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): July 1, 2021
VERTEX ENERGY, INC.
(Exact name of registrant as specified in its charter)
| Nevada | 001-11476 | 94-3439569 |
|
(State or other jurisdiction of
incorporation) |
(Commission File Number) |
(IRS Employer
Identification No.) |
1331 Gemini Street
Suite 250
Houston, Texas 77058
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including area code: (866) 660-8156
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)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
|
Common Stock, $0.001 Par Value Per Share |
VTNR |
The NASDAQ Stock Market LLC (Nasdaq Capital Market) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry Into a Material Definitive Agreement.
Tensile Transactions
As previously disclosed in the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission (the “SEC” or the “Commission”) on July 31, 2019 (the “July 2019 Form 8-K”), the Company and its subsidiaries entered into a number of transactions with Tensile-Myrtle Grove Acquisition Corporation (“Tensile-MG”), an affiliate of Tensile Capital Partners Master Fund LP, an investment fund based in San Francisco, California (“Tensile”), including forming Vertex Refining Myrtle Grove LLC, a Delaware limited liability company, which entity was formed as a special purpose vehicle in connection with the transactions described in the July 2019 Form 8-K (“MG SPV”). As a result of the transactions, Tensile, through Tensile-MG, acquired an approximate 15% ownership interest in MG SPV, which owns the Company’s Belle Chasse, Louisiana, re-refining complex.
As previously disclosed in the Current Report on Form 8-K filed by the Company with the Commission on January 22, 2020 (the “January 2020 Form 8-K”), HPRM LLC (“Heartland SPV”), a Delaware limited liability company was formed as a special purpose vehicle in connection with the transactions described in greater in the January 2020 Form 8-K between the Company and Tensile-Heartland Acquisition Corporation (“Tensile-Heartland”), an affiliate of Tensile, pursuant to which ownership of the Company’s Columbus, Ohio, Heartland facility, which produces a base oil product that is sold to lubricant packagers and distributors, was transferred to Heartland SPV, and Heartland SPV became owned 35% by Vertex Operating and 65% by Tensile-Heartland.
On July 1, 2021, the Operating Agreement of MG SPV was amended to provide that from the date of such agreement until December 31, 2021, the Company (through Vertex Operating), is required to fund the working capital requirements of MG SPV, which advances are initially characterized as debt, but that Tensile MG may convert such debt into additional Class A Units of MG SPV (after December 31, 2021), at $1,000 per unit (the “MG SPV Amendment”).
On July 1, 2021, Heartland SPV loaned Vertex Operating $7,000,000, which was evidenced by a Promissory Note (the “Heartland Note”). The Heartland Note accrues interest at the applicable federal rate of interest from time to time, increasing to 12% upon an event of default. Amounts borrowed under the Heartland Note are due ninety days after the date of the note or within five (5) days of the closing of the Sale Agreement (whichever is earlier), and may be prepaid at any time without penalty. In the event the Heartland Note is not paid on or before the appliable due date, we agreed to use our best efforts to raise the funds necessary to repay the note as soon as possible. The Heartland Note includes customary events of defaults. The Company plans to use the funds borrowed paydown a portion of the $10 million deposit promissory note owed by Vertex Operating to Equilon Enterprises LLC d/b/a Shell Oil Products US and/or Shell Chemical LP and/or Shell Oil Company (the “Seller”), in connection with that certain Sale and Purchase Agreement (the “Purchase Agreement” and the “Deposit Note”) entered into by Vertex Operating, the Company and the Seller on May 26, 2021, as previously disclosed in the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on May 27, 2021.
As previously disclosed in the July 2019 Form 8-K, on July 25, 2019, Tensile purchased 1,500,000 shares of common stock and warrants to purchase 1,500,000 shares of common stock with an exercise price of $2.25 per share, and we entered into a Registration Rights and Lock-Up Agreement with Tensile which required us to register the shares of common stock issued to Tensile, and the shares of common stock issuable upon exercise of the warrants issued to Tensile, and Tensile agreed to certain restrictions on the sale of the shares held by Tensile. On July 1, 2021, we entered into a First Amendment to Registration Rights and Lock-Up Agreement with Tensile (the “RRA Amendment”) to adjust the restriction on Tensile’s ability to sell shares of common stock under the lock-up to provide for Tensile to not sell more than 500,000 shares of common stock in any seven day period until July 25, 2024, without the prior written consent of the Company.
Encina Credit Agreement Term Loan
On July 1, 2021, the Company and Vertex Operating entered into an Eighth Amendment to Credit Agreement with Encina Business Credit, LLC (“Encina”) as agent for the lenders party there, and such lenders (the “8th Amendment”), which amendment amended the February 1, 2017 Credit Agreement between the Company and certain of its subsidiaries, including Vertex Operating (such Credit Agreement, as amended from time to time, the “Credit Agreement”). Pursuant to the 8th Amendment, Encina Business Credit SPV, LLC agreed to loan the Company $5 million under the terms of the Credit Agreement (the “Term Loan”), under the stipulation that the Company use such loaned funds solely to paydown amounts owed under the Deposit Note. The $5 million Term Loan bears interest at the variable-rate of LIBOR (1.15% at March 31, 2021) plus 6.5% per year, or to the extent that LIBOR is not available, the highest of the prime rate and the Federal Funds Rate plus 0.50%, in each case, plus 6%. We are required to repay the Term Loan in monthly installments of 1/48th of the amount borrowed, each month that the Term Loan is outstanding, with a final balloon payment due at maturity. The Term Loan is subject to customary events of defaults and other covenants set forth in the Credit Agreement. The Term Loan is secured by Encina’s security interests over substantially all of our assets.
* * * * * *
The foregoing description of the Heartland Note, MG SPV Amendment, RRA Amendment and 8th Amendment, is only a summary and is not complete, and is qualified in its entirety by reference to the Sale Agreement, Heartland Note, MG SPV Amendment, RRA Amendment and 8th Amendment, copies of which are attached hereto as Exhibits 10.1, 3.1, 10.2, and 10.6, respectively, and are incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information in Item 1.01 above regarding the Heartland Note and Encina Term Loan, are incorporated into this Item 2.03 in their entirety by reference.
Item 8.01 Other Events.
On January 18, 2021, the Company, Vertex Operating and Encina as agent for the lenders named therein, and such lenders, entered into a Sixth Amendment to Credit Agreement (the “6th Amendments”), which amended the Credit Agreement and a separate ABL Credit Agreement dated February 1, 2017, between Vertex Operating, the Company, substantially all of the Company’s subsidiaries, Encina, as agent for the lenders named therein, and such lenders (as amended to date, the “ABL Credit Agreement”), to permit availability at any time to be less than (a) $1,000,000 at any time during the period commencing on December 31, 2020 through and including March 31, 2021 and (b) $2,000,000 at any time from and after April 1, 2021.
On May 26, 2021, the Company, Vertex Operating and Encina as agent for the lenders named therein, and such lenders, entered into a Seventh Amendment to Credit Agreement and a Seventh Amendment to ABL Credit Agreement (collectively, the “7th Amendments”), which amended the Credit Agreement and ABL Credit Agreement, to allow the Company to enter into the Purchase Agreement, subject to the Company agreeing to not use any funds from the ABL Credit Agreement towards such Purchase Agreement or to pay amounts in connection with the deposit note.
The description of the 6th Amendment and 7th Amendments above is not complete, and is qualified in its entirety to the full text of such 6th Amendment and 7th Amendments, copies of which are attached hereto as Exhibits 10.3 through 10.5, which are incorporated by reference into this Item 8.01.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
* Filed herewith.
** Furnished herewith.
+ Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule or exhibit will be furnished supplementally to the Securities and Exchange Commission upon request; provided, however that Vertex Energy, Inc. may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedule or exhibit so furnished.
