8-K

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

FORM 8-K

CURRENT REPORT

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

Date of Report (Date of Earliest Event Reported): February 25, 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.  ☐ 

Item 1.01 Entry into a Material Definitive Agreement.

Heartland and Myrtle Grove Purchase Agreements

As previously disclosed in the Current Report on Form 8-K filed by the Vertex Energy, Inc. (“Vertex”, “we”, “us” or the “Company”) with the Securities and Exchange Commission (the “SEC” or the “Commission”) on July 31, 2019 (the “July 2019 Form 8-K”), the Company and its subsidiaries entered into a number of transactions with Tensile-Myrtle Grove Acquisition Corporation (“Tensile-MG”), an affiliate of Tensile Capital Partners Master Fund LP, an investment fund based in San Francisco, California (“Tensile”), including forming Vertex Refining Myrtle Grove LLC, a Delaware limited liability company, which entity was formed as a special purpose vehicle in connection with the transactions described in the July 2019 Form 8-K (“MG SPV”). As a result of the transactions, Tensile, through Tensile-MG, acquired an approximate 15% ownership interest in MG SPV, which indirectly owns the Company’s Belle Chasse, Louisiana, re-refining complex.

As previously disclosed in the Current Report on Form 8-K filed by the Company with the Commission on January 22, 2020 (the “January 2020 Form 8-K”), the Company and its subsidiaries entered into a number of transactions with HPRM LLC (“Heartland SPV”), a Delaware limited liability company that was formed as a special purpose vehicle in connection with the transactions described greater in the January 2020 Form 8-K between the Company and Tensile-Heartland Acquisition Corporation (“Tensile-Heartland”), an affiliate of Tensile, pursuant to which ownership of the Company’s Columbus, Ohio, Heartland facility, which produces a base oil product that is sold to lubricant packagers and distributors, was transferred to Heartland SPV, and Heartland SPV became owned 35% by Vertex Operating and 65% by Tensile-Heartland.

On February 25, 2022, Vertex Splitter Corporation (“Vertex Splitter”), a wholly-owned subsidiary of the Company entered into (1) a Purchase and Sale Agreement with Tensile-Vertex Holdings LLC (“Tensile-Vertex”), an affiliate of Tensile and Tensile-Heartland (the “Heartland Purchase Agreement”); and (2) a Purchase and Sale Agreement with Tensile-Vertex and Tensile-MG (the “Myrtle Grove Purchase Agreement”, and together with the Heartland Purchase Agreement, the “Purchase Agreements”).

As discussed above, Tensile-Heartland holds 65% of Heartland SPV and Tensile-MG owns 15% of MG SPV, and Tensile-Vertex holds 100% of both Tensile-Heartland and Tensile-MG.

Pursuant to the Heartland Purchase Agreement, the Company, through Vertex Splitter, agreed to acquire 100% of the outstanding securities of Tensile-Heartland and pursuant to the Myrtle Grove Purchase Agreement, the Company, through Vertex Splitter, agreed to acquire 100% of the outstanding securities of Tensile-MG, from Vertex-Tensile, the result of which will be that Vertex Splitter will own 100% of each of Heartland SPV and MG SPV.

Pursuant to the Heartland Purchase Agreement, the purchase price payable by Vertex Splitter to Vertex-Tensile, for 100% of Tensile-Heartland is $35 million (the “Base Amount”), plus an amount accrued and accruing from and after May 31, 2021, on the Base Amount on a daily basis at the rate of 22.5% per annum compounded on the last day of each calendar quarter plus an amount equal to any and all cash and cash equivalents of Tensile-Heartland, as of the closing date, which we currently anticipate will total an aggregate of approximately $44 million. The purchase contemplated by the Heartland Purchase Agreement is required to take place on June 30, 2022, or earlier as mutually agreed by the parties, subject to customary conditions to closing. The Heartland Purchase Agreement includes customary representations of the parties, requires Vertex Splitter to maintain officer and director insurance for Tensile-Heartland for at least six years following the closing; requires that they bear their own fees and expenses, except that each party is required to pay the fees and expenses of the other party upon termination of the agreement in certain situations; includes customary indemnification obligations; and includes mutual releases of the parties, effective upon closing.

The Heartland Purchase Agreement may be terminated prior to closing, by the mutual consent of the parties; by Vertex Splitter if Vertex-Tensile has failed to consummate the agreement, or breached a covenant, representation or warranty set forth in the agreement, that prevents such closing, and such breach is not cured, if capable of being cured, within 30 days after notice thereof; by Vertex-Tensile if Vertex Splitter has failed to consummate the agreement, or breached a covenant, representation or warranty set forth in the agreement, that prevents such closing, and such breach is not cured, if capable of being cured, within 30 days after notice thereof; or by either party if there is a final, non-appealable judgment preventing the closing.

