VERTEX ENERGY, INC 8-K


EXHIBIT 10.2


 

FOURTH AMENDMENT TO ABL CREDIT
AGREEMENT


THIS FOURTH AMENDMENT
TO ABL CREDIT AGREEMENT (this “Agreement”) is entered into as of April 24, 2020 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)	The definition of “Maturity Date” set forth in Section 1.01 of the Credit Agreement
is hereby amended by replacing the date “February 1, 2021” with the date “February 1, 2022”.



		(b)	Section 2.08(c) of the Credit Agreement is hereby amended and restated to read as follows:



“(c)Early
Termination Fee. In the event that (i) the Termination Date occurs, for any reason, on or prior to February 1, 2021 or
(ii) the Borrowers reduce or otherwise terminate all or any portion of the Aggregate Commitments on or prior to February 1,
2021, the Borrowers shall pay to the Agent, for the ratable benefit of the Lenders, a fee (the “Early Termination
Fee”) equal to one percent (1%) of (I) in the event the Termination Date occurs, the Aggregate Commitments then in
effect (without regard to any termination thereof) or (II) in the event that the Borrowers reduce or otherwise terminate the
Aggregate Commitments, the amount of such reduction or termination if the reduction or termination shall occur at any time on
or before February 1, 2021. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages
on account of the early termination of this Agreement or any portion of the Commitments and that, in view of the difficulty
in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated
damages to compensate the Lenders on account thereof.”






    	 



     


    




 


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 an amendment to the Term Loan Agreement in form and substance satisfactory 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.      
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.






    	 



     


    




 


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.


12.             
Post-Closing Obligations. Within 30 days after the date of this Agreement, the Loan Parties shall deliver to
the Agent such amendments to the Mortgages and related documentation as Agent shall require.


 


 


[Signature pages follow.]




    	 



    	 



    

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


 


 


[Signature
Page to Fourth Amendment to ABL Credit Agreement]



    	 



    	 



    




Additional
Borrowers:

BANGO
OIL LLC


	By:	/s/
    Chris Carlson
	 	Name:	Chris Carlson
	 	Its:	CFO


 


VERTEX
REFINING NV, LLC


	By:	/s/
    Chris Carlson
	 	Name:	Chris Carlson
	 	Its:	CFO









VERTEX
MERGER SUB, LLC


	By:	/s/
    Chris Carlson
	 	Name:	Chris Carlson
	 	Its:	CFO




VERTEX
RECOVERY MANAGEMENT LA, LLC


	By:	/s/
    Chris Carlson
	 	Name:	Chris Carlson
	 	Its:	CFO


 


VERTEX
REFINING LA, LLC


	By:	/s/
    Chris Carlson
	 	Name:	Chris Carlson
	 	Its:	CFO


 


VERTEX
II GP, LLC


	By:	/s/
    Chris Carlson
	 	Name:	Chris Carlson
	 	Its:	


 


VERTEX
ACQUISITION SUB, LLC


	By:	/s/
    Chris Carlson
	 	Name:	Chris Carlson
	 	Its:	CFO






 


 


 

CEDAR
MARINE TERMINALS, LP


	By:	/s/
    Chris Carlson
	 	Name:	Chris Carlson
	 	Its:	CFO


 


VERTEX
RECOVERY, L.P.


	By:	/s/
    Chris Carlson
	 	Name:	Chris Carlson
	 	Its:	CFO



 





CROSSROAD
CARRIERS, L.P.


	By:	/s/
    Chris Carlson
	 	Name:	Chris Carlson
	 	Its:	CFO


 


H&H
OIL, L.P.


	By:	/s/
    Chris Carlson
	 	Name:	Chris Carlson
	 	Its:	CFO


 






[Signature Page to Fourth Amendment to ABL Credit Agreement]



    	 



     


    




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 Fourth 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 Fourth Amendment to ABL Credit Agreement]




    	 



     


    
 




ENCINA
BUSINESS CREDIT SPV, LLC, as a Lender


	By:	/s/
    Daniel Ross
	Name:	Daniel Ross	 
	Title:	Authorized Signatory

                                                                                 

                                                                                 







 





 


 




[Signature Page to Fourth Amendment to ABL Credit Agreement]