Vertex Energy Inc. 8-K

Exhibit 10.1

Execution Version

AMENDMENT NUMBER TWO
TO LOAN AND SECURITY AGREEMENT

THIS LIMITED WAIVER AND AMENDMENT NUMBER TWO TO LOAN AND SECURITY AGREEMENT (this “Amendment No. 2”), dated as of September 30, 2022, is entered into by and among Vertex Energy Inc., a Nevada corporation (“Parent”), Vertex Refining Alabama LLC, a Delaware limited liability company (“Borrower”), each of Parent’s direct and indirect Subsidiaries listed on Schedule 1 hereto other than Excluded Subsidiaries (collectively, the “Existing Subsidiary Guarantors” and each, individually, an “Existing Subsidiary Guarantor”), Vertex Marine Fuel Services LLC, a Delaware limited liability company (“Vertex Marine”), Vertex Refining Texas LLC, a Texas limited liability company (“Vertex Texas”; Vertex Texas, together with Vertex Marine, each a “New Subsidiary Guarantor” and collectively, the “New Subsidiary Guarantors”; the New Subsidiary Guarantors, together with the Existing Subsidiary Guarantors and Parent, each a “Guarantor” and collectively, the “Guarantors”), Cantor Fitzgerald Securities (“Cantor”) as administrative agent and collateral agent for the Lenders (“Agent”) and the lenders from time to time party hereto (collectively with the Initial Lenders, the “Lenders” and each, a “Lender”).

W I T N E S S E T H

WHEREAS, Parent, Borrower, the Existing Subsidiary Guarantors, Lenders and Agent are parties to that certain Loan and Security Agreement, dated as of April 1, 2022, as amended by that certain Amendment No. 1 to Loan and Security Agreement, dated as of May 26, 2022 (the “Existing Loan Agreement”, and the Existing Loan Agreement as amended by this Amendment No. 2, the “Loan Agreement”; capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Loan Agreement);

WHEREAS, a Default has occurred under Section 8.2 of the Loan Agreement as a result of the Loan Parties’ failure to join Vertex Refining Texas LLC, a Texas limited liability company, as a Guarantor as required by Section 6.11 of the Loan Agreement (the “Specified Default”);

WHEREAS, pursuant to Section 14.4(c) of the Loan Agreement, the Loan Parties have requested that the Lenders constituting the Required Lenders waive the Specified Default under the Loan Agreement;

WHEREAS, the Lenders party hereto comprising the Required Lenders are willing to waive the Specified Default in accordance with and subject to the terms and conditions set forth herein;

WHEREAS, Borrower has requested that Agent and Lenders consent to certain amendments relating to the extension of the timeline for certain operating covenants and Project Milestones ; and

WHEREAS, upon the terms and conditions set forth herein, Agent and Lenders have agreed to make such amendments to the Existing Loan Agreement to extend the timeline for certain operating covenants and Project Milestones (the “Milestone Extension”), on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1.            Defined Terms. All initially capitalized terms used herein (including the preamble and recitals hereof) without definition shall have the meanings ascribed thereto in Section 1.1 of the Loan Agreement.

2.            Limited Waiver under the Loan Agreement.

3.            Amendments to Loan Agreement.

“6.18    Operating Covenants. Borrower (x) shall provide evidence of initial commercial production of renewable diesel by April 28, 2023 (the “Commercial Operations Date”) and (y) agrees to complete, or cause all the Project Milestones to be completed and submitted (as applicable) not later than the dates set forth on Schedule 6.18; provided that the Lenders and the Borrower agree to use commercially reasonable efforts to agree to reasonable extensions to the Commercial Operations Date and any remaining Project Milestone should the Commercial Operations Date or Project Milestones become unachievable due to causes, in each case, which (i) are directly related to the achievement of the Commercial Operations Date and/or the relevant Project Milestone, whether related to the operation of the Mobile Refinery or the Renewable Diesel Project and (ii) are beyond Borrower’s or any other Loan Party’s control, including, but not limited, to:

(a)       Acts of God, lightning, epidemics, pandemics (including, without limitation, COVID-19), floods, fires, earthquakes, other natural disasters explosions or storms, transportation difficulties, unplanned outages, breakdown of necessary equipment, power outages, strikes, lockouts or other industrial disturbances;

(b)       wars, invasions, boycotts, terrorist activities, or any law, rule, order or action of any court or instrumentality of the federal, state or local government or any foreign government; and

(c)       exhaustion, reduction, or unavailability or delay in delivery of any feedstock or other inputs necessary in the manufacture of renewable diesel.”

“3.     By October 15, 2022, the Loan Parties shall confirm that all Vehicles, which, under applicable law, are required to be registered, are properly registered in the name of the proper Loan Party that owns such Vehicles (such Vehicles, the “Retitled Property”).

4.       To the extent not delivered on the Closing Date, by October 15, 2022, the Loan Parties shall deliver certificates of title for all Certificate of Title Collateral for notation of the Agent’s Lien as required pursuant to the Loan Documents; provided that to the extent the Certificate of Title Collateral is also Retitled Property once the Loan Party receives the certificate of title reflecting the proper owner from the relevant Governmental Authority it shall have no more than sixty (60) days to deliver certificates of title for such Certificate of Title Collateral with notation of the Agent’s Lien.”

