VERTEX ENERGY, INC. 8-K


 


Exhibit 10.3


 





FIRST AMENDMENT AND CONSENT TO CREDIT
AGREEMENT


THIS FIRST
AMENDMENT AND CONSENT TO CREDIT AGREEMENT (this “Agreement”) is entered into as of October 9, 2017 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 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, 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 (i) amend certain provisions of the Credit Agreement and (ii) consent to the
dissolution of GOLDEN STATE LUBRICANTS WORKS, LLC, a Delaware limited liability company (the “Specified Dissolution”),
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 1.01
of the Credit Agreement is hereby amended by:


i.       


Replacing the
word “second” in clause (b) of the definition of “Additional Delayed Draw Term Loan Commitment Expiration Date”
with the word “fourth”.


ii.       


Replacing the
word “third” in clause (b) of the definition of “Initial Delayed Draw Term Loan Commitment Expiration Date”
with the word “fifth”.


iii.       


Replacing the
words “six-month” in clause (c) of the definition of “Initial Delayed Draw Term Loan Commitment Expiration Date”
with the words “eighteen-month”.






    	  



    	 



    

 

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; and


c.       


Agent shall have
received such other documents, opinions or materials reasonably requested by Agent, in form and substance reasonably acceptable
to Agent.


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.       


no Default or Event
of Default has occurred and is continuing or would result from the transactions contemplated by this Agreement.




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4.       


No Modification;
Consent.


a.       


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.


b.       


Upon satisfaction
of the conditions set forth in Section 2 hereof, and in reliance upon the representations and warranties of the Loan Parties
set forth in the Credit Agreement and in this Agreement, and notwithstanding anything to the contrary contained in the Credit Agreement
or any other Loan Document, the Agent and the Lenders hereby consent to the Specified Dissolution and agree that no Default or
Event of Default shall occur under the Credit Agreement or any other Loan Document, including any collateral document, entered
into in connection therewith, as a result of the Specified Dissolution. The
foregoing consent shall be limited precisely as written and shall not be deemed or otherwise construed to constitute a consent
to or waiver of any Default or Event of Default now existing or hereafter arising or any other provision or to prejudice any right,
power or remedy which the Agent or any Lender may now have or may have in the future under or in connection with the Credit Agreement
or any other Loan Document (after giving effect to this Agreement), all of which rights, power and remedies are hereby expressly
reserved by the Agent and Lenders. 


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 2,
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.




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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.]




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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:	 
	 	Name:	 
	 	Its:	 


 


Additional
Borrowers:

BANGO
OIL LLC


	By:	 
	 	Name:	 
	 	Its:	 


 


VERTEX
REFINING NV, LLC


	By:	 
	 	Name:	 
	 	Its:	 


 


VERTEX
REFINING OH, LLC


	By:	 
	 	Name:	 
	 	Its:	 


 


VERTEX
MERGER SUB, LLC


	By:	 
	 	Name:	 
	 	Its:	 




VERTEX
RECOVERY MANAGEMENT LA, LLC


	By:	 
	 	Name:	 
	 	Its:	 


 


VERTEX
REFINING LA, LLC


	By:	 
	 	Name:	 
	 	Its:	 


 


VERTEX
II GP, LLC


	By:	 
	 	Name:	 
	 	Its:	 


 


VERTEX
ACQUISITION SUB, LLC


	By:	 
	 	Name:	 
	 	Its:	 






 




    	[Signature Page to First Amendment to Credit Agreement]



    	 



    

 

CEDAR
MARINE TERMINALS, LP


	By:	 
	 	Name:	 
	 	Its:	 


 


VERTEX
RECOVERY, L.P.


	By:	 
	 	Name:	 
	 	Its:	 



 


GOLDEN STATE LUBRICANTS WORKS, LLC


	By:	 
	 	Name:	 
	 	Its:	 




CROSSROAD
CARRIERS, L.P.


	By:	 
	 	Name:	 
	 	Its:	 


 


H&H
OIL, L.P.


	By:	 
	 	Name:	 
	 	Its:	 


 


VERTEX
RECOVERY MANAGEMENT, LLC


	By:	 
	 	Name:	 
	 	Its:	 


 


VERTEX
ENERGY, INC., as Parent and as a Guarantor


	By:	 
	Name:	 	 
	Title:	 	 






 


    	[Signature Page to First Amendment to Credit Agreement]



    	 



    

 

AGENT:


ENCINA
BUSINESS CREDIT, LLC, as Agent


	By:	 
	Name:	 	 
	Title:	Its
    Duly Authorized Signatory






 


    	[Signature Page to First Amendment to Credit Agreement]



    	 



    

 


	,
	as a
    Lender
	 	 
	By:	 
	Name:	 	 
	Title:	 






 


    	[Signature Page to First Amendment to Credit Agreement]