Pursuant to the Myrtle Grove Purchase Agreement, the purchase price payable by Vertex Splitter to Vertex-Tensile, for 100% of Tensile-MG is estimated to be approximately $7 million, and will be based on the value of the Class B Unit preference of MG SPV held by Tensile-MG, plus capital invested by Tensile-MG in MG SPV (which has not been returned as of the date of payment), plus cash and cash equivalents held by Tensile-MG as of the closing date. The purchase contemplated by the Myrtle Grove Purchase Agreement is required to take place on March 31, 2022, or earlier as mutually agreed by the parties, subject to customary conditions to closing. The Myrtle Grove Purchase Agreement includes customary representations of the parties, requires Vertex Splitter to maintain officer and director insurance for Tensile-MG for at least six years following the closing; requires that they bear their own fees and expenses, except that each party is required to pay the fees and expenses of the other party upon termination of the agreement in certain situations; includes customary indemnification obligations; and includes mutual releases of the parties, effective upon closing.

The Myrtle Grove Purchase Agreement may be terminated prior to closing, by the mutual approval of the parties; by Vertex Splitter if Vertex-Tensile has failed to consummate the agreement, or breached a covenant, representation or warranty set forth in the agreement, that prevents such closing, and such breach is not cured, if capable of being cured, within 30 days after notice thereof; by Vertex-Tensile if Vertex Splitter has failed to consummate the agreement, or breached a covenant, representation or warranty set forth in the agreement that prevents such closing, and such breach is not cured, if capable of being cured, within 30 days after notice thereof; or by either party if there is a final, non-appealable judgment preventing the closing.

Tensile-Vertex, Vertex Splitter and the Company (collectively, Vertex Splitter and the Company, the “Vertex Parties”) also entered into a Side Letter Re Purchase and Sale Agreements (the “Side Letter”), pursuant to which the parties agreed that in the event that (i) the closing of the transactions contemplated by the Myrtle Grove Purchase Agreement does not occur on or prior to March 31, 2022, and/or (ii) 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 any of the rights of Tensile-Vertex under 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 made by Vertex Splitter under the Purchase Agreements, in each case on commercially reasonable terms and conditions, subject to certain exceptions; (b) upon the written election of Tensile-Vertex, 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 of Heartland SPV (including any proceeds from the repayment of that certain $7,000,000 promissory note, issued by Vertex Operating to Heartland SPV on July 1, 2021, as amended to date (the “Heartland Note”)) and any direct and indirect subsidiaries to Tensile-Vertex, with such distribution or other payment to be structured as specified by Tensile-Vertex so as to be tax efficient for Tensile-Vertex; and (c) Tensile-Vertex may, with written notice, cause Heartland SPV to initiate a process intended to result in a sale of Heartland SPV, with Tensile-Vertex being entitled, upon the consummation of such sale, of the greater of (i) 65% of the total net equity proceeds of such sale, and (ii) the amount due to Tensile-Vertex under the Heartland Purchase Agreement as of the date of the consummation of such sale.

Heartland Note Amendment

Also on February 25, 2022, Vertex Energy Operating, LLC (“Vertex Operating”), the Company and Heartland SPV, entered into a Second Amendment to Promissory Note (the “Second Note Amendment”), which amended the Heartland Note to extend the due date of the Heartland Note until the earlier of (i) June 30, 2022; and (ii) five (5) calendar days following the closing of a sale of substantially all the assets of Vertex Refining OH, LLC (“VROH”), and/or the sale of membership interests in VROH possessing voting control (with the consent of the Company), provided that the Heartland Note may be prepaid in whole or in part at any time without premium or penalty and without the consent of Heartland SPV. The Heartland Note accrues interest at the applicable federal rate of interest from time to time, increasing to 12% upon an event of default.

Escrow Agreement

On March 2, 2022, (1) the Company, (2) Vertex Refining Alabama LLC, a wholly-owned subsidiary of the Company (“Vertex Alabama”), (3) certain funds and accounts under management by BlackRock Financial Management, Inc. or its affiliates, as lenders (“BlackRock”), certain funds managed or advised by Whitebox Advisors, LLC, as lenders (“Whitebox”), certain funds managed by Highbridge Capital Management, LLC, as lenders (“Highbridge”), Chambers Energy Capital IV, LP, as a lender (“Chambers”), CrowdOut Capital LLC, as a lender (“CrowdOut Capital”), CrowdOut Credit Opportunities Fund LLC, as a lender (collectively with Whitebox, Highbridge, BlackRock, Chambers and CrowdOut Capital, the “Lenders”) and (4) Cantor Fitzgerald Securities, in its capacity as escrow agent (in such capacity, the “Escrow Agent”), entered into an Escrow Agreement (the “Escrow Agreement”).

The Escrow Agreement was entered into in connection with (1) that certain Commitment Letter, dated as of February 17, 2022 (the “Commitment Letter”) by and among the Company, Vertex Alabama and the Lenders, and (2) that certain Credit Agreement expected to be entered into by and among the Company, Vertex Alabama, the Lenders, Cantor Fitzgerald Securities, in its capacity as administrative agent for the lenders and certain other persons, pursuant to which the Lenders have agreed to make certain extensions of credit to Vertex Alabama (the “Credit Agreement”), in an anticipated amount of $125 million (such amount, the “Facility Amount”), subject to the satisfaction of certain conditions precedent, each as described in greater detail in that certain Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on February 22, 2022 (the “February 2022 Form 8-K”).

