8-K/A

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K/A

(Amendment No. 1)

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): April 1, 2022

VERTEX ENERGY, INC.

(Exact name of registrant as specified in its charter)

Nevada	001-11476	94-3439569
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

1331 Gemini Street Suite 250 Houston, Texas	77058
(Address of principal executive offices)	(Zip Code)

Registrant’s telephone number, including area code: (866) 660-8156

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, $0.001 Par Value Per Share	VTNR	NASDAQ Stock Market LLC (Nasdaq Capital Market)

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐ 

EXPLANATORY NOTE

Vertex Energy, Inc. (the “Company”, “we” and “us”) previously filed a Current Report on Form 8-K with the Securities and Exchange Commission on April 7, 2022 (the “Initial Report”) disclosing among other things: (a) the April 1, 2022 entry into a Loan and Security Agreement between Vertex Refining Alabama LLC, a Delaware limited liability company (“Vertex Refining”) which is indirectly wholly-owned by the Company, the Company, as a guarantor, substantially all of the Company’s direct and indirect subsidiaries, as guarantors, certain funds, as lenders, and Cantor Fitzgerald Securities, in its capacity as administrative agent and collateral agent for the lenders; (b) the April 1, 2022 acquisition by Vertex Refining of a refinery located in Mobile, Alabama refinery (the “Mobile Refinery”); and (c) the April 1, 2022 entry into a Supply and Offtake Agreement between Vertex Refining and Macquarie Energy North America Trading Inc. (“Macquarie”), pertaining to crude oil supply and offtake of finished products located at the Mobile Refinery (the “Supply and Offtake Agreement”).

As described in the Initial Report, in connection with the acquisition and related transactions described in the Initial Report, Vertex Refining and certain other parties entered into agreements, in addition to those described in detail in the Initial Report, certain of which were anticipated to be deemed material definitive agreements. The Company and the counterparties to these agreements were still in the process of drafting disclosure of the material terms of those agreements as of the date of the Initial Report filing and the Company indicated in the Initial Report that it planned to file an amendment to the Initial Report, to more fully disclose the material terms of such additional material agreements, and to include such agreements as exhibits, in the future.

This Amendment No. 1 to the Initial Report is being filed to disclose in greater detail the Storage & Services Agreement, Crude Oil & Hydrocarbon Feedstock Supply Agreement and Products Offtake Agreement (collectively, the “Additional Agreements”), each as described in greater detail below, and to file such agreements as exhibits to this filing.

Except for this Explanatory Note, the disclosures set forth below regarding the Additional Agreements which amend and supplement Item 1.01 of the Initial Report, and the inclusion of the Additional Agreements as exhibits to this Amendment No. 1 to the Initial Report in Item 9.01, below, there are no changes to the Initial Report, as amended by this Amendment No. 1, and this Amendment No. 1 should be read in connection with the Initial Report.

Item 1.01. Entry into a Material Definitive Agreement.

The disclosures below should be read in connection with, and supplement and add to the disclosures and information set forth in, the Initial Report.

Crude Supply Agreement

On April 1, 2022 (the “Commencement Date”), Vertex Refining and Shell Trading (US) Company (“STUSCO”) entered into a Crude Oil & Hydrocarbon Feedstock Supply Agreement (the “Crude Supply Agreement”) pursuant to which STUSCO agreed to sell to Vertex Refining, and Vertex Refining agreed to buy from STUSCO, all of the crude oil and hydrocarbon feedstock requirements of the Mobile Refinery, subject to certain exceptions set forth therein. The agreement provides that STUSCO is the exclusive supplier for the Mobile Refinery’s requirement for crude oil and hydrocarbon feedstock.

The initial term of the Crude Supply Agreement will continue for five (5) years beginning on the Commencement Date, unless earlier terminated, and will automatically renew for one (1) year renewal terms thereafter subject to timely notice of either party that it elects not to so renew.

Pursuant to the Crude Supply Agreement, STUSCO will procure crude oil based upon a monthly mandate from Vertex Refining as to the Mobile Refinery’s requirements for each delivery month, based on a pre-agreed price, based on internal market prices, subject in certain cases to markup.

Vertex Refining will prepay STUSCO for crude oil deliveries on a provisional basis during a predetermined delivery period during each delivery month, subject to final true up.

The Crude Supply Agreement also contains customary and typical general terms and conditions for transactions of this nature.

Pursuant to a tripartite agreement, Macquarie may intermediate Vertex Refining’s purchases of crude oil from STUSCO under the Crude Supply Agreement, from time to time, by assuming Vertex Refining’s rights and obligations under the Crude Supply Agreement in respect of purchases of crude oil and feedstock in a given delivery month. If Macquarie assumes Vertex Refining’s rights and obligations, Macquarie will be responsible for paying the purchase price for such crude oil and feedstocks to STUSCO in accordance with the terms of the tripartite agreement. In the event that Macquarie intermediates a purchase and sale, the terms and conditions for Vertex Refining’s payments to Macquarie for such crude oil and feedstocks will be determined pursuant to the Supply and Offtake Agreement.

Storage & Services Agreement

On the Commencement Date, Vertex Refining and Macquarie entered into a Storage & Services Agreement (the “Storage & Services Agreement”), whereby Vertex Refining granted Macquarie certain access, storage, usage and information rights in respect of the Mobile Refinery and certain storage facilities and agreed to provide Macquarie certain services in connection with, among other things, such rights under certain other agreements, including the Supply and Offtake Agreement and various tripartite agreements.

Pursuant to the Storage & Services Agreement, Macquarie will pay Vertex Refining a monthly storage fee for provision of the storage and related services.

Pursuant to the Storage & Services Agreement, Macquarie will have the exclusive and uninterrupted license and right to use certain storage facilities specified in the Supply and Offtake Agreement (the “Included Locations”), including the right to inject, store and withdraw crude oil and products (as applicable) in and from the Included Locations. Vertex Refining will be responsible for the care, custody and control of, and will hold as bailee, the property of Macquarie and certain other eligible hydrocarbons which are held within the Included Locations, and will be solely responsible for pumping, unloading, receipt, movements, blending, transportation, storage, measuring, gauging, sampling, analysis, treatment, refining, loading, and delivery of and use of such property, subject to the terms of the Supply and Offtake Agreement and other applicable transaction documents.

Pursuant to the Storage & Services Agreement and in addition to customary services provided by a storage provider, Macquarie has appointed Vertex Refining to perform certain obligations assumed by Macquarie in connection with supply, offtake and exchange arrangements related to the Supply and Offtake Agreement and related transaction documents, including, without limitation, giving, receiving, accepting and rejecting nominations for delivering, loading, unloading, receiving and transporting crude oil and products; the provision of facilities for the delivery, loading, unloading and transportation of crude oil and products; arranging, coordinating quantity and quality sampling, measurements, analysis and inspections for crude oil and products; preparing and handling shipping documentation; providing information with respect to, and submitting claims in relation to, quality, quantity and demurrage; and notifying Macquarie of the occurrence of certain specified events. Vertex Refining periodically will be required to provide various reports to Macquarie regarding the inventory held in the Included Locations.

The Storage & Services Agreement includes certain accelerated export rights pursuant to which, upon the occurrence of certain events, including during the continuation of an event of default under the Supply and Offtake Agreement, Macquarie can instruct Vertex Refining to withdraw all or any amount of Macquarie’s property from the Included Locations.

Macquarie has certain rights to inspect and access the Included Locations and conduct audits on accounting records and other documents maintained by Vertex Refining relating to the Storage & Services Agreement, in each case subject to the terms and conditions of the Storage & Services Agreement.

Vertex Refining will be required to maintain and operate the Included Locations in accordance with various customary covenants contained within the Storage & Services Agreement, including, without limitation, in respect of the maintenance of the Included Locations and related facilities, the standard of care pursuant to which Vertex Refining will perform services under the Storage & Services Agreement, insurance requirements, and compliance with laws. Vertex Refining made various representations and warranties to Macquarie which are required to continue to be met during the term of the agreement, which are customary and typical for storage agreements relating to an intermediation facility, including maintaining insurance. The Supply & Storage Agreement also includes certain customary limitations on liability and damages.

In addition to certain obligations to indemnify Macquarie for loss, damage or degradation of Macquarie’s property held at the Included Locations, Vertex Refining agreed to indemnify Macquarie against various liabilities which may arise relating to its performance under the Storage & Services Agreement, as well as, among other liabilities, any liabilities directly or indirectly arising from or in connection with environmental conditions at the facility, environmental law, required permits, and law applicable to the operation of Vertex Refining’s refinery and storage facilities.

The term of the Storage & Services Agreement will continue until the earlier to occur of (i) the date upon which all of Macquarie’s property in the Included Locations has been sold to Vertex Refining or another person or (ii) the date upon which Macquarie has certified that all of its property has been removed from the Included Locations.

ULSD/Gasoline Offtake Agreement

On the Commencement Date, Vertex Refining and Equilon Enterprises LLC, dba Shell Oil Products US (“Shell”) entered into a refined products offtake agreement for the sale of ultra low sulfur diesel (“ULSD”) and gasoline (the “ULSD/Gasoline Offtake Agreement”) pursuant to which Shell agreed to purchase from Vertex Refining, and Vertex Refining agreed to sell to Shell, ULSD and gasoline produced by the Mobile Refinery according to an agreed nomination and confirmation process, subject to certain exceptions set forth therein.

The initial term of the ULSD/Gasoline Offtake Agreement will continue for five years beginning on the Commencement Date, unless earlier terminated as provided in the ULSD/Gasoline Offtake Agreement, and will automatically renew for one year renewal terms thereafter, unless terminated by either party by written notice as set forth therein.

With respect to purchases and sales of ULSD, during the first three years of the term, Shell is required to purchase and Vertex Refining is required to sell certain pre-determined amounts of barrels (subject to minimums and maximums) per month. Thereafter, Vertex Refining may elect to sell Shell the same amounts or certain other pre-determined amounts, at Shell’s option. Volumes in excess of the foregoing limits for ULSD may be sold subject to mutual agreement.

With respect to purchases and sales of gasoline, during the first three years of the term, Shell will purchase all gasoline produced at the refinery up to certain maximum number of barrels per day, and all premium gasoline up to a pre-determined maximum number of barrels per day. Thereafter, Vertex Refining may elect to sell Shell the same amounts or certain pre-determined amounts of barrels (subject to minimums and maximums) per month, at Shell’s option. Volumes in excess of the foregoing limits for gasoline may be sold subject to mutual agreement.

In the event that Shell does not purchase and take delivery of certain required quantities of product nominated for purchase in a given month, Vertex Refining is entitled to sell the resulting shortfall volumes and obtain cover damages from Shell (excluding shortfall volumes resulting from force majeure events). In the event that Vertex Refining does not supply certain required quantities of product nominated for sale in a given month, Shell is entitled to procure replacement product to cover the shortfall volumes and obtain damages from Vertex Refining (excluding shortfall volumes resulting from force majeure events) in connection therewith.

Products will be provisionally priced and invoiced over certain pre-determined periods, subject to final true up. Prices will be calculated based upon published indices and an agreed fixed per gallon differentials.

The ULSD/Gasoline Offtake Agreement also contains customary and typical general terms and conditions for transactions of this nature.

Pursuant to a tripartite agreement, Macquarie may intermediate Vertex Refining’s sales of ULSD and gasoline to Shell from time to time by assuming Vertex Refining’s rights and obligations under the ULSD/Gasoline Offtake Agreement in respect of a given delivery month. In such an event, Macquarie and Shell will settle amounts owed between them with respect to ULSD and gasoline in accordance with the terms of the tripartite agreement, and Macquarie and Vertex will settle amounts owed between them with respect to such ULSD and gasoline pursuant to the terms of the Supply and Offtake Agreement.

* * * * *

The foregoing description of the Crude Oil & Hydrocarbon Feedstock Supply Agreement, Storage & Services Agreement, and ULSD/Gasoline Offtake Agreement, does not purport to be complete and is qualified in its entirety by reference to the full text of such Crude Oil & Hydrocarbon Feedstock Supply Agreement, Storage & Services Agreement, and ULSD/Gasoline Offtake Agreement, which are filed as Exhibits 10.12, 10.13 and 10.14 to this Amendment No. 1 to Current Report on Form 8-K and are incorporated herein by reference in their entirety.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

Exhibit No.	Description
2.1+	Sale and Purchase Agreement dated May 26, 2021, by and between Vertex Operating Company LLC and Equilon Enterprises LLC d/b/a Shell Oil Products US and/or Shell Chemical LP and/or Shell Oil Company (filed as Exhibit 2.1 to the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on May 27, 2021, and incorporated by reference herein)(File No. 001-11476)
2.2*	Assignment and Assumption of Contract effective April 1, 2022, between Vertex Energy Operating LLC and Vertex Refining Alabama LLC
4.1*	Warrant Agreement dated April 1, 2022, by and among Vertex Energy, Inc. and Continental Stock Transfer & Trust Company, as warrant agent
10.1*+	Loan and Security Agreement dated April 1, 2022, by and among Vertex Refining Alabama LLC, as borrower, Vertex Energy, Inc., as parent and as a guarantor, certain direct and indirect subsidiaries of Vertex Energy, Inc., as guarantors, the lenders party thereto, and Cantor Fitzgerald Securities, as administrative agent and collateral agent for the lenders
10.2*	Intellectual Property Security Agreement dated April 1, 2022, by and between Vertex Energy Operating, LLC, as grantor and Cantor Fitzgerald Securities, as administrative and collateral agent for the lenders

10.3*	Collateral Pledge Agreement dated April 1, 2022, by and among Vertex Energy Inc., Vertex Refining Alabama LLC,  each of Vertex Energy, Inc.’s direct and indirect subsidiaries party thereto and Cantor Fitzgerald Securities, as collateral agent for the lenders
10.4*+	Supply and Offtake Agreement dated April 1, 2022, by and between Macquarie Energy North America Trading Inc. and Vertex Refining Alabama LLC
10.5*	Intercreditor Agreement dated April 1, 2022, among Cantor Fitzgerald Securities, as the term loan agent, Macquarie Energy North America Trading Inc., as the intermediation facility secured party, Vertex Refining Alabama LLC, and the other grantors party thereto
10.6*	Guaranty between Vertex Energy, Inc. and Macquarie Energy North America Trading Inc., dated April 1, 2022
10.7*	Pledge and Security Agreement dated April 1, 2022, between Vertex Alabama Refining LLC, and Macquarie Energy North America Trading Inc.
10.8*	Registration Rights Agreement dated April 1, 2022, between Vertex Energy, Inc. and each of the holders of the Lender Warrants
10.9+	Swapkit Purchase Agreement entered into between Vertex Energy Operating, LLC and Equilon Enterprises LLC d/b/a Shell Oil Products US, dated May 26, 2021 (filed as Exhibit 10.2 to the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on May 27, 2021, and incorporated by reference herein)(File No. 001-11476)
10.10	Purchase and Sale Agreement dated February 25, 2022, by and between Tensile-Vertex Holdings, LLC, Tensile-Myrtle Grove Acquisition Corporation and Vertex Splitter Corporation (filed as Exhibit 10.2 to the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on March 3, 2022, and incorporated by reference herein)(File No. 001-11476)
10.11*	Inventory Sales Agreement dated April 1, 2022, by and between Vertex Refining Alabama LLC and Macquarie Energy North America Trading Inc.
10.12**#£	Crude Oil & Hydrocarbon Feedstock Supply Agreement dated April 1, 2022, by and between Vertex Refining LLC and Shell Trading (US) Company
10.13**	Storage & Services Agreement dated April 1, 2022, by and between Vertex Refining Alabama LLC and Macquarie Energy North America Trading Inc.
10.14**£	ULSD/Gasoline Offtake Agreement dated April 1, 2022, by and between Vertex Refining Alabama LLC and Equilon Enterprises LLC, dba Shell Oil Products US
104	Inline XBRL for the cover page of this Current Report on Form 8-K

* Filed as exhibits to the Initial Report.  

** Filed herewith.

# Certain schedules, annexes and similar attachments have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule or exhibit will be furnished supplementally to the Securities and Exchange Commission upon request; provided, however that Vertex Energy, Inc. may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedule or exhibit so furnished.

£ Certain confidential portions of this Exhibit were omitted by means of marking such portions with brackets (“[***]”) because the identified confidential portions (i) are not material and (ii) the Company customarily and actually treats that information as private or confidential.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	VERTEX ENERGY, INC.
Date: April 26, 2022	By:	/s/ Chris Carlson
		Chris Carlson
		Chief Financial Officer

EX-10.12

Vertex Energy, Inc. 8-K

Exhibit 10.12

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND REPLACED WITH “[***]”. SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS (I) NOT MATERIAL AND (II) THE REGISTRANT CUSTOMARILY AND ACTUALLY TREATS THAT INFORMATION AS PRIVATE OR CONFIDENTIAL.

CRUDE OIL & HYDROCARBON FEEDSTOCK SUPPLY AGREEMENT

“SELLER” OR “STUSCO”

Shell Trading (US) Company

1000 MAIN ST LEVEL 12

HOUSTON

Texas

United States 77002-6336

“BUYER”

Vertex Refining Alabama LLC

1331 Gemini St., Suite 250

Houston, TX 77058

This Crude Oil & Hydrocarbon Feedstock Supply Agreement (this “Agreement”) is entered into on April, 2022, by and between Shell Trading (US) Company, as “Seller”, and Vertex Refining Alabama LLC, as “Buyer.” Seller and Buyer may be referred to herein individually as a “Party” or collectively as the “Parties.”

1. TERM

The initial term (the “Initial Term”) of this Agreement shall be five (5) years (the “Initial Term”), beginning on April 1, 2022 (the “Commencement Date”), unless earlier terminated in accordance with the terms hereof. The Initial Term shall automatically renew for successive renewal terms (each a “Renewal Term”) of one (1) year each, unless terminated by either Party upon delivery of written notice to the other Party not less than [***] prior to the expiration of the Initial Term or the then current Renewal Term. The Initial Term and all Renewal Terms, if any, shall constitute the “Term” of this Agreement.

2. BASE SLATE GRADES

The crude oil and any Hydrocarbon Feedstock (collectively, the “Crude Oil”) to be supplied by Seller to Buyer pursuant to this Agreement shall be the following grades; provided that, by mutual written agreement, the Parties may introduce new crude grades to be included as “Crude Oil” hereunder. For clarification purposes, the “Hydrocarbon Feedstock” included in the definition of “Crude Oil” hereunder shall be limited to the hydrocarbon feed that is run through the Refinery’s two crude distillation units.

Base Slate Grades:

· [***]

· [***]

· [***]

· [***]

· [***]

· [***]

· [***]

· [***]

1  

3. QUANTITY

Seller will be the exclusive supplier for, and will supply 100% of, the Refinery’s requirements for Crude Oil, unless otherwise agreed by the Parties in writing or otherwise provided in this Agreement. The Parties acknowledge and agree that this is a “requirements contract” and there is no minimum or “take or pay” quantity under this Agreement.