“9. Within five (5) Business Days of the Second Amendment Effective Date, Crystal Energy, LLC shall deliver to the Agent, the good standing certificate from the Secretary of State of the State of Tennessee.”

For purposes of determining compliance with the conditions specified in this Section 3, each Lender that has signed this Amendment No. 2 shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Agent shall have received notice from such Lender prior to the proposed Second Amendment Effective Date specifying its objection thereto.

(a)       The Loan Agreement, as amended hereby, and each of the other Loan Documents shall be and remain in full force and effect in accordance with their respective terms and hereby are ratified and confirmed in all respects. The execution, delivery, and performance of this Amendment No. 2 shall not operate, except as expressly set forth herein, as a modification or waiver of any right, power, or remedy of Agent or any Lender under the Loan Agreement or any other Loan Document. Except for the amendments to the Loan Agreement expressly set forth herein, the Loan Agreement and the other Loan Documents shall remain unchanged and in full force and effect.

(b)       Upon and after the effectiveness of this Amendment No. 2, each reference in the Loan Agreement to “this Agreement”, “hereunder”, “herein”, “hereof” or words of like import referring to the Loan Agreement, and each reference in the other Loan Documents to “the Loan Agreement”, “thereunder”, “therein”, “thereof” or words of like import referring to the Loan Agreement, shall mean and be a reference to the Loan Agreement as modified and amended hereby.

(c)       To the extent that any of the terms and conditions in any of the Loan Documents shall contradict or be in conflict with any of the terms or conditions of the Loan Agreement, after giving effect to this Amendment No. 2, such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Loan Agreement as modified or amended hereby.

(d)          This Amendment No. 2 is a Loan Document.

[Signature pages follow]

IN WITNESS WHEREOF, the parties have entered into this Amendment No. 2 as of the date first above written.

In Witness Whereof, the parties hereto have caused this Amendment No. 2 to be executed as of the date first above written.

Vertex Energy Inc. 8-K

Exhibit 10.2

Execution Version

Guarantor Joinder

THIS JOINDER AGREEMENT NO. 2 (this “Agreement”), dated as of September 30, 2022, to that certain Loan and Security Agreement dated April 1, 2022 (as amended by that certain Amendment Number One to Loan and Security Agreement, dated as of May 26, 2022 and that certain Amendment Number Two to Loan and Security Agreement dated as of the date hereof, and as may be further amended from time to time, the “Loan Agreement”) by and among Vertex Energy, Inc., a Nevada corporation (“Parent”), Vertex Refining Alabama LLC, a Delaware limited liability company (the “Borrower”), each of Parent’s direct and indirect subsidiaries from time to time party thereto, Cantor Fitzgerald Securities, as agent (the “Agent”) and the several lenders from time to time party thereto (collectively, the “Lenders”). Capitalized terms used herein but not otherwise defined shall have the meanings provided in the Loan Agreement.

The undersigned, Vertex Refining Texas LLC, a Texas limited liability company (“Vertex Texas”) and Vertex Marine Fuel Services LLC, a Delaware limited liability company (“Vertex Marine”; Vertex Marine, together with Vertex Texas, each an “Additional Guarantor” and collectively, the “Additional Guarantors”) each wishes to become a party to the Loan Agreement and to acquire and undertake the rights and obligations of a “Guarantor” thereunder. Each Additional Guarantor is entering into this Agreement in accordance with the provisions of the Loan Agreement in order to become a Guarantor thereunder.

Accordingly, each Additional Guarantor and the other Loan Parties hereby agree as follows with the Agent, for the benefit of the Secured Parties:

1.            The Additional Guarantor hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the Additional Guarantor will be deemed to be a party to and a “Guarantor” under the Loan Agreement and shall have all of the obligations and rights of a Guarantor thereunder as if it had executed the Loan Agreement and the other Loan Documents as a Guarantor. The Additional Guarantor hereby ratifies, as of the date hereof, and agrees to be bound by, all representations and warranties, covenants and other terms, conditions and provisions of the Loan Agreement and the other applicable Loan Documents. Without limiting the generality of the foregoing terms of this Paragraph 1, the Additional Guarantor (i) is hereby made a party to the Loan Agreement and the other Loan Documents as a Guarantor thereunder with the same force and effect as if originally named therein as a Guarantor and the Additional Guarantor hereby jointly and severally assumes and agrees to pay and perform all obligations of a Guarantor under the Loan Agreement and each of the other Loan Documents, (ii) hereby guarantees, jointly and severally together with the other Guarantors, the prompt payment of the Secured Obligations in accordance with Article XIII of the Loan Agreement and (iii) hereby expressly assumes all obligations and liabilities of a Guarantor under the Loan Agreement.

