8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 3, 2018

Aemetis, Inc.

(Exact name of registrant as specified in its charter)

Nevada	000-51354	26-1407544
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

20400 Stevens Creek Blvd., Suite 700

Cupertino, CA 95014

 (Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code:

(408) 213-0940

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 Entry into a Material Definitive Agreement.

On December 3, 2018, Aemetis Property Keyes, Inc. (“APKI”), a wholly owned subsidiary of Aemetis, Inc. (the “Registrant”), borrowed funds for the purchase of approximately 5.4 acres of land adjoining its ethanol plant in Keyes, CA to be used for the construction of a facility to convert gaseous CO2 produced at the Keyes ethanol plant to liquid CO2. In connection with such land purchase, Goodland Advanced Fuels, Inc. (the “Borrower”) entered into Amendment No. 2 (“Amendment No. 2”) to the Note Purchase Agreement, dated July 10, 2017 (the “Original Note Purchase Agreement”, as amended by Amendment No. 1 to Note Purchase Agreement dated June 28, 2018 (“Amendment No. 1”), and, as further amended by Amendment No. 2, the “NPA”) by and among Borrower, Third Eye Capital Corporation (“Agent”), the noteholders party thereto (the “Noteholders”), with the Registrant and its wholly owned subsidiaries Aemetis Advanced Product Keyes, Inc. (“AAPK” and together with the Registrant, the “Existing Guarantors”), APKI and Aemetis Advanced Fuels Keyes, Inc. (“AEFK” and together with APKI, the “New Guarantors”) as guarantors, in order to (i) provide funding for APKI to purchase such land and to undertake certain related commercial arrangements with third parties and (ii) fund other capital expenditures and approved working capital expenditures related to the construction of the CO2 conversion facility at the Keyes ethanol plant.

Pursuant to Amendment No. 2, the NPA was amended to provide for an additional term loan in the amount of $3,500,000 (the “Additional Term Loan”) and accruing interest at an interest rate per annum of ten percent. Amendment No. 2 also included, among other terms, amendments relating to certain financial covenants, interest payment calculations and mandatory repayment of the Additional Term Loan.

In consideration of the direct and indirect benefits derived by the Existing Guarantors and the New Guarantors from the transactions contemplated by Amendment No. 2, the Existing Guarantors entered into the Second Amended and Restated Limited Guaranty, dated as of December 3, 2018 (the “Second A&R Limited Guaranty”), and each of APKI and AEFK entered into a limited guaranty in favor of the Agent (such limited guaranty made by APKI, the “APKI Guaranty” and such limited guaranty made by AEFK, the “AEFK Guaranty”) to guarantee all obligations and liabilities of the Borrower under the NPA, including the Additional Term Loan. Such obligations are secured by a first priority lien over all assets of the Registrant, AAPK and APKI pursuant to separate general security agreements entered into by the Registrant, AAPK and APKI (such general security agreement entered into by the Registrant, the “Registrant Security Agreement”, such general security agreement entered into by AAPK, the “AAPK Security Agreement” and such security agreement entered into by APKI, the “APKI Security Agreement”).

The Borrower and APKI also entered into a separate Intercompany Revolving Promissory Note, dated December 3, 2018 (the “APKI Intercompany Revolving Note”), pursuant to which the Borrower may, from time to time, lend substantially all of the Additional Term Loan to APKI.

On December 3, 2018, AE Advanced Fuels, Inc. (“AEFI”), a wholly owned subsidiary of the Registrant, also entered into a Pledge Agreement (the “AEFI Pledge Agreement”) with Agent in connection with Amendment No. 2, pursuant to which AEFI pledged and granted a security interest in all of the shares of stock of APKI held by AEFI to Agent.

As consideration for the extension of the Additional Term Loan by Agent and the Noteholders, Borrower agreed to pay Agent an amendment fee in the amount of $175,000.

The foregoing descriptions of the Original Note Purchase Agreement, Amendment No. 1, Amendment No. 2, the Second A&R Limited Guaranty, the Registrant Security Agreement, the AAPK Security Agreement, the APKI Guaranty, the AEFK Guaranty, the APKI Security Agreement, the APKI Intercompany Revolving Note and the AEFI Pledge Agreement are qualified in their entirety by reference to the Original Note Purchase Agreement, Amendment No. 1, Amendment No. 2, the Second A&R Limited Guaranty, the Registrant Security Agreement, the AAPK Security Agreement, the APKI Guaranty, the AEFK Guaranty, the APKI Security Agreement, the APKI Intercompany Revolving Note and the AEFI Pledge Agreement attached hereto as Exhibit 10.1, Exhibit 10.2, Exhibit 10.3, Exhibit 10.4, Exhibit 10.5, Exhibit 10.6, Exhibit 10.7, Exhibit 10.8, Exhibit 10.9, Exhibit 10.10 and Exhibit 10.11 respectively, which are incorporated herein by reference.

Item 2.03 Creation of a Direct Financial Obligation.

The disclosure contained in Item 1.01 is incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

EXHIBIT NUMBER	DESCRIPTION
Exhibit 10.1	Note Purchase Agreement, by and among Goodland Advanced Fuels, Inc., Third Eye Capital Corporation and the noteholders made a party thereto from time to time, dated July 10, 2017. (Filed as an exhibit to Form 8-K on July 14, 2017 and incorporated by reference herein.)
Exhibit 10.2	Amendment No. 1 to Note Purchase Agreement by and among Goodland Advanced Fuels, Inc., Third Eye Capital Corporation and the noteholders made a party thereto from time to time, dated June 28, 2018. (Filed as an exhibit to Form 8-K on August 29, 2018 and incorporated by reference herein.)
Exhibit 10.3	Amendment No. 2 to Note Purchase Agreement by and among Goodland Advanced Fuels, Inc., Third Eye Capital Corporation and the noteholders made a party thereto from time to time, dated December 3, 2018.
Exhibit 10.4	Second Amended and Restated Limited Guaranty, by and among Aemetis, Inc., Aemetis Advanced Products Keyes, Inc. and Third Eye Capital Corporation, dated December 3, 2018.
Exhibit 10.5	General Security Agreement, by and between Aemetis, Inc., the other grantors from time to time party thereto and Third Eye Capital Corporation, dated July 10, 2017. (Filed as an exhibit to Form 8-K on July 14, 2017 and incorporated by reference herein.)
Exhibit 10.6	General Security Agreement by and between Aemetis Advanced Products Keyes, Inc., the other grantors from time to time party thereto and Third Eye Capital Corporation, dated July 10, 2017. (Filed as an exhibit to Form 8-K on July 14, 2017 and incorporated by reference herein.)
Exhibit 10.7	Limited Guaranty, by and between Aemetis Property Keyes, Inc. and Third Eye Capital Corporation, dated December 3, 2018.
Exhibit 10.8	Limited Guaranty, by and between Aemetis Advanced Fuels Keyes, Inc. and Third Eye Capital Corporation, dated December 3, 2018.
Exhibit 10.9	General Security Agreement, by and between Aemetis Property Keyes, Inc. and Third Eye Capital Corporation, dated December 3, 2018.
Exhibit 10.10	Intercompany Revolving Promissory Note, by and between Aemetis Property Keyes, Inc. and Goodland Advanced Fuels, Inc., dated December 3, 2018.
Exhibit 10.11	Pledge Agreement, by and between AE Advanced Fuels, Inc. and Third Eye Capital Corporation, dated December 3, 2018.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	AEMETIS, INC.
	By:	/s/ Eric A. McAfee
	Name:	Eric A. McAfee
	Title:	Chief Executive Officer
December 7, 2018		(Principal Executive Officer)

EX-10.3

Exhibit 10.3

AMENDMENT NO. 2 TO

NOTE PURCHASE AGREEMENT

This Amendment No. 2 to Note Purchase Agreement (this “Amendment”), is dated as of November 30, 2018, by and among (i) GOODLAND ADVANCED FUELS, INC., a Delaware corporation (the “Borrower”)and (ii) THIRD EYE CAPITAL CORPORATION, an Ontario corporation, as agent for the Noteholders (the “Agent”), THIRD EYE CAPITAL CREDIT OPPORTUNITIES FUND – INSIGHT FUND, THIRD EYE CAPITAL ALTERNATIVE CREDIT TRUST, and MBI/TEC PRIVATE DEBT OPPORTUNITIES FUND I, L.P. (collectively, the “Noteholders”), and is acknowledged and agreed by the current Guarantors, AEMETIS, INC., a Nevada corporation (“Parent”) and AEMETIS ADVANCED PRODUCTS KEYES, INC., a Delaware corporation (“AAPK”) and new Guarantors, AEMETIS PROPERTY KEYES, INC. (formerly Aemetis Advanced Fuels Goodland, Inc.) (“APKI”) and AEMETIS ADVANCED FUELS KEYES, INC. (“AEFK”, and together with the Parent, AAPK, APKI and the Borrower, the “Obligors”).

RECITALS

A.           The Borrower, Agent and Noteholders entered into the Note Purchase Agreement dated as of June 30, 2017, as amended June 28, 2018 (as the same may be amended, restated, supplemented, revised or replaced from time to time, the “Agreement”). Capitalized terms used but not defined in this Amendment shall have the meaning given to them in the Agreement.

B.           The Borrower has requested, and the Agent and Noteholders have agreed, to amend the Agreement on the terms and conditions contained herein in order to provide funding for APKI to undertake a proposed real estate transaction with A.L. Gilbert Company (“Gilbert”) and certain related commercial arrangements with Linde LLC and to fund other capital expenditures and approved working capital expenditures related to the construction of interconnecting equipment to furnish CO2 from AEFK’s ethanol plant in Keyes, CA (collectively, the “CO2 Transaction”).

AGREEMENT

SECTION 1.           Amendments. The following sections of the Agreement shall be and hereby are amended as follows:

(A)           Section 1.1 (Definitions).

Section 1.1 of the Agreement is hereby amended by substituting the following definitions or adding the following definitions, as applicable, in the appropriate alphabetical order:

“AEFK” means Aemetis Advanced Fuels Keyes, Inc., a Guarantor.

“Amended Intercreditor Agreement” means the Amended and Restated Intercreditor Agreement dated the date of the Second Amendment by and between (i) Third Eye Capital Corporation, in its capacity as agent for the Noteholders under the terms of that certain Amended and Restated Note Purchase Agreement dated as of July 6, 2012 by and among Aemetis Advanced Fuels Keyes, Inc., Keyes Facility Acquisition Corp., the Parent and the other parties thereto, and (ii) the Agent (in its capacity as agent for the Noteholders under the terms of this Agreement).

 “APKI” means Aemetis Property Keyes, Inc., a Guarantor.

“APKI Appraisal” means an appraisal of the APKI Mortgaged Property addressed to the Agent, in form and content acceptable to the Agent, in its sole discretion, and conducted and prepared by an appraiser acceptable to the Agent. Each such Appraisal shall comply with all appraisal requirements of the Agent and any Governmental Authority and shall reflect a fair market value for the APKI Mortgaged Property.

“APKI Deed of Trust” means the Deed of Trust, dated the date of the Second Amendment, executed by APKI with respect to the APKI Mortgaged Property pursuant to which APKI grants a first and prior mortgage to the Agent for the benefit of the Noteholders, as beneficiary to secure APKI’s obligations pursuant to the Guaranty.

“APKI Mortgaged Property” means the Mortgaged Property as set out in the APKI Deed of Trust, being that real property purchased by APKI from A.L. Gilbert Company or its affiliates pursuant to the CO2 Transaction.

“APKI Mortgaged Property Market Value” means the “as is” fair market value of the APKI Mortgaged Property as determined semi-annually by Edwards, Lien & Toso, Inc. or such other independent valuation expert acceptable to the Agent.

“APKI Pledge Agreement” means that certain Pledge Agreement, dated as of the Second Amendment, between AE Advanced Fuels, Inc. as Pledgor and the Agent, relating to a pledge of 100% of the Capital Stock of APKI.

“CO2 Term Loan” has the meaning set forth in Section 2.1 hereof.

“CO2 Transaction” has the meaning set forth in the recitals to the Second Amendment.

“Guaranty” means collectively or individually, as applicable: (i) that Second Amended & Restated Limited Guaranty by the Parent and AAPK in favor of the Agent, (ii) that Limited Guaranty by APKI in favor of the Agent, and (iii) that Limited Recourse Guaranty by AEFK in favor of the Agent, in each case dated as of the date of the Second Amendment and which guarantees the Note Indebtedness in accordance with its terms.

“Linde Contract” means that Agreement for the Sale of CO2 between AEFK and Linde LLC dated August 25, 2017 as the same may be amended, restated, supplemented, revised or replaced from time to time.

“Second Amendment” means that Amendment No. 2 to the Note Purchase Agreement dated November 30, 2018 as between the Borrower, the Agent and the Noteholders and acknowledged and agreed to by the Guarantors.

2

(B)           Section 2.1 (Term Loan).

Section 2.1 of the Agreement is hereby deleted in its entirety and replaced with the following:

“Term Loan. Subject to the terms and conditions of this Agreement, and relying on each of the representations and warranties set forth in each of the Note Purchase Documents, the Noteholders agree, individually as joint obligors, and not as joint and several obligors, to make a term loan to the Borrower:

(a) 

on the Closing Date in an aggregate amount of Fifteen Million Dollars ($15,000,000) (the “Initial Term Loan”); and

(b) 

on the date of the First Amendment in an aggregate amount of One Million Five Hundred Seventy Five Thousand Dollars ($1,575,000) (the “Subsequent Term Loan”),

(c) 

on the date of the Second Amendment in an aggregate amount of Three Million Five Hundred Thousand Dollars ($3,500,000); provided that the Obligors acknowledge that certain amounts of such principal may be advanced to the Borrower upon the satisfaction of certain conditions, as more specifically indicated in Schedule 5.1(i) “Use of Proceeds” (the “CO2 Term Loan” and together with the Initial Term Loan and the Subsequent Term Loan, the “Term Loan”),

in each case according to each Noteholder’s Term Loan Commitment and such Indebtedness shall be evidenced by secured promissory notes issued to each Noteholder (each, a “Term Note”). After repayment, the Term Loan may not be re-borrowed.”

(C)           Section 2.4 (Repayment).

Subsection 2.4(b) of the Agreement is hereby deleted in its entirety and replaced with the following:

“The Borrower shall also be required to, and hereby agrees to, make the following mandatory prepayments on the Term Loan and any Revolving Advances: 100% of the net cash proceeds received by the Borrower or other Obligor or their Affiliates (excluding Aemetis Biogas LLP), as applicable from (i) the EB-5 Program Issuance, (ii) any USDA Financing, (iii) any sales of the Obligors’ Capital Stock, (iv) any Indebtedness incurred or issued (that is not permitted by this Agreement), (v) repayments made to the Borrower under any of the Term Loans or under a Revolving Intercompany Note to the extent such amounts are not immediately reborrowed in accordance with the terms of the Revolving Intercompany Note, (vi) the occurrence of a Change of Control (unless such Change of Control is caused by the exercise of the Aemetis Option or the exercise of the Warrant), (vii) the receipt of any tax refund, reimbursement or other payment from any Governmental Authority, and (viii) any sale, royalty agreement or other disposition of assets outside of the ordinary course of business or pursuant to a transaction that is not permitted pursuant to this Agreement (including as a result of any condemnation, casualty or similar event) (other than dispositions to another Obligor, to the extent permitted hereby); provided that, in the case of this subclause (viii), the Agent (at the Borrower’s request) may in its sole discretion authorize the Obligors to reinvest all or a portion of such proceeds, and any such reinvestment shall be permitted on the terms and conditions set forth by the Agent so long as no Default or Event of Default occurs.”

3

A new subsection 2.4(d) is hereby added to the Agreement as follows:

“The Obligors shall also be required to, and hereby agree to, make the following mandatory repayments of the CO2 Term Loan:

i)  on a monthly basis, an amount equal to 75% of any payments received by any Obligor pursuant to Section 5.1 and 5.2 of the Linde Contract which are related to Product or Gas or CO2 (each as defined therein) produced by Linde LLC without giving effect to any setoff or counterclaim or other credit or repayments pursuant to Section 5.3 or Article 6 of the Linde Contract;

ii)  an amount equal to 100% of each monthly “Linde’s Plant Site Charge” payment received by any Obligor pursuant to Section 5.1 of the Linde Contract, which for clarity is anticipated to be equal to $10,000 per month, without giving effect to any setoff or counterclaim; and

iii)  on a monthly basis, an amount equal to the product of: (A) $0.01 multiplied by (B) the number of bushels of Grain (as defined in the Procurement Agreement) procured or purchased by any Obligor from J.D. Heiskell Holdings, LLC or its affiliates or nominee (“Heiskell”) pursuant to that Amended and Restated Grain Procurement and Working Capital Agreement dated May 7, 2013 (as may be amended, restated, supplemented, revised or replaced from time to time, the “Procurement Agreement”); it being acknowledged that such amount shall not constitute a reduction or set off or otherwise derogate or replace any Obligor’s obligation to make any payment under the Procurement Agreement to Heiskell and such repayment obligation contemplated herein shall be in addition to such payment obligations included in the Procurement Agreement and shall be made irrespective of the price of such Grain indicated in or paid pursuant to the Procurement Agreement as between Heiskell and any Obligor,

and with respect to (i) and (ii) above, AEFK covenants and agrees to direct Linde LLC to make all payments, credits, reimbursements or other payments of any sums whatsoever pursuant to or related to the Linde Contract to a bank account identified by the Agent in its sole discretion, over which the Agent shall have direction and control, and from which the Agent shall be entitled to withhold, extract and obtain the payment amounts indicated above.

(D)           Section 2.5 (Interest).

Subsection 2.5(c) of the Agreement is hereby deleted in its entirety and replaced with the following:

4

“Commencing on August 1, 2017 and on the first Business Day of each calendar month thereafter (each such date, an “Interest Payment Date”), Borrower shall make monthly payments of interest, in arrears for the preceding calendar month (or from the Closing Date in the case of the interest payment due on August 1, 2017); provided, however, that interest accruing on the Initial Term Loan for the first eighteen (18) Interest Payment Dates following the Closing Date shall have been paid in advance in accordance with Section 3.1(p).

In addition, interest accruing on the CO2 Term Loan shall be calculated from the date upon which such portions of the CO2 Term Loan are advanced to the Borrower, as contemplated in Schedule 5.1(i) “Use of Proceeds” and it is acknowledged that $200,000 of the CO2 Term Loan shall be withheld by the Agent at closing and used to pay such interest as it becomes due and payable, or interest on the Term Loan or Revolving Line, at the Agent’s discretion, as such interest becomes due and payable.”

In addition, the phrase “Term Loan”, where it appears in Subsection 3.1(p) of the Agreement, is hereby deleted and replaced with the phrase “Initial Term Loan”.

(E)           Section 2.13 (Fee Letter).

Section 2.13 of the Agreement is hereby deleted in its entirety and replaced with the following:

“Fee Letter. The Borrower agrees to pay to the Agent, for itself or for and on behalf of the Noteholders, as applicable: (i) the fees described in the Fee Letter, (ii) at the date of the First Amendment, the amount of $75,000, and (iii) at the date of the Second Amendment, the amount of $175,000. All such fees may be withheld from, and payable from, the proceeds of the Loans in connection with those fees then due.”

(F)           Section 5.1(p) (Post-Closing Matters).

Section 5.1(p) of the Agreement is amended by adding the following new paragraphs (iii) to (vi):

“(iii)        Each Obligor covenants that it will use reasonable commercial efforts to terminate, remove or release the right of way and easement created by that certain deed from Herbert M. Hatch, Laura M. Hatch and Cora H. Johnston to O.L. Jessup and M.S. Jessup recorded in the Stanislaus Records on February 9th, 1920, at Book 304 of Deeds, Page 412 of Official Records on the APKI Mortgaged Property (the “1920 Easement”) within twelve 12 months of the date of the Second Amendment.

(iv)          Within one week of the date of the Second Amendment, each Obligor covenants to provide the Agent with applicable permits or certificates of occupancy with respect to the APKI Mortgaged Property.

(v)           Within 30 days of the date of the Second Amendment, the Obligors covenant to provide the Agent with each of: (A) an amendment and restatement of the Linde Contract, and (B) an assignment from APKI to Linde of APKI’s obligations under each of the Purchase agreements (easement) and (rail spur) between Gilbert and APKI, each in form and substance satisfactory to the Agent.

5

(vi)           Within 30 days of the date of the Second Amendment, the Obligors covenant to provide the Agent with an amended APKI Title Policy in form and substance satisfactory to the Agent which shall be in the form of a 2006 ALTA extended coverage loan policy without showing a general exception for survey matters, and shall include such endorsements as requested by the Agent (including, without limitation ALTA 3.0-06 (Zoning), ALTA 18-06 (Single Tax Parcel), and ALTA 25-06 (Same as Survey)). For greater clarity, the Obligors acknowledge that, in order to obtain such amended APKI Title Policy they will likely need to provide the Title Company with an updated ALTA Land Title Survey with respect to the APKI Mortgaged Property and a third party zoning report with respect to the APKI Mortgaged Property, or such other evidence or documentation as may be required by the Title Company.”

