FIRST AMENDMENT TO THE AMENDED AND RESTATED HEISKELL PURCHASING AGREEMENT
Exhibit 10.1
FIRST AMENDMENT TO THE
AMENDED AND RESTATED
▇▇▇▇▇▇▇▇ PURCHASING AGREEMENT
THIS FIRST AMENDMENT TO THE AMENDED AND
RESTATED ▇▇▇▇▇▇▇▇ PURCHASING AGREEMENT (this
“Amendment”) is made on this 13th day of May, 2020 (the
“Effective Date”) by and between ▇.▇. ▇▇▇▇▇▇▇▇
Holdings, LLC, a California limited liability company doing
business as ▇.▇. ▇▇▇▇▇▇▇▇ & Co. (“▇▇▇▇▇▇▇▇”) and
Aemetis Advanced Fuel ▇▇▇▇▇, Inc. (formerly known as AE Advance
Fuel ▇▇▇▇▇, Inc.), a Delaware corporation (“Aemetis
▇▇▇▇▇”), ▇▇▇▇▇▇▇▇ and Aemetis ▇▇▇▇▇ collectively referred to
as the “Parties”.
RECITALS
A.
The Parties entered
into a certain Amended and Restated ▇▇▇▇▇▇▇▇ Purchasing Agreement
on or about May 16, 2013 (the “Agreement” covering,
among other things, the marketing of animal feed, including WDGS,
CDS/Syrup and Corn Oil (as defined in the Agreement).
B.
The Parties wish to
amend the Agreement, in part, to remove ▇▇▇▇▇▇▇▇’▇ obligation
to purchase and market ethanol produced at the Plant.
AGREEMENT
NOW, THEREFORE, in consideration of the
premises and mutual agreements contained herein and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties, intending to be legally
bound, agree as follows:
1.
Definitions and Interpretations.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to such terms in the
Agreement.
2.
Amendment to the Third Recital. As of
the end of the business day on the Effective Date, the third
recital of the Agreement is hereby amended by deleting the
provision in its entirety and replacing it with the
following:
WHEREAS, the
parties desire to enter into and execute this Agreement for the
purpose of setting forth agreed upon terms and conditions for the
marketing of WDGs, CDS/Syrup, and Corn Oil production from the
Plant.
3.
Amendment of Section 1. As of the end of
the business day on the Effective Date, Section 1 is hereby amended
by deleting Section 1 in its entirety and replacing it with the
following:
1.
First Purchasing Rights.
AEMETIS ▇▇▇▇▇ gives ▇▇▇▇▇▇▇▇ exclusive rights to purchase WDGS,
CDS/Syrup and Corn Oil.
4.
Deletion of Section 2 B. As of the end
of the business day on the Effective Date, Section 2 B. is hereby
deleted from the Agreement.
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5.
Amendment to Section 2 C. As of the end
of the business day on the Effective Date, Section 2 C is hereby
amended by deleting Section 2 C in its entirety and replacing it
with the following:
B.
Marketing of WDGS, CDS/Syrup and Corn
Oil. ▇▇▇▇▇▇▇▇ shall use its best efforts to market and sell
all WDGS, CDS/Syrup and Corn Oil production from the Plant in an
economical manner and so as to allow AEMETIS ▇▇▇▇▇ to clear WDGS,
CDS/Syrup and Corn Oil storage. All sales made by ▇▇▇▇▇▇▇▇ to
▇▇▇▇▇▇▇ (defined below) shall be on ▇▇▇▇▇▇▇▇ contracts, with
▇▇▇▇▇▇▇▇ responsible for invoicing and credit management. ▇▇▇▇▇▇▇▇
agrees that ▇.▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") will be the primary
customer and exclusive marketer for the WDGS. AEMETIS ▇▇▇▇▇ may
direct ▇▇▇▇▇▇▇▇ to sell all of the WDGS to ▇▇▇▇▇▇▇. As to any WDGS,
CDS/Syrup and Corn Oil not directed to ▇▇▇▇▇▇▇ by AEMETIS ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ may also sell WDGS, CDS/Syrup and Corn Oil to any customer
that meets ▇▇▇▇▇▇▇▇'▇ credit and delivery requirements. ▇▇▇▇▇▇▇▇
agrees to permit AEMETIS ▇▇▇▇▇ to enter into contracts on behalf of
HEISKEL with ▇▇▇▇▇▇▇ or any other customer, with prior consent from
▇▇▇▇▇▇▇▇, for the purchase and sale of WDGS, CDS/Syrup, and Corn
Oil.