2.             Each of the Additional Guarantor and the other Loan Parties hereby agree that all of the representations and warranties contained in Article V of the Loan Agreement and each other Loan Document are true and correct in all material respects as of the date hereof ‎(without duplication of any materiality qualifier set forth therein) except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects (without duplication of any materiality standard set forth therein) as of such earlier date, and except that for purposes hereof, the representations and warranties contained in Section 5.9 of the Loan Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to clauses (i) and (iii), respectively, of Section 6.3(a) of the Loan Agreement.‎

3.             The Additional Guarantor acknowledges and confirms that it has received a copy of the Loan Agreement and the schedules and exhibits thereto and each Loan Document and Collateral Document and the schedules and exhibits thereto. The information on the schedules to the Loan Agreement and the Collateral Documents are hereby supplemented (to the extent permitted under the Loan Agreement or Collateral Documents) to reflect the information shown on the attached Schedule A (and each of the Loan Parties ratifies such supplements and confirms that its obligations under the Collateral Documents, as so supplemented, shall be and continue to be in full force and effect).

4.             The Loan Parties confirm that the Loan Agreement is, and upon the Additional Guarantor becoming a Guarantor, shall continue to be, in full force and effect. The parties hereto confirm and agree that immediately upon the Additional Guarantor becoming a Guarantor the term “Obligations,” as used in the Loan Agreement, shall include all obligations of the Additional Guarantor under the Loan Agreement and under each other Loan Document.

5.           Each of the Loan Parties and the Additional Guarantor agrees that at any time and from time to time, upon the written request of the Agent, it will execute and deliver such further documents and do such further acts as the Agent may reasonably request in accordance with the terms and conditions of, and to the extent that such further assurances are required under, the Loan Agreement and the other Loan Documents in order to effect the purposes of this Agreement.

6.           The following conditions must be met on or before the date hereof:

(a)               Loan Documents. Agent shall have received this Agreement executed by each applicable Loan Party.

(b)         Organizational Documents; Incumbency. Agent shall have received (i) copies of each Organization Document executed by Additional Guarantor, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated as of the date hereof or a recent date prior thereto, (ii) signature and incumbency certificates of the officers of such Person executing the Loan Documents to which it is a party, (iii) resolutions of the Board or similar governing body of each Loan Party, in each case, approving and authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the date hereof, certified as of the date hereof by its secretary or an assistant secretary or other similar responsible officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate from the applicable Governmental Authority of Additional Guarantor’s jurisdiction of incorporation, organization, or formation dated a recent date prior to the date hereof.

(c)             Personal Property Collateral. In order to create in favor of Agent, for the benefit of Secured Parties, a valid, perfected security interest in personal property Collateral, Agent shall have received:

(i)             evidence satisfactory to the Required Lenders of the compliance by Additional Guarantor of its obligations under the Loan Agreement and Collateral Documents to which it is a party (including, without limitation, its obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, and any agreements governing deposit and/or securities accounts as provided therein), together with appropriate financing statements on Form UCC-1 duly filed in such office or offices as may be necessary or, in the reasonable opinion of the Required Lenders, desirable to perfect the security interests purported to be created by the Loan Agreement and Collateral Documents, and

(ii)            original certificates (if any) with respect to all of the capital stock issued by Additional Guarantor, together with undated powers executed in blank with respect thereto (provided, that any such certificates issued by any Person other than Additional Guarantor shall only be required to be delivered on the date hereof to the extent timely received after using commercially reasonable efforts to obtain them).

(d)             Fees and Expenses. All accrued reasonable costs, fees, and expenses (including, without limitation, reasonable legal fees and expenses and the reasonable fees and expenses of any other advisors) and other compensation due and payable to Agent and the Lenders and required by this Agreement and the other Loan Documents to be paid on the date hereof shall have been paid, in the case of expenses, to the extent a reasonably detailed invoice has been delivered to Borrower.

(e)             Officer’s Certificate. Borrower shall have delivered to the Agent an executed Officer’s Certificate, certifying the items described in clause (b) of this paragraph 6, with all attachments thereto.

Each Lender, by delivering its signature page to this Agreement shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be approved by the Agent or Lenders, as applicable, on the date hereof.

7.             This Agreement may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Agreement by fax transmission or other electronic mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.

8.             Each provision of this Agreement shall be severable from every other provision of this Joinder Agreement for the purpose of determining the legal enforceability of any specific provision.

9.             This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York. The terms of Section 14.14 of the Loan Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.

10.           Cantor Fitzgerald Securities is entering into this Agreement solely in its capacity as Agent and shall be entitled to all of the rights, privileges and immunities set forth in the Loan Agreement in acting hereunder.

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IN WITNESS WHEREOF, each of the Loan Parties and the Additional Guarantor has caused this Agreement to be duly executed by its authorized officer, and the Agent, for the benefit of the Secured Parties, has caused the same to be accepted by its authorized officer, as of the day and year first above written.

Acknowledged, accepted and agreed:

CANTOR FITZGERALD SECURITIES,

as Agent

Schedule A

Schedule 1
Subsidiaries

Excluded Subsidiaries as of the Second Amendment Effective Date