(G)           Section 5.2(k) (Financial Covenants).

Section 5.1(k)(i) of the Agreement is hereby deleted in its entirety and replaced with the following:

“(i)            Permit the ratio of: (a) the sum of (i) the most recent Mortgaged Property Market Value, (ii) the most recent APKI Mortgaged Property Market Value, and (iii) 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.”

In addition, corresponding changes are hereby made to Section 3 of Schedule 5.1(c) (Form of Compliance Certificate).

(H)           Section 5.2(k) (Financial Covenants).

Section 5.1(k)(ii) of the Agreement is hereby deleted in its entirety and replaced with the following:

“(ii)            Permit the amount of trade payables (other than amounts due to management) due to exceed the sum of the amount of the Borrower’s Cash Equivalents plus the Revolving Advances available to be advanced under the Revolving Line, tested as of the last day of each month other than the months from June to November, 2018.”

(I)           Schedule 1.1(a) (Commitments Schedule).

Schedule 1.1(a) of the Agreement is hereby deleted in its entirety and replaced with Schedule 1.1(a) attached hereto.

(J)           Schedule 5.1(i) (Use of Proceeds).

Schedule 5.1(i) of the Agreement is hereby deleted in its entirety and replaced with Schedule 5.1(i) attached hereto.

6

SECTION 2.            Conditions to Effectiveness. This Amendment shall be effective on the date first written above and subject to satisfaction of the following conditions precedent:

(A) 

The Agent shall have completed its due diligence investigation to its satisfaction with respect to the proposed CO2 Transaction;

(B) 

The Agent shall have received the following, each in form and substance satisfactory to the Agent in its sole discretion:

i. 

this Amendment duly executed by the parties hereto;

ii. 

Term Notes evidencing the CO2 Term Loan, in favor of each Noteholder in accordance with their respective Term Loan Commitment Percentage, duly executed by the Borrower;

iii. 

an intercompany note between APKI and the Borrower evidencing the advance of the amount of the CO2 Term Loan received by the Borrower from time to time to APKI, endorsed to the Agent;

iv. 

each Guaranty, dated the date hereof, from each Guarantor other than AEFK;

v. 

a limited recourse Guaranty, from AEFK, dated the date hereof;

vi. 

the APKI Pledge Agreement;

vii. 

the original stock certificate of APKI issued to AE Advanced Fuels, Inc. evidencing 100% of the issued and outstanding shares of capital stock of APKI pledged to the Agent, and the applicable original stock power with respect thereto;

viii. 

a General Security Agreement executed by APKI;

ix. 

the APKI Deed of Trust and related assignments of leases, rents agreements, licenses, permits and contracts and environmental indemnity from APKI;

x. 

the APKI Appraisal;

xi. 

a Title Policy (or the applicable title company’s unconditional commitment to issue a Title Policy upon recordation of the APKI Deed of Trust) (the “APKI Title Policy”) with respect to the APKI Mortgaged Property;

xii. 

Phase I report with respect to the APKI Mortgaged Property;

xiii. 

evidence that the APKI Mortgaged Property is not located within any designated flood plain or special flood hazard area or, in lieu thereof, evidence that APKI has applied for and received flood insurance covering the APKI Mortgaged Property in an amount acceptable to the Agent;

7

xiv. 

evidence of the rezoning of the APKI Mortgaged Property from agricultural to commercial and evidence that all applicable zoning ordinances and restrictive covenants affecting the APKI Mortgaged Property permit the use for which such property is intended and have been or will be complied with in all respects;

xv. 

evidence that applicable insurance policies with respect to the APKI Mortgaged Property are in full force and effect (whether via a new policy or an amendment to existing policies), together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of the Agent;

xvi. 

Purchase agreement (easement) between Gilbert and APKI;

xvii. 

Purchase or lease agreement (rail spur) between Gilbert and APKI;

xviii. 

Quitclaim deed regarding 1920 Easement signed and recorded by Gilbert;

xix. 

a duly executed collateral pledge and assignment of the Linde Contract by AEFK, including therewith a payment direction from AEFK to Linde LLC with respect to the payment of amounts owed pursuant to the Linde Contract to the applicable segregated account indicated by the Agent;

xx. 

UCC financing statement reflecting APKI, as debtor, and Agent, as a secured party, and accompanying financing statement searches;

xxi. 

a Perfection Certificate, executed by APKI and AEFK;

xxii. 

duly executed legal opinions of counsel to APKI and AEFK;

xxiii. 

Officer’s Certificate certifying all material transaction documents with respect to the CO2 Transaction as may be required by the Agent (including without limitation with Gilbert and Linde) and confirming that all conditions precedent to the consummation of the CO2 Transaction have been satisfied or waived and confirming those aspects of the CO2 Transaction which will close simultaneously with the funding of the CO2 Term Loan on the date hereof;

xxiv. 

Officer’s Certificate attaching: (i) Organic Documents; and (ii) true and complete copies of resolutions duly adopted by the board of directors of APKI and AEFK in each case authorizing the execution, delivery and performance of this Amendment and the matters and documents included herein;

xxv. 

good standing certificates of APKI and AEFK from Delaware and California.

(C) 

Each Obligor shall have paid all fees and expenses of the Agent and Noteholders then due as specified by the Fee Letter or as otherwise required.

8

(D) 

Each Obligor shall have performed and complied with all of the covenants and conditions required by this Amendment and the Note Purchase Documents to be performed and complied with by it upon the effective date of this Amendment.

(E) 

The Agent shall have entered into the Amended Intercreditor Agreement on terms acceptable to it.

(F) 

The Agent shall have received all other approvals, opinions, documents, agreements, instruments, certificates, schedules and materials as the Agent may reasonably request.

Each Obligor acknowledges and agrees that the failure to perform, or to cause the performance of, the covenants and agreements in this Amendment will constitute an Event of Default under the Agreement and Agent and Noteholders shall have the right to demand the immediate repayment in full in cash of all outstanding Note Indebtedness owing to Agent and Noteholders under the Agreement, the Notes and the other Note Purchase Documents. In consideration of the foregoing and the transactions contemplated by this Amendment, each Obligor hereby: (i) ratifies and confirms all of the obligations and liabilities of it owing pursuant to the Agreement and the other Note Purchase Documents, and (ii) agrees to pay all costs, fees and expenses of Agent and the Noteholders in connection with this Amendment.

SECTION 3.        Agreement in Full Force and Effect as Amended. Except as specifically amended or waived hereby, the Agreement and other Note Purchase Documents shall remain in full force and effect and are hereby ratified and confirmed as so amended. Except as expressly set forth herein, this Amendment shall not be deemed to be a waiver, amendment or modification of, or consent to or departure from, any provisions of the Agreement or any other Note Purchase Document or any right, power or remedy of Agent or Noteholders thereunder, nor constitute a waiver of any provision of the Agreement or any other Note Purchase Document, or any other document, instrument or agreement executed or delivered in connection therewith or of any Default or Event of Default under any of the foregoing, in each case whether arising before or after the execution date of this Amendment or as a result of performance hereunder or thereunder. This Amendment shall not preclude the future exercise of any right, remedy, power, or privilege available to Agent or Noteholders whether under the Agreement, the other Note Purchase Documents, at law or otherwise. All references to the Agreement shall be deemed to mean the Agreement as modified hereby. This Amendment shall not constitute a novation or satisfaction and accord of the Agreement or any other Note Purchase Documents, but rather shall constitute an amendment thereof. The parties hereto agree to be bound by the terms and conditions of the Agreement and Note Purchase Documents as amended by this Amendment, as though such terms and conditions were set forth herein. Each reference in the Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of similar import shall mean and be a reference to the Agreement as amended by this Amendment, and each reference herein or in any other Note Purchase Documents to “the Agreement” shall mean and be a reference to the Agreement as amended and modified by this Amendment.

9

SECTION 4.           Representations of Obligors. Each Obligor hereby represents and warrants to Agent and Noteholders as of the execution date of this Amendment as follows: (A) it is duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation; (B) the execution, delivery and performance by it of this Amendment and all other Note Purchase Documents executed and delivered in connection herewith are within its powers, have been duly authorized, and do not contravene (i) its articles of incorporation, bylaws or other organizational documents, or (ii) any applicable law; (C) no consent, license, permit, approval or authorization of, or registration, filing or declaration with any Governmental Authority or other Person, is required in connection with the execution, delivery, performance, validity or enforceability of this Amendment or any other Note Purchase Documents executed and delivered in connection herewith by or against it; (D) this Amendment and all other Note Purchase Documents executed and delivered in connection herewith have been duly executed and delivered by it; (E) this Amendment and all other Note Purchase Documents executed and delivered in connection herewith constitute its legal, valid and binding obligation enforceable against it in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity; (F) it is not in default under the Agreement or any other Note Purchase Documents and no Event of Default exists, has occurred and is continuing or would result by the execution, delivery or performance of this Amendment; and (G) the representations and warranties contained in the Agreement and the other Note Purchase Documents are true and correct in all material respects as of the execution date of this Amendment as if then made, except for such representations and warranties limited by their terms to a specific date.

SECTION 5.          Miscellaneous.

(A)           This Amendment may be executed in any number of counterparts (including by facsimile or email), and by the different parties hereto on the same or separate counterparts, each of which shall be deemed to be an original instrument but all of which together shall constitute one and the same agreement. Whenever the context and construction so require, all words herein in the singular number herein shall be deemed to have been used in the plural, and vice versa. The use of the word “including” in this Amendment shall be by way of example rather than by limitation. The use of the words “and” or “or” shall not be inclusive or exclusive.

(B)           This Amendment may not be changed, amended, restated, waived, supplemented, discharged, canceled, terminated or otherwise modified without the written consent of the Borrower and Agent. This Amendment shall be considered part of the Agreement and shall be a Note Purchase Document for all purposes under the Agreement and other Note Purchase Documents.

(C)           This Amendment, the Agreement and the Note Purchase Documents constitute the final, entire agreement and understanding between the parties with respect to the subject matter hereof and thereof and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements between the parties, and shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto and thereto. There are no unwritten oral agreements between the parties with respect to the subject matter hereof and thereof.

(D)           THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE CHOICE OF LAW PROVISIONS SET FORTH IN THE AGREEMENT AND SHALL BE SUBJECT TO ANY WAIVER OF JURY TRIAL AND NOTICE PROVISIONS OF THE AGREEMENT.

10

(E)           No Obligor may assign, delegate or transfer this Amendment or any of their rights or obligations hereunder. No rights are intended to be created under this Amendment for the benefit of any third party donee, creditor or incidental beneficiary of the Obligors. Nothing contained in this Amendment shall be construed as a delegation to Agent or Noteholders of the Obligors’ duty of performance, including any duties under any account or contract in which Agent or Noteholders have a security interest or lien. This Amendment shall be binding upon the parties hereto and their respective successors and assigns.

(F)           All representations and warranties made in this Amendment shall survive the execution and delivery of this Amendment and no investigation by Agent or Noteholders shall affect such representations or warranties or the right of Agent or Noteholders to rely upon them.

(G)           THE OBLIGORS ACKNOWLEDGE THAT SUCH PERSON’S PAYMENT OBLIGATIONS ARE ABSOLUTE AND UNCONDITIONAL WITHOUT ANY RIGHT OF RECISSION, SETOFF, COUNTERCLAIM, DEFENSE, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE NOTE INDEBTEDNESS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM AGENT OR ANY NOTEHOLDER. THE OBLIGORS HEREBY VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER DISCHARGE AGENT AND EACH NOTEHOLDER AND THEIR RESPECTIVE PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASED PARTIES”), FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH SUCH PERSON MAY NOW OR HEREAFTER HAVE AGAINST THE RELEASED PARTIES, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY “LOANS”, INCLUDING ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE AGREEMENT OR OTHER NOTE PURCHASE DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.

{Signatures appear on following pages.}

11

IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective as of the date first noted above.

BORROWER:

GOODLAND ADVANCED FUELS, INC.

By: /s/ Michael Peterson                             

Name: Michael Peterson  

Title: Chief Executive Officer 

Signature Page to Amendment No. 2

Acknowledged and agreed by the Guarantors:

AEMETIS ADVANCED PRODUCTS KEYES, INC.

By: /s/ Eric A. McAfee                                                    

Name: Eric A. McAfee

Title: Chief Executive Officer

AEMETIS, INC.

By: /s/ Eric A. McAfee                                                    

Name: Eric A. McAfee

Title: Chief Executive Officer

 

AEMETIS PROPERTY KEYES, INC.

By: /s/ Eric A. McAfee                                                    

Name: Eric A. McAfee

Title: Chief Executive Officer

 

AEMETIS ADVANCED FUELS KEYES, INC.

By: /s/ Eric A. McAfee                                                    

Name: Eric A. McAfee

Title: Chief Executive Officer

 

Signature Page to Amendment No. 2

AGENT:

THIRD EYE CAPITAL CORPORATION

By: /s/ Arif N. Bhalwani                                                   

Name: Arif N. Bhalwani

Title: Managing Director

NOTEHOLDERS:
MBI/TEC PRIVATE DEBT OPPORTUNITIES FUND I, L.P., herein acting by its general partner MBI/TEC PRIVATE DEBT GP L.P., itself acting by its general partner MBI/TEC PRIVATE DEBT GP INC.
Per: /s/ Arif N. Bhalwani
	Name:   Arif N. Bhalwani
	Title:     President and CEO

Signature Page to Amendment No. 2

THIRD EYE CAPITAL CREDIT OPPORTUNITIES FUND – INSIGHT FUND by its Managing General Partner THIRD EYE CAPITAL CREDIT OPPORTUNITIES S.AR.L.
Per:	/s/ Richard Goddard
	Name:      Richard Goddard
	Title:        Manager
Per:	/s/ Paul de Quant
	Name:      Paul de Quant Title:        Manager
THIRD EYE CAPITAL ALTERNATIVE CREDIT TRUSTby its Manager THIRD EYE CAPITAL MANAGEMENT INC.
Per: /s/ Arif N. Bhalwani
	Name:       Arif N. Bhalwani
	Title:         Portfolio Manager

Signature Page to Amendment No. 2

EX-10.4

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 Keyes, 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 Keyes, 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.

2

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.

3

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.

4

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.

5

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.

6

(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.

7

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]

8

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/ Eric A. McAfee                       

Name: Eric McAfee

Title: CEO

AEMETIS ADVANCED PRODUCTS KEYES, INC., as a Guarantor

By: s/ Eric A. McAfee                       

Name: Eric McAfee

Title: CEO

Address for Notices to each Guarantor:

20400 Stevens Creek Blvd, Suite 700

Cupertino, CA 95014

Attention:  Chief Executive Officer

Telephone: 408-390-3275

Facsimile: 408-252-8044

THIRD EYE CAPITAL CORPORATION, as the Agent

By: /s/ Arif N. Bhalwani                        

Name: Arif N. Bhalwani

Title: Managing Director

Signature Page to Second A&R Limited Guaranty

Acknowledged and Agreed:

GOODLAND ADVANCED FUELS, INC.,

as the Borrower

By: /s/ Michael Peterson                            

Name: Michael Peterson

Title: CEO

Signature Page to Second A&R Limited Guaranty

EX-10.7

Exhibit 10.7

LIMITED GUARANTY

This LIMITED GUARANTY (this “Limited Guaranty”), dated as of December 3, 2018, is made by AEMETIS PROPERTY KEYES, INC. (the “Guarantor”), 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 Amendment No. 2 to Note Purchase Agreement dated as of December 3, 2018 (“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 Guarantor have entered into a separate Intercompany Revolving Promissory Note dated as of the date hereof (as amended, varied, supplemented, restated, renewed or replaced at any time and from time to time, the “Buyer Intercompany Revolving Note”, together with the AAPK Intercompany Note and the Parent Intercompany Note, the “Intercompany Revolving Notes”) pursuant to which the Borrower may, from time to time, lend a portion of the proceeds of the CO2 Term Loan incurred under the Note Purchase Agreement to Guarantor.

(4)           This Limited Guaranty is secured by a first priority lien pursuant to (i) that certain Deed of Trust, Security Agreement and Fixture Filing with Assignment of Leases and Rents to Secure Guaranty dated as of the date hereof by the Borrower for the benefit of the Agent with respect to certain real property located in the County of Stanislaus, State of California (as amended, varied, supplemented, restated, renewed or replaced at any time and from time to time, the “Deed of Trust”), and (ii) that certain General Security Agreement entered into by Guarantor.

(5)           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 the Borrower in order to permit the Borrower 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, 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.

(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 Guarantor 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 Guarantor 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.

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.

“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 Guarantor under Section 4.12 hereof.

2.            

THE GUARANTY.

2.1            Limited Guaranty of Guaranteed Obligations. The Guarantor unconditionally guarantees 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 Guarantor guarantees 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 Guarantor 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;

2

(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 Guarantor hereby renounces the benefits of division and discussion. The Guarantor hereby waives 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 Guarantor agrees 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 the 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 Guarantor agrees 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. 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 Guarantor 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 Guarantor’s 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 Guarantor hereunder will be made without setoff, counterclaim or other defense.

2.6           Subrogation. The Guarantor 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.

3

2.7           Postponement and Subordination. Guarantor hereby postpones 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 Guarantor in contravention of the terms of this Limited Guaranty shall be received and held by the 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 Guarantor 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 Guarantor or the time of giving of any such notice; in addition, the Guarantor hereby cedes 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 Guarantor waives, 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 Guarantor of the Guaranteed Obligations hereunder (subject to the Guaranty Limit) or the enforcement by the Agent of, this Limited Guaranty. The Guarantor hereby waives, to the fullest extent permitted by law, diligence, presentment and demand (whether for the benefit of any statute of limitations affecting 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 Guarantor) 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.

2.9           Limited Guaranty Secured by Real Property. This Limited Guaranty is secured by real property.

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, 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: Guarantor (i) has relied exclusively on Guarantor’s own independent investigation of the Borrower for 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 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.

4

3.2           In addition, Guarantor represents and warrants to the Agent and the Secured Parties as follows:

(a)           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)            Guarantor makes the additional representations and warranties set forth on Exhibit A hereto.

4.            

OTHER TERMS.

4.1           Covenants.

(a)           Guarantor makes the covenants set forth on Exhibit B hereto.

(b)           [Reserved].

4.2           Amendments. This Limited Guaranty may not be amended or modified except by the written agreement of the Guarantor and the Agent.

4.3           Waiver. No waiver of any provision of this Limited Guaranty, and no consent to any departure by the Guarantor 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 Guarantor shall be addressed to the 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.

5

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. 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. 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. 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 GUARANTOR, 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.

6

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 Guarantor, the Agent, each Secured Party and their respective successors and assigns; provided that the Guarantor may not 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 Guarantor agrees 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 Guarantor 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 Guarantor will upon demand 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 the 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]

7

IN WITNESS WHEREOF, the parties hereto have executed and delivered this Limited Guaranty as of the date first above written.

AEMETIS PROPERTY KEYES, INC., as a Guarantor

By: s/ Eric A. McAfee                                 

Name: Eric McAfee

Title: CEO

Address for Notices to Guarantor:

20400 Stevens Creek Blvd, Suite 700

Cupertino, CA 95014

Attention:  Chief Executive Officer

Telephone: 408-390-3275

Facsimile: 408-252-8044

THIRD EYE CAPITAL CORPORATION, as the Agent

By: /s/ Arif N. Bhalwani                                  
Name: Arif N. Bhalwani

Title: Managing Director

Signature Page to Limited Guaranty

Acknowledged and Agreed:

GOODLAND ADVANCED FUELS, INC.,

as the Borrower

By: /s/ Michael Peterson                               

Name: Michael Peterson

Title: CEO

Signature Page to Limited Guaranty

EX-10.8

Exhibit 10.8

LIMITED GUARANTY

This LIMITED GUARANTY (this “Limited Guaranty”), dated as of December 3, 2018, is made by AEMETIS ADVANCED FUELS KEYES, INC. (the “Guarantor”), 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 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)           This Limited Guaranty is secured by a first priority lien pursuant to that certain Collateral Assignment of Contract (the “Collateral Assignment”), dated as of the date hereof, between Guarantor and Agent, and acknowledged by Linde LLC.

(4)           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 Keyes, Inc., a Delaware corporation (“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, Guarantor agreed to enter into this Limited Guaranty, thereby guaranteeing the obligations of the Borrower with respect to such CO2 Term Loan amount, in addition to and not in derogation of, their other obligations herein and in the Note Purchase Documents.

(5)           It is a condition precedent to the obligation of the Noteholders to make Loans under the Note Purchase Agreement that the Guarantor 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”).

(6)           The Guarantor 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.

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, the term “Guaranty Limit” shall mean an amount equal to the sum of: (a) the aggregate amount of all proceeds derived from or any other amounts received by (or on behalf of) the Guarantor in connection with the Collateral Assignment or from or with respect to or in connection with the Contract (as defined in the Collateral Assignment) and (b) the obligations of the Guarantor under Section 4.12 hereof.

2.            

THE GUARANTY.