6.
Amendment of Section 2 D. As of the end
of the business day on the Effective Date, Section 2 D. is hereby
amended by deleting Section 2 D. in its entirety and replacing it
with the following:
C.
Scheduling and
Distribution. AEMETIS ▇▇▇▇▇ will be responsible for
scheduling shipments of all of AEMETIS ▇▇▇▇▇’▇ WDGS,
CDS/Syrup and Corn Oil, marketed by ▇▇▇▇▇▇▇▇. At the discretion of
▇▇▇▇▇▇▇▇ and the consent of AEMETIS ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ may allow
customers or other marketers to utilize their own trucks to pick up
WDGS, CDS/Syrup and Corn Oil FOB the Plant. AEMETIS ▇▇▇▇▇ shall be
responsible for loading and weighing all WDGS, CDS/Syrup and Corn
Oil.
7.
Amendment to Section 2 E. As of the end
of the business day on the Effective Date, Section 2 E. is hereby
amended by deleting Section 2 E. in its entirety and replacing it
with the following:
D.
Freight. Except
when an approved customer or other marketer provides its own
trucks, ▇▇▇▇▇▇▇▇ will arrange transportation for all WDGS,
CDS/Syrup and Corn Oil.
8.
Amendment to Section 2 F. As of the end
of the business day on the Effective Date, Section 2 F. is hereby
amended by deleting Section 2 F. in its entirety and replacing it
with the following:
E.
Customer
Creditworthiness. ▇▇▇▇▇▇▇▇ will consult with AEMETIS ▇▇▇▇▇
before making forward contracts of WDGS, CDS/Syrup or Corn Oil
sales for delivery terms greater than one (1) week.
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9.
Amendment to Section 2 G. As of the end
of the business day on the Effective Date, Section 2 G. is hereby
amended by deleting Section 2 G. in its entirety and replacing it
with the following:
F.
Title To and Risk of
Loss. Title to and risk of loss of WDGS, CDS/Syrup and Corn
Oil shall pass from AEMETIS ▇▇▇▇▇ to ▇▇▇▇▇▇▇▇ (i) upon loading of
the truck in the case of WDGS, CDS/Syrup and Corn Oil.
10.
Amendment to Section 2 H. As of the end
of the business day on the Effective Date, Section 2 H. is hereby
amended by deleting Section 2 H. in its entirety and replacing it
with the following:
G.
Forward Contracts.
▇▇▇▇▇▇▇▇ is hereby authorized to enter into forward contracts
(“Forward Contracts”) regarding delivery of WDGS,
CDS/Syrup and Corn Oil to be acquired hereunder. AEMETIS ▇▇▇▇▇
shall be liable to ▇▇▇▇▇▇▇▇ for losses incurred in connection with
early termination of such Forward Contracts as a result of AEMETIS
▇▇▇▇▇’ default under this Agreement or Related Agreements.
Additionally, ▇▇▇▇▇▇▇▇ shall be permitted to request from AEMETIS
▇▇▇▇▇, and AEMETIS ▇▇▇▇▇ will not unreasonably deny the request,
for funds to cover margins of the Forward Contracts. ▇▇▇▇▇▇▇▇ shall
be permitted to retain such funds until the completion of the
Forward Contracts.
11.
Amendment to Section 3. As of the end of
business day on the Effective Date, Section 3 is hereby amended by
replacing any reference to Wednesday to Friday.
12.
Amendment to Section 4. As of the end of
the business day on the Effective Date, Section 4 is hereby amended
by deleting Section 4 in its entirety and replacing it with the
following:
4.