Pursuant to the Escrow Agreement, on March 2, 2022 each of the Lenders deposited their pro rata portion of the Facility Amount, less certain upfront fees, into an escrow account. Such funds will be released to (i) Vertex Alabama if the Credit Agreement is entered into by April 1, 2022, and certain other conditions precedent are satisfied on or prior to that date or (ii) the Lenders if (a) the Credit Agreement is not entered into by such date and/or the other conditions precedent are not satisfied on or prior to such date, (b) the Acquisition (as defined below) is consummated without use of the loan amount under the Credit Agreement or if the Lenders become aware of a breach under the exclusivity provision of the Commitment Letter, (c) the termination of that certain Sale and Purchase Agreement dated May 26, 2021, between Vertex Operating and Equilon Enterprises LLC d/b/a Shell Oil Products US and/or Shell Chemical LP and/or Shell Oil Company (“Shell”), pursuant to which Vertex Operating has agreed to purchase Shell’s Mobile, Alabama refinery, certain real property associated therewith, and certain related inventory (the “Acquisition”), in accordance with its terms prior to the closing date of the Credit Agreement, or (d) the date upon which Vertex Alabama breaches its obligations under the Commitment Letter or otherwise fails to comply with the terms and conditions of the Commitment Letter (unless such breach or failure is cured within two business days following Vertex Alabama’s receipt of notice of such breach or failure). The Escrow Agreement includes customary indemnification obligations of Vertex Alabama and the Company and certain limited indemnification obligations of the Lenders.

As previously disclosed in the February 2022 Form 8-K, the Company or Vertex Alabama is required to pay a ‘ticking fee’ equal to 10.5% per annum on the Facility Amount, beginning on March 2, 2022, which was the date funds were deposited, into the escrow account.

* * * * * * *

The foregoing description of the Heartland Purchase Agreement, Myrtle Grove Purchase Agreement, Side Letter, Second Note Amendment and Escrow Agreement, does not purport to be complete and is qualified in its entirety by reference to the full text of the Heartland Purchase Agreement, Myrtle Grove Purchase Agreement, Side Letter, Second Note Amendment and Escrow Agreement which are attached hereto as Exhibits 10.1 through 10.5, and are incorporated herein by reference in their entirety.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The disclosure included in Item 1.01 above regarding the Purchase Agreements, Escrow Agreement, Side Letter, the Second Note Amendment to the Heartland Note, and the Ticking Fee, is incorporated into this Item 2.03 in its entirety by reference.

Item 9.01 Financial Statements and Exhibits.

Exhibit No.	Description
10.1*	Purchase and Sale Agreement dated February 25, 2022, by and between Tensile-Vertex Holdings, LLC, Tensile-Heartland Acquisition Corporation and Vertex Splitter Corporation
10.2*	Purchase and Sale Agreement dated February 25, 2022, by and between Tensile-Vertex Holdings, LLC, Tensile-Myrtle Grove Acquisition Corporation and Vertex Splitter Corporation
10.3*	Side Letter Re Purchase and Sale Agreements, dated February 25, 2022, by and between Tensile-Vertex Holdings LLC, Vertex Splitter Corporation and Vertex Energy, Inc.
10.4*	Second Amendment to $7,000,000 Promissory Note dated and effective February 25, 2022 by and between Vertex Energy Operating, LLC and HPRM LLC
10.5*£	Escrow Agreement, dated as of March 2, 2022, by and among Vertex Energy, Inc., Vertex Refining Alabama LLC, certain funds and accounts managed or advised by each of BlackRock Financial Management, Inc., Whitebox Advisors LLC and Highbridge Capital Management, LLC, Chambers Energy Capital IV, LP, CrowdOut Credit Opportunities Fund LLC , CrowdOut Capital LLC, and Cantor Fitzgerald Securities
104	Inline XBRL for the cover page of this Current Report on Form 8-K

* 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.

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: March 3, 2022	By:	/s/ Chris Carlson
		Chris Carlson
		Chief Financial Officer

EX-10.1

Vertex Energy, Inc. 8-K

Exhibit 10.1

PURCHASE AND SALE AGREEMENT

THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into as of February 25, 2022, by and among Tensile-Vertex Holdings LLC, a Delaware limited liability company (the “Seller”), Tensile-Heartland Acquisition Corporation, a Delaware corporation (the “Blocker”), and Vertex Splitter Corporation, a Delaware corporation (the “Buyer”). Unless otherwise defined herein, capitalized terms used herein are defined in Exhibit A.

WHEREAS, the Seller owns all of the issued and outstanding common stock of the Blocker; and

WHEREAS, on the terms and subject to the conditions set forth in this Agreement, Buyer desires to purchase from the Seller, and the Seller desires to sell to Buyer, all of the issued and outstanding shares of the common stock of the Blocker (the “Purchased Securities”) for the consideration described herein.

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties and covenants contained herein, and intending to be legally bound, the parties hereto hereby agree as follows:

ARTICLE 1
PURCHASE AND SALE

1A.         Purchase and Sale of the Purchased Securities. On the terms and subject to the conditions set forth in this Agreement, at the Closing, Buyer shall purchase and acquire from the Seller, and the Seller shall sell, assign, transfer, convey and deliver to Buyer, all of the Purchased Securities, free and clear of all Liens (other than Liens (i) arising under the Securities Act and applicable state securities laws or (ii) created or incurred by, or at the direction of, Buyer).