2.1            Limited Guaranty of Guaranteed Obligations. The Guarantor unconditionally guarantees 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 the aggregate obligations and liabilities of the Guarantor hereunder shall not at any time or in any event or circumstance exceed the 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 Guarantor guarantees 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 Guarantor 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 Guarantor hereby renounces the benefits of division and discussion. The Guarantor hereby waives 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 Guarantor agrees 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 the 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 Guarantor agrees 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. 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 Guarantor shall renew the Limited Guaranty hereunder by executing such documents for this purpose as may be reasonably requested by the Agent.

2

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 Guarantor’s 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 Guarantor hereunder will be made without setoff, counterclaim or other defense.

2.6           Subrogation. The Guarantor 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. Guarantor hereby postpones 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 Guarantor in contravention of the terms of this Limited Guaranty shall be received and held by 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 Guarantor 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 Collateral Assignment; 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 Guarantor or the time of giving of any such notice; in addition, the Guarantor hereby cedes 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.

3

2.8           Waivers. In addition to the waivers contained in Section 2.3 hereof, the Guarantor waives, 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 Guarantor of the Guaranteed Obligations hereunder (subject to the Guaranty Limit) or the enforcement by the Agent of, this Limited Guaranty. The Guarantor hereby waives, to the fullest extent permitted by law, diligence, presentment and demand (whether for the benefit of any statute of limitations affecting 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 Guarantor) 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, 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: Guarantor (i) has relied exclusively on Guarantor’s own independent investigation of the Borrower for 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 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, Guarantor represents and warrants to the Agent and the Secured Parties as follows:

(a)           Guarantor has had the opportunity to discuss the terms and conditions of the Note Purchase Documents with its own counsel and has relied on such counsel’s advice with respect to the Note Purchase Documents in conjunction with the execution of this Limited Guaranty.

(b)            Guarantor makes the additional representations and warranties set forth on Exhibit A hereto.

4.            

OTHER TERMS.

4.1           Covenants.

(a)           Guarantor makes the covenants set forth on Exhibit B hereto.

(b)           Guarantor shall be required to, and hereby agrees to, contribute certain of the net cash proceeds received by 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 Guarantor and the Agent.

4

4.3           Waiver. No waiver of any provision of this Limited Guaranty, and no consent to any departure by the Guarantor 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 Guarantor shall be addressed to the 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. 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.

5

(b)           Waiver of Venue. 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. 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 GUARANTOR, 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 Guarantor, the Agent, each Secured Party and their respective successors and assigns; provided that the Guarantor may not assign or transfer its rights or obligations under this Limited Guaranty without the written consent of the Agent.

6

4.12             Indemnity and Expenses. (a) The Guarantor agrees 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 Guarantor 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 Guarantor will upon demand 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 the 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]

7

IN WITNESS WHEREOF, the parties hereto have executed and delivered this Limited Guaranty as of the date first above written.

AEMETIS ADVANCED FUELS KEYES, INC., as a Guarantor

By: /s/ Eric A. McAfee                                 

Name: Eric McAfee

Title: CEO

Address for Notices to Guarantor:

20400 Stevens Creek Blvd, Suite 700

Cupertino, CA 95014

Attention:  Chief Executive Officer

Telephone: 408-390-3275

Facsimile: 408-252-8044

THIRD EYE CAPITAL CORPORATION, as the Agent

By: /s/ Arif N. Bhalwani                                 

Name: Arif N. Bhalwani

Title: Managing Director

Signature Page to Limited Guaranty

Acknowledged and Agreed:

GOODLAND ADVANCED FUELS, INC.,

as the Borrower

By: /s/ Michael Peterson                                        

Name: Michael Peterson

Title: CEO

Signature Page to Limited Guaranty

EX-10.9

Exhibit 10.9

GENERAL SECURITY AGREEMENT

made by

AEMETIS PROPERTY KEYES, INC.,

as a Grantor

THE OTHER GRANTORS FROM TIME TO TIME PARTY HERETO

in favor of

THIRD EYE CAPITAL CORPORATION,

as Agent

Dated as of December 3, 2018

i

TABLE OF CONTENTS

Page

ARTICLE I DEFINED TERMS		1
Section 1.01.	Definitions	1
Section 1.02.	Other Definitional Provisions	6
ARTICLE II [RESERVED]		6
ARTICLE III GRANT OF SECURITY INTEREST		6
Section 3.01.	Grant of Security	6
ARTICLE IV REPRESENTATIONS AND WARRANTIES		7
Section 4.01.	Title; No Other Liens	8
Section 4.02.	Perfected First Priority Liens	8
Section 4.03.	Chief Executive Office; Etc	8
Section 4.04.	Inventory and Equipment	9
Section 4.05.	Farm Products	9
Section 4.06.	Investment Property	9
Section 4.07.	Receivables	10
Section 4.08.	Intellectual Property	10
Section 4.09.	Securities Accounts, Commodities Accounts and Deposit Accounts	12
Section 4.10.	Commercial Tort Claims	12
Section 4.11.	Letters of Credit	12
Section 4.12.	Independent Investigation; Etc	12
Section 4.13.	Assigned Agreements	12
ARTICLE V COVENANTS		13
Section 5.01.	Delivery and Control of Instruments, Investment Property, Negotiable Documents, Chattel Paper, Letter-of-Credit Rights, and Transferable Records	13
Section 5.02.	Maintenance of Insurance	15
Section 5.03.	Payment of Guaranteed Obligations	15
Section 5.04.	Maintenance of Perfected Security Interest; Limitation on Dispositions; Further Documentation; Inspection; Etc	15
Section 5.05.	Changes in Locations; Name; Jurisdiction of Incorporation; Etc	16
Section 5.06.	Notices	17
Section 5.07.	Investment Property	17
Section 5.08.	Inventory and Equipment	18
Section 5.09.	Receivables	18
Section 5.10.	Intellectual Property	19
Section 5.11.	Commercial Tort Claims	20
Section 5.12.	Assigned Agreements	20
Section 5.13.	Covenants in Note Purchase Agreement.	21

 i

TABLE OF CONTENTS(continued)

Page

ARTICLE VI REMEDIAL PROVISIONS		21
Section 6.01.	Certain Matters Relating to Receivables	21
Section 6.02.	Communications with Obligors; Grantors Remain Liable	22
Section 6.03.	Voting Rights; Dividends; Etc	22
Section 6.04.	Proceeds to be Turned Over To Agent	24
Section 6.05.	Application of Proceeds	24
Section 6.06.	Remedies	25
Section 6.07.	Registration Rights	26
Section 6.08.	Deficiency	26
Section 6.09.	Sales on Credit	26
ARTICLE VII THE AGENT		27
Section 7.01.	Agent’s Appointment as Attorney-in-Fact; Etc	27
Section 7.02.	Duty of Agent	28
Section 7.03.	Financing Statements	28
Section 7.04.	Authority of Agent	29
ARTICLE VIII MISCELLANEOUS		29
Section 8.01.	Amendments in Writing	29
Section 8.02.	Notices	29
Section 8.03.	Security Interest Absolute	29
Section 8.04.	No Waiver by Course of Conduct; Cumulative Remedies	29
Section 8.05.	Indemnity and Expenses	30
Section 8.06.	Successors and Assigns	30
Section 8.07.	Set-Off	30
Section 8.08.	Counterparts	31
Section 8.09.	Severability	31
Section 8.10.	Headings	31
Section 8.11.	Governing Law	31
Section 8.12.	Submission To Jurisdiction	31
Section 8.13.	Acknowledgements	32
Section 8.14.	Additional Grantors	32
Section 8.15.	Release	32
Section 8.16.	WAIVER OF JURY TRIAL	33
Section 8.17.	INTEGRATION	33
Section 8.18.	Time is of the Essence	33
Section 8.19.	Survival	33

ii

SCHEDULES

Schedule 4.01  

Title; No Other Liens

Schedule 4.02

Perfected Priority Liens

Schedule 4.03    

Chief Executive Office; Etc.

Schedule 4.04  

Inventory and Equipment

Schedule 4.06 

Investment Property

Schedule 4.08

Intellectual Property

Schedule 4.09     

Securities Accounts; Commodities Accounts and Deposit Accounts

Schedule 4.10 

Commercial Tort Claims

Schedule 4.11

Letters of Credit

Schedule 4.13

Assigned Agreements

ANNEXES

Annex 1   

Form of Assumption Agreement

Annex 2   

Form of Intellectual Property Security Agreement

Annex 3

Form of Intellectual Property Security Agreement Supplement

Annex 4 

Form of Consent and Agreement

  iii

GENERAL SECURITY AGREEMENT

This GENERAL SECURITY AGREEMENT, (the “Agreement”) dated as of December 3, 2018, is made by Aemetis Property Keyes, Inc., a Delaware corporation (the “Company”), as a grantor, and any subsidiary of the Company that may from time to time become party hereto (in accordance with Section 8.14 hereof) as a grantor (collectively with the Company, the “Grantors”), 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”).

RECITALS

A.           Goodland Advanced Fuels, Inc., 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 Amendment No. 2 to Note Purchase Agreement dated December 3, 2018 and as amended, varied, supplemented, restated, renewed or replaced at any time and from time to time, the "Note Purchase Agreement");

B.           Each Grantor has entered into a guaranty (as amended, varied, supplemented, restated, renewed or replaced at any time and from time to time, the "Limited Guaranty") to guarantee the Guaranteed Obligations (as defined in the Limited Guaranty);

C.           Each Grantor will derive substantial direct and indirect benefit from the making of the Loans under the Note Purchase Agreement; and

D.           It is a condition precedent to the obligation of the Noteholders to make Loans under the Note Purchase Agreement that each Grantor shall have executed and delivered this Agreement 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”).

NOW, THEREFORE, in consideration of the premises and to induce the Noteholders to make the Loans pursuant to the Note Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor hereby agrees with the Agent, for the benefit of the Secured Parties, as follows:

ARTICLE I

DEFINED TERMS

Section 1.01.    Definitions. Unless otherwise defined herein, terms defined in the Note Purchase Agreement and used herein shall have the meanings given to them in the Note Purchase Agreement. Furthermore, unless otherwise defined in this Agreement or in the Note Purchase Agreement, terms defined in Article 8 or 9 of the UCC (as defined below) are used in this Agreement as such terms are defined in such Article 8 or 9.

(a)              The following terms shall have the following meanings:

"Accounts" means all "accounts" as such term is defined in Article 9 of the UCC.

"Agreement" means this General Security Agreement, as amended, varied, supplemented, restated, renewed or replaced at any time and from time to time.

"Assigned Agreements" means the contracts and agreements listed in Schedule 4.13, as the same may be amended, restated, supplemented or otherwise modified from time to time, including, without limitation, (i) all rights of any Grantor to receive moneys due and to become due to it thereunder or in connection therewith, (ii) all rights of any Grantor to receive proceeds of any insurance, indemnity, warranty, or guaranty thereunder or in connection therewith, (iii) all rights of any Grantor to damages arising thereunder or in connection therewith and (iv) all rights of any Grantor to perform thereunder and to compel performance and otherwise exercise rights and remedies thereunder.

"Assumption Agreement" means an Assumption Agreement in substantially the form of Annex 1 to this Agreement.

“Capital Stock” means, with respect to any Person, (a) any and all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests in) such Person, (b) any and all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, and (c) all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), in the case of clauses (a) through (c) above, whether voting or nonvoting, and whether or not such shares, participations, warrants, options, rights or other interests are outstanding on any date of determination.

"Collateral" has the meaning specified in Section 3.01.

"Collateral Accounts" means any collateral account established by the Agent pursuant to this Agreement or the Note Purchase Agreement. Each Collateral Account shall be in the name of the Agent and shall be under the sole dominion and control of the Agent.

"Commodity Account Control Agreement" has the meaning specified in Section 5.01(e).

"Company" has the meaning specified in the opening paragraph of this Agreement.

"Computer Software" means all computer software, programs and databases (including, without limitation, source code, object code and all related applications and data files), firmware and documentation and materials relating thereto, together with any and all maintenance rights, service rights, programming rights, hosting rights, test rights, improvement rights, renewal rights and indemnification rights and any substitutions, replacements, improvements, error corrections, updates and new versions of any of the foregoing.

"Consent to Assignment of Letter of Credit Rights" has the meaning specified in Section 5.01(g).

"Control Agreement" means a Deposit Account Control Agreement, Securities Account Control Agreement, Commodity Account Control Agreement or Uncertificated Security Control Agreement.

"Copyright Licenses" means any written agreement naming any Grantor as licensor or licensee (including, without limitation, those listed in Schedule 4.08), granting any right under any Copyright, including, without limitation, the grant of rights to manufacture, distribute, exploit and sell materials derived from any Copyright.

2

"Copyrights" means (i) all copyrights arising under the laws of the United States, any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished (including, without limitation, those listed in Schedule 4.08), all registrations and recordings thereof, and all applications in connection therewith, including, without limitation, all registrations, recordings and applications in the United States Copyright Office, and (ii) the right to obtain all renewals thereof.

"Deposit Account Control Agreement" has the meaning specified in Section 5.01(f).

"Equipment" means all "equipment" as such term is defined in Article 9 of the UCC and, in any event, includes, without limitation, all machinery, tools, office equipment, furniture, furnishings, and fixtures (including trade fixtures and business fixtures) and all parts thereof and all accessions thereto and all software related thereto.

"General Intangibles" means all "general intangibles" as such term is defined in Article 9 of the UCC and, in any event, includes, without limitation, with respect to each Grantor, (i) all tax refunds, claims for tax refunds, and tax credits, (ii) all permits, licenses, approvals, authorizations, consents, variances, and certifications of any Governmental Authority, (iii) all judgments, claims, tort claims, and causes of action, (iv) all property, casualty, liability, business interruption, and other insurance of any kind or character, and all insurance claims and insurance refund claims, (v) all letters of credit and letter-of-credit rights, (vi) all payment intangibles, (vii) all lists, customer lists, books, records, recorded knowledge, goodwill, ledgers, files (whether in printed form or stored electronically), designs, blueprints, data, specifications, engineering reports, and manuals, computer programs and software, and (viii) all contracts, agreements, instruments and indentures in any form, and portions thereof, to which such Grantor is a party or under which such Grantor has any right, title or interest or to which such Grantor or any property of such Grantor is subject, as the same may from time to time be amended, supplemented, replaced or otherwise modified, including, without limitation, (A) all rights of such Grantor to receive moneys due and to become due to it thereunder or in connection therewith, (B) all rights of such Grantor to damages arising thereunder and (C) all rights of such Grantor to perform and to exercise all remedies thereunder.

"Indemnified Party" has the meaning specified in Section 8.05(a).

"Intellectual Property" means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, all Copyrights, Patents, Trademarks, IP Agreements, Trade Secrets, Computer Software, and internet domain names, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

"Intellectual Property Security Agreement" has the meaning specified in Section 5.10(f).

"Intercompany Note" means each promissory note evidencing loans, advances or other extensions of credit made by any Grantor to any other Obligor or any of such Grantor’s Subsidiaries.

"Inventory" means all "inventory" as such term is defined in Article 9 of the UCC and, in any event, includes, without limitation, (i) all goods held for sale or lease or to be furnished under contracts of service or so leased or furnished, all raw materials, component materials, work in process, finished goods, supplies and other materials used or consumed in the manufacture, packing, shipping, advertising, selling, leasing, furnishing or production of such inventory or otherwise used or consumed in any Grantor’s business, (ii) all goods in which any Grantor has an interest in mass or a joint or other interest or right of any kind, (iii) all goods that are returned to or repossessed by or on behalf of any Grantor, (iv) all computer programs embedded in any goods and all accessions thereto and products thereof and (v) all documents therefor and all software relating to any of the foregoing.

3

"Investment Property" means the collective reference to (i) all "investment property" as such term is defined in Section 9-102(a)(49) of the UCC, and (ii) whether or not constituting "investment property" as so defined, all Pledged Securities.

"IP Agreements" means all Copyright Licenses, Patent Licenses, Trademark Licenses and all other agreements, permits, consents, orders, and franchises relating to the license, development or use of any Copyright, Patent, Trademark, Computer Software or Trade Secret.

"Issuers" means the collective reference to each issuer of any Investment Property.

"Patent Licenses" means all agreements, whether written or oral, providing for the grant by or to any Grantor of any right to manufacture, use or sell any invention covered in whole or in part by a Patent, including, without limitation, any of the foregoing referred to in Schedule 4.08.

"Patents" means (i) all letters patent of the United States, any other country or any political subdivision thereof, all reissues and extensions thereof and all goodwill associated therewith, including, without limitation, any of the foregoing referred to in Schedule 4.08, (ii) all applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof, including, without limitation, any of the foregoing referred to in Schedule 4.08, and (iii) all rights to obtain any reissues or extensions of the foregoing.

"Pledged Commodity Contracts" means all commodity contracts listed on Schedule 4.06 and all other commodity contracts to which any Grantor is party from time to time.

"Pledged Debt Securities" means all debt securities now owned or hereafter acquired by any Grantor, including, without limitation, the debt securities listed on Schedule 4.06, together with any certificates, options, rights or security entitlements of any nature whatsoever in respect of the debt securities of any Person that may at any time be issued or granted to, or held by, any Grantor.

"Pledged Equity Interests" shall mean all Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests.

"Pledged LLC Interests" means all interests of any Grantor now owned or hereafter acquired in any limited liability company including, without limitation, all limited liability company interests listed on Schedule 4.06 hereto under the heading "Pledged LLC Interests" and the certificates, if any, representing such limited liability company interests and any interest of such Grantor on the books and records of such limited liability company and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such limited liability company interests and any other warrant, right or option to acquire any of the foregoing.

"Pledged Notes" means all Intercompany Notes at any time issued to any Grantor and all other promissory notes issued to or held by any Grantor, including, without limitation, the Pledged Notes described on Schedule 4.06.

4

"Pledged Partnership Interests" means all interests of any Grantor now owned or hereafter acquired in any general partnership, limited partnership, limited liability partnership or other partnership including, without limitation, all partnership interests listed on Schedule 4.06 hereto under the heading "Pledged Partnership Interests" and the certificates, if any, representing such partnership interests and any interest of such Grantor on the books and records of such partnership and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such partnership interests and any other warrant, right or option to acquire any of the foregoing.

"Pledged Securities" means the collective reference to the Pledged Debt Securities, the Pledged Notes and the Pledged Equity Interests.

"Pledged Security Entitlements" means all security entitlements with respect to the financial assets listed on Schedule 4.06 and all other security entitles of any Grantor.

"Pledged Stock" means all shares of Capital Stock now owned or hereafter acquired by any Grantor, including, without limitation, all shares of Capital Stock described on Schedule 4.06 hereto under the heading "Pledged Stock", and the certificates, if any, representing such shares and any interest of such Grantor in the entries on the books of the issuer of such shares and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares and any other warrant, right or option to acquire any of the foregoing.

"Pledged Trust Interests" means all interests of any Grantor now owned or hereafter acquired in a Delaware business trust or other trust including, without limitation, all trust interests listed on Schedule 4.06 hereto under the heading "Pledged Trust Interests" and the certificates, if any, representing such trust interests and any securities intermediary pertaining to such interests and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such trust interests and any other warrant, right or option to acquire any of the foregoing.

"Proceeds" shall mean all "proceeds" as defined in Article 9 of the UCC and, in any event, includes, without limitation, (i) all payments, dividends or distributions made with respect to any Investment Property, (ii) whatever is receivable or received when Collateral or proceeds are sold, exchanged, collected or otherwise disposed of, whether such disposition is voluntary or involuntary, and (iii) all insurance proceeds.

"Receivable" means any right to payment for goods sold or leased or for services rendered, whether or not such right is evidenced by an instrument or chattel paper and whether or not it has been earned by performance (including, without limitation, any Account).

"Secured Parties" has the meaning specified in the recitals hereto.

"Securities Account Control Agreement" has the meaning specified in Section 5.01(d).

"Securities Act" means the Securities Act of 1933, as amended.

"Trademark Licenses" means any agreement, whether written or oral, providing for the grant by or to any Grantor of any right to use any Trademark, including, without limitation, any of the foregoing referred to in Schedule 4.08.

5

"Trademarks" means (i) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, or otherwise, and all common-law rights related thereto, including, without limitation, any of the foregoing referred to in Schedule 4.08, and (ii) the right to obtain all renewals thereof.

"Trade Secrets" means all confidential and proprietary information, including, without limitation, know-how, trade secrets, manufacturing and production processes and techniques, inventions, research and development information, databases and data, including, without limitation, technical data, financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and information.

"UETA" means the Uniform Electronic Transactions Act, as in effect in any applicable jurisdiction.

"UCC" means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, that if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

"Uncertificated Security Control Agreement" has the meaning specified in Section 5.01(c).

Section 1.02.              Other Definitional Provisions. The rules of construction specified in Sections 1.2, 1.3 and 1.4 of the Note Purchase Agreement shall apply to this Agreement, mutatis mutandis.

(a)              The expressions "payment in full," "paid in full" and any other similar terms or phrases when used herein with respect to the Guaranteed Obligations shall mean the unconditional, final, indefeasible and irrevocable payment in full, in immediately available funds, of all of the Guaranteed Obligations.

(b)              Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.

