SERVICES AGREEMENT
EXHIBIT 10.2
This Services Agreement dated
March __, 2009, and effective as of the Effective Date as defined
below (this “Agreement”), is by
and between Vertex Holdings, L.P. (formerly Vertex Energy, L.P.), a Texas
limited partnership (“Vertex LP”) and
Vertex Energy, Inc., a Nevada corporation (“Vertex Nevada”), each
referred to as a “Party” and
collectively as the “Parties” to this
Agreement as such terms are used herein.
W I T N E S S E T
H:
WHEREAS, on or about May 19,
2008, Vertex Nevada, Vertex LP, Vertex Merger Sub, LLC, a California limited
liability company, World Waste Technologies, Inc., a California corporation
(“WWT”), and
Xxxxxxxx X. Xxxxxx, an individual (“Xxxxxx”), entered
into an Amended and Restated Agreement and Plan of Merger (as amended from time
to time, the “Merger
Agreement”);
WHEREAS, in connection with
and pursuant to the terms of the Merger Agreement, Vertex LP has agreed to
transfer certain of its operations to WWT, which will be merged with and into
Vertex Nevada (the “Merger”), including:
(a) Vertex LP's Black Oil division, which aggregates used motor oil from
third-party collectors and manages the delivery of this feedstock primarily to a
third-party re-refining facility, and (b) Vertex LP's Refining and Marketing
division, which aggregates hydrocarbon streams from collectors and generators
and manages the delivery of the hydrocarbon waste products to a third-party
facility for further processing, and then manages the sale of the end products
(the “Vertex Nevada
Business”);
WHEREAS, Vertex LP (and its
affiliates and subsidiaries) anticipates providing certain services ancillary to
and necessary for the operations of the Vertex Nevada Business to Vertex Nevada
following the Merger (the “Services” as further
defined below); and
WHEREAS, Vertex LP and Vertex
Nevada desire to enter into this Agreement to set forth the Services to be
provided and agree that such Services will be provided on the terms and
conditions set forth below, following the closing of the Merger (the “Closing” or the
“Effective
Date”);
NOW, THEREFORE, in
consideration of the premises and the mutual covenants, agreements, and
considerations herein contained, and ten dollars ($10) and other good and
valuable consideration, which Vertex LP acknowledges receipt of, the Parties
hereto agree as follows:
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1.
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Services.
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1.1.
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Effective
as of the Closing, Vertex LP, and its affiliates and subsidiaries
(hereafter throughout this Agreement, references to Vertex LP, include
Vertex LP’s affiliates and subsidiaries) agree to provide certain Services
to Vertex Nevada in connection with the Vertex Nevada
Business. Those “Services”
include any services then provided to any third parties or related
entities by Vertex LP, which are reasonably requested by Vertex Nevada,
which shall initially include, but not be limited to the
following:
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1.1.1.
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Transportation
services through Cross Road Carriers for the transportation of Vertex
Nevada's feedstock and refined and re-refined petroleum
products;
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1.1.2.
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Environmental
compliance and regulatory oversight services to be performed by Vertex
Residual Management Group LP., and
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1.1.3.
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Terminalling
services through Cedar Marine Terminals for the storage and loading out of
feedstock by barge, unless such services are covered under a separate
agreement entered into between the
Parties.
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1.2.
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The
Parties agree that the Services, and any other services requested to be
performed by Vertex LP on behalf of Vertex Nevada will be billed at the
lesser of (a) Vertex LP’s then normal and customary rates as provided to
similar non-affiliated third-parties, or in the absence of any such
pre-existing rates, the rates that Vertex LP would in good faith charge to
non-affiliated third parties for such Services (the “Third Party
Rates”); and (b) rates less than the Third Party Rates, as may be
negotiated between the Parties from time to time. The actual
rates billed to Vertex Nevada shall be defined as the “Service Rates”.
In no event shall the Service Rates exceed the rates that would be charged
for similar services by non-affiliated
parties.
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1.3.
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Vertex
LP agrees to use its best efforts to provide the Services for a period of
not less than five (5) years from the Closing Date (the “Term”),
provided however that (a) in the event Vertex LP ceases to provide any of
the Services to any third parties or related entities and/or ceases to
provide such Services whatsoever, for any reason, or (b) in the event
Vertex Nevada exercises its Option (as such term is defined in the Merger
Agreement) to purchase any such entity or business line of Vertex LP
providing such Services, the requirement to provide such Services (only as
they relate to discontinued Services or purchased Services) pursuant to
this Agreement shall be terminated.
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1.4.
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Vertex
LP agrees to xxxx Vertex Nevada for such Services as Vertex LP customarily
bills third parties and/or as otherwise mutually agreed to between the
Parties.
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1.5.
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The
Services will be provided pursuant to separately executed agreements or
work orders between Vertex Nevada and the applicable service
provider.
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1.6.
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The
Parties agree that any Services performed by Vertex LP may be removed from
the definition of Services above by the mutual consent of both Parties
hereto at any time.
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2.
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Termination.
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2.1.
