Supply and Service Agreement



 Exhibit 10.18 

 
 CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED ON
A 
 REQUEST FOR CONFIDENTIAL TREATMENT 

 
 OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
SECURITIES 
 AND EXCHANGE COMMISSION 

 
 SUPPLY AND SERVICE AGREEMENT 

 
 THIS SUPPLY AND SERVICE AGREEMENT (this
“Agreement”), is dated as of July 22, 2011 between Platinum Energy Solutions, Inc. (“Buyer”), and * LLC (“Supplier”). Each of Buyer and Supplier is a
“Party” to this Agreement and both are sometimes referred to collectively as the “Parties”. 
  

WITNESSETH: 
  

WHEREAS, Buyer desires to enter into a supply and service agreement with Supplier to purchase the Products and the Services (as each such
term is defined below); and 
  
 WHEREAS, Supplier
desires to supply Products and provide Services to Buyer in accordance with the terms and conditions set forth in this Agreement and the Exhibits attached hereto and a part hereof; 

 
 NOW, THEREFORE, in consideration of the premises,
representations and warranties, and the mutual covenants and agreements contained herein and other good, valuable and sufficient consideration, the receipt of which is hereby acknowledged, the parties, intending to be legally bound, agree as
follows: 
  
 Section 1. Products.
Subject to the provisions of this Agreement, Supplier hereby agrees to sell and deliver to Buyer, and Buyer hereby agrees to purchase and accept from Supplier, the products listed on Exhibit A attached hereto and a part hereof (the
“Products”). 
  
 Section 2.
Services. Subject to the provisions of this Agreement, Supplier hereby agrees to provide to Buyer, and Buyer hereby agrees to accept from Supplier, the services listed on Exhibit B attached hereto and a part hereof (the
“Services”). 
  
 Section 3.
Specifications. The specifications for each Product are listed on Exhibit C attached hereto and a part hereof. 
  

Section 4. Quantity. Supplier shall supply 150,000 tons of the Products per year, as more detailed on Exhibit A. The
Products will be shipped in periodic increments as the Parties agree. Upon at least 60 days written notice, the Buyer may require the Supplier to increase the quantity of Products to 300,000 tons per year. Buyer shall deliver purchase orders to
Supplier for each purchase, each of which sets forth the quantity and specifications for Products so ordered and the specifications for delivery of such Products to Buyer (each, a “Purchase Order,” and collectively,
“Purchase Orders”). 
  
  

	*	 	CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. 









 
PLATINUM ENERGY SOLUTIONS, INC. HAS CLAIMED CONFIDENTIAL 
 TREATMENT
OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH 
 RULE 406 UNDER THE SECURITIES ACT OF 1933 

 

 4a. Purchase Orders will be placed 30 days in advance for the receiving period
by specific Grades. With the purchase order, the payment will be available at the time product is loaded on the train FOB Rail Yard with the weight tickets and gradation sheets for the Wet Sand. With the purchase order for dry sand, the payment will
be made available with the weight tickets and gradation sheets for the Frac Sand once they are loaded on the trucks FOB the Dry Plant *, *. 
  

Section 5. Price. The purchase price of the Products and the fees for the Services are set forth in Exhibit D
attached hereto and a part hereof (collectively, the “Price”). 
  
 Section 6. Delivery and Risk of Loss. Delivery of the Products shall be made in accordance with the delivery specifications set forth in each Purchase Order submitted by Buyer. Title to, and
risk of loss for Products purchased hereunder shall pass to Buyer F.O.B., with respect to the wet sand, Progressive Rail, Inc.’s yard in Chippewa Falls, Wisconsin as the primary loading facility or in *, * as the secondary loading facility, and
with respect to dry sand, Supplier’s facility in *, *. 
  
 Section 7. Payment. Payment in U.S. dollars for Products and Services purchased hereunder will be due within 24 hours from the time of Buyer’s electronic receipt of Supplier’s
invoice. Buyer shall be responsible for payment of all sales and use taxes levied on Products and Services sold to Buyer hereunder. 
  

Section 8. Warranty; Limitation of Liability. 

