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 If the conditions contained in this Article 5 or any of them (the “Unfulfilled Conditions”) are not fulfilled or their fulfilment is not waived by the Time of Closing: (a) this Agreement may (save for Article 1, Sections 2.01(3), 4.03(2) and 5.04 and Sections 6.05 to 6.14 (both inclusive), which shall remain of full force and effect) shall be terminated of no force or effect from inception and no Party shall have any claim against any other Party for anything done hereunder or arising hereout; (b) all amounts paid by Anooraq to or on behalf of the Vendor in accordance with Section 4.03 shall be deemed to constitute a loan to the Vendor which shall be repayable by the Vendor upon demand by Anooraq and which shall bear interest at the option ---------------- rate of either party Prime plus 2% (nominal annual, compounded monthly) from the date upon written notice which such payment was made in accordance with Section 4.03 to the other date of final re-payment or forgiveness thereof; (c) if any of the Commission Unfulfilled Conditions are conditions listed in Sections 5.01 or 5.02 concern matters in respect of which the Vendor has reasonable control to ensure the fulfillment thereof and Anooraq (acting reasonably) is not granted satisfied that the Assignment Application within nine (9) months after Vendor has employed its reasonable endeavours to procure 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 fulfillment of such party is in default hereunder, or if a delay in any decision or determination Unfulfilled Condition by the Commission respecting Time of Closing, the Assignment Application has been caused or materially contributed Vendor shall pay to (iAnooraq a fee equal to 100% of its total indebtedness in accordance with Section 5.04(b) by any failure within five Business Days of the Time of Closing, the debt in respect of such party fee to furnishaccrue interest at the rate of Prime plus 2% (nominal annual, file or make available compounded monthly) from the date upon which such debt falls due to the Commission information within date of final payment thereof; and (d) if any of the Unfulfilled Conditions are conditions listed in Sections 5.01 or 5.03 concern matters in respect of which Anooraq has reasonable control to ensure the fulfillment thereof and the Vendor (acting reasonably) is not satisfied that Anooraq has employed its control; (ii) reasonable endeavours to procure the fulfillment of such Unfulfilled Condition by the willful furnishing by such party Time 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 SectionClosing, the Initial Escrow Depositloan referred to in Section 5.04(b), 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 14.2forgiven by Anooraq.

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 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 M▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇ / ▇▇ (▇▇) 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 may be terminated at the option ---------------- of either party upon written notice Subject to the other provisions of this Section, if all of the Commission has conditions to Closing set forth in Sections 5 and 6 hereof have not granted been satisfied or waived by the Assignment Application within nine respective parties on or before April 1, 1999 (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, and no 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 the Commission accepts the Assignment Application for filingother party pursuant to this Agreement; 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 this Agreement shall not terminate automatically on April 1, 1999 if either (A) the conditions to Closing set forth in Sections 5 and 6 hereof have not been satisfied solely because the transactions contemplated hereby are still pending approval or clearance from the SEC or other regulatory agency having jurisdiction or (B) such approvals or clearances have been received, but because of the delay involved in obtaining such party approvals or clearances, adequate time does not remain to furnish, file accomplish the steps subsequent to receiving such approvals or make available clearances necessary for all conditions to the Commission information within its control; have been met and (ii) nothing herein shall relieve any party from liability for its willful failure to satisfy any conditions to Closing required to be satisfied by the willful furnishing by it or for such party party's breach of incorrectany of its representations, inaccurate covenants or incomplete information other obligation hereunder. In addition to the Commission; or (iii) by any other action taken legal or equitable rights or remedies available to Seller arising from any breach by Buyer of its representations, covenants or other obligations hereunder, if Buyer fails to timely initiate proceedings to terminate or liquidate BRU in accordance with Article VIII and Sections 9.02 and 9.03 of the Trust Agreement, Buyer shall pay to Seller an amount equal to TWO MILLION DOLLARS ($2,000,000) as agreed liquidated damages and not as a penalty, it being agreed that actual damages for such party for the purpose of delaying the Commission's decision or determination respecting the Assignment Applicationbreach would be difficult to ascertain and that such liquidated damages amount is reasonable. 