that were members of such
board or other governing body as of the Closing Date or nominated,
appointed or elected after the Closing Date pursuant to clause (B)
above or this clause (C), (iii) the Parent Guarantor is not,
directly or indirectly, the legal and beneficial holder of 100% of
the Capital Stock of AAPK, (iv) the equity owners of either
Guarantor approving any plan or proposal for the liquidation or
dissolution of the Guarantors, (v) the sale of all or substantially
all of the assets of the Guarantors, (vi) ▇▇▇▇ ▇▇▇▇▇▇ ceases to be
the Chairman of the Parent or employed as the Chief Executive
Officer of the Parent Guarantor, (vii) ▇▇▇▇ ▇▇▇▇▇▇ ceases to own,
directly or indirectly, at least 1 million shares of the Capital
Stock of the Parent Guarantor and (viii) the execution by the
either Guarantor or any of its Affiliates of any agreement, letter
of intent, commitment, arrangement or understanding with respect to
any proposed transaction or event or series of transactions or
events that, individually or in the aggregate, may reasonably be
expected to result in any of the events in clauses (i) through
(vii) above.
(g) Disposition
of Property. Dispose or
alienate of any of its Property, whether now owned or hereafter
acquired, except dispositions of inventory made by either Guarantor
or their respective Subsidiaries in the ordinary course of its
business.
(h)
Affiliate
Transactions and Intercompany Loans. Enter into any transaction with any other
Obligor, Affiliate or Subsidiary or any of its directors or senior
or executive officers or senior management, or enter into or assume
any employment, consulting or analogous agreement or arrangement
with any of its directors or senior or executive officers or senior
management, or make any payment to any of its directors or senior
or executive officers or senior management; provided, however, that
Guarantors may enter into the AAPK Intercompany Note and the Parent
Intercompany Note, as applicable.
(i) Bank
Accounts. Open any bank account
without the consent of the Agent.
(j)
Negative Pledge
Clauses. Enter into or suffer
to exist or become effective any agreement that prohibits or limits
the ability of either Guarantor or any Subsidiary to create, incur,
assume or suffer to exist any Lien upon any of its Property or
revenues, whether now owned or hereafter acquired, other than this
Limited Guaranty and the other Note Purchase
Documents.
(k) Place
of Business. Change the location of its respective chief
executive office, principal place of business and registered office
from, or maintain Property in any location other than as disclosed
in Schedule
2(k).
(l) Amendments
of Related Documents. Cancel or
terminate any Related Document or consent to or accept any
cancellation or termination thereof, amend, modify or change in any
manner any term or condition of any Related Document or give any
consent, waiver or approval thereunder, waive any default under or
any breach of any term or condition of any Related Document, agree
in any manner to any other amendment, modification or change of any
term or condition of any Related Document or take any other action
in connection with any Related Document that would impair the value
of the interest or rights of any Noteholder thereunder or that
would impair the rights or interests of the Agent or any
Noteholder.
(m)
Approved
Expenditure. Make any Approved
Expenditure or any other expenditure with respect to the
development of the Goodland Project or the Mortgaged Property prior
to the termination of the Redemption Period.
(n)
Financial
Covenants. Permit the ratio of:
(a) the sum of (i) the most recent Mortgaged Property Market Value,
and (ii) the most recent Riverbank Project Value to (b) the Note
Indebtedness, to be less than 2.00:1.00, tested as of the last day
of each fiscal quarter.
Schedule 1
Form of Guarantor Compliance Certificate
TO:
Third
Eye Capital Corporation, as Agent
AND
TO:
The
Noteholders
RE:
Compliance Certificate for the [fiscal year / quarter]
ended ________________________ (the
“Statement
Date”)
The undersigned, being a Responsible Officer of
each Guarantor, refers to that certain Limited Guaranty, dated as
of July 10, 2017 (as amended, varied, supplemented, restated,
renewed or replaced at any time and from time to time, the
“Limited
Guaranty”; capitalized
terms used but not defined herein having the meanings set forth
therein), among AEMETIS, INC., as Parent Guarantor and Aemetis
Advanced Products ▇▇▇▇▇, Inc. (“AAPK”
and collectively with the Parent Guarantor, the
“Guarantors”),
in favor of THIRD EYE CAPITAL CORPORATION as administrative agent
and collateral agent for and on behalf of the Noteholders (in such
aforesaid capacities, or any successor or assign in such
capacities, the “Agent”).
1.
I
have read the provisions of the Limited Guaranty and other Note
Purchase Documents which are relevant to this Compliance
Certificate and have made or caused to be made such examinations or
investigations as are necessary to enable me to express an informed
opinion on the matters contained in this Compliance
Certificate.
2.
The representations and warranties of the
Guarantors contained in Section 3
and Exhibit A
of the Limited Guaranty, or which are
contained in any document furnished at any time under or in
connection with the Note Purchase Documents, are true and correct
on and as of the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier
date, in which case they are true and correct as of such earlier
date.
3.
The Guarantors
hereby certify and warrant to you that the following is a true and
correct computation as at the date hereof of the ratio contained in
Section 2(l) of
Exhibit B to the
Limited Guaranty:
Minimum
Ratio The ratio of: (a) the sum
of (i) the most recent Mortgaged Property Market Value, and (ii)
the most recent Riverbank Project Value to (b) the Note
Indebtedness for the quarter ended on the Statement Date was
___:1.00 which was in compliance with the requirement under Section
2(l) of Exhibit B to the Limited Guaranty.
4.
The Guarantors
further certify to you that no Event of Default has occurred or is
occurring.
5.
The financial
statements delivered herewith pursuant to Sections (c)(1) or (2) of
Exhibit B to the Limited Guaranty, as applicable, for the period
ended as of the Statement Date fairly
present in all material respects the Guarantors’ financial condition as of the Statement
Date and Guarantors’
results of operations for the period then ended. There has not been
a material adverse change in the financial condition of
either Guarantor since the Statement
Date.
IN WITNESS WHEREOF, the Guarantors have
caused this Compliance Certificate to be executed and delivered by
its duly authorized officer on [DATE].
|
|
|
By:
Title:
Chief Executive Officer
AEMETIS ADVANCED PRODUCTS ▇▇▇▇▇, INC.
By:
Title:
Chief Executive Officer
|