5. Notes Payable | Debt consists of the notes from our senior lender, Third Eye Capital, acting as Agent for the Purchasers (Third Eye Capital), other working capital lenders and subordinated lenders as follows: September 30, 2015 December 31, 2014 Third Eye Capital term note 6,164 $ 7,394 Third Eye Capital revolving credit facility 25,061 22,330 Third Eye Capital revenue participation term note 10,352 10,195 Third Eye Capital acquisition term note 17,981 17,728 Cilion shareholder seller note payable 5,485 5,373 State Bank of India secured term loan 5,292 6,032 Subordinated notes 5,813 5,428 EB-5 long term promissory notes 23,762 1,534 Unsecured working capital loans 1,383 1,287 Total debt 101,293 77,301 Less current portion of debt 12,630 12,746 Total long term debt 88,663 $ 64,555 Third Eye Capital Note Purchase Agreement On July 6, 2012, Aemetis, Inc. and Aemetis Advanced Fuels Keyes, Inc. (AAFK), entered into an Amended and Restated Note Purchase Agreement with Third Eye Capital (the Note Purchase Agreement). Pursuant to the Note Purchase Agreement, Third Eye Capital extended credit in the form of (i) senior secured term loans in an aggregate principal amount of approximately $7.2 million to replace existing notes held by Third Eye Capital (the Term Notes); (ii) senior secured revolving loans in an aggregate principal amount of $18.0 million (Revolving Credit Facility); (iii) senior secured term loans in the principal amount of $10.0 million to convert the prior revenue participation agreement to a note (Revenue Participation Term Notes); and (iv) senior secured term loans in an aggregate principal amount of $15.0 million (Acquisition Term Notes) used to fund the cash portion of the acquisition of Cilion, Inc. After this financing transaction, Third Eye Capital obtained sufficient equity ownership in the Company to be considered a related party (the Term Notes, Revolving Credit Facility, Revenue Participation Term Notes and Acquisition Term Notes are referred to herein collectively as the Notes). The Notes mature on April 1, 2016*. On March 12, 2015, Third Eye Capital agreed to Amendment No. 9 to the Note Purchase Agreement to allow for the repurchase of 1,000,000 shares of common stock of the Company at an average price of $5.52 per share for an aggregate purchase price of approximately $5.5 million. The repurchase price was added to the outstanding principal balance of the Revolving Credit Facility. Third Eye Capital also agreed to remove the covenant that the Company must complete an equity offering of its preferred stock for net proceeds of not less than $20 million with all of such net proceeds to be used to repay the principal outstanding under the Note Purchase Agreement. In addition, Third Eye Capital waived the free cash flow financial covenant under the Note Purchase Agreement for the three months ended March 31, 2015. We evaluated the amendment of the Notes and applied modification accounting treatment in accordance with ASC 470-50 Debt Modification and Extinguishment On April 30, 2015, Third Eye Capital agreed to Amendment No. 10 to the Note Purchase Agreement to allow for the repurchase of 500,000 shares of common stock of the Company at a repurchase price of $5.00 per share for an aggregate purchase price of approximately $2.5 million. The repurchase price was added to the outstanding principal balance of the Revolving Credit Facility. In addition, Third Eye Capital agreed to extend the maturity date of the Notes to April 1, 2016 upon notice and payment of a 3% extension fee. The existing guarantees were reaffirmed. On May 29, 2015, the Company gave notice to extend the maturity date of the Notes to April 1, 2016 and added the 3% fee to the Notes. On August 6, 2015, Third Eye Capital agreed to Amendment No. 11 to the Note Purchase Agreement to allow for the extension of the maturity date of the Notes to April 1, 2017 upon election by the Company provided that the Company i) has $11.5 million in EB-5 funds in escrow as of August 31, 2015, ii) enters into an investment banking engagement by October 1, 2015 to complete a capital markets transaction for the sale of shares of its India subsidiary, and iii) repurchases 100,000 shares of common stock from Third Eye Capital at the greater of $4.00 and the closing price on the date of the amendment. In addition, Third Eye Capital waived the free cash flow financial covenant under the Note Purchase Agreement for the three months ended June 30, 2015 and for the three months ending September 30, 2015, and revised the market value to note indebtedness covenant to 65%. As consideration, Third Eye Capital charged an amendment fee of $1.0 million to