Forward-Looking Statements
Certain of the matters discussed in this communication and Exhibit 99.1 hereto, which are not statements of historical fact constitute forward-looking statements that involve a number of risks and uncertainties and are made pursuant to the Safe Harbor Provisions of the Private Securities Litigation Reform Act of 1995. Words such as “strategy,” “expects,” “continues,” “plans,” “anticipates,” “believes,” “would,” “will,” “estimates,” “intends,” “projects,” “goals,” “targets” and other words of similar meaning are intended to identify forward-looking statements but are not the exclusive means of identifying these statements.
Important factors that may cause actual results and outcomes to differ materially from those contained in such forward-looking statements include, without limitation, the ability of the parties to close the Sale Agreement on the terms set forth in, and pursuant to the required timing set forth in, the Sale Agreement, if at all; the occurrence of any event, change or other circumstances that could give rise to the right of one or all of Safety-Kleen or the Company (collectively, the “Sale Agreement Parties”) to terminate the Sale Agreement; the effect of such termination, including breakup and other fees potentially payable in connection therewith; the outcome of any legal proceedings that may be instituted against Sale Agreement Parties or their respective directors or officers; the ability to obtain regulatory and other approvals and meet other closing conditions to the Sale Agreement on a timely basis or at all, including the risk that regulatory and other approvals required for the Sale Agreement are not obtained on a timely basis or at all, or are obtained subject to conditions that are not anticipated or the expected benefits of the transaction; the ability to obtain approval by the Company’s shareholders on the expected schedule of the transactions contemplated by the Sale Agreement; potential adverse reactions or changes to business relationships resulting from the announcement or completion of the Sale Agreement; the ability of the Company to retain and hire key personnel; the diversion of management’s attention from ongoing business operations; uncertainty as to the long-term value of the common stock of the Company following the closing of the Sale Agreement; the business, economic and political conditions in the markets in which Sale Agreement Parties operate; risks associated with the ability of Vertex to complete current plans for expansion and growth of the new operations and other conditions to the completion of the transaction; outstanding credit facilities, including amounts owed, restrictive covenants, security interests thereon and the Company’s ability to repay such facilities and amounts due thereon when due; risks associated with the Company’s outstanding preferred stock, including redemption obligations in connection therewith, restrictive covenants and the Company’s ability to redeem such securities; the level of competition in the Company’s industry and the Company’s ability to compete; the Company’s ability to respond to changes in the Company’s industry; the loss of key personnel or failure to attract, integrate and retain additional personnel; the Company’s ability to protect its intellectual property and not infringe on others’ intellectual property; the Company’s ability to scale its business; its ability to maintain supplier relationships and obtain adequate supplies of feedstocks; its ability to obtain and retain customers; risks associated with the Company’s ability to complete the proposed purchase transaction with Shell Oil Company (“Shell”) as previously disclosed on anticipated terms and timing, if at all, including obtaining regulatory approvals, unforeseen liabilities, future capital expenditures, the ability to recognize synergies, and the ability of Vertex to complete current plans for expansion and growth of the new operations and other conditions to the completion of pending transactions (including the Shell acquisition); the expected benefits, output, financial metrics and production of proposed transactions (including the Shell acquisition); Vertex Energy’s ability to satisfy closing conditions associated with the previously disclosed Shell acquisition; its ability to raise sufficient capital to complete the Shell acquisition and a planned renewable diesel project and the terms of such funding; the occurrence of any event, change or other circumstances that could give rise to the parties failing to complete the acquisition transaction on the terms disclosed, if at all, the right of one or both of Vertex Energy or Shell to terminate the acquisition agreement and the result of such termination, including a termination fee of $10 million payable by Vertex Energy under certain conditions; the outcome of any legal proceedings that may be instituted against any parties or their respective directors in connection with such planned Shell acquisition transaction; the ability to obtain regulatory approvals and other consents, and meet other closing conditions to the acquisition on a timely basis or at all, including the risk that regulatory approvals or other consents required for the acquisition are not obtained on a timely basis or at all, or which are obtained subject to conditions that are not anticipated or that could adversely affect Vertex’s acquisition or the expected benefits of the transaction; difficulties and delays in integrating the acquired assets businesses; and the Company’s plans for financing the acquisition and planned renewable diesel project; risks associated with COVID-19, the global efforts to stop the spread of COVID-19, potential downturns in the U.S. and global economies due to COVID-19 and the efforts to stop the spread of the virus, and COVID-19 in general; the lack of capital available on acceptable terms to finance the Company’s continued growth; and other risk factors included from time to time in documents Vertex Energy files with the Securities and Exchange Commission, including, but not limited to, its Form 10-Ks, Form 10-Qs and Form 8-Ks. These reports are available at www.sec.gov. Other unknown or unpredictable factors also could have material adverse effects on Vertex Energy’s future results.
Other important factors that may cause actual results and outcomes to differ materially from those contained in the forward-looking statements included in this communication and in Exhibit 99.1 are described in the Company’s publicly filed reports, including, but not limited to, the Company’s Annual Report on Form 10-K for the year ended December 31, 2020 and its Quarterly Report on Form 10-Q for the quarter ended March 31, 2021. These reports are available at www.sec.gov.
The Company cautions that the foregoing list of important factors is not complete, and does not undertake to update any forward-looking statements except as required by applicable law. All subsequent written and oral forward-looking statements attributable to the Company or any person acting on behalf of any Sale Agreement Parties are expressly qualified in their entirety by the cautionary statements referenced above. Other unknown or unpredictable factors also could have material adverse effects on Vertex’s future results. The forward-looking statements included in this press release are made only as of the date hereof. Vertex cannot guarantee future results, levels of activity, performance or achievements. Accordingly, you should not place undue reliance on these forward-looking statements. Finally, Vertex undertakes no obligation to update these statements after the date of this release, except as required by law, and takes no obligation to update or correct information prepared by third parties that is not paid for by Vertex. If we update one or more forward-looking statements, no inference should be drawn that we will make additional updates with respect to those or other forward-looking statements.
Additional Information and Where to Find It
In connection with the proposed Sale Agreement, the Company plans to file with the SEC a proxy statement to seek shareholder approval for the Sale Agreement, which, when finalized, will be sent to the shareholders of the Company seeking their approval of the respective transaction-related proposals. This communication is not a substitute for any proxy statement or other document Vertex may file with the SEC in connection with the proposed transaction. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE PROXY STATEMENT, AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THOSE DOCUMENTS AND ANY OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED SALE AGREEMENT, WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY AND THE SALE AGREEMENT AND THE PROPOSED SALE TRANSACTION.
Investors and security holders may obtain copies of these documents free of charge through the website maintained by the SEC at www.sec.gov or from the Company at its website, www.vertexenergy.com. Documents filed with the SEC by the Company will be available free of charge on the “Investor Relations,” “SEC Filings” page of our website at www.vertexenergy.com. or, alternatively, by directing a request by mail, email or telephone to Vertex Energy, Inc. at 1331 Gemini Street, Suite 250, Houston, Texas 77058; chrisc@VertexEnergy.com; or (866) 660-8156, respectively.
Participants in the Solicitation
The Company and certain of its respective directors and executive officers may be deemed to be participants in the solicitation of proxies from the respective shareholders of the Company in respect of the proposed Sale Agreement under the rules of the SEC. Information about the Company’s directors and executive officers and their ownership of the Company is available in the Company’s Definitive Proxy Statement on Schedule 14A, as filed with the Securities and Exchange Commission on April 7, 2021. Other information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the proxy statement and other relevant materials to be filed with the SEC regarding the Sale Agreement when they become available. Investors should read the proxy statement carefully when it becomes available before making any voting or investment decisions. You may obtain free copies of these documents from the Company using the sources indicated above.