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, Such payment shall be returned made to Buyer and the parties an account designated by Seller by wire transfer of immediately available funds. Upon any termination of this Agreement, Seller shall be released free immediately to enjoy all rights of ownership of the Interests and discharged from to sell, transfer, encumber or otherwise dispose of the Interests to 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 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 may By Purchaser on or after the Termination Date if: (A) all of the conditions set forth in Section 8.2 have been satisfied (other than those conditions that by their nature are to be terminated satisfied by actions taken at the option ---------------- Closing); (B) Seller fails to consummate the Closing by the date by which the Closing should have occurred pursuant to Section 2.2; and (C) Purchaser confirms in writing to Seller that: (x) all of either party upon written notice the conditions set forth in Section 8.1 have been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the other if Closing) or will be waived by Purchaser; and (y) Purchaser is ready, willing and able to consummate 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 Closing. If Purchaser terminates 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 either (i) by any as the result of Seller’s failure of such party to furnish, file comply with Section 6.12 (Exclusivity) hereof or make available to the Commission information within its control; (ii) pursuant to Section 9.1(d)(ii) hereof, Seller shall immediately pay to Purchaser $150,000 to reimburse Purchaser for the fees and expenses incurred by it in connection with the willful furnishing negotiation of this Agreement and all related agreements and documents and the transactions contemplated by this Agreement and such party related documents, including attorneys’ fees, and any due diligence work performed by Purchaser. If Seller terminates this Agreement pursuant to Section 9.1(c)(ii) hereof, Purchaser shall immediately pay to Seller $150,000 to reimburse Seller for the fees and expenses incurred by it in connection with the negotiation of incorrectthis Agreement and all related agreements and documents and the transactions contemplated by this Agreement and such related documents, inaccurate including attorneys’ fees, and any due diligence work performed by Seller. If this Agreement is terminated for any reason other than due to a breach by Seller, Purchaser shall immediately pay to Seller the actual amount incurred by Seller and its affiliates for the full cost paid or incomplete information payable by Seller or its affiliates in relation to the Commission; quality of earnings report in respect of the Business prepared by a third party engaged by Seller or (iiiits affiliate. None of payments specified in this Section 9.1(d) 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 an exclusive remedy and, as such, each of the Parties shall have all of the remedies available 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 it under this Agreement, including those specified in which case the Initial Escrow Deposit plus interest earned thereon shall be released to Seller as liquidated damages pursuant to Section 14.213.11.

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 Subject to the other provisions of this Section, if all of the Commission has conditions to Closing set forth in Sections 5, 6 and 26 hereof have not granted been satisfied or waived by the Assignment Application within nine respective parties on or before May 7, 1997 (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, and no 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 the Commission accepts the Assignment Application for filingother party pursuant to this Agreement; provided, however, that a nothing herein shall relieve any party may from liability for its willful failure to satisfy any conditions to Closing required to be satisfied by it. If the conditions to Buyer's obligations to close as set forth in Section 6 hereof have not -------- ------- terminate this Agreement if been satisfied or waived by such party is in default hereunderdate, 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 event this transaction is not consummated due to the Commission information within its control; (ii) by the willful furnishing by such party conditions of incorrectClosing contained in Sections 5(c), inaccurate 5(d), 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 Section26 hereof, the Initial Escrow Deposit, together with all interest earned thereon, Performance Deposit shall be returned to Buyer Buyer, plus interest from, but excluding, the date of this Agreement to, and including, the parties shall be released and discharged from date of payment at a simple rate of eight percent (8%) per annum. If this transaction is not consummated on such date for any further obligation hereunder unless reason other than the failure to consummate the Transaction is attributable conditions to Buyer's defaultobligations to close as set forth in Section 6 hereof have not been satisfied or the conditions to Closing by Seller contained in Sections 5(c), 5(d) and 26 hereof, Seller may retain the 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 not in default reasonable. Upon any termination of this Agreement, Seller shall be free immediately to enjoy all rights of ownership of the Interests and has to sell, transfer, encumber or otherwise complied with its obligations dispose of the 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 (a) If the Purchaser fails to perform its obligations under this Section 8.4 (following such failure, the "Defaulting Purchaser"), the Seller may be terminated at (i) retain the option ---------------- Deposit, and/or (ii) purchase the interest of either party the Defaulting Purchaser for a price equal to ninety percent (90%) of the amount the Defaulting Purchaser would