Common use of Failure to Close Clause in Contracts

Failure to Close. This Agreement may be terminated at the option ---------------- of either party upon written notice to the other if the Commission has not granted the Assignment Application within nine (9) months after the Commission accepts the Assignment Application for filing or may be terminated by Buyer if the Commission's action granting the Assignment Application has not become a Final Order within twelve (12) months after the Commission accepts the Assignment Application for filing; provided, however, that a party may not -------- ------- terminate this Agreement if such party is in default hereunder, or if a delay in any decision or determination by the Commission respecting the Assignment Application has been caused or materially contributed to (i) by any failure of such party to furnish, file or make available to the Commission information within its control; (ii) by the willful furnishing by such party of incorrect, inaccurate or incomplete information to the Commission; or (iii) by any other action taken by such party for the purpose of delaying the Commission's decision or determination respecting the Assignment Application. This Agreement may also be terminated upon the mutual agreement of Buyer and Seller. In the event of termination pursuant to this Section, the Initial Escrow Deposit, together with all interest earned thereon, shall be returned to Buyer and the parties shall be released and discharged from any further obligation hereunder unless the failure to consummate the Transaction is attributable to Buyer's default, and Seller is not in default and has otherwise complied with its obligations under this Agreement, in which case the Initial Escrow Deposit plus interest earned thereon shall be released to Seller as liquidated damages pursuant to Section 14.2.

Failure to Close. This In the event that (i) the closing of the transactions contemplated by the Myrtle Grove Purchase Agreement may does not occur on or prior to Mxxxx 00, 0000, xxx / xx (xx) the closing of the transactions contemplated by the Heartland Purchase Agreement does not occur on or prior to June 30, 2022, then, in addition to and not in derogation of, any rights or remedies of the Seller arising under or related to the Purchase Agreements: (a) the Vertex Parties will use their best efforts to cause the closings under the Purchase Agreements to occur, including without limitation by raising debt financing, selling equity in a private or public transaction, selling assets and / or otherwise doing all things necessary or appropriate to raise the funds necessary to make the payments required to be terminated at made by Buyer under the option ---------------- Purchase Agreements, in each case on commercially reasonable terms and conditions as reasonably determined by the board of either party directors of Vertex; provided that in no event shall Buyer be required to consummate any of the foregoing activities in violation of any loan covenant (so long as such covenant was not entered into with the intent to frustrate the obligations set forth in this subclause (a) and so long as the Vertex Parties have used their best efforts to seek a waiver of such covenant from the applicable lender); (b) upon the written election of Seller, the Vertex Parties will and will cause their affiliates to consent to the distribution or other payment of any and all cash and cash equivalents (including any proceeds from the repayment of that certain $7,000,000 promissory note issued by Vertex Energy Operating LLC in favor of HPRM LLC (“HPRM”) on July 1, 2021) (the “Note”) of HPRM and any direct and indirect subsidiaries to Seller, with such distribution or other payment to be structured as specified by Seller so as to be tax efficient for Seller; and (c) Seller may, with written notice to the other if Buyer, and without consent of the Commission has not granted Class B Unitholders of HPRM, invoke the Assignment Application within nine provisions of Section 12.9 of the amended and restated limited liability company agreement of HPRM (9the “HPRM LLC Agreement”), and cause the HPRM to initiate a process intended to result in a Sale of the Company (as defined in the HPRM LLC Agreement), which may include an auction process using a nationally recognized investment bank and will be structured in a tax efficient manner for the Seller (and in such case, the board of managers and all the members of HPRM will approve the Sale of the Company and will fully cooperate in such sale process); provided that, in the event of the consummation of a Sale of the Company pursuant to the preceding clause (c) months after and notwithstanding anything to the Commission accepts contrary set forth in the Assignment Application for filing or may HPRM LLC Agreement, Seller will be terminated by Buyer if entitled to proceeds in such Sale of the Commission's action granting Company equal to the Assignment Application has not become a Final Order within twelve (12) months after the Commission accepts the Assignment Application for filing; provided, however, that a party may not -------- ------- terminate this Agreement if such party is in default hereunder, or if a delay in any decision or determination by the Commission respecting the Assignment Application has been