1B.         Purchase Price. The aggregate purchase price for the Purchased Securities (the “Purchase Price”) shall be an amount equal to (i) $35,000,000 (the “Base Amount”) plus (ii) an amount accrued and accruing from and after May 31, 2021, on the Base Amount on a daily basis at the rate of 22.5% per annum compounded on the last day of each calendar quarter plus (iii) an amount equal to any and all cash and cash equivalents of Blocker.

1C.         Closing. On the terms and subject to the conditions set forth in this Agreement, the closing of the purchase and sale of the Purchased Securities and the other transactions contemplated by this Agreement (the “Closing”) shall take place on June 30, 2022, or any earlier date agreed upon in writing by Buyer and Seller, subject only to the satisfaction or waiver of the conditions set forth in Article 2 (other than those conditions that by their terms or nature are to be satisfied by performance at the Closing, provided that such conditions are satisfied at the Closing). The date on which the Closing shall occur is referred to herein as the “Closing Date.”

1D.         Closing Deliveries.

(i)            At the Closing, Buyer shall deliver or cause to be delivered to the Seller, each of the following: (a) an aggregate amount in cash equal to the Purchase Price by wire transfer of immediately available funds to the account or accounts designated in writing by the Seller prior to the Closing Date; (b) certified copies of the resolutions or consents of the board of directors (or equivalent governing body) of Buyer authorizing and approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; and (c) a certificate of good standing of Buyer from the jurisdiction in which Buyer is incorporated or formed dated within 30 days of the Closing Date; and

(ii)           At the Closing, the Seller shall deliver or cause to be delivered to Buyer each of the following: (a) duly executed stock powers or similar instruments of assignment and conveyance in customary form, transferring the Purchased Securities from the Seller to Buyer; and (b) certified copies of the resolutions or consents of the board of directors (or equivalent governing body) of the Seller authorizing and approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby.

ARTICLE 2
CONDITIONS TO CLOSING

2A.        Conditions to All Parties’ Obligations. The obligation of Seller and the Buyer to consummate the transactions contemplated by this Agreement to take place at the Closing is subject to the satisfaction, or waiver by the Seller and the Buyer, of each of the following conditions as of immediately prior to the Closing:

(i)            No law, judgment, ruling, injunction or order of any Governmental Entity shall be in effect as of the Closing enjoining, restraining, preventing or prohibiting consummation of the transactions contemplated by this Agreement or making their consummation illegal; and

(ii)           This Agreement shall not have been terminated in accordance with Section 7A.

2B.         Conditions to Buyer’s Obligations. The obligation of the Buyer to consummate the transactions contemplated by this Agreement to take place at the Closing is subject to the satisfaction or waiver by the Buyer of each of the following additional conditions as of immediately prior to the Closing:

(i)            The representations and warranties of the Seller and the Blocker contained in Article 3 and Article 4 of this Agreement (interpreted without giving effect to any limitation or qualification based on materiality or other terms of similar import or effect) shall be true and correct as of the Closing Date as if made anew as of such date (except to the extent any such representation or warranty expressly relates to an earlier date (in which case solely as of such earlier date)), except for any failure of such representations and warranties to be true and correct that would not reasonably be expected to have, either individually or in the aggregate with all such other failures, a Material Adverse Effect;

(ii)           Each of the covenants and agreements of the Seller and the Blocker to be performed as of or prior to the Closing shall have been performed in all material respects; and

(iii)         The Seller shall have delivered to Buyer a certificate dated as of the Closing Date confirming the foregoing matters in Section 2B(i) and Section 2B(ii).

2C.         Conditions to the Seller’s Obligations. The obligation of the Seller to consummate the transactions contemplated by this Agreement to take place at the Closing is subject to the satisfaction or waiver by the Seller of each of the following additional conditions as of immediately prior to the Closing:

(i)            The representations and warranties of Buyer contained in Article 5 of this Agreement (interpreted without giving effect to any limitation or qualification based on materiality or other terms of similar import or effect) shall be true and correct as of the Closing Date as if made anew as of such date (except to the extent any such representation or warranty expressly relates to an earlier date (in which case solely as of such earlier date)), except for any failure of such representations and warranties to be true and correct that would not reasonably be expected to have, either individually or in the aggregate with all such other failures, a Material Adverse Effect;

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(ii)           Each of the covenants and agreements of Buyer to be performed as of or prior to the Closing shall have been performed in all material respects; and

(iii)          Buyer shall have delivered to the Seller a certificate dated as of the Closing Date confirming the foregoing matters in Section 2C(i) and Section 2C(ii).

2D.         Waiver of Conditions. All conditions to the Closing shall be deemed to have been satisfied or waived from and after the Closing.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF THE SELLER

As an inducement to Buyer to enter into this Agreement, the Seller hereby represents and warrants to Buyer that:

3A.         Organization. Seller is a limited liability company validly existing and in good standing under the laws of its jurisdiction of formation.

3B.        Authority. Seller has all requisite capacity, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of, and performance by, the Seller of this Agreement has been authorized by all necessary action on the part of the Seller. This Agreement has been duly executed and delivered by the Seller and, subject to the due authorization, execution and delivery by the other parties hereto, this Agreement is a valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as limited by the application of bankruptcy, moratorium and other laws affecting creditors’ rights generally and as limited by the availability of specific performance and the application of equitable principles.