 
 (a) SUPPLIER WARRANTS THAT THE PRODUCTS MEET THE
SPECIFICATIONS FOR SUCH PRODUCTS, THAT THE SERVICES WILL BE PROVIDED IN A PROFESSIONAL AND WORKMANLIKE MANNER CONSISTENT WITH INDUSTRY STANDARD, AND THAT IT WILL PERFORM ALL OF ITS OBLIGATIONS UNDER THIS AGREEMENT IN ALL MATERIAL RESPECTS IN
ACCORDANCE WITH ALL APPLICABLE LAWS AND REGULATIONS. 
  
 (b) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8(a), SUPPLIER MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES FOR
MERCHANTABILITY, NON-INFRINGMENT AND FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT OF A PRODUCT DEFECT, AT BUYER’S OPTION, SUPPLIER SHALL REPLACE THE DEFECTIVE PRODUCT OR REFUND TO BUYER THE AMOUNT PAID BY BUYER THEREFOR. 

 
  

	*	 	CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. 


  
 2 









 
PLATINUM ENERGY SOLUTIONS, INC. HAS CLAIMED CONFIDENTIAL 
 TREATMENT
OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH 
 RULE 406 UNDER THE SECURITIES ACT OF 1933 

 

 Section 9. Indemnification. Supplier shall defend, indemnify and holder
harmless Buyer, its officers, directors, employees, agents, subsidiaries, affiliates, successors and assigns from and against any and all damages, judgments, liabilities, costs and expenses (including reasonable attorney’s fees) arising from a
claim or a lawsuit resulting from (i) any breach by Supplier of its warranties under Section 8 and (ii) any contamination or defect existing in the Products prior to transfer of title as provided in Section 6. Buyer shall give
Supplier prompt written notice of any such claim or lawsuit and shall permit Supplier to undertake the defense thereof at Supplier’s expense. If Supplier accepts the defense, Buyer shall have the right to participate in such defense, at its own
expense. In any claim made or suit brought for which Buyer seeks indemnification under this Section 9(a), Buyer shall not settle or offer to settle or admit liability or damages without prior written consent of Supplier, such consent not being
unreasonably withheld or delayed. 
  
 Section
10. Term. The term of this Agreement shall be for a period of twelve (12) months commencing on the date first written above. The term of this Agreement may be extended for an additional twelve (12) months at the option of the
Buyer. 
  
 Section 11. Force Majeure.
Neither party shall be held responsible for delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by occurrences beyond the reasonable control of a party, including without limitation, fire,
flood, explosion, war, strike, embargo, government requirement, civil or military authority, act of God, inability to secure material or transportation facilities, act or omission of carriers or other causes beyond Suppliers’ or Buyer’s
control (each, a “Force Majeure Condition”). Each party shall, with the cooperation of the other, exercise all reasonable efforts to mitigate the extent of a delay or failure resulting from a Force Majeure Condition. In addition,
the party claiming a Force Majeure Condition shall give notice to the other party of (i) the cessation of the Force Majeure Condition and (ii) the cessation of the effects of such event on the ability of such party to perform its
obligations under this Agreement immediately upon becoming aware thereof. 
  
 Section 12. Termination and Default. 
  
 (a) If either Party shall fail to perform or fulfill, in the time and manner herein provided, any obligation or condition herein required to be performed or fulfilled by such Party, and if such default
shall continue for thirty (30) days after written notice thereof from the non-breaching Party, then the non-breaching Party shall have the right to immediately terminate this Agreement by written notice of termination to the other Party.

  
 (b) Buyer may terminate this Agreement at any
time prior to its expiration date with or without cause upon sixty (60) days prior written notice to Supplier. Termination of this Agreement pursuant to this Section 12(b) shall have no effect with respect to the obligations of the Parties
with respect to any Products ordered prior to such termination. 
  
 Section 13. Independent Contractor. Supplier shall be, and its relationship with Buyer shall not be presented as anything other than that of, an independent contractor under this Agreement
and neither Supplier nor any of its subcontractors, nor the employees of any thereof, shall be deemed to be the servants, employees or agents of Buyer. As an independent contractor, Supplier shall provide the necessary personnel, materials and
equipment necessary or incident to the performance of its obligations hereunder. 