No Offer or Solicitation
This communication shall not constitute an offer to sell or the solicitation of an offer to buy any securities, or the solicitation of any vote or approval, nor shall there be any sale of securities, in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
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.
| VERTEX ENERGY, INC. | ||
| Date: July 2, 2021 | By: | /s/ Chris Carlson |
| Chris Carlson | ||
| Chief Financial Officer | ||
Exhibit 3.1
FIRST
AMENDMENT TO VERTEX REFINING Myrtle Grove LLC
LIMITED LIABILITY COMPANY AGREEMENT
This FIRST AMENDMENT TO THE LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of Vertex Refining Myrtle Grove LLC (the “Company”), dated as of July 1, 2021 (the “Effective Date”), is hereby entered into by and among the undersigned Members.
WHEREAS, the Company was formed as a Delaware limited liability company pursuant to the filing of a Certificate of Formation on February 20, 2019, pursuant to the provisions of the Delaware Act;
WHEREAS, the Members entered into that certain Vertex Refining Myrtle Grove LLC Limited Liability Company Agreement on July 24, 2019 (the “Operating Agreement”); and
WHEREAS, the Members wish to amend the Operating Agreement to create the obligation on the part of Vertex Energy Operating LLC to fund the Company’s working capital requirements from and after the Effective Date (the “Advances”);
WHEREAS, the Members wish to address the characterization of the Advances as debt or equity and the associated terms of each; and
WHEREAS, capitalized terms used but not otherwise defined herein will have the meanings ascribed to such terms in the Operating Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
| 1. | Working Capital Requirements. |
Notwithstanding any other provision of the Operating Agreement to the contrary, but subject to Section 2 of this Agreement below, from and after the Effective Date until December 31, 2021, Vertex will fund the working capital requirements of the Company from time to time in an aggregate amount not to exceed $1,000,000.00.
| 2. | Advances; Characterization. |
All advances shall initially be characterized as debt. For so long as the Class B Holder continues to hold a membership interest in the Company, however, following December 31, 2021, and notwithstanding any other provision of the Operating Agreement or this Agreement to the contrary, the Class B Holder, at its sole option and election, may recharacterize all or any portion of the Advances as equity. To the extent that all or any portion of the Advances remain debt, they shall be repayable over a term of not less than three years in equal quarterly installments on the first day of each calendar quarter with interest at the rate then charged by the Company’s primary lender or, if none, then the rate charged by [insert bank] to its most credit worthy customers for loans of similar duration and security. To the extent the Class B Holder recharacterizes all or any portion of the Advances as equity, the portion so characterized shall be converted to Class A Units issued by the Company at $1,000 per unit.
| 3. | Counterparts, Effect of Facsimile, Emailed and Photocopied Signatures. |
This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (email) or downloaded from a website or data room (any such delivery, an “Electronic Delivery”) shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party, each other party shall re execute the original form of this Agreement and deliver such form to all other parties. No party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense relates to lack of authenticity.
| 4. | Ratification. |
Except as expressly modified by this Agreement, the Parties hereby confirm, ratify and agree that the RRLA remains in full force and effect.
[Remainder of page left intentionally blank. Signature page follows.]
| “MEMBERS”: | |||
| “TENSILE” | |||
| TENSILE-MYRTLE GROVE ACQUISITION INC. | |||
| By: | /s/ Doug Dossey | ||
| Doug Dossey Authorized Signatory | |||
|
“VERTEX” |
|||
| VERTEX ENERGY OPERATING, LLC | |||
| By: | /s/ Benjamin P. Cowart | ||
| Benjamin P. Cowart, President/CEO | |||
Exhibit 10.1
VERTEX ENERGY OPERATING LLC
Promissory Note
| $7,000,000.00 | July 1, 2021 |
1. Terms. For value received, VERTEX ENERGY OPERATING LLC, a Texas limited liability company (referred to herein as the “Company”), hereby irrevocably promises to pay to the order of HPRM LLC or its assigns (hereinafter together with successors in title and assigns referred to as the “Lender”) the principal sum set forth above, together with interest on such principal amount from time to time outstanding hereunder at the applicable federal rate; provided, however, that such interest rate shall increase to 12% per annum, compounded annually, from and after a Default (as defined in Section 6 below). Interest shall be computed based on the actual number of days elapsed and shall be paid, together with the full amount of unpaid principal, on the Due Date (as defined in Section 3 below). Principal and interest shall be payable in lawful money of the United States of America at such place as the Lender may designate from time to time in writing to the Company. In no event shall this Note be construed to require payment of interest in an amount in excess of the maximum allowed by law and if such payment is made by the Company, then such excess sum shall be credited by the Lender as a payment of principal. This Note evidences a commercial loan made for business purposes.
2. Due Date. The principal amount of this Note together with accrued interest (the sum of such principal and accrued interest being hereinafter referred to as the “Amount Due”) shall be due on or before the earlier of (the “Due Date”): (i) ninety (90) calendar days following the date hereof; and (ii) five (5) calendar days following the closing of the transaction between Vertex Energy Operating LLC, and/or any of its affiliates, and Safety-Kleen Systems, Inc. and/or any of its affiliates, as more particularly described in the Asset Purchase Agreement between them dated June 29, 2021. This Note may be prepaid in whole or in part at any time without premium or penalty and without the consent of the Lender.
3. Funding Covenant. In the event this Note is not paid on or before the Due Date, the Company will use its best efforts to raise the funds necessary to pay the Amount Due as soon as possible, including by way of example and not limitation, the issuance of Company shares in a public or private transaction or the sale of assets.
4. Default. The entire unpaid principal of this Note and the interest then accrued on this Note shall become and be immediately due and payable upon written demand of the Lender of this Note, without any other notice or demand of any kind or any presentment or protest, if any one of the following events shall occur and be continuing at the time of such demand, whether voluntarily or involuntarily, or, without limitation, occurring or brought about by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any governmental body:
| a. | If default shall be made in the payment of the Amount Due of this Note and if any such default shall remain unremedied for five (5) days; or | |
| b. | If the Company (i) makes a composition or an assignment for the benefit of creditors or trust mortgage, (ii) applies for, consents to, acquiesces in, files a petition seeking or admits (by answer, default or otherwise) the material allegations of a petition filed against it seeking the appointment of a trustee, receiver or liquidator, in bankruptcy or otherwise, of itself or of all or a substantial portion of its assets, or a reorganization, arrangement with creditors or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts or other remedy, relief or adjudication available to or against a bankrupt, insolvent or debtor under any existing bankruptcy or insolvency law or any law affecting the rights of creditors generally, or (iii) is generally not, or is unable to, or admits in writing its inability to pay its debts generally as they become due; or | |
| c. | If an order for relief shall have been entered by a bankruptcy court or if a decree, order or judgment shall have been entered adjudging the Company insolvent, or appointing a receiver, liquidator, custodian or trustee, in bankruptcy or otherwise, for it or for all or a substantial portion of its assets, or approving the winding-up or liquidation of its affairs on the grounds of insolvency or nonpayment of debts, and such order for relief, decree, order or judgment shall remain undischarged or unstayed for a period of sixty (60) days; or if any substantial part of the property of the Company is sequestered or attached and shall not be returned to the possession of the Company or such subsidiary or released from such attachment within sixty (60) days. |
5. Certain Waivers. The Company hereby expressly and irrevocably waives presentment, demand, protest, notice of protest and all other notices in connection with this Note.
6. Fees and Disbursements. Upon written demand by the Lender hereof at any time, the Company shall pay all reasonable costs and expenses of the Lender relating to this Note (including without limitation reasonable attorneys’ fees and disbursements) incurred in connection with the enforcement of, or collection of any amounts due under, this Note.
7. Amendment, Modification or Termination. This Note may only be modified, amended or terminated (other than by payment in full or conversion) by an agreement in writing signed by the Company and the Lender. No waiver of any term, covenant or provision of this Note shall be effective unless given in writing by the Lender.
