Amendment No. 2 to Supply and Offtake Agreement dated September 1, 2023, and effective September 14, 2023, between Vertex Refining Alabama LLC and Macquarie Energy North America Trading Inc

VERTEX ENERGY, INC. 8-K

Exhibit 10.1

AMENDMENT NO. 2

TO

SUPPLY AND OFFTAKE AGREEMENT

This AMENDMENT NO. 2 TO SUPPLY AND OFFTAKE AGREEMENT (this “Amendment”) is made and entered effective September 1, 2023, by and between VERTEX REFINING ALABAMA LLC (“Vertex” or “Company”) and MACQUARIE ENERGY NORTH AMERICA TRADING INC. (“Macquarie”).

RECITALS

WHEREAS, Vertex and Macquarie are parties to that certain Supply and Offtake Agreement dated April 1, 2022, as amended on or about May 23, 2023 (together with all annexes, schedules and exhibits thereto, and as further amended from time to time, the “Agreement”); and

WHEREAS, the parties hereto desire to amend the Agreement as set forth in more detail herein.

NOW THEREFORE, the parties hereto hereby agree as follows:

AGREEMENT

Section 1.                   Defined Terms. Capitalized terms used but not defined in this Amendment have the meaning given to them in the Agreement.

Section 2.                   Amendments to Agreement. The Agreement is hereby amended as follows:

(a)                 Section 1.1 [Definitions] is hereby amended in part as follows:

(i)                  The following defined terms are added:

"BWC Agreements" means:

"BWC Consent Letters" means each "Consent to Storage and Usage Agreement" dated or effective on or around the effective date of this Agreement and entered into between the BWC Operator, Macquarie and the Company.

“BWC Inclusion Date” means first date on which any tank located at the BWC Storage Facilities is specified as an “Included Product Tank” in Schedule E.

"BWC Operator" means BWC Terminals LLC, BWC Alabama LLC, or such other successor or assignee that operates the BWC Storage Facilities.

"BWC Storage Facilities" has the meaning given to such term in the BWC Storage Rights Agreement.

"BWC Storage Rights Agreement" means the sub-lease agreement entered into between the Company and Macquarie dated or effective on or about the effective date of this Amendment.

"BWC Terminalling Agreements" means the “Terminalling Agreements” as such term is defined in the BWC Storage Rights Agreement.

“Third Party Storage Agreements” means the Center Point Agreements (but only from and including the Center Point Inclusion Date), the BWC Agreements (but only from and including the BWC Inclusion Date), the Plains Agreement, and any other agreements entered into between or among the Company, Macquarie and/or a Third Party Storage Provider as “Third Party Storage Agreements” by Macquarie and the Company.

“Third Party Storage Provider” means: (a) from and including the BWC Inclusion Date, each BWC Operator; (b) from and including the Center Point Inclusion Date, the Center Point Operator; (c) the Plains Operator; and, (d) each other third party storage provider approved in writing by Macquarie and the Company provided that Macquarie enters into a “Consent to Storage and Usage Agreement” or similar agreement concerning such provider.

“Third Party Terminalling Agreement” means: (a) in respect of the BWC Storage Facilities from and including the BWC Inclusion Date, the BWC Terminalling Agreement, (b) in respect of the Center Point Storage Facilities from and including the Center Point Inclusion Date, the Center Point Terminalling Agreement; (c) in respect of the Plains Storage Facilities, the Plains Terminalling Agreement; and, (d) in respect of any other Third Party Storage Provider, the terminalling services agreement entered into between the Company and such other Third Party Storage Provider.

Section 3.                   Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. This Amendment may be executed via electronic, digital, or handwritten signature. For all purposes, a copy of this Amendment as executed shall have the same force and effect as an original thereof.

Section 4.                   Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted pursuant to the Agreement, as amended hereby.

Section 5.                   Severability. In case one or more provisions of this Amendment shall be invalid, illegal, or unenforceable in any respect under applicable law, the validity, legality, and enforceability of the remaining provisions contained herein or therein shall not be affected or impaired thereby.

Section 6.                   Governing Law. This Amendment shall be governed by, and construed and enforced in accordance with, the laws of the State of New York without regard to conflicts of laws principles.

EXECUTED effective as of the date first above written.

MACQUARIE ENERGY NORTH AMERICA TRADING INC.

By: /s/ Brian Houstoun
Name: Brian Houstoun
Title: Senior Managing Director

By: /s/ Travis McCullough
Name: Travis McCullough
Title: Division Director

VERTEX REFINING ALABAMA LLC

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

SCHEDULE O

FORM OF INCLUDED STORAGE LOCATIONS