The Parties acknowledge that volumes sold hereunder will be subject to a reasonable tolerance [***] for operational/batch sizing purposes, at Seller’s option. Should volumes be delivered within such reasonable tolerance, Seller’s obligation shall be considered fulfilled, and Seller will have no further obligation with respect to delivering or reducing delivery in future months. For all imbalances/delivery shortfalls, the price of the imbalance/shortfall volumes shall be based on the nominated delivery month, regardless of the month of actual delivery. The Parties also acknowledge that from time to time pipeline deliveries/batches may slip over month end due to normal pipeline/terminal operations and deliver in M+1. Any such deliveries shall be deemed delivered, and priced, in their originally contracted month of delivery.

Actual volumes shall be determined as per the Bill of Lading or the pipeline carrier’s statement, as applicable.

“Refinery,” as used herein, means the fuels refinery located in Mobile, Alabama and currently owned by Shell Chemical LP, which processes crude oil, condensate, and other feedstocks and produces gasoline, jet fuel, and related products.

4. REDUCTION IN SUPPLY VOLUME

The Parties acknowledge and agree that, for planning purposes, Buyer shall communicate any changes to the Refinery’s Crude Oil requirements as soon as practically possible. If the Refinery’s Crude Oil requirements will be reduced due to planned maintenance or turnaround repairs at the Refinery, Buyer shall notify Seller in writing of the timing and expected duration of such reduction event, no less than six (6) months in advance of the planned reduction event, except that such notice requirements shall not apply to reductions caused by unplanned outages or events of Force Majeure.

5. QUALITY

The quality of the Crude Oil to be delivered will be of the quality generally being supplied at the time and place of loading/injection.

As an example, for the Base Slate Grades as of the Commencement Date, these are currently:

·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]

To the extent Buyer desires to evaluate a new Crude Oil grade for the Refinery, Seller agrees to provide an estimate of quality and a sample for such grade, upon written request from Buyer and as available.

2  

6. TERMS OF DELIVERY

A. For pipeline, truck, and ex-tank deliveries:

Pursuant to the applicable GTCs regarding delivery, all pipeline, truck, and/or ex-tank deliveries will be to the following points (any specified delivery point under this Agreement, a “Delivery Point” and collectively, the “Delivery Points”): (i) the Refinery gate via pipeline, (ii) the storage tank(s) at a third party terminal in Mobile, Alabama where the Refinery maintains storage (which as of the Commencement Date includes, but is not limited to, [***], or (iii) any other terminal or location agreed to by Seller and Buyer in writing. It is understood by both Parties that, as to pipeline deliveries, Seller can deliver only to the locations stated in the applicable pipeline tariff(s), unless otherwise mutually agreed by the Parties.

B. For vessel deliveries:

Pursuant to the applicable GTCs regarding delivery, all vessel deliveries will be to the following Delivery Points: (i) the Refinery crude dock, (ii) the docks at the [***], (iii) the docks at the [***], (iv) any other crude dock in Mobile, Alabama where the Refinery has connectivity to such docks, and (v) any other location agreed to by Seller and Buyer in writing.

C. For all delivery locations:

It is acknowledged by both Parties that the default Delivery Point for vessel deliveries is the [***] unless otherwise set forth in the table below, which table lists the assumed Delivery Point as to each Crude Oil grade, unless otherwise mutually agreed by the Parties in writing. Buyer has the option to nominate an alternative Delivery Point as to each Crude Oil grade, which alternate Delivery Point shall be subject to Seller’s acceptance (which shall not to be unreasonably withheld). Any incremental costs arising from this nomination shall be borne by Buyer. Seller will make commercially reasonable efforts to obtain estimates of such costs and promptly communicate those costs to Buyer.

Crude Oil Grade	Delivery Point
·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]
·[***]	[***]

[***]

3  

7. RISK AND TITLE

A. For pipeline, truck and ex-tank deliveries:

The risk and title to the Crude Oil supplied under the terms of the Agreement shall pass to Buyer at the Delivery Point, as defined above and in accordance with the applicable GTCs.

B. For vessel deliveries:

The risk and title to the Crude Oil supplied under the terms of the Agreement shall pass to Buyer as the oil discharges from the vessel's permanent hose connection at the Delivery Point and in accordance with the applicable GTCs.

Any loss of or damage to the Crude Oil during discharge shall, [***].

8. NOMINATION PROCEDURE AND INITIAL MANDATES

Pipeline and Waterborne – All Grades:

All nominations shall be made in writing. The Parties acknowledge that prior to any nomination of international Crude Oil grades, agreement must be reached by the Parties on the applicable general terms and conditions.

8.1. On or before the [***] (M being the month of nominated delivery for purposes of this Section 8):

Seller will communicate to Buyer in writing:

a. [***]; and

b. [***].

Buyer acknowledges that [***] are estimates only and that actual [***] may be different.

4  

8.2. On or before [***]:

Buyer will communicate to Seller in writing the Crude Oil grades and quantities that Buyer desires for month M (an “Initial Mandate”). The Initial Mandate will specify the following information, in substantially the format attached to the Agreement as Schedule 1:

a. Volumes and Delivery Point;

b. Timing [***];

c. [***];

d. [***]; and

e. Volume restrictions for the Refinery, if any, [***].

The Parties acknowledge that Buyer’s Initial Mandate may request Crude Oil grades other than the Base Slate Grades, but Buyer acknowledges that such non-Base Slate Grades could be limited by market availability and may not be fulfilled by Seller. Notwithstanding the foregoing, Seller shall use commercially reasonable efforts to fulfill the Crude Oil requests set forth in Buyer’s Initial Mandate. For the avoidance of doubt, for any portion of the Initial Mandate that is fulfilled with [***], the pricing for such barrels will be at [***]. In such instances, [***].

If despite Seller’s commercially reasonable efforts any portion or all of the Initial Mandate cannot be fulfilled, then Seller shall provide Buyer with prompt written notice thereof and will suggest alternative, available Crude Oil grades. Buyer will then revise the Initial Mandate with grades that are available. Additionally, if disruptions in supply occur for any Crude Oil grade, Seller may require Buyer to revise the Initial Mandate as soon as commercially practicable. Notwithstanding the foregoing, in the event that Seller is unable or unwilling to fulfill a mandate issued by Buyer, upon Seller’s written notice thereof, Buyer may promptly notify Seller of any alternative available Crude Oil grades and issue a revised mandate. Buyer agrees not to market or purchase any Crude Oil subject to this Agreement from an alternative supplier [***]. In such event, in addition to any other rights and remedies provided under this Agreement (including the GTCs), [***].

8.3. On or before [***]:

1) Seller will communicate in writing the Crude Oil grades and the volumes per grade secured by Seller for month M [***], in substantially the format attached to the Agreement as Schedule 2; and

2) For all waterborne volumes which Seller has declared grades pursuant to Section 8, Seller will also advise of a [***]-day delivery window. Seller will narrow to a [***]-day delivery window in line with the applicable GTCs, but in no case earlier than the [***].

Buyer acknowledges that Seller will start purchasing volumes for Buyer as soon as the Initial Mandate is issued by Buyer but that actual [***] may not be communicated until the [***]. Both Parties acknowledge that for Initial Mandates issued after the [***], this communication timing might be later. In the event of an unforeseen operational issue at the Refinery that results in Buyer being unable to receive barrels at the Refinery, Buyer may request that Seller provide the status of the fulfillment of the Initial Mandate prior to the [***].

[***]

5  

9. OPTIMIZATION MANDATES

The Parties acknowledge that incremental value can be derived from optimizing Crude Oil grades purchased under the Initial Mandate by selling requested grades and replacing such grades with alternative grades. If such optimization is desired by Buyer, Buyer will communicate to Seller the Crude Oil grade(s) and volumes specified in the Initial Mandate that Buyer requests to be optimized (an “Optimization Mandate”). The Optimization Mandate shall be substantially in the format attached to the Agreement as Schedule 3. Seller shall promptly acknowledge receipt of any Optimization Mandate issued by Buyer hereunder.

Buyer acknowledges that Seller will start purchasing and/or selling volumes as soon as the Optimization Mandate is issued by Buyer and received by Seller but that actual grades and volumes may not be communicated until the Optimization Mandate is fulfilled.

After the Optimization Mandate is fulfilled, Seller will communicate to Buyer: [***]

If any portion of the Optimization Mandate cannot be fulfilled, then Seller shall provide Buyer written notice thereof as soon as commercially practicable.

Seller shall use commercially reasonable efforts to fulfill any Optimization Mandate; however, Buyer acknowledges that the risk of the Optimization Mandate not being fulfilled remains with Buyer, and Buyer releases Seller from all liability related to not fulfilling the Optimization Mandate, except to the extent caused by Seller’s gross negligence or willful misconduct.

10. PRICE

For all volumes purchased or sold by Seller, the Parties will use [***] for each grade:

[***]

For terms and conditions applicable to transportation costs and losses, unless specifically addressed in the main body of this Agreement, the Parties will apply the relevant GTCs regarding rights, obligations, remedies and standards of performance.

To the [***] for each barrel purchased or sold by Seller under this Agreement, there will be [***].

The Parties acknowledge that for each barrel sourced pursuant to an Optimization Mandate, there would be both a purchase and a sale transaction. For barrels sourced under Optimization Mandates, the [***] .

11. Refinery DISRUPTION EVENTS

Buyer shall give Seller prompt notice of any unplanned reduction of the Refinery’s Crude Oil requirements, inability of Buyer to take delivery of Crude Oil, re-optimization or change in Crude Oil destination requested by Buyer in writing, including but not limited to those due to Refinery unplanned shutdown, a Force Majeure event declared by Buyer and/or related constraints (each, a “Refinery Disruption Event”), which shall be acknowledged by Seller within a reasonable time under the circumstances and such acknowledgment shall not be unreasonably withheld. [***] shall bear all costs associated with and resulting from any such Refinery Disruption Event. To be effective, [***] will state that [***] shall bear all costs as a result of the Refinery Disruption Event, and [***] will not be obligated to start any reasonable mitigation efforts until this declaration is received. Seller shall reasonably cooperate with Buyer on any mitigation efforts. Further, it is acknowledged by both Parties that Seller will start purchasing Crude Oil to be sold under this Agreement once mandates are issued pursuant to Section 8 and Section 9. Costs to be borne by [***] as a result of a Refinery Disruption Event [***]. Such damages will be considered [***] direct damages for purposes of this Agreement. [***] will be able to claim expenses related to advance purchases, to a maximum of [***] prior to the notification of the Refinery Disruption Event.

6  

12. PAYMENT

Payment shall be made in U.S. Dollars by telegraphic transfer, in full without discount, withholding, setoff or counterclaim, in same day funds, except as otherwise provided in any netting agreement entered into between the Parties.

13. PAYMENT DUE DATE

For all Crude Oil grades, payment shall be made as follows:

At least [***] prior to the relevant Payment Due Date (hereafter described), Seller shall send Buyer a provisional invoice (“Provisional Invoice”) for Buyer to prepay for some or all of the volumes to be delivered in calendar month M (M being the month of nominated delivery) pursuant to Section 8.3.  Each Provisional Invoice shall set forth, as to the portion of volumes covered thereunder: (1) the estimated [***], and (2) the estimated [***]. 

Seller shall act reasonably in estimating [***] to the extent they are not yet ascertained at the time a Provisional Invoice is issued.  For deliveries via pipeline, truck, and/or ex-tank, the Parties presume that such deliveries are ratable throughout month M for purposes of estimating volumes in the Provisional Invoices.  For waterborne deliveries, volumes shall be estimated based on the most current delivery schedules in the Provisional Invoices. Actual [***], if any, will be reflected in the True-Up Statement (hereafter described).

The “Payment Due Dates” for Provisional Invoices will be as follows:

[***]

If any Payment Due Date or other payment date due hereunder should fall on a Saturday, Sunday, or bank holiday, then such payment shall be made on the nearest preceding Business Day.  If Buyer fails to timely make any payment due under a Provisional Invoice, in addition to any other remedies available to Seller under this Agreement (including the GTCs), Seller shall have the right to suspend delivery of Crude Oil volumes for the next delivery period(s) until all amounts due under the Provisional Invoices have been paid in full and received by Seller.  Seller will endeavor to provide written notice to Buyer of any suspension as a courtesy to Buyer, but such notice may not be received by Buyer until after suspension has commenced. To the extent Seller incurs any costs, expense, or damages related to the suspension of deliveries , [***].

Within [***] after the end of each calendar month M, Seller shall send Buyer a statement (“True-Up Statement”) showing the difference, if any, between (i) the sum of the [***], including the [***] and (ii) the amounts paid by Buyer per the Provisional Invoices for month M.  If Buyer is the owing Party under the True-Up Statement, Buyer shall pay the balance to Seller by the [***].  If Seller is the owing Party under the True-Up Statement, Seller shall issue Buyer a credit for the balance, to be applied against the next payable Provisional Invoice (except with respect to the final delivery hereunder, for which Seller shall pay Buyer any such balance in cash within [***] after the end of the Term).

[***]

7  

14. SELLER BANK ACCOUNT DETAILS

Payment to be made in U.S. Dollars free of all charges to:

[***], swift address [***] or FED Wire Routing ABA No [***] for credit to Shell Trading (US) Company USD receipts DDA Account no. [***]. Please quote invoice number and customer name.

In the event that Buyer receives any request for payment to Seller to be made to a bank account which is different from that which is set out above, Buyer shall be required to forthwith verify and re-confirm the request before any payment is made by Buyer to the bank account set out in the said request.

15. ANTI-CORRUPTION AND MONEY LAUNDERING

Each Party represents, warrants, and covenants that in connection with this Agreement and the business resulting therefrom: (i) it is aware of and will comply with Anti-Corruption Laws; (ii) whether directly or indirectly, it has not made, offered, authorized, or accepted and will not make, offer, authorize, or accept any payment, gift, promise, or other advantage, to or for the use or benefit of any Government Official or any other person where that payment, gift, promise, or other advantage would comprise a facilitation payment or otherwise violate the Anti-Corruption Laws; (iii) it has maintained and will maintain adequate written policies and procedures to comply with Anti-Corruption Laws or, alternatively, has made itself aware of and shall adhere to the Shell General Business Principles and the Shell Code of Conduct (www.shell.com/about-us/our-values); (iv) it has maintained and will maintain adequate internal controls, including but not limited to using reasonable efforts to ensure that all transactions are accurately recorded and reported in its books and records to reflect truly the activities to which they pertain, such as the purpose of each transaction, with whom it was entered into, for whom it was undertaken, or what was exchanged; (v) it will, to its knowledge retain such books and records for the period required by Applicable Law or a Party’s own retention policies, whichever is longer; (vi) in the event a Party becomes aware it has breached an obligation in this paragraph, it will promptly notify the other Party, subject to the preservation of legal privilege; (vii) it has used and will use reasonable efforts to require any subcontractors, agents, or any other third parties to also comply with the foregoing requirements in this paragraph; (viii) it will provide information (which unless publicly available will include documentary evidence) in support of the other/requesting Party’s ongoing Know Your Customer (“KYC”) process requirements, about its ownership, officers, and corporate structure (including any changes thereto); and (ix) only a Party (and not its Affiliates or a third party) shall make payments to the other Party, except with that other Party’s prior written consent. Subject to the preservation of legal privilege, during the term and for seven (7) years thereafter and on reasonable notice, each Party shall have a right, at its expense, and the other Party shall take reasonable steps to enable this right, to audit the other Party’s relevant books and records with respect to compliance with this paragraph.

Without limitation to any other available remedies, where a Party (the First Party) fails, or its subcontractors, agents, or other third parties fail, to comply with this paragraph, the other Party (the Second Party), acting in good faith, shall have a right to notify the First Party in writing of such failure to comply and, if the written notice contains reasonable detail about the failure to comply then, if the failure is incapable of being cured or, if capable of cure and the First Party does not cure the failure to comply within sixty (60) calendar days following receipt of the written notice, the Second Party shall have the right to terminate the Agreement on further written notice to the First Party. Nothing in this Agreement shall require a Party to perform any part of this Agreement or take any actions if, by doing so, the Party would not comply with the Anti-Corruption Laws. The obligations in this Section shall survive the termination or expiry of this Agreement.

As used herein, “Anti-Corruption Laws” means the (a) United States Foreign Corrupt Practices Act of 1977; (b) the United Kingdom Bribery Act 2010 (as amended from time to time); and (c) all other applicable national, regional, provincial, state, municipal or local laws and regulations that prohibit tax evasion, money laundering or otherwise dealing in the proceeds of crime or the bribery of, or the providing of unlawful gratuities, facilitation payments or other benefits to, any Government Official or any other person.

8  

16. DATA PRIVACY

The Parties may provide each other with information regarding an identifiable individual, the processing and transfer of which will be in accordance with applicable data protection laws.

17. TRADE CONTROLS

The Parties each confirm that they are knowledgeable about Trade Controls Laws applicable to their performance of this Agreement, including the lists of Restricted Parties. The Parties shall comply with all applicable Trade Control Laws in the performance of this Agreement and in particular the Parties shall not, and shall procure that their contractors and agents shall not, do anything which is inconsistent with or which may cause any other Party to be exposed to the risk of any potential fines, penalties, and/or enforcement measures taken by government agencies or national courts under, or be in breach of, Trade Control Laws. Buyer agrees that the laws and regulations of the producing country with respect to the export of Product apply to this Agreement, except insofar as those laws and regulations are inconsistent with U.S. laws or regulations. If documents are required by Seller, or Seller’s supplier(s), Buyer shall provide upon request any relevant documents for the purpose of verifying the final destination of the Product sold hereunder.

Notwithstanding anything to the contrary herein, nothing in this Agreement is intended, and nothing herein should be interpreted or construed, to induce or require either Party to act or refrain from acting (or agreeing to act or refrain from acting) in any manner which is inconsistent with, penalized or prohibited under Trade Control Laws applicable to the Parties. This Section shall survive expiration or termination of this Agreement.

Neither Party shall, directly or indirectly, purchase, export, re-export, transfer divert, trade, ship, import, transport, store, sell, deliver or re-deliver any Products to, or for sale or end-use by, a Restricted Jurisdiction or a Restricted Party. Neither Party shall cause the other Party to be in breach of Trade Control Laws or Restricted Jurisdiction provisions.

Neither Party shall be obliged to perform any obligation under this Agreement, shall not be liable for damages or costs of any kind (including but not limited to penalties) for any delay or non-performance, and shall be entitled to suspend or terminate this Agreement with immediate effect, if either Party determines that such performance would be in violation of, inconsistent with, or would expose that Party to any potential fines, penalties, and/or enforcement measures taken by government agencies or national courts under Trade Control Laws.

As used herein:

“Restricted Jurisdiction” means a country, state, territory or region which is subject to comprehensive economic or trade restrictions under Trade Control Laws, which may change from time to time, applicable to either Party to the Agreement.

“Restricted Party” means any individual, legal person, entity or organization (i) targeted by national, regional or multilateral trade or economic sanctions under Trade Control Laws; or (ii) directly or indirectly owned or controlled or acting on behalf of such persons, entities or organizations and including their directors, officers or employees.

“Trade Control Laws” means any applicable trade or economic sanctions or embargoes, Restricted Party lists, controls on the imports, export, re-export, use, sale, transfer, trade, or otherwise disposal of goods, services or technology, anti-boycott legislation or similar laws or regulations, rules, restrictions, licenses, orders or requirements in force from time to time, including without limitation those of the European Union, the United Kingdom, the United States of America, and other government laws applicable to a Party to the Agreement.