  
 3 









 
PLATINUM ENERGY SOLUTIONS, INC. HAS CLAIMED CONFIDENTIAL 
 TREATMENT
OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH 
 RULE 406 UNDER THE SECURITIES ACT OF 1933 

 

 Section 14. Confidentiality. All technical and business information,
whether written, oral or in any other form, which is not available to the general public concerning either Party (all hereinafter designated “Information”), furnished to either Party under or in contemplation of this Agreement and
designated as proprietary shall remain the property of the furnishing Party. Unless the Parties otherwise agree in writing, the Information shall: (i) be treated in confidence by the receiving Party and used only (A) for evaluation
purposes or (B) for the purposes for which furnished, as applicable; (ii) be disclosed by the receiving Party only to personnel (or authorized contractors or consultants) having a need to know of such Information to enable such persons to
perform the receiving Party’s obligations hereunder; (iii) not be reproduced or copied in whole or in part, except as necessary for use as authorized in this Agreement, and (iv) together with any copies thereof, be returned or
destroyed when no longer needed. Each Party agrees to exercise at least the same standard of care to protect the other Party’s Information as is used to protect its own such Information from unauthorized disclosures (but no less than a
reasonable standard of care). This Agreement will otherwise be subject to any confidentiality agreement in effect between the Parties. 
  

Section 15. Notice. All notices and demands required or permitted to be given pursuant to this Agreement shall be given in
writing, shall be transmitted by personal delivery, by facsimile or electronic mail (with confirmation of receipt), by overnight courier service, or by registered or certified mail, return receipt requested, postage prepaid, and shall be addressed
as follows: 
  
 When Buyer is the
intended recipient: 
  
 Platinum
Energy Solutions, Inc. 
 2100 West Loop, Suite 1601 

Houston, Texas 77027 
 Attention: Chief Financial Officer 
 Telecopy Number: 832-487-0761
(Fax) 
  
 When Supplier is the
intended recipient: 
  
 *

 * 
 * 
  
 Attention: [            ] 
  

Telecopy Number: [            ] 

 
  

	*	 	CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. 


  
 4 








 PLATINUM ENERGY SOLUTIONS, INC. HAS CLAIMED CONFIDENTIAL 

TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH 
 RULE 406 UNDER THE SECURITIES ACT OF 1933 
  
 A party may designate a new address to which notices required or permitted to be given pursuant to this Agreement shall thereafter be transmitted by giving written notice to that effect to the other
party. Each notice transmitted in the manner described in this Section 15 shall be deemed to have been given, received and become effective for all purposes at the time it shall have been (i) delivered by hand, (ii) delivered by
facsimile or electronic e-mail (with confirmation of receipt), (iii) one (1) day after sending by overnight courier service and (iv) five (5) days after sending by registered or certified mail. 

 
 Section 16. Governing Law; Venue; Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to principles of conflicts of law thereof. The Parties hereby irrevocably consent to the personal jurisdiction of the state
and federal courts located in Harris County, Texas for any suit or action arising from or related to this Agreement, and waive any right it may have to object to the venue of such courts. Each Party further agrees that these courts will have
exclusive jurisdiction over any such suit or action arising from or related to this Agreement initiated by either Party. 
  

Section 17. Binding Effect; Assignment; Third Party Beneficiaries. This Agreement shall be binding upon the Parties and
their respective successors and permitted assigns and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party shall assign any of its rights or delegate any of its duties under this Agreement
(by operation of Law or otherwise), except to an affiliate, without the prior written consent of Supplier or Buyer. Any assignment of rights or delegation of duties under this Agreement by a Party without the prior written consent of the other
Party, if such consent is required hereby, shall be void. No Person shall be, or be deemed to be, a third party beneficiary of this Agreement. 
  

Section 18. Entire Agreement. This Agreement, together with the Exhibits, constitutes the entire contract among the Parties
with respect to the subject matter hereof and cancels and supersedes all of the previous or contemporaneous contracts, representations, warranties and understandings (whether oral or written) by, between the Parties with respect to the subject
matter hereof. 
  
 Section 19.
Modification, Amendment or Waiver. This Agreement may not be modified, amended or waived except by an instrument in writing executed by both Parties and specifically designed as an amendment or waiver to this Agreement. 

 
 Section 20. Headings; Counterparts. The
headings set forth in this Agreement have been inserted for convenience of reference only, shall not be considered a part of this Agreement and shall not limit, modify or affect in any way the meaning or interpretation of this Agreement. This
Agreement may be signed in any number of counterparts, each of which (when executed and delivered) shall constitute an original instrument, but all of which together shall constitute one and the same instrument. 