be added to the outstanding principal balance of the Revolving Credit Facility and an extension fee equal to 5% of the Note indebtedness to be charged at the time of exercise of the option to extend the maturity date of the Notes. We met the above conditions of EB-5 funds of $11.5 million in escrow as of August 31, 2015 and we signed an investment banking engagement to complete a capital markets transaction for the sale of shares in the India subsidiary in September 2015 and we repurchased 100,000 shares of common stock from Third Eye Capital at $4.00 per share in order for us to classify our senior debt as long term debt. In addition, as consideration for Amendment No. 11, the unconditional personal guaranty from Chairman of the Company, the guaranties from Company parties and McAfee Capital, LLC owned by Mr. Eric McAfee were all affirmed. The Company also agreed to pay a fee of $0.2 million to McAfee Capital, LLC for the loss of liquidity from this arrangement. Further details regarding the terms of the Notes are set forth below under the heading Terms of Third Eye Capital Notes. Terms of Third Eye Capital Notes Details about each portion of the Third Eye Capital financing facility are as follows: A. Term Notes B. Revolving Credit Facility C. Revenue Participation Term Notes D. Acquisition Term Notes *The note maturity date can be extended by the Company to April 2017. As a condition to any such extension, the Company would be required to pay a fee of 5% of the carrying value of the debt. The Third Eye Capital Notes are secured by first priority liens on all real and personal property of, and assignment of proceeds from all government grants and guarantees from Aemetis, Inc. The Notes all contain cross-collateral and cross-default provisions. McAfee Capital, LLC (McAfee Capital), owned by Eric McAfee, the Companys Chairman and CEO, provided a guaranty of payment and performance secured by all of its Company shares. In addition, Eric McAfee provided a blanket lien on substantially all of his personal assets, and McAfee Capital provided a guarantee in the amount of $8.0 million. Cilion shareholder seller notes payable State Bank of India secured term loan In July 2008, the Company drew approximately $4.6 million against the secured term loan. The loan principal amount is repayable in 20 quarterly installments of approximately $0.3 million, using exchange rates corresponding to the date of payment, with the first installment due in June 2009 and the last installment payment due in March 2014. As of September 30, 2015, the 12% interest rate under this facility is subject to adjustment every two years, based on 0.25% above the State Bank of India advance rate. No principal payments were made except for payments of $0.2 million each in May 2014 and June 2014 to obtain an interim stay. The term loan provides for liquidating damages at a rate of 2% per annum for the period of default. On August 22, 2015, UBPL and the State Bank of India agreed to a One Time Settlement Sanction Letter allowing for, among other things, four payments over a 360 day period amounting to $4.3 million, an interest rate holiday for 15 days after which the interest rate is payable at 13.7% per annum, and certain releases by both parties. Upon performance under the agreement, including the payment of all stipulated amounts, UBPL will receive relief for prior accrued interest in the amount of approximately $2.1 million. We paid the first payment under the settlement on August 23, 2015 and the second payment under the settlement on October 22, 2015. The two remaining payments under the settlement are due one in February 2016 and one in August 2016. As of September 30, 2015 and December 31, 2014, the State Bank of India loan had $1.5 million and $2.6 million in principal outstanding along with accrued and default interest of $3.8 million and $3.4 million, respectively. See Note 6 - Commitments and Contingencies for further details. Subordinated Notes The Company agreed to an Amendment No. 1 to the Sub Notes to extend the maturity of the January 2012 Sub Notes to July 1, 2014 and issued two Sub Notes dated December 2012 and January 19, 2013, with principal amounts of $0.5 million and $0.1 million, respectively. Both the December 2012 Sub Note and the January 19, 2013 Sub Note had a maturity date of April 30, 2013. On January 24, 2013, an additional $0.3 million Sub Note was issued with a maturity date of April 30, 2013. On May 23, 2013, all Sub Notes above with a maturity date of April 30, 2013 were refinanced as a $1.0 million Sub Note (May 2013 Note) with a maturity date of December 31, 2013. On January 1, 2014, the May 2013 Sub Note