9  

18. PRIORITY OF TERMS

This Agreement (including all Exhibits, Schedules, and any written supplements hereto) shall form a single integrated agreement between the Parties. In the event of any inconsistency between any of the foregoing terms, the main body of this Agreement shall govern.

19. NOTICES

Except as otherwise provided, all notices (including demurrage claims), consents, and other communications under this Agreement required to be in writing shall be deemed to have been duly given: (i) when delivered in person, (ii) when received by fax, (iii) when received by the addressee if sent by express mail, Federal Express, or other express delivery service receipt requested, (iv) five (5) Banking Days after being placed in the U.S. mail, by first class postage, or registered or certified mail, return receipt requested, (v) by e-mail only in instances specifically provided for herein shall be deemed duly given immediately (with receipt confirmed) or (vi) when sent by any other means as the Parties may agree from time to time, in each case to the appropriate address as designated by the Parties pursuant to the below:

If to Buyer:

Vertex Refining Alabama LLC

1331 Gemini St., Suite 250

Houston, TX 77058

Attn: Benjamin Cowart

Email: benc@vertexenergy.com

If to Seller:

Shell Trading (US) Company

1000 Main Street, Level 12

Houston, Texas 77002

Attn: Contracts Administration

Fax: [***]

Email: [***]

With a copy to:

Shell Trading (US) Company

1000 Main Street, Level 12

Houston, Texas 77002

Attn: Associate General Counsel

Email: [***]

20. SURVIVAL

The provisions of this Agreement, including, without limitation, Section 15, shall survive any expiration or termination hereof for so long as necessary to give effect to the intent of the Parties.

10  

21. TImE

The Parties acknowledge and agree that time is of the essence in the performance of their respective obligations under this Agreement.

22. CONFIDENTIALITY

A. Each Party agrees that it shall maintain all terms and conditions of this Agreement in strictest confidence, and that it shall not cause or permit disclosure of this Agreement or any provisions contained herein without the prior written consent of the other Party.

B. Notwithstanding subsection (A) above, disclosures of any terms and provisions of this Agreement otherwise prohibited may be made by either Party: (i) to the extent necessary for such Party to enforce its rights hereunder against the other Party; (ii) to the extent to which a Party is required by applicable law to disclose all or part of this Agreement, or by order, rule or policy of a governmental authority, or to comply with legal or court process, such as subpoena, summons, interrogatory, request for production of documents, civil investigative demand, or other like process; (iii) to the extent required by the applicable regulations of a securities or commodities exchange; (iv) to a third party in connection with a proposed sale, proposed financing or other proposed transfer of a Party’s interest in this Agreement, provided such third party agrees in writing to be bound by the terms of this Section; (v) to its own directors, officers, managers, partners, members, employees, agents, representatives, advisors and consultants; (vi) to a co-working interest owner or royalty owner of Seller’s Crude Oil delivered hereunder; (vii) to the extent such information is delivered to a third party for the sole purpose of calculating a published index; or (viii) if and to the extent such information is or becomes public other than by a violation of the terms of this Section.

C. If a Party is or becomes aware of a fact, obligation or circumstance that has resulted or may result in a disclosure of any of the terms and conditions of this Agreement in connection with any of the circumstances in subsection (B), the disclosing Party will provide the non-disclosing Party with written notice, to the extent legally permissible, as soon as reasonably practicable under the circumstances in order to afford the non-disclosing Party an opportunity to seek an appropriate protective order. In the event that disclosure becomes required, the disclosing Party shall only disclose such information as is reasonably necessary to fully comply with any order, demand or legal process.

D. The obligations in this Section shall survive the termination of this Agreement for a period of two (2) years.

23. COUNTERPARTS

This Agreement may be executed in any number of counterparts, including by electronic transmission, each of which shall be considered an original, and all of which together shall be considered one and the same instrument.

24. RELATIONSHIP OF PARTIES

Each Party agrees to reasonably and timely cooperate with the other in the performance of its respective obligations under this Agreement. Nothing in this Agreement shall serve to establish an agency, partnership, trust, joint venture, or association between the Parties. The status of each Party hereunder is solely that of an independent contractor. Buyer confirms that Buyer’s decisions under this Agreement and as to any mandates are based solely on Buyer’s independent judgment and not in reliance on any representation or warranty of Seller, except as expressly set forth in this Agreement. Except for the obligation for Seller to use commercially reasonable efforts to fulfill any mandate hereunder, Buyer acknowledges and confirms that no fiduciary duty, other legal duty, theory of agency, or special duty of care applies to Seller in the performance of Seller’s obligations under this Agreement. Further, Seller shall in no way be prohibited or limited under this Agreement from entering into transactions on its own behalf involving the purchase and sale of the same types of products or commodities, in the same geographic region, at the same time as contemplated by this Agreement. Buyer further acknowledges that Seller is not providing any commodity advising or other services under this Agreement.

11  

25. OTHER TERMS AND CONDITIONS

Except as specifically provided otherwise in the main body of this Agreement, the following General Terms and Conditions (“GTCs”) shall apply to the purchase and sale of Crude Oil under this Agreement:

A. For Crude Oil delivery by pipeline, truck or in tank transfer in the United States (“Domestic Non-Waterborne Crude Contracts”), the Conoco General Provisions Domestic Crude Oil Contracts (dated January 1, 2017) (“Conoco 2017 GTCs”) and 2018 Shell Trading (US) Company Amendments to the Conoco 2017 GTCs shall govern (“2018 STUSCO Amendments”). The Conoco 2017 GTCs are attached hereto as Exhibit 1, and the 2018 STUSCO Amendments are attached hereto as Exhibit 2, with the following amendment:

[***]

B. For Crude Oil waterborne deliveries within the continental United States (“U.S.”), including inland waterways and coastwise voyages, excluding the non-contiguous states Alaska and Hawaii and excluding the U.S. Territory Puerto Rico, the Shell Trading (US) Company Marine Provisions for the U.S. Domestic Sale and Purchase of Crude and Condensate dated May 2, 2013 (“Domestic Marine Provisions”) shall govern. The Domestic Marine Provisions are attached hereto as Exhibit 3.

C. Notwithstanding the foregoing and subject to modification as described in the main body of this Agreement, for all transactions under this Agreement, the following provisions shall apply under the Conoco 2017 GTCs and the 2018 STUSCO Amendments described in Exhibits 1 and 2: C (Rules and Regulations), D (Hazard Communication), E (Force Majeure), G (Financial Responsibility), H (Default and Remedies), J (Buy/Sell and Exchange Balancing), L (Term), M (Governing Law), N (Limitation of Liability), O (Indemnity), P (Taxes), Q (Notices), R (Necessary Documents), S (Waiver), T (Assignment), U (Status of Parties; Entirety of Agreement), V (Trade Controls and Boycotts), W (Definitions), X (Netting), Y (Dispute Resolution) and Z (Miscellaneous).

D. The Parties acknowledge that if Seller would have to transact with third parties pursuant to a third party’s terms and conditions or pursuant to amended versions of the GTCs in order to fulfill a mandate issued by Buyer hereunder, Seller shall not be required to fulfill such portion(s) of the mandate. In the event Seller is willing to comply with such different terms and conditions, Seller may require Buyer to first agree to reimburse Seller for any costs, expenses, or damages to be incurred by Seller to comply with such different terms. [***]

[Signature Page Follows]

12  

Shell Trading (US) Company	Vertex Refining Alabama LLC
/s/ Mario Mendez	/s/ Benjamin P. Cowart
By: Mario Mendez	By: Benjamin P. Cowart
Title: GM Crude Trading North America	Title: President & Chief Executive Officer
Date: 3/28/2022	Date: 3/30/2022

13  

EX-10.13

Vertex Energy, Inc. 8-K

Exhibit 10.13

daTED 1 April 2022

(1) Macquarie ENERGY NORTH AMERICA TRADING INC.

(2) VERTEX REFINING ALABAMA LLC

STORAGE & SERVICES AGREEMENT

CONTENTS

SECTION

1	DEFINITIONS AND CONSTRUCTION		2
	1.1	Definitions	2
	1.2	Construction of Agreement	6
2	Term		7
3	Monthly Facilities Fee		7
4	USE AND Storage Rights OF MACQUARIE		7
	4.1	Use and Storage	7
	4.2	No Commingling	7
5	Title and Risk of LoSS		8
6	Custody and Use of Macquarie Property		8
7	RECEIPTS AND DELIVERIES OF CRUDE OIL AND PRODUCTS		8
	7.1	Receipts and Deliveries	8
	7.2	Accelerated Export Rights	9
8	STORAGE-RELATED services		10
	8.1	Storage, Transport and Handling Services	10
	8.2	Reporting Services	10
	8.3	Other Services	12
	8.4	Condition, Cleaning, Maintenance and Change of Service	13
	8.5	Measurements	14
9	CONTRACT PERFORMANCE SERVICES		15
10	Inspection and Access Rights		17
	10.1	Facilities	17
	10.2	Audit	18
	10.3	Completeness and Accuracy of Records	18
11	Inventory Loss AND DAMAGE		19
12	Insurance and Taxes		19
	12.1	Insurance	19
	12.2	Taxes	19
13	Compliance with Laws		19
14	Representations		20
	14.1	Representations of the Company	20
15	FORCE MAJEURE		20
16	MISCELLANEOUS		21
	16.1	Events of Default and Remedies	21
	16.2	Required Permits	21
	16.3	Environmental and Regulatory Matters	21
	16.4	Relationship of the Parties	22
	16.5	No Abandonment of Rights; Rights Cumulative	22
17	Indemnification		22
	17.1	Indemnity of Company	22
	17.2	No Third Party Rights; No Admission	23
	17.3	Indemnification Procedures	23
	17.4	Cumulative Remedy	23
	17.5	Credit Support	23
18	Limitation on LIABILITY AND Damages		23
19	Confidentiality		24

CONTENTS PAGE 1

20	Governing Law	24
21	Assignment	25
22	PLEDGE OVER MACQUARIE PROPERTY	25
23	Notices	25
24	Nature of Transaction and Relationship of Parties	25
25	Miscellaneous	26

CONTENTS PAGE 2

THIS STORAGE & SERVICES AGREEMENT (this “Agreement”) is dated 1 April 2022,

BETWEEN:

(1) Macquarie Energy North America Trading Inc. (“Macquarie”), a Delaware corporation, located at 500 Dallas Street, Suite 3300 Houston, Texas 77002, United States of America; and

(2) Vertex Refining Alabama LLC (the “Company”), a Delaware limited liability company, located at 1331 Gemini Street, Houston, Texas 77058, United States of America,

each referred to individually as a “Party” or collectively as the “Parties”.

recitals

(A) WHEREAS, the Company owns and operates a Crude Oil refinery located in Mobile, Alabama (the “Refinery”) for the processing of Crude Oil (as defined below) and other feedstocks and the recovery therefrom of refined products;

(B) WHEREAS, it is contemplated that (a) on the Commencement Date (as defined below), Macquarie shall purchase from the Company all Crude Oil and Products (as defined below) then being stored at the Included Storage Locations (as defined below) and during the term of the Supply and Offtake Agreement (as defined below) (b) purchase from the Company certain Products produced by the Refinery during the term of the Supply and Offtake Agreement, (c) sell and deliver the Crude Oil and Products to the Company and certain customers of the Company pursuant to the terms of the Supply and Offtake Agreement, and (d) provide certain other financial accommodations to the Company based on Crude Oil and Products being stored at Company Storage Locations (as defined below) and otherwise being purchased and sold pursuant to the terms of the Supply and Offtake Agreement;

(C) WHEREAS, it is contemplated that during the term of the Supply and Offtake Agreement, (a) Macquarie will have title to and risk of loss of Crude Oil and Products while they are located in Included Storage Locations, and (b) the Company will have title and risk of loss of Crude Oil and Products while they are not in Included Storage Locations;

(D) WHEREAS, it is contemplated that in relation to the Supply and Offtake Agreement and the other Crude Oil and Products Agreements (as defined below), Macquarie shall have certain access, storage, usage and information rights in respect of the Facilities (as defined below) and Company Storage Locations for purposes of carrying out the transactions contemplated by the Crude Oil and Products Agreements;

(E) WHEREAS, it is contemplated that the Company shall undertake the role of service provider to Macquarie in connection with the performance of certain rights and obligations which Macquarie may have (i) under the Convenience Exchange Agreement (as defined below), and (ii) pursuant to any Positive Elections under the Tripartite Crude Supply Agreement and each Tripartite Product Offtake Agreements (each as defined below);

(F) WHEREAS, the Parent (as defined below) shall derive substantial benefit from the transactions contemplated hereby and by the other Transaction Documents (as defined below), and has agreed to guarantee all obligations of the Company hereunder and under the other Transaction Documents pursuant to the Guaranty; and

(G) WHEREAS, the Company and Macquarie desire to record the terms and conditions upon which Macquarie shall have access, storage, usage and information rights in respect of the Facilities and Company Storage Locations, and the Company shall serve as bailee and provider of services in respect of all Macquarie Property (as defined below) and owner and provider of services in respect of all Eligible Hydrocarbon Inventory (as defined below).

NOW, THEREFORE, in consideration of the premises and respective promises, conditions, terms and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties do agree as follows:

1

1 DEFINITIONS AND CONSTRUCTION

1.1 Definitions

For purposes of this Agreement, including the foregoing recitals, the following terms shall have the meanings indicated below:

“Accepted Industry Practice” means those practices, methods, specifications and standards of safety and performance, as the same may be changed from time to time, as are commonly used in the operation and maintenance of refineries similar to the Refinery. “Accepted Industry Practice” contemplates the exercise of that degree of skill, care, diligence, prudence and foresight that would reasonably and ordinarily be expected under similar circumstances in the refining industry in the same type of undertaking under the same or similar circumstances. “Accepted Industry Practice” does not necessarily mean one particular practice, method, specification or standard in all cases, but is instead intended to encompass a broad range of acceptable practices, methods, specifications and standards.

“Affiliate” has the meaning given to it in the Supply and Offtake Agreement.

“Applicable Law” has the meaning given to it in the Supply and Offtake Agreement.

“Barrel” has the meaning given to it in the Supply and Offtake Agreement.

“Base Agreements” has the meaning given to it in the Supply and Offtake Agreement.

“Best Available Inventory Data” has the meaning given to it in the Supply and Offtake Agreement.

“Business Day” has the meaning given to it in the Supply and Offtake Agreement.

“Commencement Date” has the meaning given to it in the Supply and Offtake Agreement.

“Company” has the meaning given to it in the Supply and Offtake Agreement.

“Company Product Inventory” has the meaning given to it in the Supply and Offtake Agreement.

“Company Storage Location” has the meaning given to it in the Supply and Offtake Agreement.

“Contaminated” or “Contamination” means contamination of any Crude Oil or Product to such an extent that the relevant Crude Oil or Product is not (i) readily merchantable as, and/or (ii) requires reprocessing in order to be merchantable as, Crude Oil of the grade or Product of the type and specification which would have been achievable prior to the Contamination.

“Contract Performance Services” has the meaning given to it in Section 9.1, below.

“Convenience Exchange Agreement” means the agreement between Macquarie, the Company and Equilon Enterprises LLC, dba Shell Oil Product US, dated on or about the date of this Agreement for the delivery of certain Products by SOPUS to Macquarie, and the redelivery of an equivalent quantity of Products by Macquarie to SOPUS, which contract arises in connection with the contract for the offtake of Regular CBOB, Premium CBOB and ULSD between the Company and Equilon Enterprises LLC, dba Shell Oil Product US, dated 1 April 2022 and the associated Tripartite Product Offtake Agreement.

“Convenience Exchange Product” means Product at the Facilities which is Macquarie Property pursuant to the terms of the Convenience Exchange Agreement.

“Crude Delivery Point” has the meaning given to it in the Supply and Offtake Agreement.

“Crude Intake Point” has the meaning given to it in the Supply and Offtake Agreement.

“Crude Oil” has the meaning given to it in the Supply and Offtake Agreement.

“Crude Oil and Products Agreements” means collectively the Inventory Sales Agreement, the Step-Out Inventory Sales Agreement, the Required Storage and Transportation Agreements, the Lien Documents, the Master Agreement, the Interim Crude Supply Agreement, the Interim Crude Supply Assignment Agreement, the Shell Crude Supply Agreement, the Tripartite Crude Supply Agreement, any Macquarie Crude Procurement Contract, any Included Crude Sales Transaction, any Included Sales Transaction, any Included Product Purchase Transaction, any Tripartite Product Offtake Agreement, the Convenience Exchange Agreement, the Supply and Offtake Agreement, any contract between Macquarie and a third party for the delivery of Crude Oil to or from the Refinery or the delivery of Products to or from the Refinery and the Tripartite Communications Side Letter.

2

“Crude Storage Tanks” has the meaning given to it in the Supply and Offtake Agreement.

“Customer” has the meaning given to it in the Supply and Offtake Agreement.

“Default” has the meaning given to it in the Supply and Offtake Agreement.

“Delivery Date” has the meaning given to it in the Supply and Offtake Agreement.

“Delivery Month” has the meaning given to it in the Supply and Offtake Agreement.

“Delivery Period” has the meaning specified in Section 7.2.2.

“Eligible Hydrocarbon Inventory” has the meaning given to it in the Supply and Offtake Agreement.

“Emergency” means any event or circumstance which, in the reasonable judgment of the Company, could cause imminent harm or damage to or Liabilities under Applicable Law for, as applicable, any Person or any Person’s property, the environment or the Refinery.

“Ending Company Product Inventory” has the meaning given to it in the Supply and Offtake Agreement.

“Ending In-Tank Crude Inventory” has the meaning given to it in the Supply and Offtake Agreement.

“Ending In-Tank Product Inventory” has the meaning given to it in the Supply and Offtake Agreement.

“Environmental Law” has the meaning given to it in the Supply and Offtake Agreement.

“Event of Default” means an occurrence and continuation of any one or more of the events or circumstances described in Section 20.1 of the Supply and Offtake Agreement.

“Facilities” means collectively (i) the Refinery Facilities, and (ii) to the extent owned or operated by the Company, the Included Storage Locations.

“Final Export Schedule” has the meaning specified in Section 7.2.1.

“Force Majeure” has the meaning given to it in the Supply and Offtake Agreement.

“Governmental Authority” has the meaning given to it in the Supply and Offtake Agreement.

“Guaranty” has the meaning given to it in the Supply and Offtake Agreement.

“Hazardous Substances” has the meaning given to it in the Supply and Offtake Agreement.

“Hydrocarbons” has the meaning given to it in the Supply and Offtake Agreement.

“Included Crude Sales Transaction” has the meaning given to it in the Supply and Offtake Agreement.

“Included Product Locations” has the meaning given to it in the Supply and Offtake Agreement.

“Included Product Purchase Transaction” has the meaning given to it in the Supply and Offtake Agreement.

“Included Product Tanks” has the meaning given to it in the Supply and Offtake Agreement.

3

“Included Sales Transaction” has the meaning given to it in the Supply and Offtake Agreement.

“Included Storage Locations” has the meaning given to it in the Supply and Offtake Agreement.