caused or materially contributed to greater of (i) by 65% of the total net equity proceeds of sale from the Sale of the Company (for these purposes the “net equity proceeds of sale” shall mean enterprise value, plus / minus any failure customary working capital adjustment, minus indebtedness (which may be a negative number) and transaction expenses, plus cash, and including, for the avoidance of such party to furnishdoubt, file or make available all unpaid amounts owing to the Commission information within its control; Company under the Note), and (ii) by the willful furnishing by such party of incorrect, inaccurate or incomplete information amount due to the Commission; or (iii) by any other action taken by Seller under the HPRM Purchase Agreement as of the date of the consummation of such party for Sale of the purpose of delaying the Commission's decision or determination respecting the Assignment Application. This Agreement may also be terminated upon the mutual agreement of Buyer and Seller. In the event of termination pursuant to this Section, the Initial Escrow Deposit, together with all interest earned thereon, shall be returned to Buyer and the parties shall be released and discharged from any further obligation hereunder unless the failure to consummate the Transaction is attributable to Buyer's default, and Seller is not in default and has otherwise complied with its obligations under this Agreement, in which case the Initial Escrow Deposit plus interest earned thereon shall be released to Seller as liquidated damages pursuant to Section 14.2Company.

Failure to Close. This Agreement Provided that all the conditions precedent to such Party’s obligations to effect the Closing set forth in Article VII are satisfied or waived, as the case may be terminated be, the failure of any of the Parties to attend the Closing and comply in all material respects with its obligations provided for in Section 2.3 at the option ---------------- of either party upon written notice Closing (except to the other if extent that such Party’s failure to attend the Commission has Closing and perform the Closing actions provided for in Section 2.3 is due to such Party’s good faith (boa fé) belief that one or more of the conditions set forth in Article VII which are for the benefit of such Party are not granted satisfied on the Assignment Application within nine (9) months after proposed Closing Date), shall subject such defaulting Party to the Commission accepts the Assignment Application for filing or may be terminated by Buyer if the Commission's action granting the Assignment Application has not become payment of a Final Order within twelve (12) months after the Commission accepts the Assignment Application for filing; providednon-exclusive, however, that a party may not -------- ------- terminate this Agreement if such party is in default hereunder, or if a delay in any decision or determination by the Commission respecting the Assignment Application has been caused or materially contributed to non-compensatory penalty of (i) in the event the defaulting Party is a Seller, 5% (five percent) of the Seller Purchase Price Amount that would have been payable to such Seller at such Closing, which penalty shall be payable by such Seller to Buyer or (ii) in the event the defaulting Party is Buyer, 5% (five percent) of the total sum of all Seller Purchase Price Amounts otherwise expected to be payable by Buyer at such Closing (to each Seller on a pro rata basis among the Sellers otherwise expected to participate in such Closing); provided that nothing in this Section 2.8 shall limit in any way, and this Section 2.8 shall be without prejudice to, such Party’s rights to require the defaulting Party to specifically perform its Closing obligations, to otherwise specifically (or otherwise) enforce any provision of this Agreement or to pay monetary damages resulting from the applicable breach or default. The Parties agree that the penalty contemplated by this Section 2.8 does not constitute liquidated damages. No amount shall be payable by Buyer to any Seller pursuant to this Section 2.8 if Buyer’s failure to close and comply in all material respects with its obligations provided for in Section 2.3 at the Closing is in response to the failure of such party Seller to furnish, file do the same (or make available to the Commission information within its control; (ii) by the willful furnishing by such party of incorrect, inaccurate or incomplete information to the Commission; or (iii) by any other action taken by such party for the purpose of delaying the Commission's decision or determination respecting the Assignment Application. This Agreement may also be terminated upon the mutual agreement of Buyer and Seller. In the event of termination pursuant to this Section, the Initial Escrow Deposit, together with all interest earned thereon, shall be returned to Buyer and the parties shall be released and discharged from any further obligation hereunder unless the failure to consummate the Transaction is attributable to Buyer's default, and Seller is not in default and has otherwise complied with its obligations under this Agreement, in which case the Initial Escrow Deposit plus interest earned thereon shall be released to Seller as liquidated damages pursuant to Section 14.2vice versa).