ARTICLE II

[RESERVED]

ARTICLE II

GRANT OF SECURITY INTEREST

Section 3.01.        Grant of Security. Each Grantor hereby assigns and transfers to the Agent, and hereby grants to the Agent, for the benefit of the Secured Parties, a security interest in, all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the "Collateral"), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Guaranteed Obligations (as defined in the Limited Guaranty):

6

(a)              all Accounts;

(b)              all as-extracted collateral;

(c)              all chattel paper;

(d)              all commercial tort claims, including those described on Schedule 4.10;

(e)              all deposit accounts;

(f)              all documents;

(g)              all Equipment;

(h)              all fixtures;

(i)               all General Intangibles;

(j)               all goods;

(k)              all instruments;

(l)               all Intellectual Property;

(m)             all Inventory;

(n)              all Investment Property;

(o)              all money;

(p)              all supporting obligations;

(q)              all real property and all other personal property of any kind or character, whether tangible or intangible;

(r)              all books and records pertaining to the Collateral; and

(s)              to the extent not otherwise included, all Proceeds and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

To induce the Noteholders to make the Loans under the Note Purchase Agreement, each Grantor hereby represents and warrants, to the Agent and each other Secured Party that as of the date of this Agreement (and such other times that Grantors are required to make these representations and warranties under this Agreement or another Note Purchase Document):

7

Section 4.01.           Title; No Other Liens. Except for the security interest granted to the Agent, for the benefit of the Secured Parties, pursuant to this Agreement or any other Note Purchase Document and the other Liens expressly permitted to exist on the Collateral pursuant to the Note Purchase Agreement, such Grantor is the legal and beneficial owner of each item of the Collateral free and clear of any and all Liens, claims, or other encumbrances. No financing statement, fixture filing or other public notice with respect to all or any part of the Collateral is on file or of record in any filing or recording office, except such as have been filed in favor of the Agent, for the benefit of the Secured Parties, pursuant to this Agreement or any other Note Purchase Document or as are otherwise expressly permitted under the Note Purchase Agreement.

Section 4.02.            Perfected Priority Liens.

(a)              The security interests granted pursuant to this Agreement (i) upon completion of the filings and other actions specified on Schedule 4.01 (which, in the case of all filings and other documents referred to on said Schedule, have been delivered to the Agent in completed and duly executed form and may be filed by the Agent at any time) will constitute valid perfected security interests in all of the Collateral in favor of the Agent, for the benefit of the Secured Parties, as collateral security for the Guaranteed Obligations, enforceable in accordance with the terms hereof against all creditors of such Grantor and any Persons purporting to purchase any Collateral from such Grantor and (ii) are prior to all other Liens on the Collateral except for (A) unrecorded Liens expressly permitted by the Note Purchase Agreement which have priority over the Liens on the Collateral by operation of law and (B) Liens described on Schedule 4.02.

(b)              Without limiting Section 4.02(a), each Grantor has taken all actions necessary or desirable, to the extent required by the Note Purchase Documents or requested by the Agent, including without limitation those specified in Section 5.01 of this Agreement to: (i) establish the Agent’s "control" (within the meanings of Sections 8-106 and 9-106 of the UCC) over any portion of the Investment Property of such Grantor constituting certificated securities, uncertificated securities, securities accounts, security entitlements, or commodity accounts or commodity contracts, (ii) establish the Agent’s "control" (within the meaning of Section 9-104 of the UCC) over all deposit accounts of such Grantor, (iii) establish the Agent’s "control" (within the meaning of Section 9-107 of the UCC) over all letter-of-credit rights of such Grantor, (iv) establish the Agent’s "control" (within the meaning of Section 9-105 of the UCC) over all electronic chattel paper of such Grantor and (v) establish the Agent’s "control" within the meaning of Section 16 of the UETA over all "transferable records" (as defined in UETA) of such Grantor.

(c)              All tangible chattel paper, instruments and negotiable documents of each Grantor has been delivered to the Agent.

Section 4.03.            Chief Executive Office; Etc.

(a)             Each Grantor’s type of organization, jurisdiction of organization, organizational identification number, taxpayer identification number and the location of each Grantor’s chief executive office or sole place of business, as the case may be, are specified on Schedule 4.03.

(b)              Such Grantor’s exact legal name is set forth on Schedule 4.03 and such Grantor has not conducted business in the last five (5) years, and does not conduct business, under any other name (including any trade-name or fictitious business name) except for those names listed on Schedule 4.03.

(c)              Except as provided in Schedule 4.03, such Grantor has not changed its name, jurisdiction of organization, organizational identification number, type of organization, taxpayer identification number, chief executive office or sole place of business or its organizational structure in any way (e.g., by merger, consolidation, change in organizational form or otherwise) within the past five (5) years.

8

(d)              Such Grantor has not within the last five (5) years become bound (whether by merger or otherwise) as a debtor under a security agreement entered into by another Person, which has not been terminated other than security agreements identified on Schedule 4.03.

(e)              With respect to each security agreement identified on Schedule 4.03 pursuant to Section 4.04(d), such Grantor has set forth on Schedule 4.03 the information required pursuant to clauses (a), (b) and (c) of this Section for the debtor under each such security agreement.

(f)              All actions and consents, filings, notices, registrations, and recordings necessary or desirable for the exercise by the Agent of the voting or other rights provided for in this Agreement or the exercise of remedies in respect of the Collateral have been taken, made or obtained or, in the case of filings or recordings, authorized.

(g)              The information on Schedule 4.03 with respect to such Grantor is true and correct in all respects.

(h)              All information supplied by such Grantor to the Agent with respect to the Collateral is accurate and complete.

Section 4.04.            Inventory and Equipment.

(a)              All of the Inventory and the Equipment of such Grantor is kept at the locations listed on Schedule 4.04.

(b)              None of the Inventory or Equipment of such Grantor is in the possession of an issuer of a negotiable document (as defined in Section 7-104 of the UCC) therefor or otherwise in the possession of a bailee or warehouseman.

(c)              All Equipment of such Grantor that is subject to a certificate of title statute is described on Schedule 4.04.

Section 4.05.             Farm Products. None of the Collateral constitutes, or is the Proceeds of, farm products.

Section 4.06.             Investment Property

(a)              Schedule 4.06 hereto sets forth under the headings "Pledged Stock," "Pledged LLC Interests," "Pledged Partnership Interests" and "Pledged Trust Interests," respectively, all of the Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests owned by each Grantor and such Pledged Equity Interests constitute the percentage of issued and outstanding shares of stock, percentage of membership interests, percentage of partnership interests or percentage of beneficial or ownership interests of the respective Issuers thereof indicated on such Schedule.

(b)              Schedule 4.06 hereto sets forth under the heading "Pledged Debt Securities" or "Pledged Notes" all of the Pledged Debt Securities and Pledged Notes owned by each Grantor and (i) each such Pledged Debt Security and Pledged Note has been duly authorized, authenticated or issued, and delivered and is the legal, valid and binding obligation of the Issuer thereof enforceable against such Issuer in accordance with its terms, and (ii) the Issuer of each such Pledged Debt Security is not in default of any of its obligations thereunder.

9

(c)              Each of the Pledged Equity Interests owned by such Grantor has been duly authorized and validly issued and is fully paid and nonassessable.

(d)              Such Grantor is the record and beneficial owner of, and has good and marketable title to, the Pledged Equity Interests pledged by it hereunder, free and clear of any and all Liens or options in favor of, or claims of, any other Person, except the security interest created by this Agreement, and there are no outstanding preemptive rights, warrants, options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, Pledged Equity Interests.

(e)              No consent of any Person, including any other general or limited partner, any other member of a limited liability company, any other shareholder or any other trust beneficiary is necessary or desirable in connection with the creation, perfection or first priority status of the security interest of the Agent hereunder in any Pledged Equity Interests or the exercise by the Agent of the voting or other rights provided for in this Agreement or the exercise of remedies in respect thereof.

(f)              All certificated securities owned by such Grantor have been delivered to the Agent.

(g)              The terms of each Pledged Partnership Interest and Pledged LLC Interest expressly provide that they are securities governed by Article 8 of the Uniform Commercial Code.

Section 4.07.            Receivables.

(a)              Each Receivable (i) is and will be the legal, valid and binding obligation of the account debtor in respect thereof, (ii) is and will be enforceable in accordance with its terms, (iii) is and will not be subject to any setoffs, defenses, taxes or counterclaims (except with respect to disputes, refunds, returns, discounts and allowances in the ordinary course of business) and (iv) is and will be in compliance with all Requirements of Law.

(b)              No amount payable to such Grantor under or in connection with any Receivable is evidenced by any certificated security, instrument or tangible chattel paper that has not been delivered to the Agent or constitutes electronic chattel paper that has not been subjected to the control (within the meaning of Section 9-105 of the UCC) of the Agent.

(c)              None of the obligors on any of the Receivables is a Governmental Authority.

(d)              The amounts represented by such Grantor to the Agent from time to time as owing to such Grantor in respect of the Receivables will at such times be accurate.

Section 4.08.             Intellectual Property.

(a)              The operation of such Grantor’s business as currently conducted or as contemplated to be conducted and the use of the Intellectual Property in connection therewith do not conflict with, infringe, misappropriate, dilute, misuse or otherwise violate the intellectual property rights of any third party.

(b)               Except as set forth on Schedule 4.08, such Grantor is the exclusive owner of all right, title and interest in and to the Intellectual Property, and is entitled to use all Intellectual Property subject only to the terms of the IP Agreements.

10

(c)              The Intellectual Property set forth on Schedule 4.06 hereto includes all of the patents, patent applications, domain names, trademark registrations and applications, copyright registrations and applications and IP Agreements owned by such Grantor.

(d)              The Intellectual Property is subsisting and has not been adjudged invalid or unenforceable in whole or part, and to the best of such Grantor’s knowledge, is valid and enforceable. Such Grantor is not aware of any uses of any item of Intellectual Property that could be expected to lead to such item becoming invalid or unenforceable.

(e)              Such Grantor has made or performed all filings, recordings and other acts and has paid all required fees and taxes to maintain and protect its interest in each and every item of Intellectual Property in full force and effect throughout the world, and to protect and maintain its interest therein including, without limitation, recordations of any of its interests in the Patents and Trademarks with the United States Patent and Trademark Office and in corresponding national and international patent offices, and recordation of any of its interests in the Copyrights with the United States Copyright Office and in corresponding national and international copyright offices. Such Grantor has used proper statutory notice in connection with its use of each patent, trademark and copyright in the Intellectual Property.

(f)              No claim, action, suit, investigation, litigation or proceeding has been asserted or is pending or threatened against such Grantor (i) based upon or challenging or seeking to deny or restrict the Grantor’s rights in or use of any of the Intellectual Property, (ii) alleging that the Grantor’s rights in or use of the Intellectual Property or that any services provided by, processes used by, or products manufactured or sold by, such Grantor infringe, misappropriate, dilute, misuse or otherwise violate any patent, trademark, copyright or any other proprietary right of any third party, or (iii) alleging that the Intellectual Property is being licensed or sublicensed in violation or contravention of the terms of any license or other agreement. To the best of Grantor’s knowledge, no Person is engaging in any activity that infringes, misappropriates, dilutes, misuses or otherwise violates the Intellectual Property or the Grantor’s rights in or use thereof. Except as set forth on Schedule 4.06 hereto, such Grantor has not granted any license, release, covenant not to sue, non-assertion assurance, or other right to any Person with respect to any part of the Intellectual Property. The consummation of the transactions contemplated by the Note Purchase Documents will not result in the termination or impairment of any of the Intellectual Property.

(g)              To the best of Grantor’s knowledge, with respect to each IP Agreement: (i) such IP Agreement is valid and binding and in full force and effect and represents the entire agreement between the respective parties thereto with respect to the subject matter thereof; (ii) such IP Agreement will not cease to be valid and binding and in full force and effect on terms identical to those currently in effect as a result of the rights and interest granted herein, nor will the grant of such rights and interest constitute a breach or default under such IP Agreement or otherwise give any party thereto a right to terminate such IP Agreement; (iii) such Grantor has not received any notice of termination or cancellation under such IP Agreement; (iv) such Grantor has not received any notice of a breach or default under such IP Agreement, which breach or default has not been cured; (v) such Grantor has not granted to any other third party any rights, adverse or otherwise, under such IP Agreement; and (vi) neither such Grantor nor any other party to such IP Agreement is in breach or default thereof in any material respect, and no event has occurred that, with notice or lapse of time or both, would constitute such a breach or default or permit termination, modification or acceleration under such IP Agreement.

(h)              To the best of such Grantor’s knowledge, (A) none of the Trade Secrets of such Grantor has been used, divulged, disclosed or appropriated to the detriment of such Grantor for the benefit of any other Person other than such Grantor; (B) no employee, independent contractor or agent of such Grantor has misappropriated any trade secrets of any other Person in the course of the performance of his or her duties as an employee, independent contractor or agent of such Grantor; and (C) no employee, independent contractor or agent of such Grantor is in default or breach of any term of any employment agreement, non-disclosure agreement, assignment of inventions agreement or similar agreement or contract relating in any way to the protection, ownership, development, use or transfer of such Grantor’s Intellectual Property.

11

(i)              No Grantor or Intellectual Property is subject to any outstanding consent, settlement, decree, order, injunction, judgment or ruling restricting the use of any Intellectual Property or that would impair the validity or enforceability of such Intellectual Property.

Section 4.09.            Securities Accounts, Commodities Accounts and Deposit Accounts.

(a)              Schedule 4.09 sets forth under the headings "Securities Accounts" and "Commodities Accounts," respectively, all of the securities accounts and commodities accounts in which each Grantor has an interest. Each Grantor is the sole entitlement holder of each such securities account and commodity account shown opposite its name on Schedule 4.09, and such Grantor has not consented, to, and is not otherwise aware of, any Person (other than the Agent pursuant hereto) having "control" (within the meanings of Sections 8-106 and 9-106 of the UCC) over, or any other interest in or claim against, any such securities account or commodity account or any securities, commodities or other property credited thereto.

(b)              Schedule 4.09 sets forth under the heading "Deposit Accounts" all of the deposit accounts in which each Grantor has an interest. Each Grantor is the sole account holder of each such deposit account shown opposite its name on Schedule 4.09 and such Grantor has not consented to, and is not otherwise aware of, any Person (other than the Agent pursuant hereto) having "control" (within the meaning of Section 9-104 of the UCC) over, or any other interest in or claim against, any such deposit account or any money or other property deposited therein.

Section 4.10.            Commercial Tort Claims. Such Grantor has no commercial tort claims other than (a) those listed on Schedule 4.10, or (b) as to which the actions required by Section 5.11 have been taken.

Section 4.11.            Letters of Credit. Such Grantor is not a beneficiary or assignee under any letter of credit, other than the letters of credit described in Schedule 4.11, and legal, binding and enforceable consents, in substantially the form of the Consent to Assignment of Letter of Credit Rights, are in effect for each letter of credit in which such Grantor has rights. Such Grantor has instructed all issuers and nominated Persons under letters of credit in which such Grantor is the beneficiary or assignee to make all payments thereunder to a Collateral Account.

Section 4.12.            Independent Investigation; Etc. Such Grantor has, independently and without reliance upon any Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Such Grantor will benefit directly and indirectly from its execution and delivery of this Agreement and from the making of the Loans by the Noteholders under the Note Purchase Agreement. There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived.

Section 4.13.           Assigned Agreements.

(a)              No consent of any party (other than such Grantor) to any Assigned Agreement is required, or purports to be required, in connection with the execution, delivery and performance of this Agreement.

12

(b)              Each Assigned Agreement has been duly authorized, executed and delivered by each of the parties thereto, is in full force and effect, and constitutes a valid and legally enforceable obligation of the parties thereto, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law).

(c)              No consent or authorization of, filing with or other act by or in respect of any Governmental Authority is required in connection with the execution, delivery, performance, validity or enforceability of any of the Assigned Agreements by any party thereto other than those which have been duly obtained, made or performed, are in full force and effect and do not subject the scope of any such Assigned Agreement to any limitation, either specific or general in nature.

(d)              Neither such Grantor nor (to the best of such Grantor’s knowledge) any of the other parties to the Assigned Agreements is in default in the performance or observance of any of the terms thereof in any manner that, in the aggregate, could reasonably be expected to have a Material Adverse Effect.

(e)              The right, title and interest of such Grantor in, to and under the Assigned Agreements are not subject to any defenses, offsets, recoupments, counterclaims or claims that, in the aggregate, could reasonably be expected to have a Material Adverse Effect.

(f)              Such Grantor has delivered to the Agent a complete and correct copy of each Assigned Agreement, including all amendments, supplements and other modifications thereto.

(g)              No amount payable to such Grantor under or in connection with any Assigned Agreement is evidenced by any instrument or chattel paper that has not been delivered to the Agent.

(h)              None of the parties to any Assigned Agreement is a Governmental Authority.

(i)              If requested by the Agent, each party to the Assigned Agreements (other than a Grantor) has executed and delivered to the Agent a consent in substantially the form of Annex 4 hereto, to the assignment of the Assigned Agreements to the Agent, for the benefit of the Secured Parties, pursuant to this Agreement.

ARTICLE V

COVENANTS

Each Grantor covenants and agrees with the Secured Parties that, from and after the date of this Agreement until the Guaranteed Obligations shall have been paid and performed in full:

Section 5.01.         Delivery and Control of Instruments, Investment Property, Negotiable Documents, Chattel Paper, Letter-of-Credit Rights, and Transferable Records.

(a)           If any of the Collateral is or shall become evidenced by any instrument, certificated security, negotiable document or tangible chattel paper, such Grantor shall immediately deliver such instrument, certificated security, negotiable document or tangible chattel paper to the Agent, duly indorsed in a manner satisfactory to the Agent, to be held as Collateral pursuant to this Agreement.

13

(b)              If any of the Collateral is or shall become electronic chattel paper, such Grantor shall ensure that (i) a single authoritative copy exists which is unique, identifiable, and unalterable (except as provided in clauses (iii), (iv) and (v) of this Section 5.01(b)), (ii) such authoritative copy identifies the Agent as the assignee and is communicated to and maintained by the Agent or its designee, (iii) copies or revisions that add or change the assignee of the authoritative copy can only be made with the participation of the Agent, (iv) each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy and not the authoritative copy and (v) any revision of the authoritative copy is readily identifiable as an authorized or unauthorized revision.

(c)              If any of the Collateral is or shall become evidenced or represented by an uncertificated security, such Grantor shall immediately cause the Issuer thereof either (i) to register the Agent as the registered owner of such uncertificated security, upon original issue or registration of transfer or (ii) to agree in writing with such Grantor and the Agent that such Issuer will comply with instructions with respect to such uncertificated security originated by the Agent without further consent of such Grantor, such agreement to be in form and substance satisfactory to the Agent (each such agreement being an "Uncertificated Security Control Agreement").

(d)              With respect to any Investment Property of such Grantor consisting of a securities account or security entitlement, such Grantor shall, at the request of the Agent, enter into, and shall cause the securities intermediary maintaining such securities account or security entitlement to enter into, a control agreement with the Agent in form and substance satisfactory to the Agent pursuant to which such securities intermediary shall agree to comply with the entitlement orders and other instructions originated by the Agent without further consent of such Grantor (each such agreement being a "Securities Account Control Agreement").

(e)              With respect to any Investment Property of such Grantor consisting of a commodity account or commodity contract, such Grantor shall, at the request of the Agent, enter into, and shall cause the commodity intermediary maintaining such commodity account or commodity contract to enter into, a control agreement with the Agent in form and substance satisfactory to the Agent, pursuant to which such commodity intermediary shall agree to comply with the Agent’s instructions to apply any value distributed on account of any commodity contract carried in the commodity account or other directions concerning the commodity account originated by the Agent, in each case without further consent by such Grantor (each such agreement being a "Commodity Account Control Agreement").

(f)              With respect to each deposit account of such Grantor, such Grantor shall, at the request of the Agent, enter into, and shall cause the bank maintaining such deposit account to enter into, a control agreement with the Agent in form and substance satisfactory to the Agent pursuant to which such bank shall agree to comply with instructions originated by the Agent directing the disposition of funds in such deposit account without further consent by such Grantor (such agreement being a "Deposit Account Control Agreement").

(g)              With respect to any letter-of-credit rights of such Grantor, such Grantor shall, at the request of the Agent, obtain the consent of the issuer thereof and any nominated Person thereon to the assignment of the proceeds of the related letter of credit to the Agent in accordance with Section 5-114(c) of the UCC, such consent to be in form and substance satisfactory to the Agent (each such consent being a "Consent to Assignment of Letter of Credit Rights").

(h)              Each Grantor shall, at the request of the Agent, enter into Control Agreements with respect to any securities accounts, security entitlements, commodity contracts, commodity accounts, and deposit accounts that are created or acquired after the Closing Date, as of or prior to the deposit or transfer of any such security entitlements, commodity contracts or funds into such securities accounts, commodity accounts or deposit accounts.

14

(i)              Such Grantor will maintain all transferable records (as such term is defined in the UETA) so that the Agent has control of the transferable records in the manner specified in Section 16 of the UETA.