“Included Tanks” has the meaning given to it in the Supply and Offtake Agreement.

“Indemnified Party” has the meaning specified in Section 17.2.

“Indemnifying Party” has the meaning specified in Section 17.2.

“Insurance Proceeds” has the meaning specified in Section 11.3.

“Insured Risk” means a peril which (subject to the terms and conditions of the policy document) is insured against under Macquarie’s cargo insurance.

"Interim Crude Supply Agreement" has the meaning given to it in the Supply and Offtake Agreement.

"Interim Crude Supply Assignment Agreement" has the meaning given to it in the Supply and Offtake Agreement.

“Intermediated Product Offtake Contract” has the meaning given to it in the Supply and Offtake Agreement.

“Inventory Sales Agreement” has the meaning given to it in the Supply and Offtake Agreement.

“Liabilities” has the meaning given to it in the Supply and Offtake Agreement.

“Lien” has the meaning given to it in the Supply and Offtake Agreement.

“Lien Documents” has the meaning given to it in the Supply and Offtake Agreement.

“Macquarie Crude Procurement Contract” has the meaning given to it in the Supply and Offtake Agreement.

“Macquarie Extension” has the meaning given to it in Section 7.2.1(b).

“Macquarie Group” means Macquarie and its Affiliates.

“Macquarie Inspector” means any Person selected by Macquarie in a commercially reasonable manner that is acting as an agent for Macquarie and that (1) is a licensed Person who performs sampling, quality analysis and quantity determination of the Crude Oil and Products purchased and sold pursuant to the Supply and Offtake Agreement; (2) is not an Affiliate of any Party; and (3) in the reasonable judgment of Macquarie, is qualified and reputed to perform its services in accordance with Applicable Law and industry practice, to perform any and all inspections required by Macquarie.

“Macquarie Lender” has the meaning given to it in Section 22.

“Macquarie Personnel” has the meaning given to it in Section 10.1.3.

“Macquarie Property” means collectively any quantities of Crude Oil or Products that are owned by Macquarie from time-to-time pursuant to the Crude Oil and Products Agreements and held in the Included Storage Locations; provided that, for the avoidance of doubt, Macquarie Property does not include Sludge or hard bottoms.

“Master Agreement” has the meaning given to it in the Supply and Offtake Agreement.

“Measured Crude Quantity” has the meaning given to it in the Supply and Offtake Agreement.

“Measured Product Quantity” has the meaning given to it in the Supply and Offtake Agreement.

“Monthly Crude Facilities Fee” means, in respect of a calendar month, the aggregate Shell Capacity (in Barrels) of the tanks owned or operated by the Company which were Crude Storage Tanks during that month, multiplied by $0.15 per Barrel.

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“Monthly Product Facilities Fee” means, in respect of a calendar month, the aggregate Shell Capacity (in Barrels) of the tanks owned or operated by the Company which were Included Product Tanks during that month, multiplied by $0.40 per Barrel.

“Monthly True-Up Amount” has the meaning given to it in the Supply and Offtake Agreement.

“Negative Election” means, in respect of the Tripartite Crude Supply Agreement and each Tripartite Product Offtake Agreement, an election made by Macquarie which is not a Positive Election.

“Net Storage Volume” has the meaning given to it in the Supply and Offtake Agreement.

“Non-Defaulting Party” has the meaning given to it in the Supply and Offtake Agreement.

“Parent” has the meaning given to it in the Supply and Offtake Agreement.

“Party” or “Parties” has the meaning specified in the preamble to this Agreement.

“Permitted S&O Liens” has the meaning given to it in the Supply and Offtake Agreement.

“Person” has the meaning given to it in the Supply and Offtake Agreement.

“Positive Election” means, in respect of the Tripartite Crude Supply Agreement and each Tripartite Product Offtake Agreement, an election made by Macquarie to take an assignment of certain rights and obligations of the Company thereunder, but only in relation to a particular calendar month or other period provided for therein.

“Product” has the meaning given to it in the Supply and Offtake Agreement.

“Product Group” has the meaning given to it in the Supply and Offtake Agreement.

“Product Linefill” has the meaning given to it in the Inventory Sales Agreement.

“Product Supplier” has the meaning given to it in the Supply and Offtake Agreement.

“Products Delivery Point” has the meaning given to it in the Supply and Offtake Agreement.

“Products Intake Point” has the meaning given to it in the Supply and Offtake Agreement.

“Refinery” has the meaning given to it in the Supply and Offtake Agreement.

“Refinery Facilities” means (i) all facilities located at the Refinery, and (ii) any associated or adjacent facility owned or operated by the Company and used by the Company to carry out the terms of the Supply and Offtake Agreement, excluding Crude Storage Tanks and Included Product Tanks.

“Representatives” means, in respect of a Party, any of its or its Affiliates’ employees, representatives, contractors, sub-contractors of any tier and service providers engaged in the performance of this Agreement.

“Required Permits” has the meaning specified in Section 16.2.

“Required Storage and Transportation Agreements” has the meaning given to it in the Supply and Offtake Agreement.

“Shell Capacity” means, in respect of a tank, the shell capacity of that tank indicated in Schedule E of the Supply and Offtake Agreement.

“Shell Crude Supply” has the meaning given to it in the Supply and Offtake Agreement.

“Shipping Documents” means, in relation to a delivery of Crude Oil or Products, the (i) bills of lading or equivalent documents issued by the carrier of Crude Oil or Product by vessel, barge, truck or pipeline, and (ii) to the extent in existence, certificates of quantity, quality and origin.

“Sludge” has the meaning given to it in the Supply and Offtake Agreement.

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“Step-Out Inventory Sales Agreement” has the meaning given to it in the Supply and Offtake Agreement.

“Storage Term” has the meaning specified in Section 2.1.

“Supply and Offtake Agreement” means the supply and offtake agreement entered into between Macquarie and the Company dated on or about the date of this Agreement.

“Tank Bottoms” means Macquarie Property which cannot be pumped and recovered by means of the Facility’s fixed cargo pumps, lines and suctions; provided that, “Macquarie Property” and “Tank Bottoms” shall not include Sludge or hard bottoms.

“Tank Change of Service” has the meaning specified in Section 8.4.3(c).

“Tank Maintenance” has the meaning specified in Section 8.4.3(c).

“Termination Date” means the earlier to occur of (i) the date on which the Company or another Person assumes title to all Macquarie Property at the Facilities pursuant to a Step-Out Inventory Sales Agreement or as otherwise agreed with Macquarie, and (ii) the date on which Macquarie certifies that there is no Crude Oil or Product to which Macquarie has title within the Facilities, which certification shall not be unreasonably withheld, conditioned or delayed.

“Third Party Supplier” has the meaning given to it in the Supply and Offtake Agreement.

“Transaction Documents” has the meaning given to it in the Supply and Offtake Agreement.

“Tripartite Communications Side Letter” means the side letter entered into between the Company and Macquarie in relation to the Tripartite Crude Supply Agreement and each Tripartite Product Offtake Agreement on or around the Commencement Date.

“Tripartite Crude Supply Agreement” has the meaning given to it in the Supply and Offtake Agreement.

“Tripartite Product Offtake Agreement” has the meaning given to it in the Supply and Offtake Agreement.

“UCC” has the meaning given to it in the Supply and Offtake Agreement.

“Volume Determination Procedures” has the meaning given to it in the Supply and Offtake Agreement.

1.2 Construction of Agreement

(a) Unless otherwise specified, reference to, and the definition of any document (including this Agreement, as well as all schedules thereto or hereto) shall be deemed a reference to such document as may be, amended, restated, amended and restated, supplemented, revised or otherwise modified from time to time.

(b) Unless otherwise specified, all references to an “Article”, “Section” or “Schedule” are to an Article or Section hereof or a Schedule attached hereto.

(c) All headings herein are intended solely for convenience of reference and shall not affect the meaning or interpretation of the provisions of this Agreement.

(d) Unless expressly provided otherwise, the word “including” as used herein does not limit the preceding words or terms and shall be read to be followed by the words “without limitation” or words having similar import.

(e) Unless expressly provided otherwise, all references to days, weeks, months and quarters mean calendar days, weeks, months and quarters, respectively.

(f) A reference to any Party to this Agreement or another agreement or document includes the Party’s permitted successors and assigns.

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(g) Unless the contrary clearly appears from the context, for purposes of this Agreement, the singular number includes the plural number and vice versa; and each gender includes the other gender.

(h) Except where specifically stated otherwise, any reference to any Applicable Law or agreement shall be a reference to the same as amended, supplemented or re-enacted from time to time.

(i) Unless otherwise expressly stated herein, any reference to “volume” shall be deemed to refer to actual Net Storage Volume, unless such volume has not been yet been determined, in which case, volume shall be an estimated net volume determined in accordance with the terms hereof.

(j) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

(k) All references herein to “estimates” or “projections” are intended to be references to good faith statements with respect to future events, and are not to be construed as guarantees of future performance.

(l) Unless otherwise expressly stated herein, all references to “Schedules” shall mean and include such Schedules as they may be amended, revised or updated from time to time, as evidenced by written agreement of the Parties evidencing such revision, amendment or update (it being acknowledged hereby that the foregoing does not require any Party hereto to revise, amend or update any such Schedule).

1.3 The Parties acknowledge that they and their counsel have reviewed and revised this Agreement and that no presumption of contract interpretation or construction shall apply to the advantage or disadvantage of the drafter of this Agreement.

2 Term

2.1 This Agreement shall become effective on the Commencement Date and shall continue for period ending on the Termination Date (the “Storage Term”).

3 Monthly Facilities Fee

3.1 Macquarie shall pay to the Company the Monthly Crude Facilities Fee and the Monthly Product Facilities Fee on a monthly basis, on or before the fifth (5th) Business Day of each month with respect to the previous calendar month.

3.2 Payment shall be made in accordance with the Supply and Offtake Agreement, and for the avoidance of doubt the Monthly Crude Facilities Fee and the Monthly Product Facilities Fee will form part of the calculation of the Monthly True-Up Amount in accordance with Schedule C of the Supply and Offtake Agreement.  

4 USE AND Storage Rights OF MACQUARIE

4.1 Use and Storage

4.1.1 Without prejudice to Section 16.4, the Company shall grant to Macquarie during the Storage Term: the exclusive and uninterrupted license and right to use the Included Storage Locations which are Facilities on and subject to the terms of this Agreement, including the exclusive and uninterrupted license and right to inject, store and withdraw Crude Oil and Products (as applicable) in and from the Included Storage Locations which are Facilities.

4.2 No Commingling

4.2.1 The Company shall procure that (except to the extent expressly provided for in any Crude Oil and Products Agreement) no other Crude Oil, Products or other materials whatsoever shall be commingled with any Macquarie Property anywhere within the Facilities.

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5 Title and Risk of LoSS

5.1 Macquarie shall at all times retain title to and risk of loss of all Macquarie Property.

5.1.1 The Company:

(a) agrees that it, its Affiliates and its and their Representatives shall not have any title to, interest in or (except to the extent provided for in the Supply and Offtake Agreement) right to dispose of Macquarie Property, and shall not (whether by act or omission):

(i) do anything that extinguishes or materially adversely affects Macquarie’s title to and interest in the Macquarie Property (or which would reasonably be expected to do the same); or

(ii) create or cause the creation of, or (to the extent arising by, through or under the Company or its Affiliates) suffer to exist, any Lien, other than Permitted S&O Liens, with respect to any Macquarie Property;

(b) waives any Lien it may have, or may at any time in the future have, over any Macquarie Property in accordance with the provisions of the UCC or pursuant to any other statutory or possessory lien or charge on or security interest in such Macquarie Property as might otherwise exist or arise under Applicable Law.

(c) Notwithstanding the proceeding Sections (a) and (b), nothing herein shall affect the Company’s right in the event of a Macquarie Extension to assert any Permitted S&O Liens and no rights in respect thereof are waived.

5.1.2 In the event that the Company becomes aware of any actual, potential or alleged claim or Lien in relation to any Macquarie Property (other than a Permitted S&O Lien), the Company shall promptly notify Macquarie and shall do (and shall procure that its Affiliates and Representatives shall do) everything reasonably necessary to discharge such actual or alleged claim or Lien (including without limitation assisting Macquarie in the defense of any claim, counterclaim, appeal of any tier, application for interim relief or assertion of right or removal of any security).

6 Custody and Use of Macquarie Property

6.1 During the time any Macquarie Property and Eligible Hydrocarbon Inventory is within any Facilities, the Company shall be solely responsible for the care, custody and control of such Macquarie Property and Eligible Hydrocarbon Inventory and shall be solely responsible for compliance with all Applicable Law, including all Environmental Laws, pertaining to the pumping, unloading, receipt, movements, blending, transportation, storage, measuring, gauging, sampling, analysis, treatment, refining, loading, or delivery of and use of such Macquarie Property and Eligible Hydrocarbon Inventory.

6.2 The Company shall hold all Macquarie Property in the Facilities solely as bailee.

6.3 The Company shall not use (or permit any of its Affiliates or its or their Representatives or any other Person to use) any Macquarie Property or Eligible Hydrocarbon Inventory for any purpose except as may be permitted by this Agreement or any Crude Oil and Products Agreement.

6.4 Without Macquarie’s express written agreement, the Company and its Representatives shall in no case (including for the purposes of undertaking cleaning, maintenance or repair) cause or permit the removal of Macquarie Property or Eligible Hydrocarbon Inventory from the Facilities except in accordance with the terms of this Agreement and any Crude Oil and Products Agreement.

7 RECEIPTS AND DELIVERIES OF CRUDE OIL AND PRODUCTS

7.1 Receipts and Deliveries

7.1.1 The Company shall:

(a) receive Crude Oil and Products into the Facilities;

(b) deliver Crude Oil and Products from the Facilities; and

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(c) deliver and receive Crude Oil and Products within the Facilities,

at such times and locations, and otherwise on such bases, as required by the terms of the Crude Oil and Products Agreements and any contractual nomination or schedule delivered thereunder or pursuant thereto.

7.1.2 Macquarie hereby agrees to each receipt or delivery of Crude Oil or Product (as applicable) in accordance with Section 7.1.1, provided that Macquarie, subject to the terms of the Supply and Offtake Agreement and the Crude Oil and Products Agreements, may at any time wholly or partially withdraw its agreement in respect of future receipts and deliveries by written notice to the Company.

7.2 Accelerated Export Rights

7.2.1 It is agreed that:

(a) following the occurrence and during the continuance of an Event of Default under the Supply and Offtake Agreement and if Macquarie is the Non-Defaulting Party; or

(b) in circumstances where the Supply and Offtake Agreement has expired or terminated for a reason other than an Event of Default and Macquarie has elected to proceed under Section 21.1(c)(iii) thereof (a “Macquarie Extension”),

Macquarie shall have the right to submit a schedule (“Final Export Schedule”) for delivery to Macquarie and/or a nominated third party, of all or any amount of Macquarie Property (including Tank Bottoms and Product Linefill) from any part of the Facilities.

7.2.2 Each Final Export Schedule shall specify:

(a) the expected volumes and types of Macquarie Property to be delivered (which may be expressed as a percentage of the total volume of the relevant type of Macquarie Property);

(b) a period for delivery of such Macquarie Property ending on a date designated by Macquarie which is a date by which (i) Macquarie ought reasonably to be able to receive, and (ii) the Company ought reasonably to be able to deliver, the relevant Macquarie Property, in each case using commercially reasonable efforts and with as little disruption to the Refinery operations as possible in the circumstances, by pumping in the normal manner without having to employ any specialist equipment or personnel (save to the extent strictly necessary in the case of Tank Bottoms and Product Linefill) and without having to operate the Facilities in a manner which would contravene Applicable Law, Accepted Industry Practice or the terms of the Required Permits (“Delivery Period”).

7.2.3 The Company shall promptly acknowledge receipt of any Final Export Schedule.

7.2.4 The Company shall (i) use commercially reasonable efforts to ensure that deliveries of Macquarie Property pursuant to this Section 7 are effected during the Delivery Period without unreasonable delays or interruptions, and (ii) provide such services under Section 8 of this Agreement, or other assistance as may be requested by Macquarie, as are required to effect the delivery of Macquarie Property within the Delivery Period in a reasonable manner in light of the circumstances and the operational capabilities of the Company and the Facilities.

7.2.5 Following a request for delivery of any amount of Macquarie Property under a Final Export Schedule, and unless Macquarie directs otherwise, the Company shall (subject to the operational capabilities of the Company and the Facilities and the requirements of Applicable Law, Accepted Industry Practice or the terms of the Required Permits) schedule delivery of the Macquarie Property such that it can be removed from the Facilities within the Delivery Period by pumping in the normal manner and without having to employ any specialist equipment or personnel (save to the extent strictly necessary in the case of Tank Bottoms and Product Linefill). To the extent reasonably necessary to procure redelivery on this basis, the Company shall procure the replacement of linefill and deadstocks in the Facilities and all costs and expense of doing so shall be, in the event of a Macquarie Extension, for Macquarie’s account and, otherwise, for the Company’s account.

7.2.6 If the Final Export Schedule was submitted further to an Event of Default under the Supply and Offtake Agreement and, following reasonable notice and having been given reasonable opportunity to do so the Company fails to comply with a request to deliver any part of the Macquarie Property within the Delivery Period, then (but without prejudice to Macquarie’s remedies in relation to such failure) Macquarie may (at the Company’s cost and expense, but subject always to Section 10.1.3 and the terms of Applicable Law and the Required Permits) with or by such properly qualified employees, agents and contractors as it considers reasonably necessary, proceed to remove Macquarie Property from the Facilities in a safe, lawful and orderly fashion (which removal shall be confined to such actions as are necessary to receive delivery of the relevant Crude Oil and Products, and shall not for the avoidance of doubt include processing Crude Oil into Products, any works in order to reverse flow or modify any Crude Storage Tank or Included Product Tanks which are Facilities, or any action would contravene a Required Permit). The Company will (at its own cost and expense) ensure that Macquarie, its employees, agents and contractors are given such access and assistance by the Company as Macquarie requires for this purpose.