have received pursuant to Section 8.4.3 had it been the Seller rather than the Purchaser, upon written notice to the other if the Commission has not granted the Assignment Application Purchaser given within nine thirty (930) months days after the Commission accepts originally scheduled Closing Date. If the Assignment Application for filing or may be terminated by Buyer if Seller elects to purchase the Commission's action granting interest of the Assignment Application has not become a Final Order within twelve (12) months after Defaulting Purchaser, 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 closing of such party to furnishpurchase shall take place in accordance with the provisions hereof, file or make available to except that 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, Closing Date shall be returned not later than ninety (90) days following the date on which the notice electing such purchase is given. If the Seller shall fail 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 perform its obligations under this AgreementSection 8.4, in which case the Initial Escrow Deposit plus interest earned thereon Purchaser shall have all rights and remedies available to it at law or equity, including, without limitation, the right to seek specific performance. (b) Without limiting the provisions of the foregoing Subsection (a), a Defaulting Purchaser shall be released deemed to Seller as liquidated damages have forfeited its right to deliver a Buy/Sell Offering Notice pursuant to Section 14.28.4.1 for any reason whatsoever (i) for a period of three (3) years from the date of the first such default and (ii) fully and finally from the date of any subsequent default. If such Defaulting Purchaser shall have theretofore been a Defaulting Purchaser under this Section 8.4 in connection with a previous exercise by a Member of its rights under this Section 8.4, then such Defaulting Purchaser shall also immediately cease to be the Manager of the Company (if applicable) and shall completely forfeit its right to participate in any manner in the direction, vote and control of the Company thereafter, except for consent and approval rights with respect to those matters that are reserved to a Defaulting Member in the last sentence of Section 3.9 above.

Failure to Close. This If the purchasing Limited Partners fail to complete the Closing in accordance with this Agreement and through no default or breach on the part of the selling Limited Partners (the "FAILED CLOSING") then the purchasing Limited Partners shall have 7 clear days to cure that breach and complete the transaction contemplated by this Article and if the purchasing Limited Partners fail to do so then the selling Limited Partners may be terminated at the option ---------------- of either party upon by delivering a written notice to the other if purchasing Limited Partners and the Commission has not granted Accountant within 10 clear days from the Assignment Application within nine (9) months date which is 7 clear days after the Commission accepts Failed Closing, elect to: (a) retain 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, deposit together with all interest earned accrued thereon, in which event the Accountant shall forthwith deliver the deposit and interest to the selling Limited Partners and the agreement of purchase and sale shall be returned to Buyer of no further force and the effect and all parties thereto shall be released relieved and forever absolutely discharged from any further obligation hereunder unless obligations to perform and liability thereunder or by virtue thereof; or (b) purchase the failure Partnership Interests owned by the purchasing Limited Partners at 85% of the purchase price agreed to consummate be paid by the Transaction purchasing Limited Partners and the provisions of this Agreement respecting such transaction of purchase and sale shall govern, mutatis mutandis, on the basis the purchasing Limited Partners have become bound to sell the Partnership Interests owned by them and the selling Limited Partners have become bound to purchase the same on the date of delivery of the notice of election (provided for above). If no such notice of election is attributable delivered by the selling Limited Partners prior 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 expiry of the said period of 10 clear days then the selling Limited Partners shall be released deemed to Seller as liquidated damages have elected to retain the deposit and interest pursuant to Section 14.212.07(a). If the election described in Section 12.07(a) is made or deemed to be made then the Accountant shall, if it has not already, forthwith disburse the deposit received by it from the purchasing Limited Partners together with all interest accrued thereon, to the selling Limited Partners, accordingly. Each of the Limited Partners acknowledges that the Accountant is bound to comply with any order, judgement or other directive of a court of competent jurisdiction affecting the deposits. The Limited Partners agree to jointly and severally indemnify and save harmless the Accountant against and to forthwith upon demand pay to the Accountant the amount of any and all liabilities, damages, claims, costs and expenses (including, without limitation, legal fees and disbursements) suffered or incurred by the Accountant by reason of its compliance with such court order, judgement or other directive. It is expressly agreed by the Limited Partners that the Accountant shall be entitled to the benefits of this Agreement and to enforce the same in the same manner and to the same extent as would be applicable if the Accountant was a party to and executed this Agreement.