8. Sealed Instrument; Governing Law; Jury Trial. This Note is intended to take effect as a sealed instrument. This Note and the obligations of the Company hereunder shall be governed by and interpreted and determined in accordance with the laws of the State of Delaware without regard to its conflict of laws provisions. THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS NOTE OR ANY OTHER RELATED DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9. Assignment. This Note shall be binding upon Lender and its successors and assigns, and the terms and provisions of this Note shall inure to the benefit of the Company and its successors and assigns, including subsequent holders hereof. Without limiting the foregoing, the Lender may assign or otherwise transfer this Note to any other person or entity whereupon such assignee or transferee shall become vested with all of the rights in respect hereof, whether granted to the Lender herein or otherwise. The Company may not assign any of its rights or obligations hereunder without the prior written consent of the Payee.
IN WITNESS WHEREOF, this Note has been duly executed on behalf of the undersigned on the day and in the year first written above.
VERTEX ENERGY OPERATING LLC
| By: | /s/ Benjamin P. Cowart | ||
| Name: | Benjamin P. Cowart | ||
| Title: | President/CEO | ||
Exhibit 10.2
FIRST AMENDMENT TO REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This First Amendment to the Registration Rights and Lock-Up Agreement (this “First Amendment”) is entered into on this 1st day of July, 2021 (the “Effective Date”), by and among Vertex Energy, Inc., a Nevada corporation (the “Company”), and Tensile Capital Partners Master Fund LP, a Cayman Islands exempted limited partnership (the “Holder”).
WHEREAS, the Holder previously purchased (a) 1,500,000 shares of the common stock, $0.001 par value per share (the “Common Stock” and the “Subscription Shares”) of the Company, and (b) warrants to purchase 1,500,000 shares of the Common Stock of the Company at an exercise price of $2.25 per share (the “Warrants”), pursuant to the Holder’s entry into a Subscription Agreement with the Company (the “Subscription Agreement”);
WHEREAS, contemporaneously with said purchase Holder and the Company entered into that certain Registration Rights and Lock-up Agreement, dated July 25, 2019 (the “RRLA”); and
WHEREAS, Holder and the Company wish to amend the RRLA to provide for an increased permitted weekly sale by Holder of shares.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and agreements set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
| 1. | Volume Limitation. |
The definition of Quarterly Volume in the RRLA is hereby deleted, and a new definition is substituted in its place, as follows:
“Weekly Volume” means 500,000 shares of the Company’s Common Stock per week, as adjusted equitably for any stock splits, stock dividends or recapitalizations completed by the Company.
Section 2(b) of the RRLA is hereby deleted, and the following substituted in its place:
“The Holder hereby agrees that, except as set forth in Section 2(d) below, for a period of four (4) years from the end of the Initial Lock-Up Period until the Expiration Date, without the prior written consent of the Company, the Holder will not Dispose of more than the Weekly Volume of Shares in any seven-day period (the “Volume Limitation” and together with the Initial Lock-Up, the “Lock-Up”).
| 2. | Counterparts, Effect of Facsimile, Emailed and Photocopied Signatures. |
This First Amendment and any signed agreement or instrument entered into in connection with this First Amendment, and any amendments hereto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (email) or downloaded from a website or data room (any such delivery, an “Electronic Delivery”) shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party, each other party shall re execute the original form of this Agreement and deliver such form to all other parties. No party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense relates to lack of authenticity.
| 3. | Ratification. |
Except as expressly modified by this First Amendment, the Parties hereby confirm, ratify and agree that the RRLA remains in full force and effect.
[Remainder of page left intentionally blank. Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
| “COMPANYrdquo;: | |||
| VERTEX ENERGY, INC. | |||
| By: | /s/ Benjamin P. Cowart | ||
| Name: | Benjamin P. Cowart | ||
| Title: | President/CEO | ||
| “HOLDER”: | |||
|
TENSILE CAPITAL PARTNERS MASTER FUND LP |
|||
| By: | /s/ Doug Dossey | ||
| Name: | Doug Dossey | ||
| Title: | Authorized Signatory | ||
| Address for Notice: | |||
| Tensile Capital Management LP | |||
| 700 Larkspur Landing, Suite 255 | |||
| Larkspur, CA 94939 | |||
| 415-830-8172 | |||
| ddossey@tensilecapital.com | |||
| With a copy to (which shall not constitute notice): | |||
|
Noah Boyens
nboyens@kirkland.com |
|||
Exhibit 10.3
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (this “Agreement”) is entered into as of January 18, 2021 by and among VERTEX ENERGY, INC., a Nevada corporation (“Parent”), VERTEX ENERGY OPERATING, LLC, a Texas limited liability company (the “Lead Borrower”), the other Borrowers signatory hereto, ENCINA BUSINESS CREDIT, LLC, as Agent, and the Lenders signatory hereto.
W I T N E S E T H:
WHEREAS, Parent, the Lead Borrower, the other Loan Parties, Agent and the Lenders from time to time party thereto are parties to that certain ABL Credit Agreement dated as of February 1, 2017 (as amended prior to the date hereof and as it may be further amended, restated, supplemented or modified from time to time, the “Credit Agreement”; unless otherwise defined herein, capitalized terms used herein that are not otherwise defined herein shall have the respective meanings assigned to such terms in the Credit Agreement); and
WHEREAS, the Loan Parties have requested that the Agent and Lenders amend certain provisions of the Credit Agreement, and subject to the satisfaction of the conditions set forth herein, the Agent and the Lenders signatory hereto are willing to do so, on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:
1. Amendments to Credit Agreement. Upon satisfaction of the conditions set forth in Section 2 hereof, the Credit Agreement is hereby amended as follows:
| (a) | Section 6.02(c) of the Credit Agreement is hereby amended and restated to read as follows: |
“(c) (i) on the third Business Day of each week, and on the last Business Day of each month, a Borrowing Base Certificate showing the Borrowing Base as of the close of business as of the last day of the immediately preceding week, each Borrowing Base Certificate to be certified as complete and correct by a Responsible Officer of the Lead Borrower; and (ii) on the third Business Day of each week (or daily if Agent shall request), an update of daily sales during such week including supporting detail from sales journals and other records; provided that Agent may suspend or make less frequent such sales reporting under this clause (ii) to the extent Agent deems, in its permitted discretion, Availability to be sufficient to warrant less frequent reporting of sales.
| (b) | Section 7.16 of the Credit Agreement is hereby amended and restated to read as follows: |
“7.16 Minimum Availability. Permit Availability at any time to be less than (a) $1,000,000 at any time during the period commencing on December 31, 2020 through and including March 31, 2021 and (b) $2,000,000 at any time from and after April 1, 2021.”
2. Conditions. The effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent:
a. the execution and delivery of this Agreement by each Loan Party, Agent and the Lenders; and
b. the truth and accuracy of the representations and warranties contained in Section 3 hereof.
3. Representations and Warranties. Each Loan Party hereby represents and warrants to Agent and each Lender as follows:
a. the execution, delivery and performance by such Loan Party of this Agreement has been duly authorized by all necessary corporate or other organizational action, and does not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach, termination, or contravention of, or constitute a default under, or require any payment to be made under (i) any Material Contract or any Material Indebtedness to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; (c) result in or require the creation of any Lien upon any asset of such Loan Party (other than Liens in favor of the Agent under the Security Documents); or (d) violate any Law;
b. such Loan Party has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and the Credit Agreement, as amended hereby;
c. this Agreement constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law;
d. after giving effect to this Agreement and the transactions contemplated hereby, each of the representations and warranties of such Loan Party contained herein, in Article V of the Credit Agreement or in any other Loan Document are true and correct in all material respects on and as of the date hereof, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, (ii) in the case of any representation and warranty qualified by materiality, they shall be true and correct in all respects and (iii) for purposes of this Section 3(d), the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement; and
2
e. after giving effect to this Agreement, no Default or Event of Default has occurred and is continuing or would result from the transactions contemplated hereby.