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8 STORAGE-RELATED services

8.1 Storage, Transport and Handling Services

During the Storage Term, the Company shall in accordance with Accepted Industry Practice:

8.1.1 operate the Facilities;

8.1.2 keep the Facilities open for pumping, unloading, receipt, movements, blending, transportation, storage, measuring, gauging, sampling, analysis, treatment, refining, loading, or delivery of Macquarie Property and Eligible Hydrocarbon Inventory twenty-four (24) hours a day, seven (7) days a week, subject to permitted periods of maintenance or downtime affecting such Facilities;

8.1.3 conduct (i) all pumping, unloading, receipt, movements, blending, transportation, storage, measuring, gauging, sampling, analysis, treatment, refining, loading, or delivery of Macquarie Property and Eligible Hydrocarbon Inventory at, within and from the Facilities, and (ii) other services, in accordance with this Agreement, the Supply and Offtake Agreement and the applicable Crude Oil and Products Agreements;

8.1.4 provide Macquarie, each Third Party Supplier, each Product Supplier and each Customer, and its and their respective Representatives (as applicable), with such access to the loading racks, loading docks and other parts of the Facilities as is reasonably required for their role in the performance of each receipt or delivery of Crude Oil or Products required by the terms of a Crude Oil and Products Agreement and any contractual nomination or schedule thereunder;

8.1.5 prevent any degradation of the quality of any Crude Oil that would adversely affect the merchantability of such Crude Oil or the Products refined therefrom;

8.1.6 except for blending activities authorized in writing by Macquarie, store each grade of Product in separate Included Product Tanks and prevent any Contamination of one grade of Product by another, or any degradation of the quality of any Product that would adversely affect the merchantability of such Product;

8.1.7 ensure that no Crude Oil or Products shall be Contaminated with scale or other materials, chemicals, water or any other impurities. In the event of any such Contamination, the Company may with (and on the terms of) Macquarie’s prior written consent (which shall not be unreasonably withheld, delayed or conditioned) reprocess, treat or condition any such Contaminated Crude Oil or Products to a merchantable condition;

8.1.8 to the extent required, apply heat or steam to maintain the Macquarie Property and Eligible Hydrocarbon Inventory at the Facilities in a liquid free-flowing or pumpable state; and

8.1.9 not do, or omit to do (or permit to be done or omitted by any of its Affiliates or its or their respective Representatives), anything that would reasonably be expected to (i) adversely affect the Macquarie Property or Eligible Hydrocarbon Inventory (or Macquarie’s title and interest in the same), or (ii) result in any Liabilities being incurred by Macquarie or its Affiliates.

8.2 Reporting Services

8.2.1 Daily Reporting

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(a) For each day during the Storage Term, the Company shall provide to Macquarie on the first Business Day following such day inventory reports in the form set forth on Schedule F to the Supply and Offtake Agreement, showing the quantity of (i) Crude Oil and Products held in the Included Storage Locations (including, in respect of Product, a breakdown of the volume of Convenience Exchange Product and non-Convenience Exchange Product), and (ii) Products that are Company Product Inventory, as of 11:59:59 p.m. CT on the previous day.

(b) For each day during the Storage Term the Company shall provide to Macquarie on the first Business Day following such day a complete set of Best Available Inventory Data in respect of the preceding day.

(c) Each Business Day the Company shall provide to Macquarie meter tickets and/or meter readings, and tank gauge readings confirming the Measured Crude Quantity for each of the Crude Storage Tanks for all Delivery Dates since the prior Business Day.

(d) For each Delivery Date, the Company shall provide to Macquarie on the first Business Day following such Delivery Date, meter tickets and/or meter readings and tank gauge readings confirming the Measured Product Quantity in each Included Product Tank for each Product delivered during that Delivery Date (including a breakdown of the volume of Convenience Exchange Product and non-Convenience Exchange Product) and other such relevant information including but not limited to Product identifiers and the location of Products, aggregated on a Product Group basis.

The Company shall use commercially reasonable efforts to deliver the reports, tickets, readings and other information provided for in Section 8.2.1 by 10:00 a.m. CT on the relevant Business Day but shall in any event deliver such reports, tickets, readings and other information by no later than 12:00 pm CT on such Business Day.

8.2.2 RAADICAL Platform.

(a) During the Storage Term, beginning on the thirty-first (31st) day after the Commencement Date, the Company irrevocably grants to Macquarie a right of real time access to the RAADICAL platform.

(b) During the first (1^st) to thirtieth (30^th) days after the Commencement Date, the Company shall use commercially reasonable efforts to provide an interim solution satisfactory to Macquarie (acting reasonably).

8.2.3 Correction of Readings. If the Company determines that any meter tickets and/or meter readings and tank gauge readings provided pursuant to Section 8.2.1(c) above are inaccurate, the Company shall provide to Macquarie corrected meter tickets and/or meter readings and tank gauge readings by 10:00 a.m. CT on the third (3^rd) Business Day following the date on which such determination is made.

8.2.4 Ending Inventory.

(a) On the first Business Day of any Delivery Month, the Company, using Best Available Inventory Data, provided that if such inventory data is not available, using the last day for which such data is available, shall report to Macquarie the following: (i) the aggregate volume of Crude Oil held in the Crude Storage Tanks at that time (the “Ending In-Tank Crude Inventory”), (ii) for each Product, the aggregate volume of such Product held in the Included Product Locations (including a breakdown of the volume of Convenience Exchange Product and non-Convenience Exchange Product) at that time (each, an “Ending In-Tank Product Inventory”) and (iii) for each Product, the aggregate volume of such Product held in the Company Storage Locations at that time (each, an “Ending Company Product Inventory”). The Company shall use commercially reasonable efforts to deliver the Ending In-Tank Crude Inventory, the Ending In-Tank Product Inventory, and the Ending Company Product Inventory by 10:00 a.m. CT on the relevant Business Day, but shall in any event deliver the same by no later than 12:00 pm CT on such Business Day.

(b) As of 11:59:59 p.m., CT, on the last day of each month, the Company shall apply the Volume Determination Procedures to the Included Storage Locations and Company Storage Locations, and based thereon shall determine for such month (i) the aggregate volume of Crude Oil held in the Included Storage Locations at that time, (ii) for each Product, the aggregate volume of such Product held in the Included Storage Locations at that time (including a breakdown of the volume of Convenience Exchange Product and non-Convenience Exchange Product), and (iii) for each Product, the aggregate volume of such Product held in the Company Storage Locations at that time. The Company shall notify Macquarie of such volumes by no later than 5.00 p.m. CT on the fifth Business Day thereafter, except that with respect to volume information provided by third parties, the Company shall endeavor to cause third parties to provide such information to Macquarie by the fifteenth (15th) day after the end of such month.

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(c) Inspection of Volume Determination Procedures. Macquarie may, or may have Macquarie’s Inspector, at Macquarie’s sole cost and expense, (i) witness all or any aspects of the Facilities or any Company Storage Location as Macquarie shall direct, (ii) witness the Volume Determination Procedures at any Included Storage Location or Company Storage Location as Macquarie shall direct, and (iii) be present at any time the Volume Determination Procedures are to be applied and to observe the conduct of the Volume Determination Procedures. If, in the reasonable judgment of Macquarie or Macquarie’s Inspector, the Volume Determination Procedures have not been applied correctly, then the Company shall cooperate with Macquarie, or Macquarie’s Inspector, to ensure the correct application of the Volume Determination Procedures, including making such revisions to the Ending In-Tank Crude Inventory, any Ending In-Tank Product Inventory and any Ending Company Product Inventory as may be necessary to correct any such errors.

(d) Records Related to Volume Determination. The Company agrees that in addition to reporting to Macquarie the volume determinations made by the Company pursuant to Section 8.2.1, the Company shall provide to Macquarie copies of all volume reports and statements related to Crude Oil or Products held at any Included Storage Locations or Company Storage Locations or with respect to any hydrocarbon inventories held by the Company at any other locations including any inventory, quantity, or quality inspection reports prepared by a third party.

8.2.5 Eligible Hydrocarbon Inventory Reporting.

(a) On each Business Day, the Company shall provide to Macquarie, via email, a report in form and substance reasonably satisfactory to Macquarie as illustrated in Schedule F of the Supply and Offtake Agreement (the “Inventory Report”) showing the inventory quantities that then constitute Eligible Hydrocarbon Inventory, including the quantity and location of each type of inventory.

(b) By delivering an Inventory Report, the Company shall be deemed to represent and warrant to Macquarie (to the same extent as if set forth in this Agreement) that all Hydrocarbons identified as Eligible Hydrocarbon Inventory in such report meet all the requirements of Eligible Hydrocarbon Inventory set forth in the Supply and Offtake Agreement.

(c) The Company shall use commercially reasonable efforts to deliver the Inventory Report by 10:00 a.m. CT on the relevant Business Day, but shall in any event deliver the same by no later than 12:00 pm CT on such Business Day.

8.3 Other Services

During the Storage Term, the Company shall:

8.3.1 (without prejudice to the Company’s obligation under Section 8.4.1), permit Macquarie to have full and quiet possession of the Crude Storage Tanks and Included Product Tanks which are Facilities;

8.3.2 permit Macquarie, its Affiliates and/or its or their Representatives to have rights of access to and egress from the Refinery by crossing over, around and about the Refinery for any purpose related to this Agreement or the Crude Oil and Products Agreements, including but not limited to enforcing its rights and interests thereunder;

8.3.3 maintain in force in all material respects all of its leases, easements, licenses and rights-of-way material to the operation and maintenance of the Facilities and the performance of this Agreement and the Crude Oil and Products Agreements;

8.3.4 maintain in force, comply with, and promptly enforce the terms of all Base Agreements;

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8.3.5 ensure that the Facilities have all connections and equipment material to the performance of this Agreement and the Crude Oil and Products Agreements;

8.3.6 cause the Facilities to comply in all material respects with the requirements of Applicable Law and Environmental Laws and Accepted Industry Practice;

8.3.7 ensure that each of the Company’s Representatives involved in the performance of this Agreement or any Crude Oil and Products Agreement is appropriately trained and experienced in their field of activity;

8.3.8 prepare and timely submit all reports and filings in respect of the Macquarie Property and Eligible Hydrocarbon Inventory which are mandatory under Applicable Law or Environmental Laws;

8.3.9 maintain the records required to be maintained by Environmental Law or any Required Permit and make such records available to Macquarie following its reasonable prior written request therefor;

8.3.10 promptly provide Macquarie with such reports and information in the Company’s custody or control as Macquarie’s insurers and/or its internal risk function may reasonably request, provided that such information and reports, as applicable, are in the Company’s possession or control and are reasonably related to Macquarie’s or its insurers’ assessments and activities in connection with this Agreement;

8.3.11 furnish any and all fuel, power, equipment and personnel necessary to perform to this Agreement or any Crude Oil and Products Agreement;

8.3.12 in the event of any Crude Oil or Product spill, leak, escape or discharge or any other environmental pollution caused by or in connection with the use of any Facilities (i) properly commence containment or clean-up operations as required by any Governmental Authorities or Applicable Law or as the Company deems appropriate or necessary and (ii) notify Macquarie promptly of any such spill, leak, escape or discharge and of any containment or clean-up operations which is reportable under Applicable Law; and

8.3.13 provide customary record keeping and ancillary services in furtherance of the services set out in this Agreement and the Crude Oil and Products Agreements.

8.4 Condition, Cleaning, Maintenance and Change of Service

8.4.1 Notwithstanding anything in the Crude Oil and Products Agreements to the contrary, the Company shall replace, maintain, operate, clean and/or repair the Facilities in accordance with Accepted Industry Practice and in all material respects in compliance with all Applicable Law and Environmental Law.

8.4.2 The Company shall be responsible for all scheduled and unscheduled maintenance, repairs and cleaning and other activities on the Facilities.

8.4.3 The Company agrees that:

(a) it shall promptly notify Macquarie in writing of the date for which any inspection, maintenance, restart or turnaround at the Included Storage Locations, Refinery or the Refinery Facilities has been scheduled, or any revision to previously scheduled inspection, maintenance, restart or turnaround, which may materially affect receipts of Crude Oil at the Refinery, the Included Tanks, the processing of Crude Oil in the Refinery or the delivery of Products to Macquarie or by Macquarie to the Company or any third parties, it being acknowledged that any turnaround shall be considered material for these purposes; provided that, (i) promptly after the Company completes its annual business plan with respect to any year, it shall notify Macquarie of any such scheduled inspection, maintenance, restart or turnaround contemplated with respect to such year and (ii) the Company shall give Macquarie at least two (2) months’ prior written notice of the commencement of any such scheduled restart or turnaround or any inspection or maintenance which would be reasonably expected to have a material impact on the Refinery’s operations;

(b) the Company shall notify Macquarie orally (followed by prompt written notice) as soon as reasonably practicable after the Company has actual knowledge of any material previously unscheduled downtime of any Facilities;

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(c) in addition to its general obligations under Section 8.4.3(a), the Company shall provide to Macquarie at least thirty (30) days’ prior written notice of (i) any scheduled maintenance on any of the Crude Storage Tanks or the Included Product Tanks that would result in such storage tank being taken out of service for a period greater than thirty (30) days (“Tank Maintenance”), and (ii) any change of service of a Crude Storage Tank or Included Product Tank (including for the purposes of storage of renewable diesel) that would result in such storage tank being taken out of service for any period (“Tank Change of Service”);

(d) in connection with any Tank Maintenance or Tank Change of Service in respect of Crude Storage Tanks or Included Products Tanks, the Parties shall promptly consult and endeavor to agree on adjusted inventory minimum and maximum levels and other appropriate adjustments hereunder and under the relevant Crude Oil and Products Agreements that are to apply during the period of such Tank Maintenance or Tank Change of Service, if deemed necessary by the Parties;

(e) the Company agrees that it shall use commercially reasonable efforts to complete (and to cause any third parties to complete) any Tank Maintenance or Tank Change of Service in respect of Crude Storage Tanks or Included Product Tanks as soon as practicable;

(f) the Company shall provide Macquarie with an initial estimate of the period of any Tank Maintenance or Tank Change of Service in respect of Crude Storage Tanks or Included Product Tanks and shall regularly update Macquarie as to the progress of such Tank Maintenance of Tank Change of Service. If the Company determines that the expected completion date for Tank Maintenance or Tank Change of Service has or is likely to change by thirty (30) days or more, it shall promptly notify Macquarie of such determination; and

(g) the Company shall provide Macquarie with at least five (5) Business Days’ prior notice of inspection of the Crude Storage Tanks or Included Product Tank (as applicable) following completion of the Tank Maintenance or Tank Change of Service. Macquarie shall have the right (subject to Section 10.1.3) to have a Macquarie Inspector present at such inspection. The Parties agree that such Crude Storage Tank or Included Product Tank shall be deemed not to be an Included Storage Location until Macquarie has confirmed in writing to the Company that such inspections pursuant to Section 10.1 as Macquarie reasonably considers necessary have been undertaken and completed to Macquarie’s satisfaction.

8.4.4 The Company shall ensure that if the Crude Oil in a Crude Storage Tank is removed for the purposes of cleaning such Crude Storage Tank then upon its return to service the Sludge and hard bottoms in that Crude Storage Tank shall have been removed.

8.5 Measurements

8.5.1 Measurement

(a) The Company shall procure that the volume of Crude Oil and Product passing each Crude Intake Point, Crude Delivery Point, Products Intake Point and Products Delivery Point comprised in the Facilities shall be measured daily using the applicable meters and tank gauges.

(b) In addition, whenever the Volume Determination Procedures are required to be performed the Company shall procure the performance of such Volume Determination Procedures.

(c) All quantity determinations herein shall be corrected to sixty (60) degrees Fahrenheit based on a U.S. gallon of two hundred thirty one (231) cubic inches and forty two (42) gallons to the barrel, in accordance with the latest supplement or amendment to ASTM-IP petroleum measurement tables (Table 6A of ASTM-IP for Crude Oil and Table 6B of ASTM-IP for Products).

8.5.2 Testing and Calibration of Measurement Facilities

(a) The Company shall provide Macquarie with reasonable prior notice of any periodic testing, calibration and verification of any measurement facilities providing measurement of Macquarie Property at the Facilities and, subject to their satisfaction of all requirements under Section 10.1.3 at such time, the Company shall permit Macquarie, its Affiliates and its and their respective Representatives to observe such testing, calibration and verification at the Facilities. In addition, the Company shall provide Macquarie with any documentation regarding the testing, calibration and verification of the measurement facilities at the Facilities.

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(b) Where the Parties agree that any measurement facilities at the Facilities providing measurement of Macquarie Property may be inaccurate, or Macquarie reasonably believes that this is the case, or the Macquarie Inspector identifies a discrepancy in the inventory volumes reported by the Company to Macquarie, Macquarie may by notice require that a recalibration take place on the terms of Section (a), above.

9 CONTRACT PERFORMANCE SERVICES

9.1 Subject to Sections 9.3 and 9.4, below, Macquarie appoints the Company to provide it with the following services during the Storage Term (“Contract Performance Services”), and the Company irrevocably accepts such appointment:

9.1.1 to duly and timely exercise the rights and perform the obligations assumed by Macquarie under (i) the Tripartite Crude Supply Agreement and each Tripartite Product Offtake Agreement pursuant to a Positive Election, and (ii) the Convenience Exchange Agreement, in each case subject to and in accordance with the terms of such agreement and of the Tripartite Communications Side Letter, Macquarie’s written instructions (if any) and Accepted Industry Practices, including any rights and obligations:

(a) to give, receive, accept or reject (as applicable) nominations relating to delivering, loading, transporting, unloading or receiving of Crude Oil or Products;

(b) to the extent not included within (a), above, to give, receive, accept or reject (as applicable) nominations, notices of readiness, berthing permissions (or equivalent) and other communications in respect of barges, cargo ships, trucks, pipelines, and storage tanks, in each case in accordance with applicable terminal, storage, transportation or pipeline operator requirements, procedures and safety standards;

(c) to provide facilities for the delivery, loading, transporting, unloading or receiving of Crude Oil or Products, including where applicable a contractual berth or loading rack;

(d) to give, receive, accept or reject (as applicable) all nominations, notices and communications related to scheduling of deliveries and receipts and the granting or booking of pipeline capacity;

(e) to coordinate with any shipping agents and transportation or logistics providers;

(f) to undertake actions and communications in relation to scheduling of receipts and deliveries of Crude Oil and Products, including the coordination of delivery schedules and the giving and receiving of nominations and the granting or booking of capacity;

(g) to undertake receipts and deliveries of Crude Oil or Product;

(h) to arrange, coordinate, permit, attend or undertake (as applicable) quantity and quality sampling, measurements, analysis and inspections for Crude Oil and Product; and

(i) to prepare and/or distribute Shipping Documents required to be provided to the purchaser under any Intermediated Product Offtake Contract or the Convenience Exchange Agreement (and always in accordance with the receiving party’s lawful documentary instructions);

9.1.2 to provide warnings, documents and information in relation to environment, health and safety concerning the Crude Oil and Product, including provision of safety data sheets;

9.1.3 to provide Macquarie with adequate prior written notice of any known time limit for Macquarie to submit a notice or claim in relation to quality, quantity or demurrage;

9.1.4 to hold and deliver all Shipping Documents (i) received or prepared in relation to Crude Oil delivered to Macquarie pursuant to a Positive Election, or (ii) prepared and to be provided by Macquarie pursuant to a Positive Election in relation to Product or under the Convenience Exchange Agreement, strictly to the order of Macquarie;

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9.1.5 to ensure that all written communications from the Company to the relevant counterparty are copied to Macquarie, and to promptly forward to Macquarie any written communications to the Company from the relevant counterparty which are not copied to Macquarie; and

9.1.6 notify Macquarie promptly upon becoming aware of:

(a) any material breach by any party (including Macquarie) of the Crude Supply Agreement, the Tripartite Crude Supply Agreement, any Intermediated Product Offtake Contract, any Tripartite Product Offtake Agreement and/ or the Convenience Exchange Agreement;

(b) any actual or known right of Macquarie to institute a material legal claim, suit or action under or in connection with the Crude Supply Agreement, the Tripartite Crude Supply Agreement, any Intermediated Product Offtake Contract, any Tripartite Product Offtake Agreement and/or the Convenience Exchange Agreement (including any claim in respect of the quality or quantity of Crude Oil or Product, or in respect of demurrage); and

(c) any actual or known pending legal claim, suit or action against Macquarie arising out of or in connection with the Crude Supply Agreement, the Tripartite Crude Supply Agreement, any Intermediated Product Offtake Contract, any Tripartite Product Offtake Agreement or the Convenience Exchange Agreement (including any claim in respect of the quality or quantity of Crude Oil or Product, or in respect of demurrage).