3C.         No Conflict; Required Filings and Consents. The execution, delivery and performance by the Seller of this Agreement, and the consummation of the transactions contemplated hereby, do not and will not, with or without the giving of notice or passage of time or both: (i) conflict with or violate the Seller’s organizational documents; (ii) conflict with or violate any law applicable to Seller or by which any property or asset of Seller is bound or affected; or (iii) (a) result in any material breach of any of the provisions of, (b) constitute a material default under, (c) give any third party the right to terminate, (d)  result in the creation of any lien, security interest, charge or encumbrance upon any of the units, shares of capital stock or other equity securities or any material assets of the Seller pursuant to the provisions of, or (e) require any authorization, consent, approval, exemption or other action by, or notice to, any Governmental Entity, in each case, except as has been obtained or as contemplated in this Agreement, under (I) any material contract to which the Seller is a party or by which any of its properties or assets are bound or affected or (II) any other material licenses, filings, qualifications, franchises, permits, certificates, approvals or other similar authorizations issued by applicable Governmental Entities necessary for the lawful conduct of the Seller’s business or to own or use its properties or assets as conducted as of the date hereof, except in the case of clauses (ii) and (iii), as to matters that have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Seller’s ability to consummate the transactions contemplated by this Agreement.

3D.         Title. The Seller is the holder of record and beneficially owns the Purchased Securities and has title to such Purchased Securities, and the Purchased Securities have not been (directly or indirectly) pledged or assigned to any Person and are held free and clear of all Liens (other than any restrictions on transfer imposed by federal and state securities laws and any restrictions on transfer expressly set forth in this Agreement). There are no voting trusts, irrevocable proxies or contracts or understandings respecting transfer to which the Seller is a party or is bound with respect to the Purchased Securities.

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3E.         Legal Proceedings. As of the date hereof, there are no material actions, suits, proceedings or orders pending or, insofar as known to the Seller, threatened against the Seller at law or in equity, by any Governmental Entity, except for any such actions, suits, proceedings or orders that have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the parties to consummate the transactions contemplated hereby.

3F.         Brokerage. There are no claims for brokerage commissions, finder’s fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of the Seller.

ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF THE BLOCKER

As an inducement to Buyer to enter into this Agreement, the Blocker hereby represents and warrants to Buyer that:

4A.         Organization and Power. The Blocker is a corporation, validly existing and in good standing under the laws of the State of Delaware.

4B.         Capitalization of Blocker.

(i)            The authorized capital stock of the Blocker consists of 1,000 shares of common stock, all of which, as of the date hereof, are issued and outstanding and owned of record by the Seller.

(ii)           All of the shares of the common stock of the Blocker have been duly authorized and are validly issued, fully paid and non-assessable. There are no rights, subscriptions, warrants or options to purchase or otherwise acquire any shares of capital stock or other equity securities of the Blocker or securities or obligations of any kind convertible into or exchangeable for any shares of capital stock or other equity securities of the Blocker.

4C.         Authorization; No Breach.

(i)            The Blocker has (a) approved and authorized the execution and delivery of this Agreement and (b) approved the consummation of the transactions contemplated hereby. No other corporate proceedings by the Blocker are necessary to authorize the transaction contemplated by this Agreement. This Agreement has been duly executed and delivered by the Blocker and constitutes the valid and binding obligation of the Blocker, enforceable in accordance with its terms, except as limited by the application of bankruptcy, moratorium and other laws affecting creditors’ rights generally and as limited by the availability of specific performance and the application of equitable principles.

(ii)           The execution and delivery of this Agreement by the Blocker does not (a) result in any material breach of any of the provisions of, (b) constitute a material default under, (c) give any third party the right to terminate, (d) result in the creation of any lien, security interest, charge or encumbrance upon any of the units, shares of capital stock or other equity securities or any material assets of the Blocker pursuant to the provisions of, or (e) require any authorization, consent, approval, exemption or other action by, or notice to, any Governmental Entity, in each case, except as has been obtained or as contemplated in this Agreement, under (A) the organizational documents of the Blocker, (B) any material contract to which the Blocker is a party, (C) any material judgment, order or decree to which the Blocker is subject or (D) any material law, statute, rule or regulation to which the Blocker is subject.

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4D.         Conduct of Business. The Blocker is a holding company and does not directly engage in any business activities and does not directly own any assets or properties used in the conduct of any such business activities. Except for liabilities and obligations incurred in connection with its incorporation, organization and capitalization and the ownership of HPRM LLC, the Blocker has not incurred, directly or indirectly, any liabilities and obligations or engaged in any business activities of any type or kind, other than activities ancillary to or contemplated by this Agreement and holding units of HPRM LLC.

4E.         Legal Proceedings. As of the date hereof, there are no material actions, suits, proceedings or orders pending or, insofar as known to the Blocker, threatened against the Blocker at law or in equity, by any Governmental Entity, except for any such actions, suits, proceedings or orders that have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the parties to consummate the transactions contemplated hereby.

4F.          Brokerage. There are no claims for brokerage commissions, finder’s fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of the Blocker.