4. No Modification. Except as expressly set forth herein, nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition contained in the Credit Agreement or any of the other Loan Documents or constitute a course of conduct or dealing among the parties. Except as expressly stated herein, the Agent and Lenders reserve all rights, privileges and remedies under the Loan Documents. Except as amended or consented to hereby, the Credit Agreement and other Loan Documents remain unmodified and in full force and effect. All references in the Loan Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as modified hereby. This Agreement shall constitute a Loan Document.
5. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 3, this Agreement shall become effective when it shall have been executed by the Agent and when the Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy, pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.
6. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder or under any other Loan Document without the prior written consent of the Agent and each Lender.
7. Governing Law. This Agreement 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 Illinois.
8. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
3
9. Section Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement.
10. Reaffirmation. Each of the Loan Parties as debtor, grantor, pledgor, guarantor, assignor, or in other any other similar capacity in which such Loan Party grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto) and (ii) to the extent such Loan Party granted liens on or security interests in any of its property pursuant to any such Loan Document as security for or otherwise guaranteed the Borrower’s Obligations under or with respect to the Loan Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations as amended hereby. Each of the Loan Parties hereby consents to this Agreement and acknowledges that each of the Loan Documents remains in full force and effect and is hereby ratified and reaffirmed. The execution of this Agreement shall not operate as a waiver of any right, power or remedy of the Agent or Lenders, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation of the Obligations.
11. Release of Claims. In consideration of the Lenders’ and the Agent’s agreements contained in this Agreement, each Loan Party hereby irrevocably releases and forever discharge the Lenders and the Agent and their affiliates, subsidiaries, successors, assigns, directors, officers, employees, agents, consultants and attorneys (each, a “Released Person”) of and from any and all claims, suits, actions, investigations, proceedings or demands, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, which such Loan Party ever had or now has against Agent, any Lender or any other Released Person which relates, directly or indirectly, to any acts or omissions of Agent, any Lender or any other Released Person relating to the Credit Agreement or any other Loan Document on or prior to the date hereof.
[Signature pages follow.]
4
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date set forth above.
Lead Borrower:
| VERTEX ENERGY OPERATING, LLC | ||||||
| By: | /s/ Chris Carlson | |||||
| Name: | Chris Carlson | |||||
| Its: | CFO | |||||
Additional Borrowers:
| BANGO OIL LLC | VERTEX RECOVERY MANAGEMENT LA, LLC | |||||
| By: | /s/ Chris Carlson | By: | /s/ Chris Carlson | |||
| Name: | Chris Carlson | Name: | Chris Carlson | |||
| Its: | CFO | Its: | CFO | |||
| VERTEX REFINING NV, LLC | VERTEX REFINING LA, LLC | |||||
| By: | /s/ Chris Carlson | By: | /s/ Chris Carlson | |||
| Name: | Chris Carlson | Name: | Chris Carlson | |||
| Its: | CFO | Its: | CFO | |||
| VERTEX II GP, LLC | ||||||
| By: | /s/ Chris Carlson | |||||
| Name: | Chris Carlson | |||||
| Its: | CFO | |||||
| VERTEX MERGER SUB, LLC | VERTEX ACQUISITION SUB, LLC | |||||
| By: | /s/ Chris Carlson | By: | /s/ Chris Carlson | |||
| Name: | Chris Carlson | Name: | Chris Carlson | |||
| Its: | CFO | Its: | CFO | |||
[Signature Page to Sixth Amendment to Credit Agreement]
| CEDAR MARINE TERMINALS, LP | CROSSROAD CARRIERS, L.P. | |||||
| By: | /s/ Chris Carlson | By: | /s/ Chris Carlson | |||
| Name: | Chris Carlson | Name: | Chris Carlson | |||
| Its: | CFO | Its: | CFO | |||
| VERTEX RECOVERY, L.P. | H&H OIL, L.P. | |||||
| By: | /s/ Chris Carlson | By: | /s/ Chris Carlson | |||
| Name: | Chris Carlson | Name: | Chris Carlson | |||
| Its: | CFO | Its: | CFO | |||
| VERTEX RECOVERY MANAGEMENT, LLC | ||||||
| By: | /s/ Chris Carlson | |||||
| Name: | Chris Carlson | |||||
| Its: | CFO | |||||
| VERTEX ENERGY, INC., as Parent and as a Guarantor | ||||||
| By: | /s/ Chris Carlson | |||||
| Name: | Chris Carlson | |||||
| Title: | CFO | |||||
[Signature Page to Sixth Amendment to Credit Agreement]
| AGENT: | ||
| ENCINA BUSINESS CREDIT, LLC, as Agent | ||
| By: | /s/ Daniel Ross | |
| Name: | Daniel Ross | |
| Title: | Its Duly Authorized Signatory | |
[Signature Page to Sixth Amendment to Credit Agreement]
| ENCINA BUSINESS CREDIT, LLC, as Agent | , | |||
| as a Lender | ||||
| By: | /s/ Daniel Ross | |||
| Name: | Daniel Ross | |||
| Title: | Its Duly Authorized Signatory | |||
[Signature Page to Sixth Amendment to Credit Agreement]
Exhibit 10.4
SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (this “Agreement”) is entered into as of May 26, 2021 by and among VERTEX ENERGY, INC., a Nevada corporation (“Parent”), VERTEX ENERGY OPERATING, LLC, a Texas limited liability company (the “Lead Borrower”), the other Borrowers signatory hereto, ENCINA BUSINESS CREDIT, LLC, as Agent, and the Lenders signatory hereto.
W I T N E S E T H:
WHEREAS, Parent, the Lead Borrower, the other Loan Parties, Agent and the Lenders from time to time party thereto are parties to that certain Credit Agreement dated as of February 1, 2017 (as amended prior to the date hereof and as it may be further amended, restated, supplemented or modified from time to time, the “Credit Agreement”; unless otherwise defined herein, capitalized terms used herein that are not otherwise defined herein shall have the respective meanings assigned to such terms in the Credit Agreement); and
WHEREAS, the Loan Parties have requested that the Agent and Lenders amend certain provisions of the Credit Agreement, and subject to the satisfaction of the conditions set forth herein, the Agent and the Lenders signatory hereto are willing to do so, on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:
1. Amendments to Credit Agreement. Upon satisfaction of the conditions set forth in Section 2 hereof, the Credit Agreement is hereby amended as follows:
a. Section 7.03 of the Credit Agreement is hereby amended by adding a new sentence to the end thereof to read as follows:
“Notwithstanding anything in this Agreement to the contrary, the Loan Parties may enter into that certain (x) Sale and Purchase Agreement dated as of May 26, 2021 between Equilon Enterprises LLC and Vertex Energy Operating LLC and (y) promissory note dated May 26, 2021 in the amount of $10,000,000 payable to Shell Chemical LP and in the form of Exhibit A to such Sale and Purchase Agreement; provided, that so long as the Obligations remain outstanding, no payments shall be made under any of such documents described in such clauses (x) and (y) above to the extent proceeds of such payment consist of loans advanced under the ABL Credit Agreement or proceeds of assets of the Loan Parties.”
2. Conditions. The effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent:
a. the execution and delivery of this Agreement by each Loan Party, Agent and the Lenders; and
b. the truth and accuracy of the representations and warranties contained in Section 3 hereof.
3. Representations and Warranties. Each Loan Party hereby represents and warrants to Agent and each Lender as follows:
a. the execution, delivery and performance by such Loan Party of this Agreement has been duly authorized by all necessary corporate or other organizational action, and does not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach, termination, or contravention of, or constitute a default under, or require any payment to be made under (i) any Material Contract or any Material Indebtedness to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; (c) result in or require the creation of any Lien upon any asset of such Loan Party (other than Liens in favor of the Agent under the Security Documents); or (d) violate any Law;
b. such Loan Party has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and the Credit Agreement, as amended hereby;
c. this Agreement constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law;
d. after giving effect to this Agreement and the transactions contemplated hereby, each of the representations and warranties of such Loan Party contained herein, in Article V of the Credit Agreement or in any other Loan Document are true and correct in all material respects on and as of the date hereof, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, (ii) in the case of any representation and warranty qualified by materiality, they shall be true and correct in all respects and (iii) for purposes of this Section 3(d), the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement; and
e. after giving effect to this Agreement (including the waiver set forth herein), no Default or Event of Default has occurred and is continuing or would result from the transactions contemplated hereby.
