Exhibit 10.1
NOTE PURCHASE AGREEMENT
This Note Purchase Agreement (this "Purchase Agreement") dated as of
February 2, 2009, between Vertex Energy, L.P., a Texas limited partnership (the
"Company") and World Waste Technologies, Inc., a California corporation (the
"Lender").
RECITALS
A. Lender desires to purchase from the Company, and the Company desires
to sell to the Lender, upon the terms and subject to the conditions of this
Agreement, a senior subordinated secured promissory note (the "Note"),
substantially in the form attached hereto as Exhibit A, in the aggregate
principal amount of One Million Dollars ($1,000,000.00) (the "Loan Amount").
B. This Agreement, the Note, the Security Agreement (as defined in the
Note), the Guaranty (as defined in the Note) and the Amendment (as defined
below) are sometimes hereinafter collectively referred to as the "Transaction
Documents."
C. Capitalized terms not otherwise defined herein shall have the
meaning given to such terms in the Note and Security Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of their respective promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties, the Company and the Lender hereby
agree as follows:
1. ISSUANCE, SALE AND DELIVERY OF NOTE.
(a) ISSUANCE OF THE NOTE. Subject to the terms and conditions set forth
in this Agreement and in reliance upon the representations and warranties
contained herein, the Company agrees to issue and sell to the Lender, and the
Lender hereby agrees to purchase from the Company, the Note.
(b) CLOSING. The closing of the purchase and sale of the Note (the
"Closing") shall be held at the offices of The Loev Law Firm, PC in Bellaire,
Texas, or at such other location as shall be agreed upon by the parties hereto,
on the date hereof (the "Closing Date").
(c) CLOSING DELIVERIES BY THE LENDER. At the Closing, the Lender shall
deliver to the Company:
(i) the Security Agreement, duly executed by the Lender;
(ii) an amendment to the Merger Agreement in the form attached hereto
as Exhibit B (the "Amendment"), duly executed by the Lender; and
(ii) the Loan Amount by cashiers' check, certified funds or wire
transfer.
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(d) CLOSING DELIVERIES BY THE COMPANY. At the Closing, the Company shall
deliver to the Lender:
(i) the Note, duly executed by the Company;
(ii) the Security Agreement, duly executed by the Company;
(iii) the Guaranty, duly executed by the Guarantor (as defined in the
Note);
(iv) the Amendment, duly executed by the Company and the other parties
thereto (other than the Lender);
(v) an opinion of counsel to the Company and the Guarantor, in form and
substance satisfactory to the Lender; and
(vi) a certificate of the General Partner of the Company dated as of
the Closing Date, certifying: (A) the Company's organizational documents as true
and complete and attaching certified copies of same; (B) as to the incumbency
and genuineness of the specimen signatures of each officer of the Company
executing any of the Transaction Documents; (C) the resolutions of partners of
the Company authorizing the execution, delivery and performance of the
Transaction Documents and the consummation of the transactions contemplated
thereby, as true and complete and attaching copies of same; and (D) that all
consents, approvals and other actions of, and notices and filings with, all
entities and persons as may be necessary or required with respect to the
execution of the parties of the transactions contemplated thereby, have been
obtained or made.
2. LENDER'S REPRESENTATIONS AND WARRANTIES.
The Lender represents and warrants to the Company that:
(a) AUTHORIZATION; ENFORCEMENT. The Transaction Documents as to which
the Lender is a party have been duly and validly authorized, executed and
delivered by the Lender and are each and collectively valid and binding
agreements of the Lender enforceable against it in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency, moratorium,
liquidation, or similar laws relating to, or affecting, generally the
enforcement of creditors' rights and remedies or by other equitable principles
of general application.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Lender that:
(a) ORGANIZATION AND QUALIFICATION. The Company is duly organized and
existing in good standing under the laws of Texas and has the requisite
partnership power to own its properties and to carry on its business as now
being conducted.
(b) AUTHORIZATION; ENFORCEMENT. (i) The Company has the requisite power
and authority to enter into and perform the Transaction Documents, to issue and
sell the Note in accordance with the terms hereof, and to perform its
obligations under the Note in accordance with the requirements of the same, (ii)
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the execution, delivery and performance of the Transaction Documents by the
Company and the consummation by it of the transactions contemplated hereby and
thereby have been duly authorized, (iii) the Transaction Documents have been
duly and validly authorized, executed and delivered by the Company, and (iv) the
Transaction Documents constitute the valid and binding obligations of the
Company enforceable against it in accordance with their respective terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting, generally, the enforcement of creditors' rights and remedies or by
other equitable principles of general application.