9.2 The Company undertakes to perform the Contract Performance Services:

9.2.1 consistently with any lawful nominations and instructions of Macquarie which are not in contradiction to the terms of this Agreement and the rights and obligations of Macquarie and the Company under the applicable Crude Oil and Product Agreement(s);

9.2.2 in accordance with Accepted Industry Practice and the terms of the applicable Crude Oil and Product Agreement(s); and

9.2.3 subject always to the limitations and exclusions set out at Section 9.3, below.

9.3 Notwithstanding any other term of this Agreement, but without prejudice to the terms of the Supply and Offtake Agreement, the Parties each acknowledge and agree that:

9.3.1 without limiting its obligations to Macquarie under any other agreement, the Company shall have no obligation to pay on behalf of Macquarie any invoice (including an invoice for Crude Oil) which Macquarie is liable to pay pursuant to the Tripartite Crude Supply Agreement, any Tripartite Product Offtake Agreement or the Convenience Exchange Agreement;

9.3.2 without limiting the Company’s rights to receive payment from Macquarie pursuant to the terms of the Supply and Offtake Agreement, the Company shall have no right to receive on Macquarie’s behalf any payment owed to Macquarie pursuant to the Tripartite Crude Supply Agreement or any Tripartite Product Offtake Agreement;

9.3.3 unless Macquarie has agreed otherwise in writing, the Company shall not give or purport to give on behalf of Macquarie any agreement, notice or communication which the Company is not permitted to so give under the terms of the Tripartite Crude Supply Agreement and each Tripartite Product Offtake Agreement; provided that for the avoidance of doubt (i) Macquarie reserves the right to at any time give such agreement, notice or communication directly on its own behalf and without prior consultation with the Company to the extent permitted and (ii) this Section 9.3.3 does not limit the Company’s right to give such agreement, notice or communication on its own behalf to the extent that it is entitled to do so, including prior to a Positive Election or following a Negative Election;

9.3.4 the Company shall in addition have no authority to:

(a) make a Positive Election or a Negative Election in Macquarie’s name or on its behalf;

(b) issue, vary, withdraw or pay any invoice under the Tripartite Crude Supply Agreement, any Tripartite Product Offtake Agreement or the Convenience Exchange Agreement in Macquarie’s name or on its behalf;

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(c) suspend or terminate the Tripartite Crude Supply Agreement, any Tripartite Product Offtake Agreement, the Convenience Exchange Agreement or any transaction under any of the foregoing in Macquarie’s name or on its behalf;

(d) except in accordance with the Supply and Offtake Agreement or as otherwise agreed, vary, waive or give up any legal right (howsoever arising) of Macquarie in its name or on its behalf in writing; and

(e) except in accordance with the Supply and Offtake Agreement, institute, manage or resolve any legal claim, suit or action (including for quality, quantity or demurrage) in Macquarie’s name or on its behalf; and

9.3.5 the Company shall not in relation to this Agreement do, or omit to do (or permit to be done or omitted to be done by any of its Affiliates, or its or their respective Representatives), anything that would reasonably be expected to result in any Liabilities being incurred by Macquarie or its Affiliates under the Tripartite Crude Supply Agreement, any Tripartite Product Offtake Agreement or the Convenience Exchange Agreement,

provided that, none of the foregoing Sections 9.3.1 through 9.3.5 shall be construed as limiting the Company’s rights and ability to take all actions the Company determines necessary to respond to an Emergency in accordance with Accepted Industry Practice.

9.4 Macquarie may at any time by written notice to the Company during a continuing Event of Default unilaterally suspend all of the Company’s rights and obligations to perform the Contract Performance Services (or any part of them) pending further written notice to the Company. Notwithstanding the foregoing, no such notice shall be construed as limiting the Company’s right and ability to take all actions the Company determines necessary to respond to an Emergency in accordance with Accepted Industry Practice.

9.5 Macquarie shall use commercially reasonable efforts to provide such information as Macquarie may have and as may reasonably be requested by the Company in relation to the Contract Performance Services in order to enable the Company to comply with its obligations under this Section 9.

10 Inspection and Access Rights

10.1 Facilities

10.1.1 At any reasonable times during normal business hours and upon reasonable prior notice during the Storage Term, the Company shall permit Macquarie, its Affiliates and its or their respective Representatives (including one or more Macquarie Inspector) to access the Facilities for any purpose related to this Agreement or the Crude Oil and Products Agreements, including but not limited to:

(a) enforcing its rights and interests under any of the foregoing and/or in the event of a Default or Event of Default under any of the foregoing;

(b) observing the operations of the Facilities;

(c) conducting such inspections of any part of the Facilities as Macquarie may wish to have performed in connection with this Agreement or the Crude Oil and Products Agreements; and

(d) gauging, measuring, sampling or taking readings at any part of the Facilities on a spot basis.

Such access shall not materially interfere with the ordinary course of business being conducted at the Facilities, and the Company shall only be required to cover the reasonable costs of such inspections to the extent provided for in Section 13.2 of the Supply and Offtake Agreement.

10.1.2 Notwithstanding any of the foregoing, if a Default or Event of Default has occurred and is continuing under this Agreement or any Crude Oil and Products Agreement, Macquarie, its Affiliates and its or their respective Representatives (including one or more Macquarie Inspector) shall have unlimited and unrestricted access to the Facilities in relation to the Macquarie Property and the Crude Oil and Product Agreements for so long as such Default or Event of Default continues.

10.1.3 It is an express condition precedent to the rights of access to the Facilities for Macquarie, its Affiliates and its or their respective Representatives (including Macquarie Inspectors) (“Macquarie Personnel”) as set out in this Section 10, elsewhere in this Agreement and the Supply and Offtake Agreement, that each of such Person shall, without limitation (unless the Company permits otherwise), consistent with the Company’s usual policies and procedures for access by non-Company Persons in relevant circumstances, and without discriminatory application to Macquarie or Macquarie Personnel:

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(a) to the extent applicable, execute the Company’s standardized form of access agreement;

(b) provide proof of any insurance required by the Company;

(c) use reasonable efforts to avoid disrupting the Company’s operations at the Facilities;

(d) to the extent necessary, comply with all medical screenings and be medically cleared for access prior to visiting the Facilities;

(e) present valid and current government issued identification and complete the Company’s sign-in and safety orientation procedures upon arrival to the Facilities;

(f) wear protective equipment and, to the extent necessary, comply with fit testing procedures as directed by the Company or security personnel employed by the Company;

(g) be accompanied, at all times, by a representative of the Company or security personnel employed by the Company;

(h) follow, at all times, routes and paths designated by, and such other instructions provided by, the Company or security personnel employed by the Company;

(i) observe all security, fire and safety, and other rules and regulations of all kinds while in around or about the Facilities;

(j) comply with the reasonable instructions of the Company or security personnel employed by the Company; and

(k) comply with such other health, safety, regulatory, environmental and insurance related requirements, policies and procedures required by the Company in accordance with its policies and procedures (applied in a non-discriminatory manner);

provided that, notwithstanding anything herein to the contrary, the Company may deny access to the Facilities to, or remove from the Facilities, any Macquarie Personnel (including Macquarie’s Inspector), in the Company’s reasonable opinion in accordance with Accepted Industry Practice, poses a material risk of injury to the Facilities, its personnel, the public or the environment (including during an ongoing Emergency).

10.2 Audit

10.2.1 During the Storage Term, Macquarie and its duly authorized Representatives, upon reasonable notice and during normal working hours, without disruption to the Company’s operations and subject to reasonable procedures (including to ensure that the Company’s confidentiality obligations are not breached), shall have access to the accounting records and other documents maintained by the Company, its Affiliates and its Representatives which relate to this Agreement.

10.2.2 The right to review or receive copies of such records shall survive termination of this Agreement for a period of two (2) years following the Termination Date.

10.2.3 The Company shall (and shall procure that its Affiliates shall) preserve, and shall cause all contractors or agents to preserve, all of the aforesaid documents for a period of at least two (2) years from the end of the Storage Term.

10.3 Completeness and Accuracy of Records

10.3.1 All records or documents provided by any Party or its Affiliates to the other Party or its Affiliates shall, to the knowledge of such Party, accurately and completely reflect the facts about the activities and transactions to which they relate. Each Party shall promptly notify the other Party if at any time such Party has reason to believe that any records or documents previously provided to the other Party no longer are accurate or complete.

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11 Inventory Loss AND DAMAGE

11.1 If for any reason (including scope of coverage or the application of any excess or deductible) Macquarie does not procure a full indemnity of its loss and damage from its relevant cargo insurers (despite having used commercially reasonable efforts to do so where such Liabilities arise out of an Insured Risk), then notwithstanding Section 5, without duplication in respect of amounts recoverable by Macquarie under the Supply and Offtake Agreement, the Company shall be liable to Macquarie on an indemnity basis for all unindemnified loss of, damage to or degradation of Macquarie Property as a result of any of the following (howsoever caused, including, without limitation, by Force Majeure, but provided that the Company shall be under no obligation to indemnify Macquarie to the extent that the loss of, damage to or degradation of Macquarie Property was caused as a direct result of the gross negligence or willful default of Macquarie):

11.1.1 any actual or constructive loss of, damage to or degradation of Macquarie Property arising in connection with this Agreement or any Crude Oil and Products Agreement, including due to:

(a) customary handling or evaporation and shrinking during receipt, handling, storage or delivery;

(b) actual or attempted theft or misappropriation of Macquarie Property;

(c) spill, leak, escape, emanation or discharge of Macquarie Property; and

(d) Contamination of Macquarie Property,

provided that, for the avoidance of doubt, to the extent that the Company pays Macquarie for any volumetric loss or change in grade of Macquarie Property through the settlements contemplated under the Supply and Offtake Agreement, Macquarie will be fully compensated therefor and this Section 11.1 shall have no effect.

11.2 For the purposes of Section 11.1, Macquarie shall be considered to have failed to make a recovery from its relevant cargo insurers (i) to the extent that it receives a formal declinature of cover for all or part of its claim, or (ii) to the extent its claim has not been paid in full by its relevant cargo insurers as at the date for payment of a relevant claim as specified in the applicable insurance policy (or in the absence of such date, the date which is 12 months after Macquarie’s claim was submitted to its relevant cargo insurers).

11.3 If following a payment from the Company under Section 11.1 or its proviso, Macquarie receives an indemnity (or as the case may be, a further indemnity) from its relevant cargo insurers in relation to its insurance claim for the relevant lost or damaged Macquarie Property (“Insurance Proceeds”), Macquarie shall reimburse the Company for the amount received under this Section 11 in relation to such Macquarie Property, up to the amount of the Insurance Proceeds.

12 Insurance and Taxes

12.1 Insurance

The Company shall procure and maintain in full force and effect throughout the Storage Term insurance as provided in Sections 17.1 to 17.3 of the Supply and Offtake Agreement.

12.2 Taxes

The provisions of Section 16 of the Supply and Offtake Agreement relating to tax matters shall apply to this Agreement and the transactions contemplated hereby to the same extent as if set forth herein in full.

13 Compliance with Laws

13.1 Each Party shall, in relation to this Agreement, comply in all material respects with Applicable Law.

13.2 Each Party also shall promptly notify the other Party of any material violation, or any material violation alleged by a Governmental Authority, of any Environmental Law relating to any Macquarie Property or Eligible Hydrocarbons Inventory in connection with this Agreement or any Crude Oil and Products Agreement.

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13.3 The Company shall upon request provide Macquarie with all available evidence in its possession or control of environmental inspections or audits by any Governmental Authority with respect to Macquarie Property and Eligible Hydrocarbons Inventory at the Facilities.

14 Representations

14.1 Representations of the Company

The Company represents and warrants to Macquarie that the following shall be true and correct on and as of the Commencement Date and on each day during the Storage Term:

14.1.1 this Agreement, the rights obtained and the duties and obligations assumed by the Company hereunder, and the execution and performance of this Agreement by the Company, do not, directly or indirectly, violate any Applicable Law with respect to the Company, its Affiliates or any of its or their property or assets, the terms and provisions of the Company’s organizational documents or any agreement or instrument to which the Company, its Affiliates or any of its or their property or assets are bound or subject;

14.1.2 the execution and delivery of this Agreement by the Company has been authorized by all necessary corporate or other action;

14.1.3 it has the full and complete authority and power to enter into and perform this Agreement;

14.1.4 upon execution and delivery by the Company, this Agreement shall be a valid, binding and subsisting agreement of the Company enforceable in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law); and

14.1.5 the Company has title to all Sludge and hard bottoms in the Included Storage Locations which are a part of the Facilities.

14.2 Macquarie represents and warrants to the Company that the following shall be true and correct on and as of the Commencement Date and on each day during the Storage Term:

14.2.1 this Agreement, the rights obtained and the duties and obligations assumed by Macquarie hereunder, and the execution and performance of this Agreement by Macquarie, do not, directly or indirectly, violate any Applicable Law with respect to Macquarie or any of its property or assets, the terms and provisions of Macquarie’s organizational documents or any agreement or instrument to which Macquarie or any of its property or assets are bound or subject;

14.2.2 the execution and delivery of this Agreement by Macquarie has been authorized by all necessary corporate or other action; and

14.2.3 upon execution and delivery by Macquarie, this Agreement shall be a valid, binding and subsisting agreement of Macquarie enforceable in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law).

15 FORCE MAJEURE

15.1 If the Company is rendered unable by an event of Force Majeure to perform in whole or in part any obligation or condition arising under any Section of this Agreement specified in Section 15.5 below, it shall not be liable to Macquarie to perform such obligation or condition for so long as the event of Force Majeure exists and to the extent that performance is prevented or materially hindered, in whole or in part, by such event of Force Majeure; provided, however, that the Company shall use any commercially reasonable efforts to avoid or remove the event of Force Majeure. During the period that performance by the Company of a part or whole of its relevant obligations has been suspended by reason of an event of Force Majeure, Macquarie may suspend the performance of all or a part of its obligations (except for any payment and indemnification obligations) to the extent that such suspension is commercially reasonable having regard to the event of Force Majeure and the obligations of the Company which are suspended as a result of such event of Force Majeure.

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15.2 The Company shall give prompt oral notice to Macquarie of its declaration of an event of Force Majeure, to be followed by written notice within twenty-four (24) hours after receiving such oral notice of the occurrence of a Force Majeure event, including, to the extent feasible, the details and the expected duration of the Force Majeure event and the volume of Crude Oil or Products affected. The Company also shall promptly notify Macquarie when the event of Force Majeure is terminated. However, the failure or inability of the Company to provide such notice within the time periods specified above shall not preclude it from declaring an event of Force Majeure. The Company may satisfy its notice obligations under this Section 15.2 by providing a single notice in respect of any of the affected Crude Oil and Product Agreements, provided that such notice specifically identifies this Agreement.

15.3 Without limiting any rights of Macquarie under this Section 15, the Parties agree that following notice of an event of Force Majeure, they shall consult in good faith to assess potential actions or steps with respect thereto.

15.4 Performance of the affected obligations shall resume to the extent made possible by the end or amelioration of the event of Force Majeure in accordance with the terms of this Agreement; provided, however, that the term of this Agreement shall not be extended.

15.5 This Section 15 shall only apply to those obligations of the Company which arise under Sections of this Agreement: 7.1, 7.2, 8.1.2 to 8.1.9, 8.2, 8.3.2, 8.3.4 to 8.3.6, 8.3.8 to 8.3.13, 8.4.3, 8.5, 9.1 to 9.3, 10.1.1, 10.1.2, 10.2.1, 10.2.3.

16 MISCELLANEOUS

16.1 Events of Default and Remedies

16.1.1 Without limiting any other rights or remedies hereunder or thereunder, if an Event of Default occurs and is continuing under the Supply and Offtake Agreement and Macquarie is a Non-Defaulting Party, Macquarie may, in its sole discretion, (i) withhold or suspend its obligations, including any of its payment obligations, under this Agreement, (ii) submit one or more Final Export Schedules in accordance with this Agreement, and (iii) otherwise arrange for the disposition of any of its Macquarie Property in such manner as it elects in accordance with this Agreement and without causing a breach of its obligations under the Crude Oil and Products Agreements.

16.2 Required Permits

During the Storage Term, the Company and its Representatives shall, at their sole cost and expense, take all actions reasonably necessary or appropriate to obtain, apply for, maintain, monitor, renew, and/or modify as appropriate, in all material respects, any license, authorization, certification, filing, recording, permit, waiver, exception, variance, franchise, order or other approval with or of any Governmental Authority pertaining or relating to the use and operation of the Facilities in the manner contemplated by this Agreement and the Crude Oil and Products Agreements (the “Required Permits”). The Company and its Affiliates shall not do anything that causes a termination or suspension of the Required Permits.

16.3 Environmental and Regulatory Matters

The execution of this Agreement by the Parties does not confer any obligation or responsibility on Macquarie Group, and Company hereby defends, indemnifies, releases and holds harmless Macquarie Group from and against any Liabilities directly or indirectly arising from or in connection with:

(a) any past, existing or future environmental condition at the Facilities, including, but not limited to, the presence of regulated or Hazardous Substances on or in environment media at the Facilities (including the presence in surface water, groundwater, soils or subsurface strata, or air), including the subsequent migration of any such substance;

(b) any Environmental Law (including any Liability in relation to an alleged or suspected or actual breach of Environmental Law);

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(c) the Required Permits; and

(d) any requirements arising under or relating to any Applicable Law pertaining or relating to the operation of the Facilities,

regardless of how caused (including any event of Force Majeure).

16.4 Relationship of the Parties

Notwithstanding anything to the contrary herein, the Company is and shall be the operator of the Facilities in all respects, and Macquarie shall not under any circumstances have power or authority to direct the activities of the Company, or to exert control over the operation of the Facilities, or any portion thereof, and nothing herein shall be deemed to grant or provide such power or authority to Macquarie (provided, however, that Macquarie’s enforcement of this Agreement or any Crude Oil and Products Agreement in accordance with their respective terms shall not be deemed to be in contravention of the foregoing).

16.5 No Abandonment of Rights; Rights Cumulative

16.5.1 No delay or failure by a Party in exercising any right or remedy to which it may be entitled in connection with this Agreement shall constitute an abandonment of any such right.

16.5.2 Each and every right granted to the Parties under this Agreement or allowed it by law or equity, shall be cumulative and may be exercised from time to time in accordance with the terms thereof and Applicable Law.