4. No Modification. Except as expressly set forth herein, nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition contained in the Credit Agreement or any of the other Loan Documents or constitute a course of conduct or dealing among the parties. Except as expressly stated herein, the Agent and Lenders reserve all rights, privileges and remedies under the Loan Documents. Except as amended or consented to hereby, the Credit Agreement and other Loan Documents remain unmodified and in full force and effect. All references in the Loan Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as modified hereby. This Agreement shall constitute a Loan Document.
2
5. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 3, this Agreement shall become effective when it shall have been executed by the Agent and when the Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy, pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.
6. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder or under any other Loan Document without the prior written consent of the Agent and each Lender.
7. Governing Law. This Agreement 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 Illinois.
8. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
9. Section Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement.
10. Reaffirmation. Each of the Loan Parties as debtor, grantor, pledgor, guarantor, assignor, or in other any other similar capacity in which such Loan Party grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto) and (ii) to the extent such Loan Party granted liens on or security interests in any of its property pursuant to any such Loan Document as security for or otherwise guaranteed the Borrower’s Obligations under or with respect to the Loan Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations as amended hereby. Each of the Loan Parties hereby consents to this Agreement and acknowledges that each of the Loan Documents remains in full force and effect and is hereby ratified and reaffirmed. The execution of this Agreement shall not operate as a waiver of any right, power or remedy of the Agent or Lenders, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation of the Obligations.
3
11. Release of Claims. In consideration of the Lenders’ and the Agent’s agreements contained in this Agreement, each Loan Party hereby irrevocably releases and forever discharge the Lenders and the Agent and their affiliates, subsidiaries, successors, assigns, directors, officers, employees, agents, consultants and attorneys (each, a “Released Person”) of and from any and all claims, suits, actions, investigations, proceedings or demands, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, which such Loan Party ever had or now has against Agent, any Lender or any other Released Person which relates, directly or indirectly, to any acts or omissions of Agent, any Lender or any other Released Person relating to the Credit Agreement or any other Loan Document on or prior to the date hereof.
[Signature pages follow.]
4
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date set forth above.
Lead Borrower:
| VERTEX ENERGY OPERATING, LLC | ||||||
| By: | /s/ Benjamin Cowart | |||||
| Name: | Benjamin Cowart | |||||
| Its: | President | |||||
Additional Borrowers:
| BANGO OIL LLC | VERTEX RECOVERY MANAGEMENT LA, LLC | |||||
| By: | /s/ Benjamin Cowart | By: | /s/ Benjamin Cowart | |||
| Name: | Benjamin Cowart | Name: | Benjamin Cowart | |||
| Its: | President | Its: | President | |||
| VERTEX REFINING NV, LLC | VERTEX REFINING LA, LLC | |||||
| By: | /s/ Benjamin Cowart | By: | /s/ Benjamin Cowart | |||
| Name: | Benjamin Cowart | Name: | Benjamin Cowart | |||
| Its: | President | Its: | President | |||
| VERTEX II GP, LLC | ||||||
| By: | /s/ Benjamin Cowart | |||||
| Name: | Benjamin Cowart | |||||
| Its: | President | |||||
| VERTEX MERGER SUB, LLC | VERTEX ACQUISITION SUB, LLC | |||||
| By: | /s/ Benjamin Cowart | By: | /s/ Benjamin Cowart | |||
| Name: | Benjamin Cowart | Name: | Benjamin Cowart | |||
| Its: | President | Its: | President | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| CEDAR MARINE TERMINALS, LP | CROSSROAD CARRIERS, L.P. | |||||
| By: | /s/ Benjamin Cowart | By: | /s/ Benjamin Cowart | |||
| Name: | Benjamin Cowart | Name: | Benjamin Cowart | |||
| Its: | President | Its: | President | |||
| VERTEX RECOVERY, L.P. | H&H OIL, L.P. | |||||
| By: | /s/ Benjamin Cowart | By: | /s/ Benjamin Cowart | |||
| Name: | Benjamin Cowart | Name: | Benjamin Cowart | |||
| Its: | President | Its: | President | |||
| VERTEX RECOVERY MANAGEMENT, LLC | ||||||
| By: | /s/ Benjamin Cowart | |||||
| Name: | Benjamin Cowart | |||||
| Its: | President | |||||
| VERTEX ENERGY, INC., as Parent and as a Guarantor | ||||||
| By: | /s/ Benjamin Cowart | |||||
| Name: | Benjamin Cowart | |||||
| Title: | President | |||||
[Signature Page to Seventh Amendment to Credit Agreement]
| AGENT: | ||
| ENCINA BUSINESS CREDIT, LLC, as Agent | ||
| By: | /s/ Daniel Ross | |
| Name: | Daniel Ross | |
| Title: | Its Duly Authorized Signatory | |
[Signature Page to Seventh Amendment to Credit Agreement]
| ENCINA BUSINESS CREDIT SPV, LLC | , | |||
| as a Lender | ||||
| By: | /s/ Daniel Ross | |||
| Name: | Daniel Ross | |||
| Title: | Its Duly Authorized Signatory | |||
[Signature Page to Seventh Amendment to Credit Agreement]
Exhibit 10.5
SEVENTH AMENDMENT TO ABL CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO ABL CREDIT AGREEMENT (this “Agreement”) is entered into as of May 26, 2021 by and among VERTEX ENERGY, INC., a Nevada corporation (“Parent”), VERTEX ENERGY OPERATING, LLC, a Texas limited liability company (the “Lead Borrower”), the other Borrowers signatory hereto, ENCINA BUSINESS CREDIT, LLC, as Agent, and the Lenders signatory hereto.
W I T N E S E T H:
WHEREAS, Parent, the Lead Borrower, the other Loan Parties, Agent and the Lenders from time to time party thereto are parties to that certain ABL Credit Agreement dated as of February 1, 2017 (as amended prior to the date hereof and as it may be further amended, restated, supplemented or modified from time to time, the “Credit Agreement”; unless otherwise defined herein, capitalized terms used herein that are not otherwise defined herein shall have the respective meanings assigned to such terms in the Credit Agreement); and
WHEREAS, the Loan Parties have requested that the Agent and Lenders amend certain provisions of the Credit Agreement, and subject to the satisfaction of the conditions set forth herein, the Agent and the Lenders signatory hereto are willing to do so, on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:
1.
Amendments to Credit Agreement. Upon satisfaction of the conditions set forth in Section 2 hereof, the Credit Agreement is hereby amended as follows:
a. Section 7.03 of the Credit Agreement is hereby amended by adding a new sentence to the end thereof to read as follows:
“Notwithstanding anything in this Agreement to the contrary, the Loan Parties may enter into that certain (x) Sale and Purchase Agreement dated as of May 26, 2021 between Equilon Enterprises LLC and Vertex Energy Operating LLC and (y) promissory note dated May 26, 2021 in the amount of $10,000,000 payable to Shell Chemical LP and in the form of Exhibit A to such Sale and Purchase Agreement; provided, that so long as the Obligations remain outstanding, no payments shall be made under any of such documents described in such clauses (x) and (y) above to the extent proceeds of such payment consist of Loans advanced this Agreement or proceeds of assets of the Loan Parties.”
2.
Conditions. The effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent:
a. the execution and delivery of this Agreement by each Loan Party, Agent and the Lenders; and
b. the truth and accuracy of the representations and warranties contained in Section 3 hereof.
3.