Payment. ▇▇▇▇▇▇▇▇
shall make payment to AEMETIS ▇▇▇▇▇ for all WDGS, CDS/Syrup and
Corn Oil produced by the AEMETIS ▇▇▇▇▇ plant pursuant to this
Agreement on a daily basis. ▇▇▇▇▇▇▇▇ and AEMETIS ▇▇▇▇▇ each will
have obligations to the other resulting from (i) the sale of
corn by ▇▇▇▇▇▇▇▇ to AEMETIS ▇▇▇▇▇ and the handling services of
▇▇▇▇▇▇▇▇ and other obligations of AEMETIS ▇▇▇▇▇ under the Corn
Procurement and Working Capital Agreement, dated as of the date
hereof (the “Corn
Procurement Agreement”), between AEMETIS ▇▇▇▇▇ and
▇▇▇▇▇▇▇▇, and (ii) payment obligations under this Agreement,
including without limitation obligations related to the purchase of
WDGS, CDS/Syrup and Corn Oil (as defined herein), handling and
marketing services, performance guarantees from customers and the
provision of consulting services. The parties agree that, subject
to the Credit Limit set forth in Section 3.02 of the Corn
Procurement Agreement, all such amounts shall be subject to daily
net settlement procedures whereby all amounts owing under such
contracts from one party to the other will be calculated and the
party with a negative balance based on such settlement calculation
will pay the net settlement amount due to the other party in
immediately available funds on the next business day by, provided
such net settlement amount is greater than $10,000. Amounts less
than $10,000 will be retained as a payable for calculating the net
settlement amount on the next business day. AEMETIS ▇▇▇▇▇ shall be
responsible for calculating the net settlement amount for each
business day and forwarding a copy of the net settlement statement
to ▇▇▇▇▇▇▇▇ no later than 11:00 a.m. (Central time) electronically
at the ▇▇▇▇▇▇▇▇ notice address shown in this Agreement. If ▇▇▇▇▇▇▇▇
does not object to the net settlement statement within three
(3) business days, such net settlement statement will be
deemed conclusive between the parties absent manifest
error.
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13.
Amendment to Section 5. As of the end of
the business day on the Effective Date, Section 5 is hereby amended
by deleting Section 5 in its entirety and replacing it with the
following:
Section
5. Pursuant to Section 5, ▇▇▇▇▇▇▇▇ shall be entitled to offset the
amount due to ▇▇▇▇▇▇▇▇ for Corn (as defined in the Corn Procurement
Agreement) against any amount due to AEMETIS ▇▇▇▇▇ for WDGS,
CDS/Syrup or Corn Oil acquired by ▇▇▇▇▇▇▇▇.
14.
Amendment to Section 9 A. As of the end
of the business day on the Effective Date, Section 9 A is hereby
amended by deleting the reference to “Initial Contract
Year” and replacing it with “Initial
Term”.
15.
Addition of Section 9 F. As of the end
of the business day on the Effective Date, Section 9 F. is hereby
added to the Agreement as follows:
F.
Shut off Following
Termination as a Result of a Default. If this or any related
agreement is terminated as a result of default, ▇▇▇▇▇▇▇▇ shall be
permitted to enter the property of AEMETIS ▇▇▇▇▇ to prevent the
movement or utilization of any of its Collateral (as defined in the
Security Agreement which includes, but is not limited to, all
products derived from the processing of Corn at the Plant)
including, but not limited to, all products derived from the
processing of Corn at the Plant (as defined in the Security
Agreement) and the proceeds thereof.
16.
Amendment to Section 9 B. As of the end
of the business day on the Effective Date, Section 9 B is hereby
amended by deleting Section 9B in its entirety and replacing it
with the following:
B.
Termination for
Convenience by AEMETIS ▇▇▇▇▇. In addition to its right of
termination of ▇▇▇▇▇▇▇▇'▇ services as marketer for the WDGS,
CDS/Syrup and Corn Oil under Section 3 hereof, AEMETIS ▇▇▇▇▇
has the right to terminate this Agreement for convenience at any
time by providing 30 days written notice to ▇▇▇▇▇▇▇▇ by registered
mail.
17.
Amendment to Section 9 C. As of the end
of the business day on the Effective Date, Section 9 C is hereby
amended by deleting Section 9 C in its entirety and replacing it
with the following:
C.