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 may be terminated (a) 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 (b) by Buyer if the Commission's action granting the Assignment Application has not not become a Final Order within twelve (12) months after the Commission accepts the Assignment Application for filing; or (c) by Buyer if all of the preconditions to Closing as set forth in Article 10 hereof have not been satisfied or waived and Closing has not occurred on or before the date that is twelve (12) months after the date the Commission accepts the Assignment Application for filing; or (d) by Buyer or Seller if Buyer has not terminated this Agreement pursuant to Section 15.1(c) and all of the preconditions to Closing as set forth in Article 10 hereof have not been satisfied or waived and Closing has not occurred on or before the date that is twenty-four (24) months after the date 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 or the modification application referenced in Section 10.2(k) hereof (the "Modification 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 or the Modification 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 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.

Failure to Close. This (a) If Seller or Buyer (the “Defaulting Party”) shall fail to comply with and perform on or before the Closing Date any of the material terms, covenants and obligations which this Agreement requires them to comply with and perform on or by that date and as specified in Section 2.8 (c) below (the “Relevant Provisions”) then Buyer or Seller as applicable (the “Non-Defaulting Party”) shall in addition to and without prejudice to any other remedies that it may have against the Defaulting Party be terminated at the option ---------------- of either party upon written entitled by notice in writing 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 Defaulting Party to: (i) by any failure defer Closing to a date not less than 5 Business Days nor more than 10 Business Days following the date on which Closing should have taken place (and so that the provisions of this Section 2 shall apply to Closing as so deferred) and upon service of such party to furnish, file or make available to the Commission information within its control; (ii) by the willful furnishing by such party notice it shall become and be a term 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 respect of which case the Initial Escrow Deposit plus interest earned thereon time shall be released of the essence, that the Defaulting Party shall complete on the date specified; or (ii) proceed to Closing so far as is practicable, provided that the rights under this Section 2.8 will not be available to any party which has itself failed to comply with and perform on or by the Closing Date any of the Relevant Provisions which this Agreement requires it to comply with and perform on or by that date and provided that if Buyer is the Defaulting Party it shall pay to Seller interest calculated on a day to day basis on the Purchase Price at the annual rate of 2% above the prime rate from time to time of Citibank NA (both after as liquidated damages pursuant well as before any judgment) from the date originally fixed for Closing until the date on which Closing actually takes place. (b) If the Non-Defaulting Party serves notice under Section 2.8 (a)(i) and the Defaulting Party shall fail to close in accordance with that Section 14.2then the Non-Defaulting Party shall be entitled to terminate this Agreement (without prejudice to the provisions of Section 8). (c) Relevant Provisions to be complied with by Seller: Sections 2.5(b), 3.1.4, 3.1.5, 3.1.6, 3.1.7, 3.1.9 and 6.5. Relevant Provisions to be complied with by Buyer: Sections 2.3, 2.5(a), 3.2.4, 3.2.5 and 6.5.