Representations and Warranties. Each Loan Party hereby represents and warrants to Agent and each Lender as follows:
a. the execution, delivery and performance by such Loan Party of this Agreement has been duly authorized by all necessary corporate or other organizational action, and does not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach, termination, or contravention of, or constitute a default under, or require any payment to be made under (i) any Material Contract or any Material Indebtedness to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; (c) result in or require the creation of any Lien upon any asset of such Loan Party (other than Liens in favor of the Agent under the Security Documents); or (d) violate any Law;
b. such Loan Party has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and the Credit Agreement, as amended hereby;
c. this Agreement constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law;
d. after giving effect to this Agreement and the transactions contemplated hereby, each of the representations and warranties of such Loan Party contained herein, in Article V of the Credit Agreement or in any other Loan Document are true and correct in all material respects on and as of the date hereof, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, (ii) in the case of any representation and warranty qualified by materiality, they shall be true and correct in all respects and (iii) for purposes of this Section 3(d), the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement; and
e. after giving effect to this Agreement, no Default or Event of Default has occurred and is continuing or would result from the transactions contemplated hereby.
4.
No Modification. Except as expressly set forth herein, nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition contained in the Credit Agreement or any of the other Loan Documents or constitute a course of conduct or dealing among the parties. Except as expressly stated herein, the Agent and Lenders reserve all rights, privileges and remedies under the Loan Documents. Except as amended or consented to hereby, the Credit Agreement and other Loan Documents remain unmodified and in full force and effect. All references in the Loan Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as modified hereby. This Agreement shall constitute a Loan Document.
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5. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 3, this Agreement shall become effective when it shall have been executed by the Agent and when the Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy, pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.
6. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder or under any other Loan Document without the prior written consent of the Agent and each Lender.
7. Governing Law. This Agreement 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 Illinois.
8. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
9. Section Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement.
10. Reaffirmation. Each of the Loan Parties as debtor, grantor, pledgor, guarantor, assignor, or in other any other similar capacity in which such Loan Party grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto) and (ii) to the extent such Loan Party granted liens on or security interests in any of its property pursuant to any such Loan Document as security for or otherwise guaranteed the Borrower’s Obligations under or with respect to the Loan Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations as amended hereby. Each of the Loan Parties hereby consents to this Agreement and acknowledges that each of the Loan Documents remains in full force and effect and is hereby ratified and reaffirmed. The execution of this Agreement shall not operate as a waiver of any right, power or remedy of the Agent or Lenders, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation of the Obligations.
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11. Release of Claims. In consideration of the Lenders’ and the Agent’s agreements contained in this Agreement, each Loan Party hereby irrevocably releases and forever discharge the Lenders and the Agent and their affiliates, subsidiaries, successors, assigns, directors, officers, employees, agents, consultants and attorneys (each, a “Released Person”) of and from any and all claims, suits, actions, investigations, proceedings or demands, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, which such Loan Party ever had or now has against Agent, any Lender or any other Released Person which relates, directly or indirectly, to any acts or omissions of Agent, any Lender or any other Released Person relating to the Credit Agreement or any other Loan Document on or prior to the date hereof.
[Signature pages follow.]
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date set forth above.
| Lead Borrower: | ||||||
| VERTEX ENERGY OPERATING, LLC | ||||||
| By: | /s/ Benjamin Cowart | |||||
| Name: | Benjamin Cowart | |||||
| Its: | President/CEO | |||||
| Additional Borrowers: | VERTEX RECOVERY MANAGEMENT LA, LLC | |||||
| BANGO OIL LLC | ||||||
| By: | /s/ Benjamin Cowart | By: | /s/ Benjamin Cowart | |||
| Name: | Benjamin Cowart | Name: | Benjamin Cowart | |||
| Its: | President | Its: | President | |||
| VERTEX REFINING NV, LLC | VERTEX REFINING LA, LLC | |||||
| By: | /s/ Benjamin Cowart | By: | /s/ Benjamin Cowart | |||
| Name: | Benjamin Cowart | Name: | Benjamin Cowart | |||
| Its: | President | Its: | President | |||
| VERTEX II GP, LLC | ||||||
| By: | /s/ Benjamin Cowart | |||||
| Name: | Benjamin Cowart | |||||
| Its: | President | |||||
| VERTEX MERGER SUB, LLC | VERTEX ACQUISITION SUB, LLC | |||||
| By: | /s/ Benjamin Cowart | By: | /s/ Benjamin Cowart | |||
| Name: | Benjamin Cowart | Name: | Benjamin Cowart | |||
| Its: | President | Its: | President | |||
[Signature Page to Seventh Amendment to ABL Credit Agreement]
| CEDAR MARINE TERMINALS, LP | CROSSROAD CARRIERS, L.P. | |||||
| By: | /s/ Benjamin Cowart | By: | /s/ Benjamin Cowart | |||
| Name: | Benjamin Cowart | Name: | Benjamin Cowart | |||
| Its: | President | Its: | President | |||
| VERTEX RECOVERY, L.P. | H&H OIL, L.P. | |||||
| By: | /s/ Benjamin Cowart | By: | /s/ Benjamin Cowart | |||
| Name: | Benjamin Cowart | Name: | Benjamin Cowart | |||
| Its: | President | Its: | President | |||
| VERTEX RECOVERY MANAGEMENT, LLC | ||||||
| By: | /s/ Benjamin Cowart | |||||
| Name: | Benjamin Cowart | |||||
| Its: | President | |||||
| VERTEX ENERGY, INC., as Parent and as a Guarantor | ||||||
| By: | /s/ Benjamin Cowart | |||||
| Name: | Benjamin Cowart | |||||
| Title: | President/CEO | |||||
[Signature Page to Seventh Amendment to ABL Credit Agreement]
| AGENT: | |||||
| ENCINA BUSINESS CREDIT, LLC, as Agent | |||||
| By: |
/s/ Daniel Ross |
||||
| Name: | Daniel Ross | ||||
| Title: | Its Duly Authorized Signatory | ||||
[Signature Page to Seventh Amendment to ABL Credit Agreement]
| ENCINA BUSINESS CREDIT SPV, LLC | ||
| as a Lender | ||
| By: | /s/ Daniel Ross | |
| Name: | Daniel Ross | |
| Title: | Its Duly Authorized Signatory | |
[Signature Page to Seventh Amendment to ABL Credit Agreement]
Exhibit 10.6
EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (this “Agreement”) is entered into as of July 1, 2021 by and among VERTEX ENERGY, INC., a Nevada corporation (“Parent”), VERTEX ENERGY OPERATING, LLC, a Texas limited liability company (the “Lead Borrower”), the other Borrowers signatory hereto, ENCINA BUSINESS CREDIT, LLC, as Agent, and the Lenders signatory hereto.