17 Indemnification

17.1 Indemnity of Company

17.1.1 Without prejudice to Section 17.3, to the fullest extent permitted by Applicable Law and except as specified otherwise elsewhere in this Agreement (including at Section 11.1), the Company shall defend, indemnify and hold harmless Macquarie, its Affiliates, and its and their respective Representatives from and against any Liabilities directly or indirectly arising out of:

(a) any breach by the Company of any covenant or agreement contained herein or made in connection herewith or any representation or warranty of the Company made herein or in connection herewith proving to be false or misleading or incorrect in any material respect, including, without limitation the Company’s obligation for payment of taxes pursuant to Section 12.2;

(b) the Company’s performance or non-performance of this Agreement;

(c) the Company’s or any of its Representatives’ negligence or willful misconduct;

(d) the Company’s or any it’s Representatives’ failure to comply with or observe any Applicable Law or the requirements of any Required Permit;

(e) any actual, alleged or suspected spill, leak, escape, emanation or discharge of Macquarie Property or Eligible Hydrocarbon Inventory from or at the Facilities regardless of how caused (including any event of Force Majeure);

(f) any actual, alleged or suspected Contamination of Macquarie Property or Eligible Hydrocarbon Inventory regardless of how caused (including any event of Force Majeure); and

(g) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company or one of the Company’s Affiliates, and regardless of whether Macquarie is a party thereto and regardless of how caused (including any event of Force Majeure),

provided that the Company shall be under no obligation to defend, indemnify or hold Macquarie, its Affiliates, or its and their respective Representatives harmless against any Liabilities caused as a result of the gross negligence or willful default of Macquarie.

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17.2 No Third Party Rights; No Admission

The obligations of a Party (the “Indemnifying Party”) to defend, indemnify, release and hold any other Party (the “Indemnified Party”) harmless under the terms of this Agreement shall not vest any rights in any third party (whether a Governmental Authority or private entity), nor shall they be considered an admission of liability or responsibility for any purposes other than those enumerated in this Agreement.

17.3 Indemnification Procedures

Each Party shall notify the other Party as soon as practicable after receiving notice of any claim or suit brought against it within the indemnities of this Agreement, shall furnish to the other Party the complete details within its knowledge and shall render all reasonable assistance requested by the other Party in the defense; provided, that, the failure to give such notice shall not affect the indemnification provided hereunder, except to the extent that the Indemnifying Party is materially adversely affected by such failure. Each Party shall have the right but not the duty to participate, at its own expense, with counsel of its own selection, in the defense and settlement thereof without relieving the other Party of any obligations hereunder. Notwithstanding the foregoing, an Indemnifying Party shall not be entitled to assume responsibility for and control of any judicial or administrative proceeding if such proceeding involves an Event of Default by the Indemnifying Party under this Agreement which shall have occurred and be continuing.

17.4 Cumulative Remedy

The indemnification in this Section 17 is in addition to and not in limitation of any indemnification provided in the Supply and Offtake Agreement or any other Crude Oil and Products Agreement.

17.5 Credit Support

As a condition to Macquarie’s entering into this Agreement, Parent has agreed to provide the Guaranty to Macquarie, as credit support for the prompt and complete performance and payment of all of the Company’s obligations hereunder and under the other Transaction Documents to Macquarie, and all reasonable and documented out of pocket costs and expenses (including but not limited to the reasonable and documented out of pocket costs, expenses, and reasonable and documented external attorneys’ fees of Macquarie) of amending and maintaining the Guaranty shall be borne by the Company.

18 Limitation on LIABILITY AND Damages

18.1 LIMITED RIGHT TO DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES’ LIABILITY FOR DAMAGES IS LIMITED TO DIRECT, ACTUAL DAMAGES ONLY AND NEITHER PARTY SHALL BE LIABLE FOR LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, IN TORT, CONTRACT OR OTHERWISE, OF ANY KIND, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PERFORMANCE, THE SUSPENSION OF PERFORMANCE, THE FAILURE TO PERFORM, OR THE TERMINATION OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FORGOING IS NOT (AND IS NOT INTENDED TO BE AND SHALL NOT BE DEEMED TO CONSTITUTE) A WAIVER BY A PARTY OF ANY RIGHT TO RECOVER COMPENSATORY DAMAGES SUFFERED BY A PARTY THAT ARE OR COULD HAVE BEEN REASONABLY FORESEEABLE AS A RESULT OF ANY BREACH OF SECTION 19 (EVEN IF SUCH COMPENSATORY DAMAGES COULD BE CHARACTERIZED AS INDIRECT, CONTINGENT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES); AND PROVIDED FURTHER THAT SUCH LIMITATION SHALL NOT APPLY WITH RESPECT TO ANY THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION IS AVAILABLE UNDER THIS AGREEMENT.

18.2 NOTHING IN SECTION 18.1 SHALL LIMIT ANY RIGHT OF MACQUARIE TO SEEK SPECIFIC PERFORMANCE OF ANY PART OF THIS AGREEMENT.

18.3 WITHOUT PREJUDICE TO SECTION 5.1 OF THIS AGREEMENT MACQUARIE SHALL HAVE NO LIABILITY WHATSOEVER (IN DAMAGES OR OTHERWISE) TO THE COMPANY ARISING OUT OF OR IN CONNECTION WITH THE RECEIPT INTO ANY PART OF THE FACILITIES OF CONTAMINATED CRUDE OIL OR PRODUCTS.

23

18.4 DISCLAIMER OF WARRANTIES. MACQUARIE MAKES NO WARRANTY, CONDITION OR OTHER REPRESENTATION, WRITTEN OR ORAL, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS OR SUITABILITY OF MACQUARIE PROPERTY FOR ANY PARTICULAR PURPOSE OR OTHERWISE AND ALL SUCH WARRANTIES, CONDITIONS AND OTHER REPRESENTATIONS ARE HEREBY DISCLAIMED. FURTHER, MACQUARIE MAKES NO WARRANTY OR REPRESENTATION THAT MACQUARIE PROPERTY CONFORMS TO THE SPECIFICATIONS IDENTIFIED IN ANY CONTRACT WITH THE COMPANY OR ANY THIRD PARTY SUPPLIER OR THE CONVENIENCE EXCHANGE AGREEMENT.

19 Confidentiality

19.1 The Parties agree that the specific terms and conditions of this Agreement, including the drafts of this Agreement exchanged by the Parties and any information exchanged between the Parties, including calculations of any fees or other amounts paid by either Party under this Agreement and all information received by Macquarie from the Company relating to the costs of operation, operating conditions, and other commercial information of the Company not made available to the public, are confidential and shall not be disclosed to any third party, except (i) as may be required by court order or Applicable Law or as requested by a Governmental Authority, (ii) to such Party’s or its Affiliates’ employees, directors, shareholders, auditors, consultants, banks, lenders, financial advisors and legal advisors, or (iii) to such Party’s insurance providers, solely for the purpose of procuring insurance coverage or confirming the extent of existing insurance coverage; provided, that, prior to any disclosure permitted by this Section (iii), such insurance providers shall have agreed in writing to keep confidential any information or document subject to this Section.

19.2 The confidentiality obligations under this Agreement shall survive termination of this Agreement for a period of two years following the Termination Date. The Parties shall be entitled to all remedies available at law, or in equity, to enforce or seek relief in connection with the confidentiality obligations contained herein (including without limitation) the right to seek injunctive relief.

19.3 In the case of disclosure covered by (i) of Section 19.1, to the extent practicable and legally permissible, the disclosing Party shall notify the other Party in writing of any proceeding of which it is aware which may result in disclosure, and use reasonable efforts to prevent or limit such disclosure. The Party seeking to prevent or limit such disclosure shall be responsible for all costs and expenses incurred by the other Party in connection therewith. The Parties shall be entitled to all remedies available at law, or in equity, to enforce or seek relief in connection with the confidentiality obligations contained herein.

19.4 Notwithstanding anything herein to the contrary, the Parties (and their respective employees, representatives or other agents) are authorized to disclose to any person the U.S. federal and state income tax treatment and tax structure of the transaction and all materials of any kind (including tax opinions and other tax analyses) that are provided to the Parties relating to that treatment and structure, without the Parties imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.

20 Governing Law

20.1 THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED UNDER THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER STATE.

20.2 EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT OF COMPETENT JURISDICTION SITUATED IN THE CITY OF NEW YORK, (WITHOUT RECOURSE TO ARBITRATION UNLESS BOTH PARTIES AGREE IN WRITING), AND TO SERVICE OF PROCESS BY CERTIFIED MAIL, DELIVERED TO THE PARTY AT THE ADDRESS INDICATED IN Section 23. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION TO PERSONAL JURISDICTION, WHETHER ON GROUNDS OF VENUE, RESIDENCE OR DOMICILE.

20.3 EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDINGS RELATING TO THIS AGREEMENT.

24

21 Assignment

21.1 This Agreement shall inure to the benefit of and be binding upon the Parties hereto, their respective successors and permitted assigns.

21.2 Neither Party shall assign this Agreement or its rights or interests hereunder in whole or in part, or delegate its obligations hereunder in whole or in part, without the consent of the other Party. Notwithstanding the foregoing, (a) Macquarie may, without the Company’s consent, assign and delegate all of Macquarie’s rights and obligations hereunder to (i) any Affiliate of Macquarie, provided it is no worse a credit counterparty and would not result in any adverse tax consequences to the Company and all the Company’s costs, if any, are covered or (ii) any non-Affiliate Person that succeeds to all or substantially all of its assets and business and assumes Macquarie’s obligations hereunder, whether by contract, operation of law or otherwise, provided that (A) the creditworthiness of such successor entity is equal or superior to the creditworthiness of Macquarie (taking into account any credit support for Macquarie) immediately prior to such assignment, and (B) such successor assumes all of the obligations of Macquarie under the Crude Oil and Products Agreements to which the Company is a Party.

21.3 Any attempted assignment in violation of this Section 21 shall be null and void ab initio and the non-assigning Party shall have the right, without prejudice to any other rights or remedies it may have hereunder or otherwise, to terminate this Agreement effective immediately upon notice to the Party attempting such assignment.

22 PLEDGE OVER MACQUARIE PROPERTY

Notwithstanding anything to the contrary contained in this Agreement or in any Transaction Document or otherwise in effect, the Company hereby acknowledges and agrees that, Macquarie may, and shall have the right to, pledge and grant a security interest, in favor of any lender to Macquarie from time to time (a “Macquarie Lender”), in and to Macquarie’s Property (and for the avoidance of doubt, Macquarie’s Property does not include the assets or rights of the Company) that is subject to this Agreement, in each case, as collateral security for any and all obligations due and owing by Macquarie or its Affiliates to any such Person, without the need for any consent or approval of, or any further action taken by, the Company or any of the Company’s Affiliates. In consideration of the foregoing, Macquarie shall procure that any such liens and security interests shall be terminated and extinguished automatically at such time as this Agreement is terminated (other than with respect to any provisions or obligations, including indemnity obligations, as applicable, that survive such termination pursuant to the terms of the Transaction Documents), and the Company has performed all of its payment obligations under Sections 20 and 21 of the Supply and Offtake Agreement.

23 Notices

All invoices, notices, requests and other communications given pursuant to this Agreement shall be in writing and sent by email or nationally recognized overnight courier. A notice shall be deemed to have been received when transmitted by email to the other Party’s email set forth in Schedule K of the Supply and Offtake Agreement, or on the following Business Day if sent by nationally recognized overnight courier to the applicable address, or if sent by nationally recognized overnight courier to the other Party’s address set forth in Schedule K of the Supply and Offtake Agreement and to the attention of the person or department indicated. A Party may change its address or email address by giving written notice in accordance with this Section, which is effective upon receipt.

24 Nature of Transaction and Relationship of Parties

24.1 This Agreement shall not be construed as creating a partnership, association or joint venture among the Parties. It is understood that the Company is an independent contractor with complete charge of its employees and agents in the performance of its duties hereunder, and nothing herein shall be construed to make the Company, or any of its employees or agent, an agent or employee of Macquarie.

24.2 No Party shall have the right or authority to negotiate, conclude or execute any contract or legal document with any third person on behalf of the Parties; to assume, create, or incur any liability of any kind, express or implied, against or in the name of any of the other Parties; or to otherwise act as the representative of any of the other Parties, unless expressly authorized in writing by such other Party.

25

25 Miscellaneous

25.1 The Parties acknowledge and agree that this Agreement is a security agreement or arrangement, or other credit enhancement related to the transactions entered into by the Parties in connection with the Supply and Offtake Agreement, the Tripartite Crude Supply Agreement and each Tripartite Product Offtake Agreement, each of which is a “Forward Contract” or a “Swap Agreement” as defined in Title 11 of the United States Code, 11. U.S.C. §§ 101 et seq., as amended from time to time (the “Bankruptcy Code”). The Parties further acknowledge and agree that each Party is a “Forward Contract Merchant” and/or a “Financial Participant” as each such term is defined under the Bankruptcy Code.

25.2 If any Article, Section or provision of this Agreement shall be determined to be null and void, voidable or invalid by a court of competent jurisdiction, then for such period that the same is void or invalid, it shall be deemed to be deleted from this Agreement and the remaining portions of this Agreement shall remain in full force and effect.

25.3 The terms of this Agreement constitute the entire agreement between the Parties with respect to the matters set forth in this Agreement, and no representations or warranties shall be implied or provisions added in the absence of a written agreement to such effect between the Parties. This Agreement shall not be modified or changed except by written instrument executed by the Parties’ duly authorized representatives.

25.4 No promise, representation or inducement has been made by any of the Parties that is not embodied in this Agreement, and none of the Parties shall be bound under this Agreement by or liable for any alleged representation, promise or inducement not so set forth.

25.5 Time is of the essence with respect to all aspects of each Party’s performance of any obligations under this Agreement.

25.6 Nothing expressed or implied in this Agreement is intended to create any rights, obligations or benefits under this Agreement in any person other than the Parties and their successors and permitted assigns.

25.7 All audit rights, payment, confidentiality and indemnification obligations and obligations under this Agreement shall survive the expiration or termination of this Agreement.

25.8 This Agreement may be executed by the Parties in separate counterparts and initially delivered by facsimile transmission or otherwise, with original signature pages to follow, and all such counterparts shall together constitute one and the same instrument.

25.9 All transactions hereunder are entered into in reliance on the fact this Agreement and all such transactions constitute a single integrated agreement between the Parties, and the Parties would not have otherwise entered into any other transactions hereunder.

[Remainder of Page Intentionally Left Blank]

26

Executed by Macquarie ENERGY NORTH AMERICA TRADING INC. acting by:

By:	/s/ Travis McCullough
Name:	Travis McCullough
Title:	Division Director
By:	/s/ Daniel Vizel
Name:	Daniel Vizel
Title:	Senior Managing Director

27

Executed by VERTEX REFINING ALABAMA LLC acting by:

By:	/s/ Benjamin P. Cowart
Name:	Benjamin P. Cowart
Title:	President and Chief Executive Officer

28

EX-10.14

Vertex Energy, Inc. 8-K

Exhibit 10.14

Vertex - Shell Products Offtake Agreement

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND REPLACED WITH “[***]”. SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS (I) NOT MATERIAL AND (II) THE REGISTRANT CUSTOMARILY AND ACTUALLY TREATS THAT INFORMATION AS PRIVATE OR CONFIDENTIAL.

SELLER

Vertex Refining Alabama LLC

1331 Gemini St., Suite 250

Houston, TX 77058

BUYER

Equilon Enterprises LLC, dba Shell Oil Products US (“SOPUS”)

1000 Main Street, Level 12

Houston, Texas

United States 77002-6336

The following terms (also referred to as the “Confirmation”), the Product Specifications attached hereto as Schedules 1 and 2, and the General Terms and Conditions attached hereto as Exhibit A (the “General Terms”), together constitutes all of the terms and conditions of the sales contract between Buyer and Seller (collectively, this “Agreement”). Seller and Buyer are individually referred to as a “Party” and collectively, as the “Parties.”

TERM:

The initial term (the “Initial Term”) of this Agreement shall commence on the Commencement Date (as hereafter defined) and continue for a period of five (5) years.  Upon completion of the Initial Term, this Agreement shall continue on a year-by-year basis for one or more renewal terms (each a “Renewal Term”) of one (1) year each, unless terminated by either Party sending written notice of termination to the other Party at least [***] prior to the end of the Initial Term or the then current Renewal Term.  The Initial Term together with all Renewal Terms, if any, shall be referred to as the “Term” of this Agreement.  Each three hundred sixty-five (365) day period commencing on the Commencement Date, and each anniversary thereof, during the Term shall be a “Contract Year.”  For purposes hereof “Commencement Date” shall mean the date that Seller closes on the acquisition of that certain petroleum refinery located in Mobile, Alabama and currently owned by Shell Chemical LP (the “Refinery”).

PRODUCTS

Gasoline [***] and ULSD.

QUALITY

Products shall comply with the following specifications (the “Specifications”), as applicable, unless otherwise mutually agreed to by the Parties in writing:

1.Motor Gasoline Specifications. The Gasoline specifications (the “Gasoline Specifications”) shall be the ASTM D4814-10a specifications for CBOB and Premium CBOB.

2. Ultra Low Sulfur Diesel Specifications. The ULSD (the “ULSD Specifications”) shall be the ASTM D975-10b specifications.

Vertex - Shell Products Offtake Agreement

QUANTITY

Seller shall sell, and Buyer shall purchase the following volumes and grades of Product:

1. Gasoline.

A. First Contract Period of Initial Term. During the first three (3) Contract Years of the Initial Term (the “First Contract Period”) Seller shall sell to Buyer and Buyer shall purchase from Seller all volumes of Gasoline produced at the Refinery up to a total daily volume of [***] bpd of total Gasoline. If Seller produces Premium CBOB, Seller shall sell and Buyer shall buy up to a maximum of [***] bpd of Premium CBOB.  The Parties shall use reasonable commercial efforts to supply and purchase Gasoline in a substantially ratably manner at the rate of approximately one-third of the monthly volume (as specified in the applicable Confirmed Order, as defined below) for each ten (10) day period of the subject month.

B. Second Contract Period of Initial Term. Twelve months prior to the end of the First Contract Period, Seller will elect volumes of Gasoline it will sell to Buyer during the last two (2) Contract Years of the Initial Term (the “Second Contract Period”). Seller may elect to sell Buyer the following: (i) all volumes of Gasoline produced at the Refinery up to a total daily volume of [***] bpd of total Gasoline and, if Seller produces Premium CBOB, up to [***] bpd of Premium CBOB (i.e., volume would remain the same as the First Contract Period) or (ii) a monthly volume equal to [***], plus [***] at Buyer’s option. For the purpose of this Agreement, [***] refers to [***].

C. [***].

D. Premium Production. If Seller elects to produce Premium CBOB, Seller shall sell and Buyer shall buy up to a maximum of [***] bpd of Premium CBOB. If Seller elects not to produce Premium CBOB, Buyer has the option to deliver Premium CBOB into the Delivery Location. Seller shall give Buyer at least [***] notice of any such expected production of Premium CBOB or any changes to a previously scheduled forecast for Premium CBOB. For greater certainty, the Parties acknowledge that in no event is Seller obligated to produce Premium CBOB at the Refinery.

2. ULSD.

A. First Contract Period of Initial Term. During the First Contract Period, Seller shall sell and Buyer shall purchase not less than [***] bbls. (the “Minimum ULSD Contract Quantity”) and not more than [***] bbls. (the “Maximum ULSD Contract Quantity”) of ULSD each month during the Term.  The Parties shall use reasonable commercial efforts to supply and purchase USLD in a substantially ratably manner at the rate of approximately one-third of the monthly volume (as specified in the applicable Confirmed Order) for each ten (10) day period of the subject month. 

