SECOND AMENDED & RESTATED LIMITED GUARANTY
Exhibit
10.4
SECOND AMENDED & RESTATED LIMITED GUARANTY
This
SECOND AMENDED & RESTATED LIMITED GUARANTY (this
“Limited
Guaranty”), dated as of December 3, 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 by the Amendment No. 1 to Note Purchase
Agreement dated June 28, 2018 (the “First Amendment”), the
Amendment No. 2 to Note Purchase Agreement dated as of December 3,
2018 (the “Second
Amendment”) and 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 dated as of June 30, 2017
(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) 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
Guarantor and its subsidiaries in order to satisfy and pay certain
outstanding property tax arrears.
(6) Pursuant
to the Second Amendment, the Noteholders and the Agent agreed to
increase the Term Loan Commitment by an amount equal to $3,500,000, being
the CO2 Term Loan amount, and the Borrower agreed to issue Term
Notes evidencing such CO2 Term Loan amount to the Noteholders in
order to advance funds to Aemetis Property ▇▇▇▇▇, Inc., an
indirect, wholly-owned subsidiary of Parent Guarantor
(“APKI”)
in order to permit APKI to complete the CO2 Transaction (as defined
in the Second Amendment) in accordance with the terms and
conditions set forth in the Second Amendment. In connection
therewith, each Guarantor agreed to enter into this Limited
Guaranty, thereby guaranteeing the obligations of the Borrower with
respect to the Guaranteed Obligations (as defined below), in
addition to and not in derogation of, their other obligations
herein and in the Note Purchase Documents.
(7) 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.
(8) 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”).
(9) 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 Second
Amendment.
(10) Effective
on the date hereof, the Amended and Restated Limited Guaranty dated
June 28, 2018 (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; (c)
the aggregate amount of Note Indebtedness with respect to the CO2
Term Loan; and (d) 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.
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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.
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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.
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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 (i) 100% of the net cash proceeds received by
such Guarantor from (i) 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
and (ii) certain of the net cash proceeds received by such
Guarantor from the Linde Contract (as defined in the Second
Amendment) in accordance with Section 2.4(d) 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.
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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.
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(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.
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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]
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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:
▇▇▇▇ ▇▇▇▇▇▇
Title:
CEO
AEMETIS
ADVANCED PRODUCTS ▇▇▇▇▇, INC., as a Guarantor
By:
s/ ▇▇▇▇
▇.
▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇
Title:
CEO
Address for Notices to each
Guarantor:
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Attention:
Chief Executive Officer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
THIRD
EYE CAPITAL CORPORATION, as the Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Managing Director
Signature
Page to Second A&R Limited Guaranty
Acknowledged and
Agreed:
GOODLAND
ADVANCED FUELS, INC.,
as the
Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
CEO
Signature
Page to Second A&R Limited Guaranty