Failure to Close. This Agreement may be terminated at the option ---------------- of either party upon written notice Subject to the other provisions of this Section 23, if all of the Commission has conditions to Closing set forth in Sections 10 and 11 hereof have not granted been satisfied or waived by the Assignment Application within nine Parties on or before the Closing Date of November 14, 2014 (9) months after the Commission accepts the Assignment Application for filing or such later date as hereafter may be terminated mutually agreed upon by Buyer if the Commission's action granting Parties in writing), this Agreement shall terminate automatically (provided that Buyer’s indemnity in Section 8(b) shall survive), and neither Party hereto shall have any further obligations or any liability to the Assignment Application has not become a Final Order within twelve (12) months after other Party under this Agreement, but nothing herein shall relieve either Party from liability for the Commission accepts the Assignment Application for filingwillful failure to satisfy any conditions to Closing required to be satisfied by it; provided, however, that a party the Closing Date may not -------- ------- terminate be extended to December 12, 2014 if, on or before November 14, 2014, Buyer pays directly to Seller (in cash by wire transfer to an account designated by Seller) an additional amount equal to $100,000, which shall be deemed included in the Performance Deposit for all purposes under this Agreement if such party is in default hereunderAgreement, or if a delay in any decision or determination by and credited against the Commission respecting the Assignment Application has been caused or materially contributed to Purchase Price and/or distributed as provided herein. If (i) the conditions to Buyer’s obligations to close as set forth in Section 11 have not been satisfied or waived by any failure of such party to furnish, file the Closing Date or make available to the Commission information within its control; (ii) this transaction is not consummated by the willful furnishing by such party of incorrect, inaccurate or incomplete information Closing Date due to the Commission; or (iii) by any other action taken by such party for the purpose conditions of delaying the Commission's decision or determination respecting the Assignment Application. This Agreement may also be terminated upon the mutual agreement of Buyer and Seller. In the event of termination pursuant to this SectionClosing contained in Section 10(c), the Initial Escrow Deposit, together with all interest earned thereon, Performance Deposit shall be returned to Buyer. If this transaction is not consummated by Buyer and by the parties shall be released and discharged from Closing Date for any further obligation hereunder unless other reason, including the failure to consummate obtain financing, Seller may retain the Transaction Performance Deposit, as agreed liquidated damages and not as a penalty, it being agreed that actual damages would be difficult to ascertain and that such amount is attributable reasonable. Upon any termination of this Agreement, Seller shall be free immediately to Buyer's defaultenjoy all rights of ownership of the Oil and Gas Interests and to sell, transfer, encumber, or otherwise dispose of the Oil and Seller is not in default and has otherwise complied with its obligations Gas Interests to any party without any restriction under this Agreement, in which case the Initial Escrow Deposit plus interest earned thereon shall be released to Seller as liquidated damages pursuant to Section 14.2.