B. Second Contract Period of Initial Term. Twelve months prior to the end of the First Contract Period, Seller will elect volumes of ULSD it will sell to Buyer during the Second Contract Period. Seller may elect to sell the following: (i) a monthly volume equal to not less than [***] and not more than [***] or (ii) a monthly volume equal to [***] during the third Contract Year of the Initial Term, plus [***]. For the purpose of this Agreement, [***] refers to [***] and third party [***] supplied under [***].

C. [***].

Vertex - Shell Products Offtake Agreement

TERMS OF DELIVERY AND NOMINATION

1.Delivery Location. The “Delivery Location” for Gasoline and ULSD shall be [***].

2.Forecasts and Nomination.

A. Forecasts. On or before [***] during the Term, Seller will submit to Buyer a written Gasoline Monthly Production Forecast (“MPF”) including the effect of any Planned Outages. The MPF is the volumes of Gasoline Products [***] estimated to be produced at the Refinery during the following month, as well as Seller’s estimate of the Products to be produced for the [***] following the MPF month.

B. Nominations. By the [***], Buyer shall provide Seller with a rolling forecast of Buyer’s monthly nominations for Gasoline and ULSD for the next [***]. With respect to Gasoline, each nomination shall be for not less than Seller’s forecasted production volumes for [***], and with respect to ULSD, each nomination shall be not less than the Minimum ULSD Contract Quantity.

C. Confirmations. Seller shall promptly confirm in writing (which may be by e-mail, with receipt confirmed) (i) each Gasoline nomination provided pursuant hereto, up to [***], and (ii) each ULSD nomination provided pursuant hereto, up to the Maximum ULSD Contract Quantity (each order, as so confirmed, a “Confirmed Order”). [***]

D. Delivery Schedule. With respect to each Confirmed Order, the Parties shall mutually cooperate to coordinate a delivery schedule (the “Delivery Schedule”) for the receipt of Products into Seller’s tank and the discharge of Products from the tanks. Seller shall deliver Confirmed Orders in accordance with the Delivery Schedule and Buyer will accept the discharge of Products from the applicable Refinery tank in accordance with the Delivery Schedule.

E. Planned Outages. Each calendar quarter, Seller shall provide Buyer with a schedule of planned maintenance at the Refinery (“Planned Outages”) for the following 6 months, and shall promptly notify Buyer of any changes to such schedule.

3.Shortfall Volumes.

A. Supply Shortfall.  If Seller is unable to supply a minimum of [***] of Product in accordance with the terms herein for any reason (a “Supply Shortfall Volume”), then Buyer may purchase replacement Product (“Third Party Product”) to cover the Supply Shortfall Volume.  In such event, Seller shall make tankage available to Buyer to store the Third Party Product, provided that, (i) Buyer is not in default of any of the terms of this Agreement or that certain Terminalling Agreement between the Parties dated as of the date hereof, (ii) Buyer provides certificates of quantity and quality from an independent inspector certifying that the Third Party Product conforms to the applicable Specifications; and (iii) such storage needs are consistent with the physical storage capacity of the Seller’s Refinery. In which case, Seller and Buyer shall mutually cooperate to coordinate the delivery of the Third Party Product to [***]. Further, Seller shall reimburse Buyer for Buyer’s Cover Damages (as hereafter defined), if any, incurred as a result of Seller’s non-delivery, unless such non-delivery was due to an event of Force Majeure. “Buyer’s Cover Damages” shall be equal to [***].

Vertex - Shell Products Offtake Agreement

B. Purchase Shortfall.  In the event Buyer fails to purchase and remove [***] of Product in accordance with the terms of a Confirmed Order for any reason (a “Buyer Shortfall Volume”), Seller shall have the right to sell the Buyer Shortfall Volume to any third party and Buyer shall reimburse Seller for Seller’s Cover Damages (as hereafter defined), if any, incurred as a result of Buyer’s failure to purchase and receive Product, unless such failure was due to an event of Force Majeure.  “Seller’s Cover Damages” shall be equal to [***].  

C. Definitions.  For purposes of this Section, the following definitions shall apply:

[***]

PRICE AND PAYMENT

A. General Pricing Provisions.

1. Products (Gasoline and Diesel) will be provisionally priced and invoiced for each billing period based on [***].

2. Within [***] after the end of each [***], Seller will produce a volume and value adjustment invoice (“True-up Invoice”) to align the provisionally invoiced Products with the actual volumes and arithmetic pricing averages experienced during the month. If Buyer is the owing Party under the True-up Invoice, Buyer shall pay the balance to Seller by [***]. If Seller is the owing party under the True-up Invoice, Seller shall issue Buyer a credit for the balance, to be applied against the next payable Provisional Invoice (as defined below) (except with respect to the final delivery hereunder, for which Seller shall pay Buyer any such balance in cash within [***] after the end of the Term.

3. [***]

B. Payment. For all products, payment shall be made as follows:

1. By the [***] following first delivery of volumes for the relevant Payment Due Date (as defined below), Seller shall send Buyer a provisional invoice (“Provisional Invoice”) for Buyer to pay for Product delivered during such period.

2. The “Payment Due Dates” for Provisional Invoices will be as follows:

a. Payment of all Product invoices shall be made within [***].

3. If any Payment Due Date should fall on a Saturday, Sunday, or bank holiday, then such payment shall be made on the nearest preceding Business Day.

C. Gasoline:

1. The price shall be calculated as [***] for the relevant grade plus [***] per net U.S. Gallon for the applicable pricing period.

2. [***]

Vertex - Shell Products Offtake Agreement

D. Diesel:

The price shall be calculated as [***] plus [***] per net U.S. Gallon for applicable pricing period.

DELIVERY POINT

Delivery shall be [***].

TRANSFER OF TITLE AND RISK OF LOSS

Title transfer for Products delivered and sold to Buyer in the tank will occur [***].

Risk of loss or damage will transfer to Buyer at [***], as applicable.

TRADE REPRESENTATIONS

The Parties agree that this transaction is a forward contract within the meaning of the Commodity Exchange Act (CEA), as amended, and the Rules of the Commodity Futures Trading Commission (“Forward Contract”), and in reliance upon such agreement, as of the date the transaction is entered into:

(i) each Party represents to the other that it is a commercial market participant with respect to the specified commodity;

(ii) each Party represents to the other that it intends to make or take physical delivery of the specified nonfinancial commodity; and

(iii) if this transaction includes any volumetric optionality, the holder of such optionality represents to the other party (a) that such optionality is primarily intended to address physical factors (such as customer demand, available production, transport, shipping, or other operational constraints, or other physical factors) or regulatory requirements, that reasonably influence demand for, or the supply of, the specified nonfinancial commodity; and (b) that such optionality is not primarily intended to address price risk.

To the extent the transaction is deemed to be a commodity option:

(i) the seller of the option represents to the buyer of the option that in connection with this transaction, the seller of the option is either (a) an eligible contract participant (“ECP”) as defined in section 1a(18) of the Commodity Exchange Act (“Act”) and the regulations of the Commodity Futures Trading Commission (“CFTC”), or (b) a producer, processor, commercial user of or a merchant handling the commodity that is the subject of this transaction, or the products or byproducts thereof, and is offering or entering into this transaction solely for purposes related to its business as such;

(ii) the buyer of the option represents to the seller of the option that in connection with this transaction the buyer of the option is a producer, processor, commercial user of or a merchant handling the commodity that is the subject of this transaction or the products or byproducts thereof and is offering or entering into this transaction solely for purposes related to its business as such; and (iii) each Party represents to the other that the option, if exercised, would result in the sale of an exempt commodity for immediate or deferred delivery.

Vertex - Shell Products Offtake Agreement

CONFIDENTIALITY

The Parties hereto understand and agree that the terms and conditions of this Agreement and communications between the Parties regarding this Agreement (collectively, “Confidential Information”) are confidential as between the Parties hereto, and shall not, without the other Party’s prior written consent, be disclosed to any third party, corporation or entity (except for Affiliates of the disclosing party) except as may be required by law, as evidence in any dispute resolution proceeding or as necessary in connection with a Party’s financing or re-structuring transactions. In the event that either Buyer or Seller is requested or required pursuant to any judicial, administrative or arbitration order, ruling or decision to disclose any Confidential Information, it shall, as soon as reasonably practicable, provide the other Party prompt notice of such request(s) (if notice is legally permissible) so that an appropriate protective order may be sought and/or waiver of compliance with this provision of the Agreement granted. It is understood that the Party requesting a protective order shall bear all costs related thereto. The obligations of the Parties as set forth in this Section shall survive the termination or expiration of this Agreement for a period of two (2) years. The Party making disclosure will notify the others in advance of such disclosure. Nothing in this confidentiality provision will preclude the use of this Agreement by any Party hereto to obtain financing.

[***]

DISPUTE RESOLUTION.

For purposes of Disputes under the Market Conditions section above:

1.Resolution by the Parties. If there is any dispute, controversy, or claim arising out of or relating to the Market Conditions section above (a "Dispute"), the Parties shall attempt to settle such Dispute by negotiation between senior management who have authority to settle the controversy. A Party may deliver to the other Party a written notice invoking this Section (a "Notice of Dispute") to commence this process of mutual discussions. Within fifteen (15) Days following receipt of a Notice of Dispute, the receiving Party shall submit to the other a written response. The Notice of Dispute and the response must include: a) a statement of the respective Party's position and a summary of facts and arguments supporting its position, and b) the name and title of the senior management who will represent that Party and of any other individual who will accompany the executive. Within thirty (30) Days following delivery of a Notice of Dispute, the senior management of both Parties will meet at a mutually acceptable time and place in Houston, Texas, and thereafter as often as they reasonably deem necessary, to attempt to resolve the Dispute. All information disclosed and positions taken during the negotiations and any mediation will be treated as confidential and as compromise and settlement information for the purposes of any applicable rules of evidence.

2.Mediation. Mediation may be scheduled by agreement of the Parties at any time, but the mediation will not be cause for extension of the deadlines set out in this Section. The Parties shall jointly select a neutral mediator and schedule the mediation. The mediation contemplated by the Parties is intended to be a voluntary process to promote understanding and, where possible, to arrive at a mutually acceptable resolution of the Dispute. The Parties shall jointly share the cost of the mediation services. A Party may withdraw from the mediation at any time but remains liable for its share of mediation costs incurred up to the date written notice of withdrawal is provided to the mediator and the other Party.

Vertex - Shell Products Offtake Agreement

3.Binding Arbitration. If a Dispute is not resolved by execution of a Written agreement within forty-five (45) Days of delivery of a Notice of Dispute, the Dispute will be settled by binding arbitration. The arbitration will be governed by the United States Arbitration Act and conducted in accordance with the Commercial Arbitration Rules (the "Rules") of the American Arbitration Association, except to the extent of conflicts between the Rules and the provisions of this Agreement, in which event the provisions of this Agreement prevail. The arbitration will be conducted by three arbitrators, with each Party appointing one arbitrator and the two Party appointed arbitrators appointing the third arbitrator. If, however, the amount in controversy is less than $1,000,000, only a single arbitrator, mutually acceptable to the Parties, will be used in the arbitration. The arbitrator(s) will take such steps as he may deem necessary or desirable to avoid delay and to achieve a just, speedy and cost-effective resolution of the Dispute. The Parties intend that the arbitration will be conducted expeditiously, without initial recourse to the courts and without interlocutory appeals of the arbitrator's decisions to the courts. However, if a Party refuses to honor its obligations herein to arbitrate, the other Party may obtain appropriate relief compelling arbitration in any court having jurisdiction over the refusing Party and the arbitrator will award the other Party its reasonable attorney's fees and other costs of successfully obtaining such relief.

4.Preservation of Rights. Notwithstanding any other provision of this Agreement, any Party may seek a preliminary injunction or other provisional judicial relief prior to the appointment of an arbitrator(s), if in the Party's sole judgment such action is necessary to avoid irreparable damage. Despite such actions, the Parties shall comply with the negotiation and arbitration provisions of this Section, and the arbitrator shall have the sole power to finally resolve the Dispute notwithstanding the pendency of court proceedings in connection with provisional relief.

5.Selection of Arbitrator. If the arbitration is to be conducted by a sole arbitrator and the Parties cannot agree on a specific arbitrator within ninety (90) Days of delivery of a Notice of Dispute, then the American Arbitration Association will nominate an arbitrator in accordance with the Rules then in effect.

6.Arbitration Hearing. The arbitration hearing will be held in Houston, Texas, within six (6) Months or less of the appointment of the arbitrator(s), although the time may be extended for good cause in the arbitrators’ sole discretion. No transcript or other recording will be made of the arbitration proceedings.

7.Preliminary Conference. The arbitrator(s) shall conduct a preliminary conference within ninety (90) days of appointment. At least five (5) Business Days before the conference, each Party shall provide the arbitrator(s) and one another with preliminary statements of legal and factual issues, key facts to be proven, estimated damages, likely witnesses and the subject of any intended expert witness testimony. Such statements must include enough detail to provide an adequate basis for addressing discovery and scheduling issues. At the same time, the Parties shall submit true copies of all documents considered relevant to their respective statements. Before the conference, the Parties shall agree on a proposed case management order for the arbitrators’ consideration. The arbitrator(s) shall issue a comprehensive case management order, following the first or at the latest a second case management conference, that follows the limitations on discovery and motion practice included in this Section, and sets time frames and hearing dates.

8.Discovery. If applicable, the arbitrator(s) shall implement disclosure of documents consistent with Mode C in Schedule 1 to the Conflict Prevention Resolution Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration (''CPR Protocol"). The arbitrator(s) shall implement disclosure of electronic information maintained by no more than four (4) custodians consistent with Mode Bin Schedule 2 to the CPR Protocol.

9.Expert Witnesses. If applicable, the case management order will establish a schedule for the submission of expert reports, if any, based on the arbitrators’ consideration of whether reports should be submitted simultaneously or sequentially and whether reply or rejoinder submissions from the expert witnesses will be permitted. Each expert witness will submit a signed report, setting forth the facts considered and conclusions reached in sufficient detail to serve as the entire evidence of the expert witness, together with a curriculum vitae or other biographical information describing the qualifications and experience of the witness. Each expert witness who has submitted a report must appear at a hearing before the arbitrator(s) unless the Parties agree otherwise and the arbitrator(s) accepts such agreement. The arbitrator(s) may disregard the report of an expert witness who fails to appear at a hearing when required. The arbitrator(s) may consider directing that, within a specified period of time after the exchange of expert reports, opposing expert witnesses on the same issues meet and confer, without the Parties or their counsel and prior to the submission of any reply expert reports, for the purpose of narrowing the scope of disputed issues among the expert witnesses.

Vertex - Shell Products Offtake Agreement

10.Powers of the Arbitrator; Limitations on Remedies. The arbitrator will decide the validity, construction, and interpretation of this agreement to arbitrate, and all procedural aspects of the arbitration conducted pursuant to said agreement, including the scope of said agreement, the determination of the issues that are subject to arbitration (i.e. arbitrability), allegations of "fraud in the inducement" to enter into this Agreement or this agreement to arbitrate, allegations of waiver, laches, delay or other defenses to arbitrability, and the rules governing conduct of the arbitration. The arbitrator may enter such interim orders as he deems necessary, including orders to preserve the subject matter of the Dispute or to preserve or adjust the status of the Parties pending resolution of the Dispute in arbitration. The arbitrator may award all remedies available under the choice of law applicable to the Agreement, except that neither the arbitrator nor any court may award damages waived or released under this Agreement.

11.Award. The arbitrator(s) will render a final, reasoned award in writing, disposing of all issues in the Dispute and determined in accordance with the choice of law applicable to this Agreement, within thirty (30) Days from completion of the hearing, or as soon as possible thereafter. Awards will be final and bind the Parties from the day an award is made. The Parties undertake to carry out the award without delay and waive their right to any form of appeal of the award, insofar as they may validly waive such rights. If one Party appeals an arbitration award, such appellant unless successful will be liable to appellee for appellee's attorney's fees and other costs of appeal. Judgment on any award may be entered in any court having jurisdiction. The arbitrator(s) will award reasonable attorney's fees and expenses and the cost of arbitration, including administrative, arbitrator, third party vendor discovery fees and expert witness fees and expenses, to the prevailing Party, taking into account the circumstances of the case and the conduct of the Parties during the proceeding, as well as the result of the arbitration..

12.Tolling of Limitation Periods. Upon delivery of a Notice of Dispute, all applicable statutes of limitation, prescriptive periods, and defenses based on the passage of time will be tolled while negotiation, mediation, arbitration or a combination thereof are conducted pursuant to this Dispute Resolution clause. The Parties shall take such action, if any, required to effectuate tolling.

13.Confidentiality. All negotiations, mediation, arbitration, and expert determinations relating to a Dispute (including a settlement resulting from negotiation or mediation, an arbitral award, documents exchanged or produced during a mediation or arbitration proceeding, and memorials, briefs or other documents prepared for the arbitration) are confidential and may not be disclosed by the arbitrator(s), the Parties, their employees, officers, directors, counsel, consultants, and expert witnesses, except: a) to the extent necessary to enforce this Section or any arbitral award; b) to the extent that the information is already in the possession of the public or becomes available to the public other than through the act or omission of the Party relying on this exception; or c) as required by applicable law or the rules of a recognized stock exchange. Breach of this confidentiality provision will not void any settlement, expert determination or award.

GENERAL TERMS AND CONDITIONS

This Agreement shall be governed by and subject to the Shell - Vertex General Terms and Conditions for the Sale and Purchase of Products dated October 1, 2021. In the event of any conflict between the Confirmation and the General Terms, the terms and provisions of the Confirmation shall govern.

Vertex - Shell Products Offtake Agreement

[Signature Page Follows]

Vertex - Shell Products Offtake Agreement

ENTERED INTO AND EXECUTED as of the date given first above.

VERTEX REFINING ALABAMA LLC		EQUILON ENTERPRISES LLC,
		dba Shell Oil Products US
By:	/s/ Benjamin P. Cowart	By:	/s/ Rhoman Hardy
Name:	Benjamin P. Cowart	Name:	Rhoman Hardy
Title:	President and Chief Executive Officer	Title:	President Mar 31, 2022

XML

Cover	Apr. 01, 2022
Cover [Abstract]
Document Type	8-K/A
Amendment Flag	true
Amendment Description	This Amendment No. 1 to the Initial Report is being filed to disclose in greater detail the Storage & Services Agreement, Crude Oil & Hydrocarbon Feedstock Supply Agreement and Products Offtake Agreement (collectively, the “Additional Agreements”), each as described in greater detail below, and to file such agreements as exhibits to this filing.
Document Period End Date	Apr. 01, 2022
Entity File Number	001-11476
Entity Registrant Name	VERTEX ENERGY, INC.
Entity Central Index Key	0000890447
Entity Tax Identification Number	94-3439569
Entity Incorporation, State or Country Code	NV
Entity Address, Address Line One	1331 Gemini Street
Entity Address, Address Line Two	Suite 250
Entity Address, City or Town	Houston
Entity Address, State or Province	TX
Entity Address, Postal Zip Code	77058
City Area Code	(866)
Local Phone Number	660-8156
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock,
Trading Symbol	VTNR
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false