Vertex Energy, Inc 8-K




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.


 






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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:	/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]