W I T N E S E T H:
WHEREAS, Parent, the Lead Borrower, the other Loan Parties, Agent and the Lenders from time to time party thereto are parties to that certain Credit Agreement dated as of February 1, 2017 (as amended prior to the date hereof and as it may be further amended, restated, supplemented or modified from time to time, the “Credit Agreement”; unless otherwise defined herein, capitalized terms used herein that are not otherwise defined herein shall have the respective meanings assigned to such terms in the Credit Agreement); and
WHEREAS, the Loan Parties have requested that the Agent and Lenders amend certain provisions of the Credit Agreement, and subject to the satisfaction of the conditions set forth herein, the Agent and the Lenders signatory hereto are willing to do so, on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:
1. Amendments to Credit Agreement. Upon satisfaction of the conditions set forth in Section 2 hereof, the Credit Agreement is hereby amended as follows:
a. Section 2.01(b)(i) of the Credit Agreement is hereby amended by adding a new sentence to the end thereof to read as follows:
“Subject to the terms and conditions set forth herein, each Lender with a Term Loan Commitment (under the heading “2021 Term Loan” in Schedule 2.01) severally agrees to lend to Borrower on July 1, 2021 a term loan in the amount set forth opposite such Lender’s name in Schedule 2.01, the aggregate amount of which for all such Lenders shall equal $5,000,000 and such term loans shall constitute a “Term Loan “ for all purposes of this Agreement including, without limitation, Sections 2.06(b) and 2.07 and the proceeds of such Term Loan shall be used solely as set forth in Section 7.11.
b. Section 7.11 of the Credit Agreement is hereby amended by adding a new sentence to the end thereof to read as follows:
“Notwithstanding anything set forth in this Agreement to the contrary, in no event shall the proceeds of the Term Loan made on July 1, 2021 be used for any purpose other than to the payment of that certain promissory note dated May 26, 2021 in the amount of $10,000,000 payable to Shell Chemical LP as further described in the last sentence of Section 7.03 solely to the extent that payments on such note are due and owing.”
c. Schedule 2.01 of the Credit Agreement is amended by adding the following line items to the end thereof
2021 Term Loan
| Lender | Amount | Applicable Percentage |
| Encina Business Credit SPV, LLC | $5,000,000 | 100%” |
2. Conditions. The effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent:
a. the execution and delivery of this Agreement by each Loan Party, Agent and the Lenders;
b. the truth and accuracy of the representations and warranties contained in Section 3 hereof.
c. The Loan Parties shall have paid to the Agent, for the ratable benefit of the Lenders making the Term Loan on the date hereof, an amendment fee in the amount of $100,000.
3. Representations and Warranties. Each Loan Party hereby represents and warrants to Agent and each Lender as follows:
a. the execution, delivery and performance by such Loan Party of this Agreement has been duly authorized by all necessary corporate or other organizational action, and does not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach, termination, or contravention of, or constitute a default under, or require any payment to be made under (i) any Material Contract or any Material Indebtedness to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; (c) result in or require the creation of any Lien upon any asset of such Loan Party (other than Liens in favor of the Agent under the Security Documents); or (d) violate any Law;
b. such Loan Party has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and the Credit Agreement, as amended hereby;
c. this Agreement constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law;
d. after giving effect to this Agreement and the transactions contemplated hereby, each of the representations and warranties of such Loan Party contained herein, in Article V of the Credit Agreement or in any other Loan Document are true and correct in all material respects on and as of the date hereof, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, (ii) in the case of any representation and warranty qualified by materiality, they shall be true and correct in all respects and (iii) for purposes of this Section 3(d), the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement; and
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e. after giving effect to this Agreement (including the waiver set forth herein), no Default or Event of Default has occurred and is continuing or would result from the transactions contemplated hereby.
4. No Modification. Except as expressly set forth herein, nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition contained in the Credit Agreement or any of the other Loan Documents or constitute a course of conduct or dealing among the parties. Except as expressly stated herein, the Agent and Lenders reserve all rights, privileges and remedies under the Loan Documents. Except as amended or consented to hereby, the Credit Agreement and other Loan Documents remain unmodified and in full force and effect. All references in the Loan Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as modified hereby. This Agreement shall constitute a Loan Document.
5. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 3, this Agreement shall become effective when it shall have been executed by the Agent and when the Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy, pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.
6. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder or under any other Loan Document without the prior written consent of the Agent and each Lender.
7. Governing Law. This Agreement 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 Illinois.
3
8. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
9. Section Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement.
10. Reaffirmation. Each of the Loan Parties as debtor, grantor, pledgor, guarantor, assignor, or in other any other similar capacity in which such Loan Party grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto) and (ii) to the extent such Loan Party granted liens on or security interests in any of its property pursuant to any such Loan Document as security for or otherwise guaranteed the Borrower’s Obligations under or with respect to the Loan Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations as amended hereby. Each of the Loan Parties hereby consents to this Agreement and acknowledges that each of the Loan Documents remains in full force and effect and is hereby ratified and reaffirmed. The execution of this Agreement shall not operate as a waiver of any right, power or remedy of the Agent or Lenders, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation of the Obligations.
11. Release of Claims. In consideration of the Lenders’ and the Agent’s agreements contained in this Agreement, each Loan Party hereby irrevocably releases and forever discharge the Lenders and the Agent and their affiliates, subsidiaries, successors, assigns, directors, officers, employees, agents, consultants and attorneys (each, a “Released Person”) of and from any and all claims, suits, actions, investigations, proceedings or demands, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, which such Loan Party ever had or now has against Agent, any Lender or any other Released Person which relates, directly or indirectly, to any acts or omissions of Agent, any Lender or any other Released Person relating to the Credit Agreement or any other Loan Document on or prior to the date hereof.
[Signature pages follow.]
4
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date set forth above.
| Lead Borrower: | |||||||||
| VERTEX ENERGY OPERATING, LLC | |||||||||
| By: | /s/ Chris Carlson | ||||||||
| Name: | Chris Carlson | ||||||||
| Its: | CFO | ||||||||
| Additional Borrowers: | |||||||||
| BANGO OIL LLC | VERTEX RECOVERY MANAGEMENT LA, LLC | ||||||||
| By: | /s/ Chris Carlson | ||||||||
| By: | /s/ Chris Carlson | Name: | Chris Carlson | ||||||
| Name: | Chris Carlson | Its: | CFO | ||||||
| Its: | CFO | ||||||||
| VERTEX REFINING NV, LLC | VERTEX REFINING LA, LLC | ||||||||
| By: | /s/ Chris Carlson | By: | /s/ Chris Carlson | ||||||
| Name: | Chris Carlson | Name: | Chris Carlson | ||||||
| Its: | CFO | Its: | CFO | ||||||
| VERTEX II GP, LLC | |||||||||
| By: | /s/ Chris Carlson | ||||||||
| Name: | Chris Carlson | ||||||||
| Its: | CFO | ||||||||
| VERTEX MERGER SUB, LLC | VERTEX ACQUISITION SUB, LLC | ||||||||
| By: | /s/ Chris Carlson | By: | /s/ Chris Carlson | ||||||
| Name: | Chris Carlson | Name: | Chris Carlson | ||||||
| Its: | CFO | Its: | CFO | ||||||
[Signature Page to Eighth Amendment to Credit Agreement]
| CEDAR MARINE TERMINALS, LP | CROSSROAD CARRIERS, L.P. | ||||||||
| By: | /s/ Chris Carlson | ||||||||
| By: | /s/ Chris Carlson | Name: | Chris Carlson | ||||||
| Name: | Chris Carlson | Its: | CFO | ||||||
| Its: | CFO | ||||||||
| VERTEX RECOVERY, L.P. | H&H OIL, L.P. | ||||||||
| By: | /s/ Chris Carlson | By: | /s/ Chris Carlson | ||||||
| Name: | Chris Carlson | Name: | Chris Carlson | ||||||
| Its: | CFO | Its: | CFO | ||||||
| VERTEX RECOVERY MANAGEMENT, LLC | |||||||||
| By: | /s/ Chris Carlson | ||||||||
| Name: | Chris Carlson | ||||||||
| Its: | CFO | ||||||||
| VERTEX ENERGY, INC., as Parent and as a Guarantor | |||||||||
| By: | /s/ Chris Carlson | ||||||||
| Name: | Chris Carlson | ||||||||
| Title: | CFO | ||||||||
[Signature Page to Eighth Amendment to Credit Agreement]
| AGENT: | ||
| ENCINA BUSINESS CREDIT, LLC, as Agent | ||
| By: | /s/ Daniel Ross | |
| Name: | Daniel Ross | |
| Title: | Its Duly Authorized Signatory | |
[Signature Page to Eighth Amendment to Credit Agreement]
| ENCINA BUSINESS CREDIT, LLC, | ||
| as a Lender | ||
| By: | /s/ Daniel Ross | |
| Name: | Daniel Ross | |
| Title: | Its Duly Authorized Signatory | |
[Signature Page to Eighth Amendment to Credit Agreement]