(j)              Upon the request of the Agent, such Grantor will notify each Issuer of Investment Property that such Investment Property is subject to the security interest granted hereunder.

(k)              In addition to and not in lieu of the foregoing, if any Issuer of any Investment Property is organized under the law of, or has its chief executive office in, a jurisdiction outside of the United States, each Grantor shall take such additional actions, including, without limitation, causing the Issuer to register the pledge on its books and records, as may be necessary or as may be requested by the Agent, under the laws of such jurisdiction to ensure the validity, perfection and priority of the security interest of the Agent.

Section 5.02.            Maintenance of Insurance.

(a)              Each Grantor will maintain (or cause to be maintained), with financially sound and reputable companies, insurance policies (i) insuring its Inventory and Equipment against loss by fire, explosion, theft and such other casualties as may be reasonably satisfactory to the Agent and (ii) insuring such Grantor, the Agent and the other Secured Parties against liability for personal injury and property damage relating to such Inventory and Equipment, such policies to be in such form and amounts and having such coverage as may be reasonably satisfactory to the Agent. Such Grantor shall, if so requested by the Agent, deliver to the Agent original or duplicate copies of such policies of insurance.

(b)              Each such policy of insurance shall (i) provide that no cancellation, lapse, expiration, reduction in amount or change in coverage thereof shall be effective until at least 30 days after receipt by the Agent of written notice thereof; provided that the foregoing shall be satisfied if such Grantor uses commercially reasonable efforts to obtain such terms, (ii) in the case of liability insurance, provide for all losses to be paid to such Grantor and the Secured Parties as their interests may appear, and (iii) be reasonably satisfactory in all other respects to the Agent.

(c)                If an Event of Default shall have occurred and be continuing, the Agent shall have the sole right, in the name of the Grantor or in its own name, to file claims under any insurance policies, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.

Section 5.03.               Payment of Indebtedness. Each Grantor will pay and discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of income or profits therefrom, as well as all claims of any kind (including, without limitation, claims for labor, materials and supplies) against or with respect to the Collateral, except that no such charge need be paid if the amount or validity thereof is currently being contested in good faith by appropriate proceedings, reserves in conformity with GAAP with respect thereto have been provided on the books of such Grantor and such proceedings could not reasonably be expected to result in the sale, forfeiture or loss of any portion of the Collateral or any interest therein.

Section 5.04.               Maintenance of Perfected Security Interest; Limitation on Dispositions; Further Documentation; Inspection; Etc.

15

(a)              Such Grantor shall, at its sole cost and expense, maintain the security interest created under this Agreement as a perfected security interest having at least the priority described in Section 4.02 and shall defend such security interest against the claims and demands of all Persons whomsoever.

(b)              Such Grantor shall not sell, assign, transfer, lease, or otherwise dispose of, or abandon or permit a lapse of, or grant or permit any Lien on, any of the Collateral or any interest therein, except as expressly permitted by the Note Purchase Agreement.

(c)              Such Grantor will furnish to the Agent from time to time statements and schedules further identifying and describing the Collateral and other assets and property of such Grantor and such other reports in connection therewith as the Agent may reasonably request, all in such detail as the Agent may specify.

(d)              At any time and from time to time, upon the written request of the Agent, and at the sole cost and expense of such Grantor, such Grantor will promptly and duly authorize, execute and deliver, and have recorded, all further instruments and documents and take all further actions as may be necessary or desirable or that the Agent may request for the purpose of perfecting or protecting the assignments and security interests granted hereunder and obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, (i) executing and filing any financing or continuation statements under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interests created hereby, (ii) delivering and pledging to the Agent for the benefit of the Secured Parties certificates representing the Pledged Equity Interests that constitute certificated securities, accompanied by undated stock powers executed in blank, (iii) complying with any Requirement of Law (including the Federal Assignment of Claims Act) as to any Collateral if such compliance is deemed necessary or advisable by the Agent for the attachment, perfection or priority of, or the ability of the Agent to enforce, the Agent’s security interest in such Collateral, (iv) obtaining consents and approvals from any Governmental Authority or other Person, including without limitation any consent of any licensor, lessor or other Person obligated on Collateral, and (v) obtaining waivers from mortgagees, lessors, landlords, warehousemen, and repairmen in form and substance satisfactory to the Agent.

(e)              Such Grantor shall permit the Agent, or its designee, to inspect and audit the Collateral at any reasonable time or times, wherever located; provided, however, that unless an Event of Default has occurred and is continuing, Agent shall provide at least three (3) business days’ notice. Such Grantor shall reimburse the Agent on demand for all reasonable and necessary costs and expenses incurred by the Agent in connection with inspections and audits of Collateral; provided, however, that Grantor shall not be obligated to reimburse the Agent for such costs and expenses for more than two (2) such inspections and audits during each fiscal year unless an Event of Default has occurred and is continuing.

(f)              Such Grantor shall not take or permit any action that could impair the Agent’s rights in the Collateral or the perfection or priority of the security interests created hereunder.

Section 5.05.            Changes in Locations; Name; Jurisdiction of Incorporation; Etc. Such Grantor will not, except upon thirty (30) days’ prior written notice to the Agent and (a) taking all action required by the Agent to maintain the validity, perfection and priority of the security interests provided for herein and (b) if applicable, delivery to the Agent of a written supplement to Schedule 4.03 showing any additional location at which Inventory or Equipment shall be kept (which supplement may be attached to Schedule 4.03 by the Agent):

16

(i)              permit any of the Inventory or Equipment to be kept at a location other than those listed on Schedule 4.04; or

(ii)              change its name, type of organization, jurisdiction of organization, organizational identification number, federal taxpayer identification number, or the location of its chief executive office or sole place of business from that referred to in Schedule 4.03.

Section 5.06.             Notices. Such Grantor will advise the Agent immediately, in reasonable detail, of:

(a)              any Lien (other than security interests created hereby or Liens permitted under the Note Purchase Agreement) on any of the Collateral which would adversely affect the ability of the Agent to exercise any of its remedies hereunder; and

(b)              the occurrence of any other event which could reasonably be expected to have a material adverse effect on the aggregate value of the Collateral or on the security interests created hereunder.

Section 5.07.            Investment Property.

(a)              Without the prior written consent of the Agent, such Grantor will not (i) vote to enable, or take any other action to permit, any Issuer to issue any Capital Stock of any nature or to issue any other securities, obligations, rights, or other interests convertible into or granting the right to purchase or exchange for any Capital Stock of any nature of any Issuer, (ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any option with respect to, any of the Investment Property or Proceeds thereof (except, in each case, pursuant to a transaction expressly permitted by the Note Purchase Agreement), (iii) create, incur or permit to exist any Lien or option in favor of, or any claim of any Person with respect to, any of the Investment Property or Proceeds thereof, or any interest therein, except for the security interests created by this Agreement or (iv) enter into any agreement or undertaking restricting the right or ability of such Grantor or the Agent to sell, assign or transfer any of the Investment Property or Proceeds thereof.

(b)              In the case of each Grantor which is an Issuer, such Issuer agrees that (i) it will be bound by the terms of this Agreement relating to the Investment Property issued by it and will comply with such terms insofar as such terms are applicable to it, (ii) it will notify the Agent promptly in writing of the occurrence of any of the events described in clause (A), (B) or (C) of Section 6.03(a)(ii) with respect to the Investment Property issued by it and (iii) the terms of Sections 6.03(d) and 6.06 shall apply to it, mutatis mutandis, with respect to all actions that may be required of it pursuant to Section 6.03(d) or 6.06 with respect to the Investment Property issued by it. In addition, each Grantor which is either an Issuer or an owner of any Investment Property consents to the grant by each other Grantor of the security interest hereunder in favor of the Agent and to the transfer of any Investment Property to the Agent or its nominee upon the occurrence or during the continuation of an Event of Default and to the substitution of the Agent or its nominee as a partner, member or shareholder of the Issuer of the related Investment Property.

(c)              Such Grantor shall comply with all of its obligations under each Organic Document governing or relating to Pledged Securities and shall enforce all of its rights with respect to any Investment Property.

17

Section 5.08.             Inventory and Equipment.

(a)              In producing its Inventory, such Grantor will comply with all Requirements of Law, including, without limitation, the Fair Labor Standards Act. Such Grantor shall maintain all of its Inventory in good saleable and usable condition.

(b)              Such Grantor will cause the Equipment of such Grantor to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and in accordance with any manufacturer’s manual relating thereto, and will forthwith, or in the case of any loss or damage to any of such Equipment as soon as practicable after the occurrence thereof, make or cause to be made all repairs, replacements and other improvements in connection therewith that are necessary or desirable to such end.

(c)              Such Grantor shall not deliver any document evidencing any Equipment or Inventory to any Person other than the issuer of such document to claim the goods evidenced thereby or the Agent.

(d)              If any Equipment or Inventory having a value in excess of $25,000 individually or $100,000 in the aggregate is in the possession or control of a third party, including, without limitation, any warehouseman, bailee or agent, such Grantor shall immediately notify the Agent thereof and shall join with the Agent in promptly notifying the third party of the Agent’s security interest and obtaining a written acknowledgment from the third party that it is holding the Equipment or Inventory for the benefit, and subject to the security interest, of the Agent. Such acknowledgment must be satisfactory in form and substance to the Agent.

(e)              With respect to any item of Equipment that is covered by a certificate of title or ownership under a statute of any jurisdiction under the law of which indication of a security interest on such certificate is required as a condition of perfection thereof, such Grantor shall, at the request of the Agent, promptly (i) provide to the Agent information with respect to any such Equipment, (ii) execute and file with the registrar of motor vehicles or other appropriate authority in such jurisdiction an application or other document requesting the notation or other indication of the security interest created hereunder on each such certificate of title, and (iii) deliver to the Agent copies of all such applications or other documents so filed and copies of all such certificates of title issued indicating the security interests created hereunder in the items of Equipment covered thereby.

Section 5.09.            Receivables.

(a)              Other than in the ordinary course of business consistent with its past practice, such Grantor will not (i) grant any extension of the time of payment of any Receivable, (ii) adjust, compromise or settle any Receivable for less than the full amount thereof, (iii) release, wholly or partially, any Person liable for the payment of any Receivable, (iv) allow any credit or discount whatsoever on any Receivable or (v) amend, supplement or modify any Receivable in any manner that could adversely affect the value thereof.

(b)              Such Grantor shall keep and maintain at its own cost and expense satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith.

(c)              Such Grantor shall perform in all material respects all of its obligations with respect to the Receivables.

18

(d)              Such Grantor shall use its best efforts to keep in full force and effect any supporting obligation relating to any Receivable.

(e)              Such Grantor will deliver to the Agent a copy of each demand, notice or document received by it that questions or calls into doubt the validity or enforceability of more than 5% of the aggregate amount of the then outstanding Receivables.

Section 5.10.            Intellectual Property.

(a)            With respect to each item of its Intellectual Property, each Grantor agrees to take, at its expense, all necessary steps, including, without limitation, in the United States Patent and Trademark Office, the United States Copyright Office and any other Governmental Authority, to (i) maintain the validity and enforceability of such Intellectual Property and maintain such Intellectual Property in full force and effect, and (ii) pursue the registration and maintenance of each patent, trademark, or copyright registration or application, now or hereafter included in such Intellectual Property of such Grantor, including, without limitation, the payment of required fees and taxes, the filing of responses to office actions issued by the United States Patent and Trademark Office, the United States Copyright Office or other Governmental Authorities, the filing of applications for renewal or extension, the filing of affidavits under Sections 8 and 15 of the United States Trademark Act, the filing of divisional, continuation, continuation-in-part, reissue and renewal applications or extensions, the payment of maintenance fees and the participation in interference, reexamination, opposition, cancellation, infringement and misappropriation proceedings. No Grantor shall, without the written consent of the Agent, discontinue use of or otherwise abandon any Intellectual Property, or abandon any right to file an application for patent, trademark, or copyright, unless such Grantor shall have previously determined that such use or the pursuit or maintenance of such Intellectual Property is no longer desirable in the conduct of such Grantor’s business and that the loss thereof would not be reasonably likely to have a Material Adverse Effect, in which case, such Grantor will give prompt notice of any such abandonment to the Agent.

(b)               Each Grantor agrees promptly to notify the Agent if such Grantor becomes aware (i) that any item of the Intellectual Property may have become abandoned, placed in the public domain, invalid or unenforceable, or of any adverse determination or development regarding such Grantor’s ownership of any of the Intellectual Property or its right to register the same or to keep and maintain and enforce the same, or (ii) of any adverse determination or the institution of any proceeding (including, without limitation, the institution of any proceeding in the United States Patent and Trademark Office or any court) regarding any item of the Intellectual Property.

(c)               In the event that any Grantor becomes aware that any item of the Intellectual Property is being infringed or misappropriated by a third party, such Grantor shall promptly notify the Agent and shall take such actions, at its expense, as such Grantor or the Agent deems reasonable and appropriate under the circumstances to protect or enforce such Intellectual Property, including, without limitation, suing for infringement or misappropriation and for an injunction against such infringement or misappropriation.

(d)               Each Grantor shall use proper statutory notice in connection with its use of each item of its Intellectual Property. No Grantor shall do or permit any act or knowingly omit to do any act whereby any of its Intellectual Property may lapse or become invalid or unenforceable or placed in the public domain.

(e)               Each Grantor shall take all steps which it or the Agent deems reasonable and appropriate under the circumstances to preserve and protect each item of its Intellectual Property, including, without limitation, maintaining the quality of any and all products or services used or provided in connection with any of the Trademarks, consistent with the quality of the products and services as of the date hereof, and taking all steps necessary to ensure that all licensed users of any of the Trademarks use such consistent standards of quality.

19

(f)              With respect to its Intellectual Property, to the extent requested by the Agent on the date hereof or, if applicable, at such later date on which a Grantor becomes party hereto, such Grantor agrees to execute and deliver to the Agent an agreement, in substantially the form set forth in Annex 2 hereto or otherwise in form and substance satisfactory to the Agent (an "Intellectual Property Security Agreement"), for recording the security interest granted hereunder to the Agent in such Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office and any other domestic or foreign Governmental Authorities requested by the Agent to perfect the security interest hereunder in such Intellectual Property.

(g)              Such Grantor agrees that should it obtain an ownership interest in any new or acquired item of Intellectual Property that is not on the date hereof listed on Schedule 4.08 ("After-Acquired Intellectual Property") (i) the provisions of this Agreement shall automatically apply thereto, and (ii) any such After-Acquired Intellectual Property and, in the case of Trademarks, the goodwill symbolized thereby, shall automatically become part of the Collateral subject to the terms and conditions of this Agreement with respect thereto. Within thirty (30) days after the end of each fiscal quarter of such Grantor, each Grantor shall give written notice to the Agent identifying all After-Acquired Intellectual Property acquired during such Fiscal Quarter, if any, and such Grantor shall execute and deliver to the Agent with such written notice, an Intellectual Property Security Agreement, or if such Grantor has already executed an Intellectual Property Security Agreement, Annex 3 hereto or otherwise in form and substance satisfactory to the Agent (an "IP Security Agreement Supplement"), covering such After-Acquired Intellectual Property which Intellectual Property Security Agreement or IP Security Agreement Supplement, as applicable, shall be recorded with the United States Patent and Trademark Office, the United States Copyright Office and any other Governmental Authorities as may be requested by the Agent to evidence and perfect the security interest hereunder in such After-Acquired Intellectual Property. Upon the execution and delivery to the Agent of an Intellectual Property Security Agreement or IP Security Agreement Supplement in accordance with this Section, Schedule 4.08 shall automatically be deemed amended to include the After-Acquired Intellectual Property covered by such IP Security Agreement Supplement.

(h)              Such Grantor shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents.

Section 5.11.             Commercial Tort Claims. If such Grantor shall at any time hold or acquire an interest in any commercial tort claim, then such Grantor shall within fifteen (15) days of obtaining such interest sign and deliver documentation acceptable to the Agent granting a security interest to the Agent in and to such commercial tort claim under the terms and provisions of this Agreement.

Section 5.12.            Assigned Agreements.

(a)              Such Grantor shall at its expense:

(i)              perform and observe all the terms and provisions of the Assigned Agreements to be performed or observed by it, maintain Assigned Agreements to which it is a party in full force and effect, enforce Assigned Agreements to which it is a party in accordance with their respective terms, and take all such action to such end as may be from time to time reasonably requested by the Agent; and

20

(ii)              furnish to the Agent promptly upon receipt thereof copies of all notices, requests and other documents received by such Grantor under or pursuant to the Assigned Agreements to which it is a party, and from time to time (A) furnish to the Agent such information and reports regarding the Assigned Agreements and the other Collateral of such Grantor as the Agent may reasonably request and (B) upon reasonable request of the Agent make to each other party to any Assigned Agreement to which it is a party such demands and requests for information and reports or for action as such Grantor is entitled to make thereunder.

(b)              Such Grantor shall not, except to the extent otherwise expressly permitted under the Note Purchase Agreement:

(i)               cancel or terminate any Assigned Agreement to which it is a party or consent to or accept any cancellation or termination thereof;

(ii)              amend, restate, supplement or otherwise modify any such Assigned Agreement or give any consent, waiver or approval thereunder;

(iii)             waive any default under or breach of any such Assigned Agreement;

(iv)             consent to or permit or accept any prepayment of amounts to become due under or in connection with any such Assigned Agreement, except as expressly provided therein; or

(v)              take any other action in connection with any such Assigned Agreement that would impair the value of the interest or rights of such Grantor thereunder or which would impair the interest or rights of the Agent.

Section 5.13.            Covenants in Note Purchase Agreement.

In the case of each Grantor, such Grantor shall take, or shall refrain from taking, as the case may be, each action that is necessary to be taken or not taken, as the case may be, so that no Default or Event of Default is caused by the failure to take such action or to refrain from taking such action by such Grantor or any of its Subsidiaries.

ARTICLE VI

REMEDIAL PROVISIONS

Section 6.01.           Certain Matters Relating to Receivables.

(a)              The Agent shall have the right to verify the Receivables at any time and from time to time in any manner and through any medium that it considers advisable, and each Grantor shall furnish all such assistance and information as the Agent may require in connection with such test verifications. At any time and from time to time, upon the Agent’s request and at the expense of the relevant Grantor, such Grantor shall furnish to the Agent reports showing reconciliations, aging and test verifications of, and trial balances for, the Receivables. Each Grantor shall provide such information as the Agent may from time to time request regarding the Receivables, including agings and trial balances.

21

(b)              The Agent hereby authorizes each Grantor to collect such Grantor’s Receivables, subject to the Agent’s direction and control, and the Agent may curtail or terminate said authority at any time after the occurrence and during the continuance of an Event of Default. If required by the Agent at any time after the occurrence and during the continuance of an Event of Default, any payments of Receivables, when collected by any Grantor, (i) shall be forthwith (and, in any event, within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Agent if required, in a Collateral Account maintained under the sole dominion and control of the Agent, subject to withdrawal by the Agent for the account of the Secured Parties in accordance with this Agreement and the other Note Purchase Documents, and (ii) until so turned over, shall be held by such Grantor in trust for the Agent and the Secured Parties, segregated from other funds of such Grantor. Each such deposit of Proceeds of Receivables shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.

(c)              At the Agent’s request, each Grantor shall deliver to the Agent all original and other documents evidencing, and relating to, the agreements and transactions which gave rise to the Receivables, including, without limitation, all original orders, invoices and shipping receipts.

Section 6.02.            Communications with Obligors; Grantors Remain Liable.

(a)              The Agent in its own name or in the name of others may at any time communicate with obligors under the Receivables to verify with them to the Agent’s satisfaction the existence, amount and terms of any Receivables.

(b)               Upon the request of the Agent at any time after the occurrence and during the continuance of an Event of Default, each Grantor shall notify obligors on the Receivables and parties to the Assigned Agreements that the Receivables and the Assigned Agreements have been assigned to the Agent for the benefit of the Secured Parties and that payments in respect thereof shall be made directly to the Agent.

(c)               Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each of the Receivables and the Assigned Agreements to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto. Neither the Agent nor any other Secured Party shall have any obligation or liability under any Receivable (or any agreement giving rise thereto) or Assigned Agreement by reason of or arising out of this Agreement or the receipt by the Agent or any other Secured Party of any payment relating thereto, nor shall the Agent or any other Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Receivable (or any agreement giving rise thereto) or Assigned Agreement, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.

Section 6.03.            Voting Rights; Dividends; Etc.

(a)              So long as no Event of Default shall have occurred and be continuing:

(i)              Each Grantor shall be entitled to exercise or refrain from exercising any and all voting and other consensual rights pertaining to the Investment Property of such Grantor or any part thereof for any purpose not inconsistent with terms of this Agreement or any other Note Purchase Document.; provided, however, that such Grantor shall not exercise or refrain from exercising any such right, if such action would have a material adverse effect on the value of the Investment Property or any part thereof.