Termination at the end of the Initial
Term. Either party has the right to terminate this Agreement
for convenience at the end of the Initial Term and any Renewal Term
by giving written notice by registered mail to the other party of
such termination as follows:
(1) Notice of
termination to be effective at the conclusion of the Initial Term
shall be given 30 days prior to the expiration of the Initial
Term;
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(2) Notice of
termination to be effective at the conclusion of a Renewal Term
shall be given 30 days prior to the expiration of a Renewal
Term.
18.
Addition of Section 9 G. As of the end
of the business day on the Effective Date, Section 9 of the
Agreement is hereby amended by adding a new section, Section 9 G,
to Section 9 of the Agreement as follows:
G.
Costs Following
Termination. Notwithstanding any other provisions contained
in this Agreement, should AEMETIS ▇▇▇▇▇ terminate this Agreement
pursuant to the provisions contained in Sections 9 B and 9 C above,
AEMETIS ▇▇▇▇▇ shall be liable to ▇▇▇▇▇▇▇▇ for any open contracts
entered into between ▇▇▇▇▇▇▇▇ and AEMETIS ▇▇▇▇▇ to satisfy its
obligations under this Agreement, including but not limited to, the
cancellation of any open forward contracts entered into prior to
the termination.
19.
Amendment of Section 14. As of the end
of the business day on the Effective Date, Section 14 is hereby
amended by adding the following at the end of the Section:
“Notwithstanding the foregoing, the invocation of a force
majeure shall not excuse any party from the payment or obligations
under this Agreement.”
20.
Amendment to ▇▇▇▇▇▇▇▇ Notification
Section. As of the end of the business day on the Effective
Date, all notices for Heiskell shall be sent to the following
address:
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Attention: Legal
Department
21.
Deletion of Exhibit A. As of the end of
the business day on the Effective Date, Exhibit A is hereby deleted
from the Agreement.
22.
General Representations and Warranties of
Parties. Each party hereby represents and warrants the
following as of the date hereof:
a.
Organization and Existence. It has been
duly organized, is validly existing and is in good standing under
the laws of its state of formation.
b.
Power of Authority. It has the power
and authority to execute, deliver and perform its obligations under
this Amendment and has taken all action necessary to authorize it
to execute and deliver this Amendment and perform its obligations
hereunder.
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c.
Binding Effect. This Amendment, when
executed and delivered, will constitute the valid and binding
obligations of such party, enforceable against such party in
accordance with its terms, except as the enforceability thereof may
be limited by (i) bankruptcy, reorganization, moratorium or other
similar laws affecting the enforcement of creditors’ rights
generally and (ii) general equitable principles regardless of
whether the issue of enforceability is considered in a proceeding
in equity or at law.
23.
Miscellaneous
Provisions
a.
Affirmation of Agreement. On and after
the Effective Date hereof, each reference in the Agreement to
“this Agreement,” “hereunder,”
“hereof,” or words of like import referring to the
Agreement shall mean and be a reference to the Agreement as amended
hereby. Except as specifically amended hereby, the Agreement shall
remain in full force and effect and is hereby ratified and
confirmed in all respects.
b.
Headings. The headings of the sections
of this Amendment are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of
this Amendment.
c.
Governing Law. This Amendment is and shall be
governed by, and shall be construed and interpreted in accordance
with LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO THE
CONFLICT OF LAW PROVISIONS THEREOF.
d.
Counterparts. This Amendment may be
executed in any number of counterparts and by the different parties
hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together
constitute one and the same instrument. To evidence its execution
of an original counterpart of this Amendment, a party may deliver
via facsimile or pdf transmission a copy of its original executed
counterpart signature page to the other party, and such
transmission shall constitute delivery of an original, executed
copy of this Amendment to the receiving party for purposes of
determining execution and effectiveness of this Amendment.
Notwithstanding the foregoing, any party delivering such
counterpart signature by facsimile or pdf transmission agrees to
provide an original executed signature page to the receiving party
by express delivery promptly upon request thereof.
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IN WITNESS
WHEREOF, each of the parties hereto has duly executed this
Amendment as of the Effective Date.
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▇.▇.
▇▇▇▇▇▇▇▇ HOLDINGS, LLC
By:
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Chief Operating Officer/SVP
AEMETIS
ADVANCED FUEL ▇▇▇▇▇, INC.
By:
/s/ ▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇
Title:
Chief Executive Officer
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