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF THE BUYER

As an inducement to the Seller to enter into this Agreement, Buyer hereby represents and warrants to the Seller that:

5A.        Organization and Corporate Power. Buyer is a corporation validly existing and in good standing under the laws of Delaware.

5B.         Authorization; No Breach.

(i)            The board of directors (or equivalent governing body) of Buyer, by resolutions duly adopted at a meeting duly called and held, or by written consent in lieu of a meeting, has (a) approved and authorized the execution and delivery of this Agreement and (b) approved the consummation of the transactions contemplated hereby. No other proceedings on the part of Buyer are necessary to authorize the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by Buyer and constitutes the valid and binding obligation of Buyer, enforceable in accordance with its terms, except as limited by the application of bankruptcy, moratorium and other laws affecting creditors’ rights generally and as limited by the availability of specific performance and the application of equitable principles.

(ii)           The execution and delivery of this Agreement by Buyer does not (a) result in any material breach of any of the provisions of, (b) constitute a material default under, (c) give any third party the right to terminate, (d) result in the creation of any lien, security interest, charge or encumbrance upon any of the shares of capital stock or other equity securities or any material assets of Buyer or any of its Subsidiaries pursuant to the provisions of, or (e) require any authorization, consent, approval, exemption or other action by, or notice to, any Governmental Entity, in each case, except as has been obtained or as contemplated in this Agreement, under (I) the organizational documents of Buyer or any of its Affiliates, (II)  any material contract to which Buyer or any of its Affiliates is party, (III) any material judgment, order or decree to which Buyer or any of its Subsidiaries is subject or (IV) any material law, statute, rule or regulation to which Buyer or any of its Affiliates is subject.

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5C.        Legal Proceedings. There are no material actions, suits, proceedings or orders pending or, insofar as known to Buyer, threatened against Buyer or any of its Subsidiaries at law or in equity, by any Governmental Entity, except for any such actions, suits, proceedings or orders that have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the parties to consummate the transactions contemplated hereby.

5D.        Investigation. Buyer acknowledges that Buyer is relying on its own investigation and analysis in entering into the transactions contemplated hereby. Buyer is knowledgeable about the industries in which the Company Entities operate and is capable of evaluating the merits and risks of the transactions contemplated by this Agreement and is able to bear the substantial economic risk of such investment for an indefinite period of time. Buyer has been afforded full access to the books and records, facilities and personnel of the Company Entities, Blocker and their respective Subsidiaries for purposes of conducting a due diligence investigation, has received all information requested by it and its representatives from the Company Entities and Blocker and has conducted a full due diligence investigation of the Blocker and the Company Entities.

5E.         Brokerage. No agent, broker, investment banker, financial advisor or other firm or Person is or will be entitled to any broker’s or finder’s fee or any other similar commission or fee in connection with any of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Buyer or any of its Affiliates, other than any agent, broker, investment banker, financial advisor or other firm or Person the fees and expenses of which shall be paid by Buyer.

5F.         Solvency; Fraudulent Conveyance. Immediately after giving effect to the transactions contemplated hereby, Buyer and each of its Subsidiaries (including the Blocker and the Company Entities) shall be able to pay their respective debts as they become due and shall own property with a fair saleable value greater than the amounts required to pay their respective debts when due (including all contingent liabilities). Immediately after giving effect to the transactions contemplated hereby, Buyer and each of its Subsidiaries (including the Blocker and the Company Entities) shall have adequate capital to carry on their respective businesses. No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated by this Agreement with the intent to hinder, delay or defraud either present or future creditors of Buyer and its Subsidiaries (including the Blocker and the Company Entities).

5G.         Acquisition for Investment. The Purchased Securities are being acquired for investment only and not with a view to any public distribution thereof, and Buyer will not offer to sell or otherwise dispose of the Purchased Securities in violation of any of the registration requirements of the Securities Act or any comparable state law. Buyer is an “accredited investor” within the meaning of Regulation D promulgated pursuant to the Securities Act. Buyer has had an opportunity to ask questions of and receive answers from the Company Entities, Blocker and their respective Subsidiaries concerning the terms and conditions of this Agreement and to obtain additional information relating to the Company Entities, Blocker and their respective Subsidiaries and businesses. Buyer acknowledges that the Purchased Securities have not been registered under the Securities Act or the Exchange Act or any state or foreign securities laws and that the Purchased Securities may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of unless such sale, transfer, offer, pledge, hypothecation or other disposition is pursuant to the terms of an effective registration statement under the Securities Act and are registered under any applicable state or foreign securities laws or pursuant to an exemption from registration under the Securities Act or the Exchange Act and any applicable state or foreign securities laws.

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ARTICLE 6

COVENANTS AND AGREEMENTS

6A.        Press Release and Announcements. The parties hereto agree that, from the date hereof through the Closing Date, no public release or announcement concerning the transactions contemplated hereby shall be issued or made by or on behalf of Buyer, on the one hand, without the prior consent of the Seller, or by or on behalf of any Company Entity or the Seller, on the other hand, without the prior consent of Buyer. The parties hereto agree to keep the terms of this Agreement confidential, except to the extent and to the Persons to whom disclosure is required by applicable law or for purposes of compliance with financial reporting obligations; provided that the parties may disclose such terms to their respective employees, accountants, advisors and other representatives as necessary in connection with the ordinary conduct of their respective businesses (so long as such Persons agree to, or are bound by contract to, keep the terms of this Agreement confidential). The parties hereto further acknowledge and agree that the Seller may disclose such terms and the existence of this Agreement and the transactions contemplated hereby to their Affiliates in order that such Persons may provide information about the subject matter of this Agreement and the transactions contemplated hereby to their respective limited partners and prospective limited partners in connection with any fundraising, reporting or similar activities.