22

(ii)              Each Grantor shall be entitled to receive and retain any and all dividends, interest and other distributions paid in respect of the Investment Property of such Grantor if and to the extent that the payment thereof is not otherwise prohibited by the terms of this Agreement or any of the other Note Purchase Documents; provided, however, that any and all

(A)              dividends, interest and other distributions paid or payable other than in cash in respect of, and instruments and other property received, receivable or otherwise distributed in respect of, or in exchange for, any Investment Property,

(B)              dividends and other distributions paid or payable in cash in respect of any Investment Property in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in-surplus, and

(C)              cash paid, payable or otherwise distributed in respect of principal of, or in redemption of, or in exchange for, any Investment Property shall be, and shall be forthwith delivered to the Agent to hold as, Collateral and shall, if received by such Grantor, be received in trust for the benefit of the Agent and the other Secured Parties, be segregated from the other property or funds of such Grantor, and be forthwith delivered to the Agent as Collateral in the same form as so received (with any necessary endorsement or assignment).

(iii)              The Agent will execute and deliver (or cause to be executed and delivered) to each Grantor all such proxies and other instruments as such Grantor may reasonably request for the purpose of enabling such Grantor to exercise the voting and other rights that it is entitled to exercise pursuant to Section 6.03(a)(i) above and to receive the dividends or interest payments that it is authorized to receive and retain pursuant to Section 6.03(a)(ii) above.

(b)              If an Event of Default shall have occurred and be continuing:

(i)              All rights of each Grantor (x) to exercise or refrain from exercising the voting and other consensual rights that it would otherwise be entitled to exercise pursuant to Section 6.03(a)(i) shall, upon notice to such Grantor by the Agent, cease and (y) to receive the dividends, interest and other distributions that it would otherwise be authorized to receive and retain pursuant to Section 6.03(a)(ii) shall automatically cease, and all such rights shall thereupon become vested in the Agent, which shall thereupon have the sole right to exercise or refrain from exercising such voting and other consensual rights and to receive and hold as Collateral such dividends, interest and other distributions.

(ii)              All dividends, interest and other distributions that are received by any Grantor contrary to the provisions of Section 6.03(b)(i) shall be received in trust for the benefit of the Agent and the other Secured Parties, shall be segregated from other funds of such Grantor and shall be forthwith paid over to the Agent as Collateral in the same form as so received (with any necessary endorsement or assignment).

23

(c)                The Agent shall have the right at any time to exchange any certificates or instruments representing any Investment Property for certificates or instruments of smaller or larger denominations. In order to permit the Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends, interest and other distributions which it may be entitled to receive hereunder, each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Agent all proxies, dividend payment orders and other instruments as the Agent may from time to time reasonably request and each Grantor acknowledges that the Agent may utilize the power of attorney set forth herein.

(d)                Each Grantor hereby authorizes and instructs each Issuer of any Investment Property pledged by such Grantor hereunder to (i) comply with any instruction received by it from the Agent in writing that (x) states that an Event of Default or Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that each Issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends, distributions or other payments with respect to the Investment Property directly to the Agent.

(e)                If an Event of Default shall have occurred and be continuing, the Agent shall be authorized to send to each securities intermediary, commodity intermediary, bank or Issuer of an uncertificated security that is party to a Control Agreement, a notice that the Agent has exclusive control and dominion under such Control Agreement (or any comparable notice permitted under such Control Agreement).

Section 6.04.              Proceeds to be Turned Over To Agen. In addition to the rights of the Agent specified in Section 6.01 with respect to payments of Receivables, if an Event of Default shall occur and be continuing, all Proceeds received by any Grantor consisting of cash, checks and other near-cash items shall be held by such Grantor in trust for the Agent, segregated from other funds of such Grantor, and shall, immediately upon receipt by such Grantor, be turned over to the Agent in the exact form received by such Grantor (duly indorsed by such Grantor to the Agent, if required). All Proceeds received by the Agent hereunder shall be held by the Agent in a Collateral Account and shall not constitute payment thereof until applied as provided in Section 6.05.

Section 6.05.              Application of Proceeds. If an Event of Default shall have occurred and be continuing, at any time at the Agent’s election, the Agent may apply all or any part of Proceeds constituting Collateral, whether or not held in any Collateral Account, in payment of the Guaranteed Obligations in such order and manner as required pursuant to the Limited Guaranty or as the Agent may elect in its sole discretion.

24

Section 6.06.            Remedies. If any Event of Default shall have occurred and be continuing:

(a)              The Agent, on behalf of the Secured Parties, may exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Guaranteed Obligations, all rights and remedies of a secured party under the UCC (whether or not the UCC applies to the affected Collateral) or any other applicable law or in equity. Without limiting the generality of the foregoing, the Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give an option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Agent or any other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Grantor, which right or equity is hereby waived and released. Each Grantor further agrees, at the Agent’s request, to assemble the Collateral and make it available to the Agent at places which the Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The Agent shall have no obligation to clean-up or otherwise prepare the Collateral for sale. The Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefore, and any such sale may, without further notice, be made at the time and place to which it was adjourned. Each Grantor agrees that it would not be commercially unreasonable for the Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the Agent arising by reason of the fact that the price at which any Collateral may have been sold at a private sale was less than the price which might have been obtained at a public sale, even if the Agent accepts the first offer received and does not offer such Collateral to more than one offeree. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against the Agent or any other Secured Party arising out of the exercise by them of any rights or remedies hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least ten (10) days before any public sale of Collateral or of the time after which any private sale or other disposition of Collateral is intended to be made.

(b)              The Agent may sell the Collateral without giving any warranties as to the Collateral. The Agent may disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral.

(c)              The Agent and its agents may enter upon and occupy any real property owned or leased by any Grantor in order to exercise any of the Agent’s rights and remedies under this Agreement, without any obligation to such Grantor in respect of such entry or occupation.

(d)              For the purpose of enabling the Agent to exercise its rights and remedies hereunder, each Grantor hereby grants to the Agent an irrevocable, non-exclusive worldwide license (exercisable without payment of royalty or other compensation to such Grantor) to use, operate under, assign, license or sublicense any of the Intellectual Property now owned or hereafter acquired by such Grantor, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof.

(e)              The Agent may comply with any applicable Requirement of Law in connection with a disposition of the Collateral or any part thereof and such compliance will not be considered adversely to affect any sale of the Collateral or any part thereof.

(f)              In the event of any sale or other disposition of any of the Intellectual Property of any Grantor, the goodwill symbolized by any Trademarks subject to such sale or other disposition shall be included therein, and such Grantor shall supply to the Agent or its designee such Grantor’s know-how and expertise, and documents and things relating to any Intellectual Property subject to such sale or other disposition, and such Grantor’s customer lists and other records and documents relating to such Intellectual Property and to the manufacture, distribution, advertising and sale of products and services of such Grantor.

(g)              The Agent may apply the balance from any deposit account or instruct the bank at which any deposit account is maintained to pay the balance of any deposit account to or for the benefit of the Agent and the other Secured Parties.

(h)              The Agent shall have no duty to marshal any of the Collateral.

25

Section 6.07.            Registration Rights. If the Agent shall determine to exercise its right to sell any or all of the Pledged Equity Interests or Pledged Debt Securities pursuant to Section 6.06, and if in the opinion of the Agent it is necessary or advisable to have the Pledged Equity Interests or Pledged Debt Securities, or that portion thereof to be sold, registered under the provisions of the Securities Act, the relevant Grantor will cause the Issuer thereof to (i) execute and deliver, and cause the directors and officers (or equivalent managers) of such Issuer to execute and deliver, all such instruments and documents, and do or cause to be done all such other acts as may be, in the opinion of the Agent, necessary or advisable to register the Pledged Equity Interests or Pledged Debt Securities, or that portion thereof to be sold, under the provisions of the Securities Act, (ii) use its best efforts to cause the registration statement relating thereto to become effective and to remain effective for a period of one year from the date of the first public offering of the Pledged Equity Interests or Pledged Debt Securities, or that portion thereof to be sold, and (iii) make all amendments thereto and/or to the related prospectus which, in the opinion of the Agent, are necessary or advisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto. Each Grantor agrees to cause such Issuer to comply with the provisions of the securities or "Blue Sky" laws of any and all jurisdictions which the Agent shall designate and to make available to its security holders, as soon as practicable, an earnings statement (which need not be audited) which will satisfy the provisions of Section 11(a) of the Securities Act.

Each Grantor recognizes that the Agent may be unable to effect a public sale of any or all the Pledged Equity Interests or Pledged Debt Securities, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Agent shall be under no obligation to delay a sale of any of the Pledged Equity Interests or Pledged Debt Securities for the period of time necessary to permit the Issuer thereof to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if such Issuer would agree to do so.

Each Grantor agrees to use its best efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of all or any portion of the Pledged Equity Interests or Pledged Debt Securities pursuant to this Section valid and binding and in compliance with any and all other applicable Requirements of Law. Each Grantor further agrees that a breach of any of the covenants contained in this Section will cause irreparable injury to the Agent and the other Secured Parties, that the Agent and the other Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section shall be specifically enforceable against such Grantor, and such Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred under the Note Purchase Agreement.

Section 6.08.         Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay in full its Guaranteed Obligations and the fees and disbursements of any attorneys employed by any Secured Party to collect such deficiency.

Section 6.09.          Sales on Credit. If the Agent sells any of the Collateral on credit, the applicable Grantor will be credited only with cash payments actually made by the purchaser and received by the Agent and applied to the indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Agent may resell the Collateral and the applicable Grantor shall be credited with the proceeds of the sale.

26

ARTICLE VII

THE AGENT

Section 7.01.            Agent’s Appointment as Attorney-in-Fact; Etc.

(a)              Each Grantor hereby irrevocably constitutes and appoints the Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, from time to time during the existence of an Event of Default, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which the Agent may deem necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following:

(i)              in the name of such Grantor or its own name, or otherwise, take possession of and indorse and collect any checks, drafts, notes, acceptances or other instruments or chattel paper for the payment of moneys due under any Receivable or Assigned Agreement or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Agent for the purpose of collecting any and all such moneys due under any Receivable or Assigned Agreement or with respect to any other Collateral whenever payable;

(ii)              in the case of any Intellectual Property, prepare, sign, deliver, and file for recordation in any Intellectual Property registry any and all agreements, instruments, documents and papers as the Agent may request to evidence and perfect the Agent’s security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby;

(iii)              pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or obtain any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefore and the costs thereof;

(iv)              execute, in connection with any sale provided for in Section 6.06 or 6.07, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and

27

(v)              (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Agent or as the Agent shall direct; (2) ask or demand for, collect, recover and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign and indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (6) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Agent may deem appropriate; (7) assign any Intellectual Property (along with the goodwill of the business to which any such Intellectual Property pertains), throughout the world for such term or terms, on such conditions, and in such manner, as the Agent shall in its sole discretion determine; (8) exercise any and all rights, powers, privileges and remedies of such Grantor under or with respect to the Assigned Agreements or any other Collateral (including all rights of performance, termination, and enforcement); (9) operate, maintain, and repair the Collateral; (10) receive, open and dispose of any and all mail addressed to any Grantor and notify postal authorities to change the address for delivery thereof to such address as the Agent may designate; and (11) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Agent were the absolute owner thereof for all purposes, and do, at the Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Agent deems necessary to protect, preserve or realize upon the Collateral and the Agent’s security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.

Anything in this Section 7.01(a) to the contrary notwithstanding, the Agent agrees that it will not exercise any rights under the power of attorney provided for in this Section 7.01(a) unless an Event of Default shall have occurred and be continuing.

(b)              If any Grantor fails to perform or comply with any of its agreements contained herein or in any other Note Purchase Document, the Agent may, but without any obligation so to do, perform or comply, or otherwise cause performance or compliance, with such agreement.

(c)              The expenses of the Agent incurred in connection with actions undertaken as provided in this Section 7.01, together with interest thereon at a rate per annum equal to the Default Rate (which rate shall not exceed the maximum non-usurious rate permitted by applicable law), from the date of payment by the Agent to the date reimbursed by the relevant Grantor, shall be payable on demand by such Grantor to the Agent.

(d)              Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until this Agreement is terminated and the security interests created hereby are released.

Section 7.02.              Duty of Agent. The Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession (if any), under Section 9-207 of the UCC or otherwise, shall be to deal with such Collateral in a manner substantially similar to that which the Agent deals with similar property for its own account. Neither the Agent, any other Secured Party nor any of their respective officers, directors, partners, employees, agents, advisors, attorneys, attorneys-in-fact or affiliates shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Agent pursuant to this Agreement are solely to protect the Secured Parties’ interests in the Collateral and shall not impose any duty upon the Agent to exercise any such powers. The Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Agent nor any of its officers, directors, employees, agents, advisors, attorneys, attorneys-in-fact or affiliates shall be responsible to any Grantor for any act or failure to act hereunder, except for its or their own gross negligence or willful misconduct.

Section 7.03.             Financing Statements. Each Grantor hereby authorizes the Agent to file or record financing statements, continuation statements, and assignments and amendments thereto, and other filing or recording documents or instruments with respect to the Collateral without the signature of such Grantor in such form and in such offices as the Agent determines appropriate to perfect or maintain the perfection of the security interests of the Agent under this Agreement. Each Grantor agrees that such financing statements may describe the Collateral in the same manner as described in the Security Documents or as all assets or all personal property whether now owned or hereafter acquired and wherever located (or use words of similar effect) of such Grantor, or contain such other description as the Agent, in its sole judgment, determines is necessary or advisable, including any real property or fixtures description. Each Grantor hereby ratifies each such financing statement and any and all other financing statements filed prior to the date hereof by the Agent.

28

Section 7.04.              Authority of Agent. Each Grantor acknowledges that the rights and responsibilities of the Agent under this Agreement with respect to any action taken by the Agent or the exercise or non-exercise by the Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Agent and the other Secured Parties, be governed by the Note Purchase Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Agent and the Grantors, the Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.

ARTICLE VIII

MISCELLANEOUS

Section 8.01.                Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except pursuant to a written instrument signed by the Agent and each Grantor.

Section 8.02.                Notices. All notices, requests and demands and other communications to or upon the Agent or any Grantor hereunder shall be effected in the manner provided for in Section 8.2 of the Note Purchase Agreement.

Section 8.03.                 Security Interest Absolute. All rights of the Agent and each other Secured Party hereunder, each grant of a security interest in the Collateral and all obligations of each Grantor hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Note Purchase Agreement, the Limited Guaranty or any other Note Purchase Document, any agreement with respect to any of the Guaranteed Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations, or any other amendment or waiver of or any consent to any departure from the Note Purchase Agreement, the Limited Guaranty or any other Note Purchase Document or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Guaranteed Obligations, or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor in respect of the Guaranteed Obligations or this Agreement.

Section 8.04.                   No Waiver by Course of Conduct; Cumulative Remedies. Neither the Agent nor any other Secured Party shall by any act (except by a written instrument pursuant to Section 8.01), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of the Agent or any other Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Agent or any other Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Agent or such other Secured Party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.

29

Section 8.05.           Indemnity and Expenses.

(a)              Each Grantor agrees to indemnify, defend and save and hold harmless each Secured Party and each of their Affiliates and their respective officers, directors, employees, agents and advisors (each, an "Indemnified Party") from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or resulting from this Agreement (including, without limitation, enforcement of this Agreement), except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct.

(b)              Each Grantor will upon demand pay to the Agent the amount of any and all costs and expenses, including, without limitation, the reasonable fees and expenses of its counsel and of any experts and agents, that the Agent may incur in connection with (i) the custody, preservation, use or operation of, or the sale of, collection from or other realization upon, any of the Collateral of such Grantor, (ii) the exercise or enforcement of any of the rights of the Agent or the other Secured Parties hereunder or (iii) the failure by such Grantor to perform or observe any of the provisions hereof.

(c)              The agreements in this Section 8.05 shall survive repayment of the Guaranteed Obligations and all other amounts payable under the Note Purchase Agreement, the Limited Guaranty and the other Note Purchase Documents.

Section 8.06.             Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of the Agent and the other Secured Parties and their successors and assigns; provided that no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Agent.

Section 8.07.             Set-Off. Each Grantor hereby irrevocably authorizes each Secured Party at any time and from time to time while an Event of Default shall have occurred and be continuing, without notice to such Grantor or any other Grantor, any such notice being expressly waived by each Grantor, to set-off and appropriate and apply any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Secured Party to or for the credit or the account of such Grantor, or any part thereof in such amounts as such Secured Party may elect, against and on account of the obligations and liabilities of such Grantor to such Secured Party hereunder and claims of every nature and description of such Secured Party against such Grantor, in any currency, whether arising hereunder, under the Note Purchase Agreement, any other Note Purchase Document or otherwise, as such Secured Party may elect, whether or not such Secured Party has made any demand for payment and although such obligations, liabilities and claims may be contingent or unmatured. Each Secured Party shall notify such Grantor promptly of any such set-off and the application made by such Secured Party of the proceeds thereof, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Secured Parties under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) which such Secured Party may have.

30

Section 8.08.              Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile shall be effective as delivery of an original executed counterpart of this Agreement.

Section 8.09.               Severability. Any provision of this Agreement 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.

Section 8.10.               Headings. The Article and Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

Section 8.11.               Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE GRANTORS AND SECURED PARTIES HEREUNDER 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 AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

Section 8.12.               Submission To Jurisdiction.

(a)                EACH GRANTOR 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 THE AGENT, ANY NOTEHOLDER, ANY OTHER SECURED PARTY OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT 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 AGREEMENT OR IN ANY OTHER NOTE PURCHASE DOCUMENT SHALL AFFECT ANY RIGHT THAT THE AGENT MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER NOTE PURCHASE DOCUMENT AGAINST THE COMPANY OR ANY OTHER GRANTOR OR OBLIGOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

31

(b)              Each Grantor 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 Agreement or any other Note Purchase Document in any court referred to in Section 8.12(a). 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)              Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 8.02. Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable law

(d)              Each Grantor agrees (i) to not assert any claim against the Agent, any Noteholder or any of their Related Parties, for special, indirect, consequential or punitive damages arising out of or otherwise relating to or alleged in connection with this Agreement or any of the other Note Purchase Documents or any of the transactions contemplated herein and (ii) that the Agent, the Noteholders or their respective Related Parties shall have no responsibility or liability to any other party or any of its Related Parties for any such damages.

Section 8.13.            Acknowledgements. Each party hereby acknowledges and agrees that:

(a)              it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Note Purchase Documents to which it is a party, and this Agreement shall be construed as if jointly drafted by the parties hereto;

(b)              no Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in connection with this Agreement or any of the other Note Purchase Documents, and the relationship between the Grantors, on the one hand, and the Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and

(c)              no joint venture is created hereby or by the other Note Purchase Documents or otherwise exists by virtue of the transactions contemplated hereby among the Secured Parties or among the Grantors and the Secured Parties.

Section 8.14.          Additional Grantors. If the Company shall create or acquire any direct or indirect Subsidiary after the date hereof, the Company shall immediately cause such Subsidiary to become a party to this Agreement and to be a Grantor for all purposes of this Agreement by execution and delivery by such Subsidiary of an Assumption Agreement in the form of Annex 1 hereto.

Section 8.15.           Release.

(a)             At such time as the Guaranteed Obligations shall have been paid in full, the Collateral shall be released from the Liens created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Agent and each Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors. At the request and sole expense of any Grantor following any such termination, the Agent shall deliver to such Grantor any Collateral held by the Agent hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such termination.

(b)              Each Grantor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement originally filed in connection herewith without the prior written consent of the Agent subject to such Grantor’s rights under Section 9-509(d)(2) of the UCC.

32

Section 8.16.              WAIVER OF JURY TRIAL. EACH GRANTOR 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 AGREEMENT 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 AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

Section 8.17.              INTEGRATION. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT OF THE GRANTORS AND THE SECURED PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO PROMISES, UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES BY THE ADMNISTRATIVE AGENT OR ANY OTHER SECURED PARTY RELATIVE TO THE SUBJECT MATTER HEREOF NOT EXPRESSLY SET FORTH OR REFERRED TO HEREIN. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

Section 8.18.               Time is of the Essence. Time is of the essence of this Agreement.

Section 8.19.               Survival. All covenants, agreements, representations and warranties made by the Grantors herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the Secured Parties and shall survive the execution and delivery of this Agreement and the making of the Loans, regardless of any investigation made by any Secured Party or on its behalf and notwithstanding that any Secured Party may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on the Loans or any other Guaranteed Obligations are outstanding and unpaid.

[Signature Page Follows]

33

IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered as of the date first above written.

GRANTOR:

AEMETIS PROPERTY KEYES, INC.

 By:      /s/ Eric A. McAfee

Name: Eric McAfee

Title: CEO

AGENT:

THIRD EYE CAPITAL CORPORATION

 By:     /s/ Arif N. Bhalwani

Name: Arif N. Bhalwani

Title: Managing Director

[Signature Page – General Security Agreement]

  34

EX-10.10

Exhibit 10.10

INTERCOMPANY REVOLVING PROMISSORY NOTE

December 3, 2018 $3,500,000.00

FOR VALUE RECEIVED, and subject to the terms and conditions set forth herein, Aemetis Property Keyes, Inc., a Delaware corporation (the “Borrower”), hereby unconditionally promises to pay to the order of Goodland Advanced Fuels, Inc., a Delaware corporation, or its assigns (the “Holder”, and together with the Borrower, the “Parties”), the principal amount of Three Million Five Hundred Thousand Dollars ($3,500,000) (the “Loan”) or, if less, then the aggregate of such amounts the Holder has disbursed to the Borrower pursuant to Section2.2, together with all accrued interest thereon, as provided in this Intercompany Revolving Promissory Note (the “Note”).