Failure to Close. This Agreement (a) If at the time of closing, the Vendor shall neglect or refuse to complete the transaction, the Purchaser shall have the right upon such default (without prejudice, and in addition, to any other rights it may have in such event), upon payment by it of the amount payable on closing to the credit of the Partnership at the Partnership’s bank for and on behalf of and in the name of the Partnership and upon delivery of any and all instruments and other things required to be provided by the Purchaser on closing, to complete the transaction, and the Vendor does hereby irrevocably constitute and appoint the Purchaser as the true and lawful attorney of the Vendor and authorizes the Purchaser in the name and on behalf of the Vendor or the Partnership or both, as the case may require, to do all acts and things, to take all steps and to execute, under seal or otherwise, and deliver all forms of transfers, assignments, instruments and assurances as are necessary in order to complete such transaction in accordance with its terms and the Vendor hereby covenants and agrees for its successors and assigns to allow, ratify and confirm whatever such attorney shall do or cause to be done by virtue of these presents. (b) If at the closing, the Purchaser shall neglect or refuse to complete the transaction, the Vendor may at its option exercised in writing within 15 days from the original date of [ * ] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. CONFIDENTIAL TREATMENT closing and as an alternative to all other rights and remedies it may have in such event, require the Partnership to sell the Project to the Vendor at a price equal to 75% of the price that the Purchaser would have had to pay for the Project and upon the same terms as were applicable to the aborted sale of the Project to the Purchaser, save and except that such new transaction shall be completed on the date which is 30 days after the date of such aborted closing, or such earlier date as is specified by the Vendor in its notice of exercise of the said option. (c) Any tender of documents or money may be terminated at made upon a solicitor acting for a party in the option ---------------- of either transaction with the same effect as if made on the 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 and money may be terminated tendered or paid 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, certified cheque 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 14.2bank draft.

Failure to Close. This Agreement (a) If the Purchaser fails to perform its obligations under this Section 8.4 (following such failure, the "Defaulting Purchaser"), the Seller may be terminated at (i) retain the option ---------------- Deposit, and (ii) purchase the interest of either party the Defaulting Purchaser in the Company or the interest of the Company in the Buy/Sell Pool, as the case may be, for a price equal to ninety percent (90%) of the amount the Defaulting Purchaser would have received pursuant to Section 8.4.4 had it been the Seller rather than the Purchaser, upon written notice to the other if the Commission has not granted the Assignment Application Purchaser given within nine thirty (930) months days after the Commission accepts originally scheduled Closing Date. If the Assignment Application for filing Seller elects to purchase the applicable interest of the Defaulting Purchaser or may be terminated by Buyer if the Commission's action granting interest of the Assignment Application has not become a Final Order within twelve (12) months after Company in the Commission accepts Buy/Sell Pool, 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 closing of such party to furnishpurchase shall take place in accordance with the provisions hereof, file or make available to except that 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, Closing Date shall be returned not later than ninety (90) days following the date on which the notice electing such purchase is given. If the Seller shall fail 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 perform its obligations under this AgreementSection 8.4, in which case the Initial Escrow Deposit plus interest earned thereon Purchaser shall have all rights and remedies available to it at law or equity, including, without limitation, the right to seek specific performance. (b) Without limiting the provisions of the foregoing Subsection (a), a Defaulting Purchaser shall be released deemed to Seller as liquidated damages have forfeited its right to deliver a Buy/Sell Offering Notice pursuant to Section 14.28.4.1 with respect to the Company or interest of the Company in the Buy/Sell Pool for any reason whatsoever (i) for a period of three (3) years from the date of the first such default with respect to the Company or any interest of the Company in the Buy/Sell Pool and (ii) fully and finally from the date of any subsequent default with respect to the Company or any interest of the Company in the Buy/Sell Pool. If such Defaulting Purchaser shall have theretofore been a Defaulting Purchaser under this Section 8.4 in connection with a previous exercise by a Member of its rights under this Section 8.4, then such Defaulting Purchaser shall also immediately cease to be the Manager of the Company (if applicable) and shall completely forfeit its right to participate in any manner in the direction, vote and control of the Company thereafter, except for consent and approval rights with respect to those matters that are reserved to a Defaulting Member in the last sentence of Section 3.10 above.