6B.         Reasonable Best Efforts. Subject to the terms of this Agreement, each of the parties hereto shall use its reasonable best efforts to cause its conditions to Closing to be satisfied and for the Closing to occur as promptly as practicable and no party shall take any action designed to prevent, impede or delay the Closing.

6C.         Director and Officer Liability and Indemnification.

(i)            Without limiting any additional rights that any Person may have under any other agreement, from the Closing Date through the sixth anniversary of the Closing Date, Buyer shall indemnify and hold harmless each present (as of immediately prior to the Closing) and former officer, director, manager or employee of the Blocker (the “D&O Indemnified Parties”) against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (a) the fact that the D&O Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Blocker or (b) matters existing or occurring at or prior to the Closing Date (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Closing Date, to the fullest extent permitted under applicable law save and except any such Costs actually covered by a policy of directors and officers liability insurance maintained by Seller or any Affiliate of Seller. In the event of any such claim, action, suit, proceeding or investigation, (x)  each D&O Indemnified Party will be entitled to advancement of expenses incurred in its defense from Buyer or the Company within ten business days of receipt by Buyer from the D&O Indemnified Party of a request therefor, provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the Delaware Corporation Law or the Blocker’s organizational documents as in effect immediately prior to the Closing, to repay such advances if it is ultimately determined that such person is not entitled to indemnification, (y) neither Buyer nor any of its Affiliates, shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such D&O Indemnified Party hereunder) unless such settlement, compromise or consent includes an unconditional release of such D&O Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such D&O Indemnified Party otherwise consents and (z) Buyer, the Company and their respective Affiliates shall cooperate in the defense of any such matter.

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(ii)             Buyer shall not, and shall not permit the Blocker to, amend, repeal or modify in a manner adverse to the beneficiary thereof any provision in the Blocker’s organizational documents relating to the exculpation or indemnification of former officers, managers, directors, employees, fiduciaries or agents of the Blocker in effect immediately prior to the Closing, it being the intent of the parties that the officers, managers, directors, employees, fiduciaries and agents of the Blocker prior to the Closing shall continue to be entitled to such exculpation and indemnification to the fullest extent permitted under applicable law.

(iii)           Notwithstanding anything contained in this Agreement to the contrary, this Section 6C shall survive the consummation of the Closing indefinitely. In the event that Buyer or any of its Affiliates (including the Company Entities) or any of their respective successors or assigns (a) consolidates with or merges into any other Person or (b) transfers all or substantially all of its properties or assets to any Person, then, and in each case, the successors and assigns of Buyer or its Affiliates (including the Company Entities), as the case may be, shall expressly assume and be bound by the obligations set forth in this Section 6C.

(iv)          The obligations of Buyer and its Affiliates (including the Company Entities) under this Section 6C shall not be terminated or modified in such a manner as to adversely affect any Person to whom this Section 6C applies without the prior written consent of such affected Person.

6D.        Provisions Respecting Representation of the Company. Each of the parties to this Agreement hereby agrees, on its own behalf and on behalf of its directors, managers, members, partners, officers, employees and Affiliates, that Kirkland & Ellis LLP (“Kirkland”) may serve as counsel to each and any of the Seller and its Affiliates (individually and collectively, the “Seller Representation Group”), on the one hand, and the Blocker and / or Company Entities, on the other hand, in connection with the negotiation, preparation, execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, and that, following consummation of the transactions contemplated hereby, Kirkland (or any successor) may serve as counsel to the Seller Representation Group or any director, manager, member, partner, officer, employee or Affiliate of any member of the Seller Representation Group, in connection with any litigation, claim or obligation arising out of or relating to this Agreement or the transactions contemplated by this Agreement notwithstanding such representation, and each of the parties hereto (on its own behalf and on behalf of its Affiliates) hereby consents thereto and irrevocably waives any conflict of interest arising therefrom, and each of such parties shall cause any Affiliate thereof to consent to irrevocably waive any conflict of interest arising from such representation. The parties agree to take the steps necessary to ensure that any privilege attaching as a result of Kirkland representing the Company Entities and Blocker in connection with the transactions contemplated by this Agreement shall survive the Closing and shall remain in effect, provided that such privilege from and after the Closing shall be controlled by the Seller. As to any privileged attorney-client communications between Kirkland and the Blocker, the Company or any of the other Company Entities prior to the Closing Date (collectively, the “Privileged Communications”), Buyer, the Blocker and the Company Entities together with any of their respective Affiliates, Subsidiaries, successors or assigns agree that no such party may use or rely on any of the Privileged Communications in any action against or involving any of the parties after the Closing. In addition, if the transactions contemplated by this Agreement are consummated, all Privileged Communications related to such transactions will become property of (and be controlled by) the Seller and none of Buyer, the Blocker, the Company Entities or any of their respective Affiliates, Subsidiaries, successors or assigns shall retain any copies of such records or have any access to them.