1.       

Definitions. Capitalized terms used herein shall have the meanings set forth in this Section 1.

“Advance” means each disbursement made by the Holder to the Borrower pursuant to Section 2.2.

“Borrowing Notice” has the meaning set forth in Section 2.2.

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.

“Commitment Period” means the period from the date hereof to the earlier of (a) the Maturity Date, or (b) the date, if any, on which the Noteholders have no further obligation to make loans under the Note Purchase Agreement.

“Debt” of the Borrower, means all (a) indebtedness for borrowed money; (b) obligations secured by a Lien on property (to the extent of the fair market value of the related property), whether or not the obligation secured thereby shall have been assumed and whether or not the obligation secured is the obligation of the owner or another party, except trade accounts payable arising in the ordinary course of business secured by a purchase money security interest (c) any obligation on account of deposits or advances, (d) obligations for the deferred purchase price of property or services, except trade payables arising in the ordinary course of business; (e) obligations evidenced by notes, bonds, debentures or other similar instruments; (f) obligations as lessee under capital leases; (g) obligations in respect of any interest rate swaps, currency exchange agreements, commodity swaps, caps, collar agreements or similar arrangements entered into by the Borrower providing for protection against fluctuations in interest rates, currency exchange rates or commodity prices or the exchange of nominal interest obligations, either generally or under specific contingencies; (h) obligations under acceptance facilities and letters of credit; (i) guaranties, endorsements (other than for collection or deposit in the ordinary course of business), and other contingent obligations to purchase, to provide funds for payment, to supply funds to invest in any Person, or otherwise to assure a creditor against loss, in each case, in respect of indebtedness set out in clauses (a) through (h) of a Person other than the Borrower; and (j) indebtedness set out in clauses (a) through (i) of any Person other than Borrower secured by any lien on any asset of the Borrower, whether or not such indebtedness has been assumed by the Borrower.

1

“Default” means any of the events specified in Section 8 which constitutes an Event of Default or which, upon the giving of notice, the lapse of time, or both pursuant to Section 8 would, unless cured or waived, become an Event of Default.

“Default Rate” means a rate of interest per annum equal to the Interest Rate plus six percent (6%) per annum.

“Event of Default” has the meaning set forth in Section 8.

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time.

“Interest Rate” for each Advance shall be equal to the interest rate payable as of the date of such Advance to the Noteholders pursuant to the Note Purchase Agreement or, if the Note Purchase Agreement shall not be in effect, a rate of interest per annum equal to twelve percent (12%).

“Lien” means any mortgage, pledge, hypothecation, encumbrance, lien (statutory or other), charge or other security interest.

“Loan” has the meaning set forth in the introductory paragraph.

“Material Adverse Effect” means any condition or circumstance which has had, or could reasonably be expected to have, a material adverse effect on (i) the property, nature of assets, business, results of operations, prospects, performance, liabilities or condition (financial or otherwise) of the Borrower; (ii) the rights or remedies of the Holder hereunder, (iii) the ability of the Borrower to perform its obligations hereunder or otherwise in connection with the Loan, or (v) the validity or enforceability of any of this Note.

“Maturity Date” means the Maturity Date (as such term is defined in the Note Purchase Agreement).

“Note Purchase Agreement” means that certain Note Purchase Agreement entered into as of June 30, 2017 (including all exhibits and schedules hereto, as amended by the Amendment No. 1 to Note Purchase Agreement dated as of June 28, 2018, the Amendment No. 2 to Note Purchase Agreement dated as of December 3, 2018, and as the same may be amended, supplemented, modified and/or restated from time to time, by and among the Holder, as borrower, the noteholders party thereto or which thereafter become parties thereto by means of assignment and assumption as described therein (the “Noteholders”), and Third Eye Capital Corporation, as administrative agent and collateral agent for the Noteholders (the “Agent”).

“Outstanding Amount” means the sum of the outstanding principal amount of the Revolving Advances,the unpaid interest thereon, and all other Note Indebtedness relating to the Revolving Line under the Note Purchase Agreement. All defined terms used in this definition of “Outstanding Amounts” shall have the meaning ascribed thereto under the Note Purchase Agreement.

2

“Parties” has the meaning set forth in the introductory paragraph.

“Person” means any individual, corporation, limited liability company, trust, joint venture, association, company, limited or general partnership, unincorporated organization, governmental authority or other entity.

2.       

Loan Disbursement Mechanics.

2.1        Commitment. Subject to Section 2.2, the Holder shall make available to the Borrower one or more Advances during the Commitment Period in an aggregate amount not to exceed the Loan less the Outstanding Amount. During the Commitment Period the Borrower may repay and reborrow in accordance with the provisions hereof.

2.2        Advances. As a condition to the disbursement of any Advance, the Borrower shall, at least seven (7) Business Days prior to the requested disbursement date, deliver to the Holder and to Agent a written notice (the “Borrowing Notice”) in substantially in the form set out in Schedule A hereto setting out (a) that no Default has occurred and is continuing; (b) the amount of the Advance and a description of how the Advance will be used by the Borrower; and (c) the date on which the Advance is to be disbursed. Each Borrowing Notice shall be deemed to repeat the Borrower's representations and warranties in Section 6 as of the date of such Borrowing Notice. Upon receipt of the Borrowing Notice, the Holder may, but is under no obligation to, make available to the Borrower on the disbursement date the amount set out in the notice in immediately available funds.

3.       

Final Payment Date; Optional Prepayments.

3.1        Final Payment Date. The aggregate unpaid principal amount of the Loan, all accrued unpaid interest and all other amounts payable under this Note shall be due and payable on the Maturity Date, unless otherwise provided in Section 9.

3.2        Optional Prepayment. The Borrower may prepay the Loan in whole or in part at any time or from time to time without penalty or premium by paying the principal amount to be prepaid together with accrued interest thereon to the date of prepayment. Subject to the other terms and conditions hereof, amounts borrowed may be repaid and reborrowed from time to time.

4.       

Interest.

4.1        Interest Rate. The outstanding principal of the Advances made hereunder (including, to the extent permitted by law, on interest thereon not paid when due) shall from the date made or incurred until indefeasibly paid in full in cash shall bear interest at a per annum rate equal to the Interest Rate, but not to exceed the maximum rate described in Section 4.4 hereof.

3

4.2        Default Rate. If an Event of Default shall have occurred and be continuing, all outstanding principal of and, to the fullest extent permitted by law, all past due interest on the Advances shall bear interest at a rate per annum equal to the Default Rate. Interest payable at the Default Rate shall be payable from time to time on demand.

4.3        Interest Payment Dates. Interest on the Advances shall be payable on the outstanding principal of the Advances in arrears for the preceding calendar month on the first Business Day of each calendar month, commencing on first Business Day of the calendar month following the disbursement of an Advance under Section 2.2 hereunder.

4.4        Interest Rate Limitation. If at any time and for any reason whatsoever, the interest rate payable on any Advance shall exceed the maximum rate of interest permitted to be charged by the Holder to the Borrower under applicable law, such interest rate shall be reduced automatically to the maximum rate of interest permitted to be charged under applicable law.

5.       

Payment Mechanics.

5.1        Manner of Payments. All payments of interest and principal shall be made in lawful money of the United States of America no later than 3:00 PM Pacific Time on the date on which such payment is due by wire transfer of immediately available funds to the Holder's account at a bank specified by the Holder in writing to the Borrower from time to time.

5.2        Application of Payments. All payments made hereunder shall be applied first to the payment of any fees or charges outstanding hereunder, second to accrued interest, and third to the payment of the principal amount outstanding under the Note.

5.3        Business Day Convention. Whenever any payment to be made hereunder shall be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension will be taken into account in calculating the amount of interest payable under this Note.

5.4        Evidence of Debt. The Holder is authorized to record on its books and records each Advance made to the Borrower and each payment or prepayment thereof. The entries made by the Holder shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the failure of the Holder to record such payments or prepayments, or any inaccuracy therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Advances in accordance with the terms of this Note.

5.5        Rescission of Payments. If at any time any payment made by the Borrower under this Note is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise, the Borrower's obligation to make such payment shall be reinstated as though such payment had not been made.

6.       

Representations and Warranties. The Borrower hereby represents and warrants to the Holder on the date hereof as follows:

4

6.1        Existence; Compliance With Laws. The Borrower is (a) a company duly formed, validly existing and in good standing under the laws of the State of Delaware and has the requisite power and authority, and the legal right, to own, lease and operate its properties and assets and to conduct its business as it is now being conducted and (b) in compliance with all laws.

6.2        Power and Authority. The Borrower has the power and authority, and the legal right, to execute and deliver this Note and to perform its obligations hereunder.

6.3        Authorization; Execution and Delivery. The execution and delivery of this Note by the Borrower and the performance of its obligations hereunder have been duly authorized by all necessary corporate action in accordance with all applicable laws. The Borrower has duly executed and delivered this Note.

6.4        No Approvals. 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 order for the Borrower to execute, deliver, or perform any of its obligations under this Note.

6.5        No Violations. The execution and delivery of this Note and the consummation by the Borrower of the transactions contemplated hereby do not and will not (a) violate any provision of the Borrower's organizational documents; (b) violate any law applicable to the Borrower or by which any of its properties or assets may be bound; or (c) constitute a default under any material agreement or contract by which the Borrower may be bound.

6.6        Enforceability. The Note is a valid, legal and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms.

6.7        No Litigation. No action, suit, litigation, investigation or proceeding of, or before, any arbitrator or governmental authority is pending or threatened by or against the Borrower or any of its property or assets (a) with respect to the Note or any of the transactions contemplated hereby or (b) that would be expected to materially adversely affect the Borrower's financial condition or the ability of the Borrower to perform its obligations under the Note.

7.       

Affirmative Covenants. Until all amounts outstanding in this Note have been paid in full, the Borrower shall:

7.1        Maintenance of Existence. (a) Preserve, renew and maintain in full force and effect its corporate or organizational existence and (b) take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business, except, in each case, where the failure to do so would not reasonably be expected to have a Material Adverse Effect.

7.2        Compliance. Comply with (a) all of the terms and provisions of its organizational documents; (b) its obligations under its material contracts and agreements; and (c) all laws applicable to it and its business, in each case, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.

5

7.3        Payment Obligations. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its material obligations of whatever nature, 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 its books.

7.4        Notice of Events of Default. As soon as possible and in any event within two (2) Business Days after it becomes aware that a Default or an Event of Default has occurred, notify the Holder in writing of the nature and extent of such Default or Event of Default and the action, if any, it has taken or proposes to take with respect to such Default or Event of Default.

7.5        Further Assurances. Upon the request of the Holder, promptly execute and deliver such further instruments and do or cause to be done such further acts as may be necessary or advisable to carry out the intent and purposes of this Note.

8.    Events of Default. The occurrence and continuance of any of the following shall constitute an Event of Default hereunder:

8.1        Failure to Pay. The Borrower fails to pay any principal amount of the Loan when due or interest or any other amount when due.

8.2        Breach of Representations and Warranties. Any representation or warranty made or deemed made by the Borrower to the Holder herein is incorrect in any material respect on the date as of which such representation or warranty was made or deemed made.

8.3        Breach of Covenants. The Borrower fails to observe or perform any covenant, condition or agreement contained in this Note other than those specified in Section 8.1 and such failure continues for 10 days.

8.4        Cross-Defaults. The Borrower fails to pay when due any of its Debt in excess of $100,000 at any time outstanding (other than Debt arising under this Note) or any interest or premium thereon when due (whether by scheduled maturity, acceleration, demand or otherwise) and such failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt.

8.5        Bankruptcy.  

(a)       the Borrower commences any case, proceeding or other action (i) under any existing or future law relating to bankruptcy, insolvency, reorganization, or other relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts or (ii) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Borrower makes a general assignment for the benefit of its creditors;

6

(b)       there is commenced against the Borrower any case, proceeding or other action of a nature referred to in Section 8.5(a) above which (i) results in the entry of an order for relief or any such adjudication or appointment or (ii) remains undismissed, undischarged or unbonded for a period of 90 days;

(c)       there is commenced against the Borrower any case, proceeding or other action seeking issuance of a warrant of attachment, execution or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which has not been vacated, discharged, or stayed or bonded pending appeal within 90 days from the entry thereof;

(d)       the Borrower takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in Section 8.5(a), Section 8.5(b) or Section 8.5(c) above; or

(e)       the Borrower is generally not, or shall be unable to, or admits in writing its inability to, pay its debts as they become due.

8.6        Judgments. One or more judgments for an amount in excess of $100,000 at any time or decrees shall be entered against the Borrower and all of such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within ninety (90) days from the entry thereof. Notwithstanding the foregoing, the outstanding judgment against Borrower resulting from the case by Cordillera Fund and The Industrial Company shall not result in an Event of Default.

9.     Remedies. Upon the occurrence of any Event of Default and at any time thereafter during the continuance of such Event of Default, the Holder may at its option, by written notice to the Borrower (a) terminate its commitment to make any Advances hereunder; (b) declare the entire principal amount of this Note, together with all accrued interest thereon and all other amounts payable hereunder, immediately due and payable; and/or (c) exercise any or all of its rights, powers or remedies under applicable law; provided, however that, if an Event of Default described in Section 8.5 shall occur, the principal of and accrued interest on the Loan shall become immediately due and payable without any notice, declaration or other act on the part of the Holder.

10.   Miscellaneous.

10.1                 Governing Law. This Note and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Note, and the transactions contemplated hereby shall be governed by the laws of the State of New York.

10.2                 Submission to Jurisdiction.

(a)       The Borrower hereby irrevocably and unconditionally (i) agrees that any legal action, suit or proceeding arising out of or relating to this Note may be brought in the courts of the State of New York or of the United States of America for the Southern District of New York and (ii) submits to the jurisdiction of any such court in any such action, suit or proceeding. Final judgment against the Borrower in any action, suit or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment.

7

(b)       Nothing in this Section 10.2shall affect the right of the Holder to (i) commence legal proceedings or otherwise sue the Borrower in any other court having jurisdiction over the Borrower or (ii) serve process upon the Borrower in any manner authorized by the laws of any such jurisdiction.

10.3                 Venue. The Borrower 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 Note in any court referred to in Section 10.2(a) and the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

10.4                 Waiver of Jury Trial. THE BORROWER HEREBY IRREVOCABLY 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 RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY.

10.5                 Counterparts; Integration; Effectiveness. This Note and any amendments, waivers, consents or supplements hereto may be executed in counterparts, each of which shall constitute an original, but all taken together shall constitute a single contract. This Note constitutes the entire contract between the Parties with respect to the subject matter hereof and supersede all previous agreements and understandings, oral or written, with respect thereto. Delivery of an executed counterpart of a signature page to this Note by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Note.

10.6                 Successors and Assigns. This Note may be assigned or transferred by the Holder to any Person. The Borrower may not assign or transfer this Note or any of its rights hereunder without the prior written consent of the Holder. This Note shall inure to the benefit of, and be binding upon, the Parties and their permitted assigns.

10.7                 Waiver of Notice. The Borrower hereby waives demand for payment, presentment for payment, protest, notice of payment, notice of dishonor, notice of nonpayment, notice of acceleration of maturity and diligence in taking any action to collect sums owing hereunder.

10.8                 Amendments and Waivers. No term of this Note may be waived, modified or amended except by an instrument in writing signed by both of the parties hereto. Any waiver of the terms hereof shall be effective only in the specific instance and for the specific purpose given.

10.9                 Headings. The headings of the various Sections and subsections herein are for reference only and shall not define, modify, expand or limit any of the terms or provisions hereof.

10.10                 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising on the part of the Holder, of any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

10.11                 Severability. If any term or provision of this Note is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Note or invalidate or render unenforceable such term or provision in any other jurisdiction.

10.12                 Agent Rights. This Note is a Revolving Intercompany Note referred to in the Note Purchase Agreement, and, constitutes a Pledged Note (as defined in the General Security Agreement) of the Holder. The Holder and the Borrower hereunder hereby acknowledge and agree that the Agent, for the benefit of the Noteholders, may exercise all rights provided in the Note Purchase Agreement and the General Security Agreement with respect to this Note.

[SIGNATURE PAGE FOLLOWS]

8

IN WITNESS WHEREOF, the Parties have executed this Note as of the date first set forth above.

BORROWER:

AEMETIS PROPERTY KEYES, INC.

By: /s/ Eric A. McAfee                                                

Name: Eric McAfee

Title: CEO

HOLDER:

GOODLAND ADVANCED FUELS, INC.

By: /s/ Michael Peterson                                                 

Name: Michael Peterson

Title:

9

EX-10.11

Exhibit 10.11

PLEDGE AGREEMENT

made by

AE ADVANCED FUELS. INC.,

as Pledgor

in favor of

THIRD EYE CAPITAL CORPORATION,

as Agent

Dated as of December 3, 2018

PLEDGE AGREEMENT, dated as of December 3, 2018, by AE ADVANCED FUELS, INC. (the “Pledgor”), 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 June 30, 2017 (as amended by the Amendment No. 1 to Note Purchase Agreement, dated June 28, 2018, the Amendment No. 2 to Note Purchase Agreement, dated December 3, 2018, and as 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)           It is a condition precedent to the obligation of the Noteholders to make Loans under the Note Purchase Agreement that the Pledgor shall have executed and delivered this Agreement 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”).

(4)           The Pledgor, a wholly-owned subsidiary of Aemetis, Inc., will derive substantial direct and indirect benefit from the transactions contemplated by the Note Purchase Agreement.

NOW, THEREFORE, in consideration of the premises and to induce the Noteholders to make Loans pursuant to the Note Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Pledgor hereby agrees with the Agent, for the benefit of the Secured Parties, as follows:

1.           Definitions. (a) Unless otherwise defined herein, terms defined in the Note Purchase Agreement and used herein shall have the meanings given to them in the Note Purchase Agreement. Furthermore, unless otherwise defined in this Agreement or the Note Purchase Agreement, terms defined in Articles 8 or 9 of the UCC (as defined below) are used in this Agreement as such terms are defined in such Articles 8 or 9.

(b)           The following terms shall have the following meanings:

“Agreement” means this Pledge Agreement, as amended, varied, supplemented, restated, renewed or replaced at any time and from time to time.

“Capital Stock” means, with respect to any Person, (a) any and all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests in) such Person, (b) any and all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, and (c) all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), in the case of clauses (a) through (c) above, whether voting or nonvoting, and whether or not such shares, participations, warrants, options, rights or other interests are outstanding on any date of determination.

2

“Collateral” has the meaning specified in Section 2.

“Collateral Account” means any account established to hold money proceeds, maintained under the sole dominion and control of the Agent, subject to withdrawal by the Agent for the account of the Secured Parties only as provided in Section 12(b).

“Issuer” means Aemetis Property Keyes, Inc., a Delaware corporation.

“Pledged Equity” means the shares of Capital Stock described in Schedule I hereto and issued by the Issuer.

“Pledgor” has the meaning specified in the recitals hereto.

“Proceeds” shall mean all “proceeds” as defined in Article 9 of the UCC and, in any event, includes, without limitation, (i) all payments, dividends or distributions made with respect to any Pledged Equity or other Capital Stock of the Issuer constituting Collateral, and (ii) whatever is receivable or received when Collateral or proceeds are sold, exchanged, collected or otherwise disposed of, whether such disposition is voluntary or involuntary.

“Secured Parties” has the meaning specified in the recitals hereto.

“Securities Act” has the meaning specified in Section 13(a)(i).

“Solvent” when used with respect to any Person, means that, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.

“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, that if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

(c)           The rules of construction specified in Sections 1.2, 1.3 and 1.4 of the Note Purchase Agreement shall apply to this Agreement, mutatis mutandis.

3

(d)           The expressions “payment in full,” “paid in full” and any other similar terms or phrases when used herein with respect to the Note Indebtedness shall mean the unconditional, final, indefeasible and irrevocable payment in full, in immediately available funds, of all of the Note Indebtedness.

(e)           No inference in favor of, or against, any party to this Agreement shall be drawn from the fact that such party has drafted any portion of this Agreement.

2.           Pledge; Grant of Security Interest. The Pledgor hereby pledges to the Agent for the benefit of the Secured Parties, and grants to the Agent for the benefit of the Secured Parties a security interest in, all of the following property, whether now owned or existing or hereafter arising or acquired by the Pledgor or in which the Pledgor now has or at any time in the future may acquire any right, title or interest (collectively, the “Collateral”):

(i)           the Pledged Equity and the certificates, if any, representing the Pledged Equity, and all dividends, distributions, return of capital, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Equity and all subscription warrants, rights, options or warrants issued thereon or with respect thereto;

(ii)         all additional Capital Stock issued by the Issuer and from time to time acquired by the Pledgor in any manner, and the certificates, if any, representing such additional Capital Stock, and all dividends, distributions, return of capital, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Capital Stock and all subscription warrants, rights or options issued thereon or with respect thereto;

(iii)         any interest of the Pledgor in the entries on the books of the Issuer with respect to any of the foregoing; and

(iv)         all Proceeds of any and all of the foregoing Collateral (including, without limitation, Proceeds that constitute property of the types described above).