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The
Parties agree that this Agreement may be terminated during the Term of
this Agreement:
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2.1.1.
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By
the mutual consent of both Parties at any
time;
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2.1.2.
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In
the event any term of this Agreement is breached, this Agreement may be
terminated by the non-breaching party upon thirty (30) days prior written
notice to the breaching party of such breach and provided that such breach
is not reasonably cured during such thirty (30) day period;
or
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2.1.3.
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At
any time at the option of either Party upon five (5) days prior notice in
the event that Xxxxxx is no longer employed by Vertex
Nevada.
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2.2.
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The
Parties further agree that if not terminated as provided above, this
Agreement shall automatically renew upon the expiration of the Term of
this Agreement for successive one (1) year terms (each an “Extended Term”)
unless either Party has provided written notice to the other Party of its
intent not to renew this Agreement at least thirty (30) days prior to the
end of the Term or any Extended Term of this
Agreement.
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2.3.
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Notwithstanding
any provision herein to the contrary, the Parties agree that Vertex Nevada
shall not agree to terminate or amend this Agreement without having first
obtained the written consent of the Related Party Transaction Committee of
Vertex Nevada’s Board of Directors.
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3.
Notices.
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3.1.
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Any
notices and other communications required or permitted hereunder shall be
in writing and shall be effective upon delivery by hand or upon receipt if
sent by certified or registered mail (postage prepaid and return receipt
requested) or by a nationally recognized overnight courier service
(appropriately marked for overnight delivery) or upon transmission if sent
by telex or facsimile (with request for immediate confirmation of receipt
in a manner customary for communications of such respective type and with
physical delivery of the communication being made by one or the other
means specified in this Section as promptly as practicable thereafter).
Notices shall be addressed as
follows:
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If to
Vertex LP:
Vertex
Holdings, L.P.
Attn:
Xxxxxxxx X. Xxxxxx
0000
Xxxxxx Xxxxx 000
Xxxxxxx,
Xxxxx 00000
With a
copy to:
____________________________
____________________________
____________________________
____________________________
____________________________
If to
Vertex Nevada:
Vertex
Nevada, Inc.
Attn: Xxxxxxxx
X. Xxxxxx
0000
Xxxxxx Xxxxx 000
Xxxxxxx,
Xxxxx 00000
With a
copy to:
The Loev
Law Firm, PC
Attn:
Xxxxx X. Xxxx, Esq.
0000 Xxxx
Xxxx Xxxxx,
Xxxxx
000
Xxxxxxxx,
Xxxxx 00000
And a copy to:
Vertex
Nevada, Inc.
Attn: Related
Party Transaction Committee
0000
Xxxxxx Xxxxx 000
Xxxxxxx,
Xxxxx 00000
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3.2.
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Any
Party may change the address to which notices are required to be sent by
giving written notice of such change in the manner provided in this
Section.
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4.
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Miscellaneous.
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4.1.
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Assignment. Neither
Party may assign this Agreement without the other Parties’ prior written
consent. All of the terms, provisions and conditions of this Agreement
shall be binding upon and shall inure to the benefit of and be enforceable
by the Parties hereto and their respective successors and permitted
assigns.
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4.2.
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Applicable
Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Texas, excluding any
provision of this Agreement which would require the use of the laws of any
other jurisdiction.
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4.3.
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Entire Agreement,
Amendments and Waivers. This Agreement constitutes the
entire agreement of the Parties hereto and expressly supersedes all prior
and contemporaneous understandings and commitments, whether written or
oral, with respect to the subject matter hereof. No variations,
modifications, changes or extensions of this Agreement or any other terms
hereof shall be binding upon any Party hereto unless set forth in a
document duly executed by such Party or an authorized agent or such
Party.
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4.4.
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Waiver. No
failure on the part of any Party to enforce any provisions of this
Agreement will act as a waiver of the right to enforce that
provision.
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4.5.
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Section
Headings. Section headings are for convenience only and shall not
define or limit the provisions of this
Agreement.
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4.6.
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Effect of Facsimile
and Photocopied Signatures. This Agreement may be executed in
several counterparts, each of which is an original. It shall
not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other
counterparts. A copy of this Agreement signed by one Party and
faxed to another Party shall be deemed to have been executed and delivered
by the signing Party as though an original. A photocopy of this
Agreement shall be effective as an original for all
purposes.
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IN WITNESS WHEREOF, the
Parties hereto have executed this Agreement as of the day and year first written
above to be effective as of the Effective Date, as defined above.
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Dated: March
__, 2009
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Vertex
Energy, Inc.,
a
Nevada corporation
By: /s/ Xxxxxxxx X.
Xxxxxx
Name:
Xxxxxxxx X. Xxxxxx
Title:
President
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Dated: March
__, 2009
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Vertex
Holdings, L.P.
(formerly
Vertex Energy, L.P.),
a
Texas limited partnership
By
VTX, Inc., a Texas corporation,
its
General Partner
By: /s/ Xxxxxxxx X.
Xxxxxx
Name:
Xxxxxxxx X. Xxxxxx
Title:
President
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