Failure to Close. This Agreement In the event that on March 30, 2002, (the "Final Date") the transaction contemplated herein has not closed, as determined under Section 4.2 above, or on any adjourned Closing Date determined in accordance with this Section 4.6, and the Agency or the Developer, as the case may be terminated at (the option ---------------- "performing party") has fulfilled all conditions of either said performing party's obligation to close hereunder, and such other party (the "non-performing party") has not, for any reason, other than Unavoidable Delay as provided below in this subsection, satisfied all conditions of the non-performing party's obligation to close hereunder as set forth in Section 4.3 or 4.4 above, whichever is applicable, then such performing party shall have the right to terminate this Agreement upon thirty (30) days written notice to such non-performing party, and unless, during such thirty (30) day period, either (a) the performing party entitled to terminate shall waive such conditions as provided above and agree to proceed to Closing as hereinafter provided, or (b) such conditions shall be satisfied in which event the parties will proceed to Closing as hereinafter provided, then this Agreement shall immediately terminate and become null and void, and neither party shall have any further rights hereunder or obligations to the other if of any nature hereunder or by reason hereof, except that with respect to a failure to satisfy any conditions of the Commission has not granted Closing that results from a non-performing party's default under this Agreement, the Assignment Application within nine (9) months after the Commission accepts the Assignment Application for filing or may be terminated by Buyer if the Commission's action granting the Assignment Application has not become a Final Order within twelve (12) months after the Commission accepts the Assignment Application for filing; provided, however, that a party may not -------- ------- terminate provisions of this Agreement if pertaining to such party is default, and to the parties' respective rights, remedies and obligations in default hereunderconnection with such default, shall be applicable in addition to, or if a delay (in any decision the performing party's discretion) as an alternative to the performing party's aforesaid right of termination. If within such thirty (30) day notice period (1) the performing party shall waive the unsatisfied conditions as described in clause (a) above, or determination by (2) the Commission respecting remaining unsatisfied conditions are satisfied, then the Assignment Application has been caused Closing shall occur within thirty (30) days following such waiver or materially contributed satisfaction, as the case may be. In addition to (i) by any failure adjournments provided for above in the case of such Unavoidable Delay, either party to furnishthis Agreement may, file or make available at the request of the other party, elect to the Commission information within its control; (ii) by the willful furnishing by grant to such requesting party of incorrect, inaccurate or incomplete information to the Commission; or (iii) by any other action taken by such party an adjournment for the purpose of delaying affording such requesting party additional time to perform its pre-closing obligations, it being agreed that: i) the Commission's decision party of whom such request is made may, in its sole and absolute discretion, elect to refuse such adjournment, for any reason or determination respecting for no reason, and any such refusal shall have no effect on the Assignment Application. This Agreement may also be terminated upon rights and obligations of the mutual agreement parties under the other provisions of Buyer this Agreement; and Seller. In the event of termination pursuant to ii) if an adjournment is granted under this Sectionsentence, the Initial Escrow Deposit, together with all interest earned thereonFinal Date, shall be returned adjusted to Buyer and the parties shall be released and discharged from any further obligation hereunder unless the failure to consummate the Transaction is attributable to Buyer's default, and Seller is not in default and has otherwise complied with its obligations under this Agreement, in which case the Initial Escrow Deposit plus interest earned thereon shall be released to Seller as liquidated damages pursuant to Section 14.2reflect such adjournment.

Failure to Close. This Agreement may be terminated at the option ---------------- of either party upon written notice to the other if (x) the Commission has not granted the Assignment Application within nine (9) months after the Commission accepts the Assignment Application for filing or may be terminated by Buyer if (y) the Commission's action granting the Assignment Application has not become a Final Order within twelve (12) months after the Commission accepts the Assignment Application for filing; provided, however, that a party may not -------- ------- terminate this Agreement if such party is in default hereunder, or if a delay in any decision or determination by the Commission respecting the Assignment Application has been caused or materially contributed to (i) by any failure of such party to furnish, file or make available to the Commission information within its control; (ii) by the willful furnishing by such party of incorrect, inaccurate or incomplete information to the Commission; or (iii) by any other action taken by such party for the purpose of delaying the Commission's decision or determination respecting the Assignment Application. This Agreement may also be terminated upon the mutual agreement of Buyer and Seller. In the event of termination pursuant to this Section, the Initial Escrow Deposit, together with all interest earned thereon, shall be returned to Buyer and the parties shall be released and discharged from any further obligation hereunder unless unless: (x) the failure to consummate the Transaction is attributable to Buyer's default, and Seller is not in default and has otherwise complied with its obligations under this Agreement, in which case the Initial Escrow Deposit plus interest earned thereon shall be released to Seller as liquidated damages pursuant to Section 14.2; or (y)the failure to consummate the Transaction is attributable to Seller's default, and Buyer is not in default and has otherwise complied with its obligations under this Agreement, in which case Buyer shall be entitled to the return of the Escrow Deposit and all interest earned thereon as contemplated by this Section 15.1, and to such other remedies as are referred to in Section 14.3.