3.           Security for Note Indebtedness. This Agreement secures the payment and performance when due (whether at the stated maturity, by acceleration or otherwise) for the Note Indebtedness (as defined in the Note Purchase Agreement).

4.           Delivery of Collateral.

(a)           All certificates or instruments representing or evidencing the Collateral shall be delivered to and held by or on behalf of the Agent pursuant hereto and shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Agent. The Agent shall have the right, at any time in its discretion and without notice to the Pledgor, to transfer to or to register in the name of the Agent or any of its nominees any or all of the Collateral, subject only to the revocable rights specified in Section 7(a). For the better perfection of the Agent’s rights in and to the Collateral, upon the request of the Agent, the Pledgor shall forthwith, upon the pledge of any Collateral hereunder, cause such Collateral to be registered in the name of such nominee or nominees of the Agent as the Agent shall direct, subject only to the revocable rights specified in Section 7(a). In addition, the Agent shall have the right at any time to exchange certificates or instruments representing or evidencing Collateral for certificates or instruments of smaller or larger denominations.

4

(b)           With respect to any Collateral in which the Pledgor has any right, title or interest and that constitutes an uncertified security, the Pledgor will cause the issuer thereof either (i) to register the Agent as the registered owner of such security or (ii) to agree in an authenticated record with the Pledgor and the Agent that such issuer will comply with instructions with respect to such security originated by the Agent without further consent of the Pledgor, such authenticated record to be in form and substance satisfactory to the Agent.

5.            Representations and Warranties. The Pledgor represents and warrants to the Agent and the other Secured Parties as follows:

(a)           The Pledgor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has the organizational power and authority and the legal right to own and operate its property, to lease the property it operates and to conduct the business in which it is currently engaged.

(b)           The Pledgor has the organizational power and authority and the legal right to execute and deliver, and to perform its obligations under this Agreement, and has taken all necessary organizational action to duly authorize its execution, delivery and performance of this Agreement.

(c)           The Pledgor will be the full legal and beneficial owner of the Collateral free and clear of any Lien, claim, option or other charge or encumbrance (including any restriction on assignment or transfer), except for the security interest created by this Agreement.

(d)           This Agreement and the pledge of the Pledged Equity pursuant to this Agreement creates a valid and perfected first priority security interest in the Collateral, securing the payment and performance of the Note Indebtedness, and all filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken, and there are no outstanding preemptive rights, warrants, options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, the Pledged Equity.

(e)           No consent of any other Person and no authorization, approval, or other action by, and no notice to or filing with, any Governmental Authority is required (i) for the pledge by the Pledgor of the Collateral pursuant to this Agreement or for the execution, delivery or performance of this Agreement by the Pledgor, (ii) for the attachment, perfection or maintenance of the security interest created hereby (including the first priority nature of such security interest) or (iii) for the exercise by the Agent of the voting or other rights provided for in this Agreement or the remedies in respect of the Collateral pursuant to this Agreement (except as may be required in connection with any disposition of any portion of the Collateral by laws affecting the offering and sale of securities generally).

(f)           The execution, delivery and performance of this Agreement will not violate any provision of any Requirement of Law or contractual obligation of the Pledgor and will not result in or require the creation or imposition of any Lien on any of the properties or revenues of the Pledgor pursuant to any Requirement of Law or contractual obligation of the Pledgor (except for the Liens created pursuant to this Agreement).

(g)           This Agreement constitutes a legal, valid and binding obligation of the Pledgor enforceable in accordance with its terms, except as affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles.

5

(j)            No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Pledgor, threatened by or against the Pledgor or against any of its properties or revenues with respect to this Agreement or any of the transactions contemplated hereby. The Pledged Equity constitutes the percentage of the issued and outstanding Capital Stock of the Issuer indicated on Schedule I hereto.

(k)           All Collateral consisting of certificated securities and instruments will have been delivered to the Agent.

(l)            There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived.

(m)          The Pledgor has, independently and without reliance upon the Agent or any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.

(n)           The Pledgor is and, after giving effect to this Agreement, the obligations being incurred in connection herewith and the other transactions contemplated hereby, will be and will continue to be Solvent.

6.             Further Assurances. (a) The Pledgor agrees that at any time and from time to time, at the expense of the Pledgor, the Pledgor will promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that the Agent may request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Agent to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the foregoing, the Pledgor will promptly, (i) mark conspicuously each of its records pertaining to the Collateral with a legend, in form and substance satisfactory to the Agent, indicating that such Collateral is subject to the security interest granted hereby; (ii) if any such Collateral shall be evidenced by a promissory note or other instrument, deliver and pledge to the Agent hereunder such promissory note or instrument duly indorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance satisfactory to the Agent; (iii) execute and authenticate and file such financing or continuation statements, or amendments thereto and such other instruments or notices, as may be necessary or desirable, or as the Agent may request, in order to perfect and preserve the security interest granted or purported to be granted by the Pledgor hereunder; (iv) deliver and pledge to the Agent, for the benefit of the Secured Parties, all certificates representing Collateral that constitutes certificated securities, accompanied by undated stock or bond powers executed in blank; (v) take all action necessary to ensure that the Agent has control of the Collateral consisting of investment property as provided in Section 9-106 of the UCC; and (vi) deliver to the Agent evidence that all other action that the Agent may deem reasonably necessary or desirable to perfect and protect the security interest created by the Pledgor under this Agreement has been taken.

(b)            The Pledgor hereby authorizes the Agent to file one or more financing statements, continuation statements, and assignments and amendments thereto in such form and in such offices as the Agent determines appropriate to perfect or maintain the perfection of the security interests of the Agent under this Agreement, including, without limitation, one or more financing statements indicating that such financing statements cover the Collateral, in each case without the signature of the Pledgor. A photocopy or other reproduction of this Agreement or any financing statement covering the Collateral or any part thereof shall be sufficient as a financing statement where permitted by law.

7.              Voting Rights; Dividends, Etc. (a) So long as no Event of Default shall have occurred and be continuing:

6

(i)           The Pledgor shall be entitled to exercise or refrain from exercising any and all voting and other consensual rights pertaining to the Collateral or any part thereof for any purpose not inconsistent with the terms of this Agreement or the Note Purchase Agreement; provided, however, that the Pledgor shall not exercise or refrain from exercising any such right if such action would have a material adverse effect on the value of the Collateral or any part thereof.

(ii)           The Pledgor shall be entitled to receive and retain any and all dividends and other distributions paid in respect of the Collateral if and to the extent that the payment thereof is not otherwise prohibited by the terms of this Agreement or any of the other Note Purchase Documents, provided, however, that any and all:

(A)           dividends and other distributions paid or payable other than in cash in respect of, and instruments and other property received, receivable or otherwise distributed in respect of, or in exchange for, any Collateral,

(B)           dividends and other distributions paid or payable in cash in respect of any Collateral in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in-surplus, and

(C)           cash paid, payable or otherwise distributed in respect of principal of, or in redemption of, or in exchange for, any Collateral, shall be, and shall be forthwith delivered to the Agent to hold as, Collateral and shall, if received by Pledgor, be received in trust for the benefit of the Agent and the other Secured Parties, be segregated from the other property or funds of Pledgor, and be forthwith delivered to the Agent as Collateral in the same form as so received (with any necessary endorsement or assignment).

(iii)           The Agent shall execute and deliver (or cause to be executed and delivered) to the Pledgor all such proxies and other instruments as the Pledgor may reasonably request for the purpose of enabling the Pledgor to exercise the voting and other rights which it is entitled to exercise pursuant to paragraph (i) above and to receive the dividends and other distributions which it is authorized to receive and retain pursuant to paragraph (ii) above.

(b)           If an Event of Default shall have occurred and be continuing:

(i)           All rights of the Pledgor (x) to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant to Section 7(a)(i) shall, upon notice to the Pledgor by the Agent, cease and (y) to receive the dividends and other distributions that it would otherwise be authorized to receive and retain pursuant to Section 7(a)(ii) shall automatically cease, and all such rights shall thereupon become vested in the Agent who shall thereupon have the sole right to exercise or refrain from exercising such voting and other consensual rights and to receive and hold as Collateral such dividends and other distributions.

(ii)           All dividends and other distributions that are received by the Pledgor contrary to the provisions of Section 7(b)(i) shall be received in trust for the benefit of the Agent, shall be segregated from other funds of the Pledgor and shall be forthwith paid over to the Agent as Collateral in the same form as so received (with any necessary indorsement or assignment).

8.           Transfers and Other Liens; Additional Shares; Etc. (a) The Pledgor agrees that it will not (i) sell, transfer, assign (by operation of law or otherwise), exchange or otherwise dispose of, or grant any option with respect to, any of the Collateral, (ii) create or permit to exist any Lien, claim, option or other charge or encumbrance upon or with respect to any of the Collateral, except for the security interest under this Agreement, or (iii) agree or consent to any amendment, modification or waiver with respect to any of the Collateral.

7

(b)           The Pledgor agrees that it will (i) not, without the prior written consent of the Agent, permit the Issuer to issue any Capital Stock or other securities in addition to or in substitution for the Pledged Equity, except to the Pledgor or Agent and (ii) pledge hereunder, immediately upon its acquisition (directly or indirectly) thereof, any and all additional shares of Capital Stock or other securities of the Issuer.

9.            Agent Appointed Attorney-in-Fact. The Pledgor hereby appoints the Agent as the Pledgor’s attorney-in-fact, with full authority in the place and stead of the Pledgor and in the name of the Pledgor or otherwise, from time to time in the Agent’s discretion to take any action and to execute any instrument which the Agent may deem necessary or advisable to accomplish the purposes of this Agreement (subject to the rights of the Pledgor under Section 7), including, without limitation, to receive, indorse and collect all instruments made payable to the Pledgor representing any dividend or other distribution in respect of the Collateral or any part thereof and to give full discharge for the same.

10.           Agent May Perform. If the Pledgor fails to perform any agreement contained herein, the Agent may itself perform, or cause performance of, such agreement, and the expenses of the Agent incurred in connection therewith shall be payable by the Pledgor under Section 14.

11.           The Agent’s Duties. The powers conferred on the Agent hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the safe custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Agent shall have no duty as to any Collateral, as to ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the Agent or any Secured Party has or is deemed to have knowledge of such matters, or as to the taking of any necessary steps to preserve rights against any parties or any other rights pertaining to any Collateral. The Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its possession if such Collateral is accorded treatment substantially equal to that which it accords its own property.

12.           Remedies upon Default. If any Event of Default shall have occurred and be continuing:

(a)           The Agent may exercise in respect of the Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the UCC (whether or not the UCC applies to the affected Collateral), and may also, without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Agent’s offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Agent may deem commercially reasonable. The Pledgor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to the Pledgor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the extent permitted by applicable law, the Pledgor waives all claims, damages and demands it may acquire against the Agent or any other Secured Party arising out of the exercise by them of any rights or remedies hereunder.

8

(b)           Any cash held by the Agent as Collateral and all cash proceeds received by the Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral may, in the discretion of the Agent, be held by the Agent in a Collateral Account as collateral for, and/or then or at any time thereafter be applied (after payment of any amounts payable to the Agent pursuant to Section 14) in whole or in part by the Agent for the benefit of the Secured Parties against, all or any part of the Note Indebtedness in such order and manner as the Agent may elect in its sole discretion or as otherwise required under the Note Purchase Agreement. Any surplus of such cash or cash proceeds held by the Agent and remaining after payment in full of all Note Indebtedness shall be paid over to the Pledgor or to whomsoever may be lawfully entitled to receive such surplus.

(c)           The Pledgor shall remain liable for any deficiency if the proceeds of any sale or other disposition of Collateral are insufficient to pay the Note Indebtedness and the fees and disbursements of any attorneys employed by the Agent or any other Secured Party to collect such deficiency.

13.           Registration Rights; Private Sales. (a) If the Agent shall determine to exercise its right to sell all or any of the Collateral pursuant to Section 12 the Pledgor agrees that, upon request of the Agent, the Pledgor will, at its own expense:

(i)            execute and deliver, and cause the issuer of the Collateral contemplated to be sold and the directors and officers thereof to execute and deliver, all such instruments and documents, and do or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Agent, advisable to register such Collateral under the provisions of the Securities Act of 1933, as from time to time amended (the “Securities Act”), and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectus which, in the opinion of the Agent, are necessary or advisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto and Pledgor agrees to cause Issuer to comply with the provisions of the securities or “Blue Sky” laws of any and all jurisdictions which the Agent shall designate and to make available to its security holders, as soon as practicable, an earnings statement (which need not be audited) which will satisfy the provisions of Section 11(a) of the Securities Act; and

(ii)           do or cause to be done all such other acts and things as may be necessary to make such sale of the Collateral or any part thereof valid and binding and in compliance with applicable Requirements of Law.

(b)           The Pledgor recognizes that the Agent may be unable to effect a public sale of any or all the Collateral, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Agent shall be under no obligation to delay a sale of any of the Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if such issuer would agree to do so.

9

(c)           The Pledgor further agrees to use its best efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of all or any portion of the Collateral pursuant to this Section valid and binding and in compliance with any and all other applicable Requirements of Law. The Pledgor further agrees that a breach of any of the covenants contained in this Section will cause irreparable injury to the Agent and the Secured Parties, that the Agent and the Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section shall be specifically enforceable against the Pledgor, and the Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred under the Note Purchase Agreement.

14.           Indemnity and Expenses. (a) The Pledgor agrees to indemnify, defend and save and hold harmless each Secured Party and each of their Related Parties (each, an “Indemnified Party”) from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and expenses (including, without limitation, the fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or resulting from this Agreement (including, without limitation, enforcement of this Agreement), except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct.

(b)           The Pledgor shall pay and save the Agent and the other Secured Parties from any and all liabilities with respect to, or resulting from any delay by Pledgor in paying, any and all stamp, excise, sales or other taxes that may be payable or determined to be payable with respect to any of the Collateral or in connection with any of the transactions contemplated by this Agreement.

(c)           The Pledgor will upon demand 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 may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Agent or the other Secured Parties hereunder or (iv) the failure by the Pledgor to perform or observe any of the provisions hereof.

(d)           The agreements in this Section 14 shall survive repayment of the Note Indebtedness.

15.           Security Interest Absolute. The obligations of the Pledgor under this Agreement are independent of the Note Indebtedness of the other Obligors, and a separate action or actions may be brought and prosecuted against the Pledgor to enforce this Agreement, irrespective of whether any action is brought against any other Obligor or whether any other Obligor is joined in any such action or actions. All rights of the Agent and the security interests hereunder, and all obligations of the Pledgor hereunder, shall be absolute and unconditional irrespective of:

(a)           any lack of validity or enforceability of any Note Purchase Document or any other agreement or instrument relating thereto, any change in the time, manner or place of payment of, or in any other term of, all or any of the Note Indebtedness, or any other amendment or waiver of or any consent to any departure from the Note Purchase Agreement or any other Note Purchase Document, including, without limitation, any increase in the Note Indebtedness resulting from the extension of additional credit to the Company or otherwise;

(b)           any taking, exchange, release or non-perfection of any other collateral, or any taking, release or amendment or waiver of or consent to departure from any guaranty, for all or any of the Note Indebtedness;

10

(c)           any manner of application of collateral, or proceeds thereof, to all or any of the Note Indebtedness, or any manner of sale or other disposition of any collateral for all or any part of the Note Indebtedness or any other assets of any Obligor;

(d)           any change, restructuring or termination of the corporate or organizational structure or existence any Obligor; or

(e)           any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Obligor or a third party pledgor.

16.           Amendments. No amendment of any provision of this Agreement shall be effective unless the same shall be in writing and signed by the Agent and the Pledgor.

17.           Waiver. No waiver of any provision of this Agreement, and no consent to any departure by the Pledgor herefrom, shall 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.

18.           Notices. All notices, requests and demands and other communications to or upon the Agent or any Pledgor 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 Pledgor shall be addressed to the Pledgor at its address on the signature page to this Agreement. 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).

19.           Continuing Security Interest; Assignments. This Agreement shall create a continuing security interest in the Collateral and shall (i) remain in full force and effect until the payment in full of the Note Indebtedness, (ii) be binding upon the Pledgor, its successors and assigns, and (iii) inure, together with the rights and remedies of the Agent hereunder, to the benefit of, and be enforceable by, the Agent, the Secured Parties and their respective successors, transferees and assigns. Without limiting the generality of the foregoing, any Noteholder may assign or otherwise transfer all or any portion of its interest in the Note Purchase Agreement and the other Note Purchase Documents (including, without limitation, all or any portion of the obligations under the Note Purchase Agreement held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Noteholder herein or otherwise, in each case as provided in Section 8.7 of the Note Purchase Agreement. Upon the indefeasible payment in full in cash of the Note Indebtedness, the security interest granted hereby shall terminate and all rights to the Collateral shall revert to the Pledgor. Upon any such termination, the Agent will, at the Pledgor’s expense, return to the Pledgor such of the Collateral as shall not have been sold or otherwise applied pursuant to the terms hereof and execute and deliver to the Pledgor such documents as the Pledgor shall reasonably request to evidence such termination.

20.           Authority of Agent. The Pledgor acknowledges that the rights and responsibilities of the Agent under this Agreement with respect to any action taken by the Agent or the exercise or non-exercise by the Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Agent and the other Secured Parties, be governed by the Note Purchase Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Agent and the Pledgor, the Agent shall be conclusively presumed to be acting as agent for Secured Parties with full and valid authority so to act or refrain from acting, and neither the Pledgor nor the Issuer shall be under any obligation, or entitlement, to make any inquiry respect such authority.

11

21.           Execution in Counterparts. This Agreement may be executed in any number of 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 to this Agreement by facsimile or other electronic means shall be effective as delivery of an original executed counterpart of this Agreement.

22.           Severability.   Any provision of this Agreement 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.

23.           Section Headings. The Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

24.           Irrevocable Authorization and Instruction to Issuer. The Pledgor hereby authorizes and instructs the Issuer to comply with any instruction received by it from the Agent in writing that (a) states that an Event of Default or Default has occurred and (b) is in accordance with the terms of this Agreement, without any other or further instructions from the Pledgor, and the Pledgor agrees that the Issuer shall be fully protected in so complying. The Pledgor shall cause the Issuer to execute and deliver to the Agent an Acknowledgment and Consent in the form attached as Exhibit A to this Agreement.

25.           Submission to Jurisdiction; Waivers.

(a)           Jurisdiction. THE PLEDGOR 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 AGREEMENT 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 AGREEMENT 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 AGREEMENT OR ANY OTHER NOTE PURCHASE DOCUMENT AGAINST THE PLEDGOR OR ANY OTHER OBLIGOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

12

(b)           Waiver of Venue. The Pledgor 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 Agreement 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. The parties irrevocably consent to service of process in the manner provided for notices in Section 18. Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable law.

(d)           Waiver. The Pledgor 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.

26.           Acknowledgments. The Pledgor acknowledges that:

(a)           it has been advised by counsel in the negotiation, execution and delivery of this Agreement;

(b)           neither the Agent nor any other Secured Party has any fiduciary relationship with or duty to the Pledgor arising out of or in connection with this Agreement or any of the other Note Purchase Documents, and the relationship between Agent and other Secured Parties, on one hand, and the Pledgor, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and

(c)           no joint venture is created hereby or by the other Note Purchase Documents or otherwise exists by virtue of the transactions contemplated hereby among Secured Parties or among Pledgor and the Secured Parties.

27.           Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER OF THE PLEDGOR, THE ISSUER 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 AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

28.           WAIVER OF JURY TRIAL. PLEDGOR 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 AGREEMENT 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 AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

13

29.           INTEGRATION. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO PROMISES, UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES BY THE AGENT OR ANY OTHER SECURED PARTY RELATIVE TO THE SUBJECT MATTER HEREOF NOT EXPRESSLY SET FORTH OR REFERRED TO HEREIN. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

30.           Time is of the Essence. Time is of the essence of this Agreement.

31.           Survival. All covenants, agreements, representations and warranties made by the Pledgor herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the Secured Parties and shall survive the execution and delivery of this Agreement and the making of the Loans, regardless of any investigation made by any Secured Party or on its behalf and notwithstanding that any Secured Party may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on the Loans or any other Note Indebtedness is outstanding and unpaid.

[Signature Page Follows]

14

IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered as of the date first above written.

ADDRESS FOR NOTICES TO	AE ADVANCED FUELS, INC.
PLEDGOR:
c/o Aemetis, Inc.
20400 Stevens Creek Blvd, Suite 700
Cupertino, CA 95014	By:     /s/ Eric A. McAfee
Attn: Chief Executive Officer	Name: Eric McAfee
	Title: CEO
	AGENT:
	THIRD EYE CAPITAL CORPORATION
	By:       /s/ Arif N. Bhalwani
	Name: Arif N. Bhalwani
	Title: Managing Director

[Acknowledgement and Consent – Pledge Agreement]