was amended to extend the maturity date to June 30, 2014 in exchange for a 10 % cash extension fee paid by adding the fee to the balance of the new note and 30 thousand in common stock warrants with a term of two years and an exercise price of $0.01 per share. In March 2014, the Company received $0.5 million from EB-5 investments and repaid one of the accredited investors holding a January 2012 Sub Note of $0.5 million. On July 1, 2014 and again on January 1, 2015, the January 2014 Sub Note and two January 2013 Sub Notes with two accredited investors were amended to extend the maturity date to December 31, 2014 and June 30, 2015, respectively in exchange for a 10 % cash extension fee paid by adding the fee to the balance of the new note and 118 thousand in common stock warrants with a term of two years and an exercise price of $0.01 per share. On March 24, 2015, the Company paid off $180 thousand in Sub Note principal and interest held by one of the accredited investors with the money received from the EB-5 program. On July 1, 2015, the Sub Notes above were amended to extend the maturity date until the earlier of (i) December 31, 2015; (ii) completion of an equity financing by AAFK or Aemetis in an amount of not less than $25.0 million; (iii) the completion of an Initial Public Offering by AAFK or Aemetis; or (iv) after the occurrence of an Event of Default, including failure to pay interest or principal when due and breaches of note covenants. A 10 % cash extension fee was paid by adding the fee to the balance of the new note and warrants to purchase 116 thousand shares of common stock were granted with a term of two years and an exercise price of $0.01 per share. On January 14, 2013, Laird Cagan, a related party, loaned $0.1 million through a promissory note maturing on April 30, 2013 with a 5% annualized interest rate and the right to exercise 5 thousand warrants exercisable at $0.01 per share. In February 2015, the Cagan related party promissory note was amended to extend the maturity date until the earlier of (i) December 31, 2016; (ii) completion of an equity financing by AAFK or Aemetis in an amount of not less than $25.0 million; (iii) the completion of an Initial Public Offering by AAFK or Aemetis; or (iv) after the occurrence of an Event of Default, including failure to pay interest or principal when due and breaches of note covenants. At September 30, 2015 and December 31, 2014, the Company owed, in aggregate, subordinated notes in the amount of $5.8 million and $5.4 million in principal and interest outstanding, net of unamortized issuance and fair value discounts of $0.4 million and $0.2 million, respectively. EB-5 long-term promissory notes Advanced BioEnergy, LP arranges investments with foreign investors, who each make investments in the Keyes plant project in investment increments of $0.5 million. The Company sold notes in the amount of $1.0 million during the first quarter of 2012, $0.5 million during the first quarter of 2014, $17.5 million during the first quarter of 2015, $2.5 million in the second quarter of 2015, and $2.0 million in the third quarter of 2015. As of September 30, 2015, $23.5 million in principal and $262 thousand in accrued interest remained outstanding on the notes. The escrow account holds an additional $11.5 million representing 23 investors. The availability of the remaining $12.5 million (including the $11.5 million in escrow) will be determined by the ability of Advanced BioEnergy, LP to attract the last two qualified investors, and for the United States Citizenship and Immigration Service to approve those investors who have made escrow deposits. Unsecured working capital loans During the three and nine months ended September 30, 2015, the Company made principal payments to Secunderabad of approximately $2.3 million and $3.3 million, respectively, under the agreement and interest payments of approximately $73 thousand and $177 thousand, respectively, for working capital funding. During the three and nine months ended September 30, 2014, the Company made principal payments to Secunderabad of approximately $1.8 million and $4.2 million, respectively, under the agreement and interest payments of approximately $48 thousand and $127 thousand respectively, for working capital funding. At September 30, 2015 and December 31, 2014, the Company had approximately $1.4 million and $1.3 million outstanding under this agreement, respectively. Scheduled debt repayments for loan obligations follow: Twelve months ended September 30, Debt Repayments 2016 $ 12,630 2017 63,749 2018 3,500 2019 23,235 Total debt 103,114 Discounts (1,821) Total debt, net of discounts $ 101,293 |