 
 Section 21. Severability. If any provision of
this Agreement shall hereafter be held to be invalid, unenforceable or illegal, in whole or in part, in any jurisdiction under any circumstances for any reason, (a) such provision shall be reformed to the minimum extent


  
 5 








 PLATINUM ENERGY SOLUTIONS, INC. HAS CLAIMED CONFIDENTIAL 

TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH 
 RULE 406 UNDER THE SECURITIES ACT OF 1933 
  
 necessary to cause such provision to be valid, enforceable and legal while preserving the intent of the Parties as expressed in, and the benefits to the Parties provided by, this Agreement or (b) if
such provision cannot be so reformed, such provision shall be severed from this Agreement and an equitable adjustment shall be made to this Agreement (including addition of necessary further provisions to this Agreement) so as to give effect to the
intent as so expressed and the benefits so provided. Such holding shall not affect or impair the validity, enforceability or legality of such provision in any other jurisdiction or under any other circumstances. Neither such holding nor such
reformation or severance shall affect or impair the legality, validity or enforceability of any other provision of this Agreement. 

  
 6 








 PLATINUM ENERGY SOLUTIONS, INC. HAS CLAIMED CONFIDENTIAL 

TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH 
 RULE 406 UNDER THE SECURITIES ACT OF 1933 
  
 IN WITNESS WHEREOF, each of the Parties has caused this Supply and Service Agreement to be executed as of the date first above written. 

 

			
	PLATINUM ENERGY SOLUTIONS, INC.
		
	 By:
	 	 /s/ J. Clarke Legler, II

	 Name:
	 	 J. Clarke Legler, II

	 Title:
	 	 CFO



  

			
	*
		
	 By:
	 	 /s/ * , *

	 Name:
	 	 *

	 Title:
	 	 Manager



  
  

	*	 	CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. 


  
 7 








 PLATINUM ENERGY SOLUTIONS, INC. HAS CLAIMED CONFIDENTIAL 

TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH 
 RULE 406 UNDER THE SECURITIES ACT OF 1933 
  
 Exhibit A 
  
 DESCRIPTION OF PRODUCTS 
  
 Products to be delivered by (*): 
  
 Wet Sand precut on gradations of course or top cut on #6 sieve and fine or bottom cut of less than 10% passing #70 sieve. 

 
 Dry Sand will be supplied by * LLC; Frac Sand meeting API specifications for
20/40, 30/50 and 40/70 grades. This sand will be supplied until the Dry Facility is constructed on PES’s site. 
  

 

	*	 	CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. 


  
 8 








 PLATINUM ENERGY SOLUTIONS, INC. HAS CLAIMED CONFIDENTIAL 

TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH 
 RULE 406 UNDER THE SECURITIES ACT OF 1933 
  
 Exhibit B 
  
 DESCRIPTION OF SERVICES 
  
 Supplier will assist Buyer in designing and constructing a 50 ton per hour sand drying facility located in or around San Antonio, TX, including providing construction supervision and maintenance
supervision of the sand drying facility during construction periods and scheduled maintenance period. Maintenance periods include weekly and monthly scheduled maintenance as mutually determined by Supplier and Buyer. During construction and
maintenance periods, Supplier will consult and supervise the jobs and Buyer will provide the labor for the construction and maintenance services rendered during such periods. 

  
 9 








 PLATINUM ENERGY SOLUTIONS, INC. HAS CLAIMED CONFIDENTIAL 

TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH 
 RULE 406 UNDER THE SECURITIES ACT OF 1933 
  
 Exhibit C 
  
 SPECIFICATIONS 
  
 [omitted in original] 

  
 10 









 PLATINUM ENERGY SOLUTIONS, INC. HAS CLAIMED CONFIDENTIAL 

TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH 
 RULE 406 UNDER THE SECURITIES ACT OF 1933 
  
 Exhibit D 
  
 PRICE 
  
 Products

  
 [Actual cost] plus $* per ton for wet sand 

 
 [Market prices] for dry sand 

 
 Services 
  
 $* per month for consulting services 
  

$[50.00] per hour for construction supervision and maintenance supervision services. 

 
  

	*	 	CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. 


  
 11