(c) NO CONFLICTS. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by it of the
transactions contemplated thereby will not (i) result in a violation of the
Company's charter documents or (ii) conflict with, or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company is
a party, or result in a violation of any law, rule, regulation, order, judgment
or decree (including federal and state securities laws and regulations)
applicable to the Company or by which any property or asset of the Company is
bound or affected.
(d) CONSENTS. The Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its
obligations under the Transaction Documents.
(e) ABSENCE OF LITIGATION. There is no action, suit, proceeding,
inquiry or investigation before or by any court, public board or body pending
or, to the knowledge of the Company, threatened against or affecting the
Company, wherein an unfavorable decision, ruling or finding would have a
material adverse effect or which would adversely affect the validity or
enforceability of, or the authority or ability of the Company to perform its
obligations under the Transaction Documents or any of the documents contemplated
therein.
4. COVENANTS.
(a) USE OF PROCEEDS. The Company shall use the net proceeds from the
sale of the Note to finance trade payables to feedstock suppliers strictly in
accordance with the terms of Exhibit C hereto.
(b) REPORTING OBLIGATION. Until the Note is repaid in full, the Company
will periodically and in good faith report to the Lender and its Board of
Directors with respect to the status of the Company's business and its cash
position.
5. GOVERNING LAW; MISCELLANEOUS.
(a) GOVERNING LAW AND VENUE. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California without
regard to the principles of conflict of laws. Each of the parties hereto
consents to the jurisdiction of any state or federal court located within the
county of Los Angeles in the State of California, and irrevocably agrees that
all actions or proceedings relating to this Agreement or the transactions
contemplated hereby shall be litigated in one of such courts, and each of the
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parties waives any objection that it may have based on improper venue or FORUM
NON CONVENIENS to the conduct of any such action or proceeding in any such court
and waives personal service of any and all process upon it, and consents to all
such service of process made in the manner set forth in Section 6(f). Nothing
contained in this Section 6(a) shall affect the right of any party to serve
legal process on any other party in any other manner permitted by law.
(b) COUNTERPARTS. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and signature pages from such counterparts have been delivered.
(c) HEADINGS; GENDER, ETC. The headings of this Agreement are for
convenience of reference and shall not form a part of, or affect the
interpretation of this Agreement. As used herein, the masculine shall refer to
the feminine and neuter, the feminine to the masculine and neuter, and the
neuter to the masculine and feminine, as the context may require. As used
herein, unless the context clearly requires otherwise, the words "herein,"
"hereunder" and "hereby," shall refer to this entire Agreement and not only to
the Section or paragraph in which such word appears. If any date specified
herein falls upon a Saturday, Sunday or public or legal holidays, the date shall
be construed to mean the next business day following such Saturday, Sunday or
public or legal holiday. For purposes of this Agreement, a "business day" is any
day other than a Saturday, Sunday or public or legal holiday.
(d) SEVERABILITY. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
(e) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Lender makes any representation,
warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be waived or amended other than by an instrument in writing
signed by the party to be charged with enforcement.
(f) NOTICES. Any notices required or permitted to be given under the
terms of this Agreement shall be delivered in accordance with the notice
provisions of the Merger Agreement.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns.
Neither the Company nor the Lender shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other (which
consent shall not be unreasonably withheld).
(h) NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
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(i) SURVIVAL. The representations, warranties, agreements and covenants
of the Company and the Lender contained in this Agreement shall survive the
Closing of the purchase and sale of the Note purchased and sold hereby.
(j) FURTHER ASSURANCE. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(k) REMEDIES. No provision of this Agreement providing for any specific
remedy to a party shall be construed to limit such party to the specific remedy
described, and any other remedy that would otherwise be available to such party
at law or in equity shall be so available. Nothing in this Agreement shall limit
any rights a party may have with any applicable federal or state securities laws
with respect to the transactions contemplated hereby.
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IN WITNESS WHEREOF, the Lender and the Company have caused this Note
Purchase Agreement to be duly executed as of the date first written above.
THE COMPANY:
VERTEX ENERGY, L.P.
By its General Partner
VTX, INC., a Texas corporation
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxxx X. Xxxxxx
Title: CEO
LENDER:
WORLD WASTE TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxx
Title: CEO
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