6E.         Expenses; Transfer Taxes. If this Agreement is terminated by Buyer prior to consummation of the Closing pursuant to Section 7A(ii), then Seller shall pay, or cause to be paid, all fees and expenses incurred by each party hereto in connection with this Agreement and the transactions contemplated hereby or otherwise required by applicable law. If this Agreement is terminated by Seller or Buyer prior to consummation of the Closing pursuant to Section 7A(iii), (iv) or (v), then Buyer shall pay, or cause to be paid, all fees and expenses incurred by each party hereto in connection with this Agreement and the transactions contemplated hereby or otherwise required by applicable law. If this Agreement is terminated pursuant to Section 7A(i), or the Closing occurs, each party shall pay all fees and expenses incurred by such party in connection with this Agreement and the transactions contemplated hereby or otherwise required by applicable law, but Buyer shall pay, or cause to be paid, all gross receipts, excise, transfer, property, documentary, sales, use, stamp, registration and other such Taxes, and all conveyance fees, recording charges and other similar fees and charges (including any penalties and interest) incurred in connection with the consummation of the transactions contemplated by this Agreement, whether imposed on Blocker, the Company Entities or any Seller resulting from the transactions contemplated by this Agreement. Buyer shall prepare and file, at its own expense, any Tax Returns and other documentation with respect to all such Taxes, fees and charges, and the parties hereto shall, and shall cause their Affiliates to, join in the execution of such Tax Returns and other documentation to the extent required by applicable law.

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ARTICLE 7

TERMINATION

7A.        Termination. Anything contained herein to the contrary notwithstanding, this Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing:

(i)            by the mutual written consent of the Buyer and the Seller;

(ii)           by Buyer, if (x) the Seller has failed to consummate the Closing when required in accordance with this Agreement or (y) there has been a violation or breach by the Seller of any covenant, representation or warranty contained in this Agreement that has prevented the satisfaction of any condition to the obligations of Buyer at the Closing (and such violation or breach has not been waived by Buyer) and such violation or breach is not capable of being cured or, if capable of being cured, has not been cured prior to thirty (30) days after written notice thereof from Buyer; provided that the right to terminate this Agreement pursuant to this Section 7A(ii) shall not be available to Buyer at any time that Buyer has violated, or is in breach of, any covenant, representation or warranty hereunder, if such violation or breach has prevented satisfaction of any of the Sellers’ or the Company’s conditions to Closing hereunder (and has not been waived by the Sellers’ Representative) or, if capable of being cured, has not been cured by Buyer;

(iii)          by the Seller, if (x) Buyer has failed to consummate the Closing when required in accordance with this Agreement or (y) there has been a violation or breach by Buyer of any covenant, representation or warranty contained in this Agreement that has prevented the satisfaction of any condition to the obligations of the Seller at the Closing (and such violation or breach has not been waived by the Seller) and such violation or breach is not capable of being cured or, if capable of being cured, has not been cured prior to thirty (30) days after written notice thereof from the Seller’s Representative; provided that the right to terminate this Agreement pursuant to this Section 7A(iii) shall not be available to the Seller at any time that the Blocker or the Seller has violated, or is in breach of, any covenant, representation or warranty hereunder if such violation or breach has prevented satisfaction of Buyer’s conditions to Closing hereunder (and has not been waived by Buyer) or, if capable of being cured, has not been cured by the Blockers or the Seller; or

(iv)          by the Buyer or the Seller, if there is any final, non-appealable law, judgment, ruling, injunction or order enacted, promulgated, issued, entered, amended or enforced by any Governmental Entity enjoining, restraining, preventing or prohibiting consummation of the Closing or making the consummation of the Closing illegal.

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7B.         Effect of Termination. In the event of any termination of this Agreement by the Buyer or the Seller as provided in Section 7A, (i) this Agreement shall forthwith become void and of no further force or effect (except that this Section 7B, Section 6E and Article 9 shall survive the termination of this Agreement and shall be enforceable by the parties hereto) and (ii) there shall be no liability or obligation on the part of the Buyer, the Seller or the Blocker to any other party hereto with respect to this Agreement; provided that, notwithstanding clause (ii) of this Section 7B, no party shall be relieved from liability for any willful breach of this Agreement by such party arising prior to termination.

ARTICLE 8

DEFINITIONS

8A.        Definitions. The terms defined in Exhibit A, whenever used herein, shall have the meanings set forth in Exhibit A for all purposes of this Agreement. The definitions in Exhibit A are incorporated into this Agreement as if fully set forth herein and all references to a section in Exhibit A are references to such section of this Agreement.

8B.         Usage.

(i)            Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation.”

(ii)           Words denoting any gender shall include all genders (including the neutral gender). Where a word is defined herein, references to the singular shall include references to the plural and vice versa.

(iii)          Where specific language is used to clarify by example a general statement contained herein, such specific language shall not be deemed to modify, limit or restrict in any manner the construction of the general statement to which it relates.

(iv)          A reference to any party to this Agreement or any other agreement or document shall include such party’s successors and permitted assigns.

(v)           All references to “$” and dollars shall be deemed to refer to United States currency unless otherwise specifically provided.

(vi)          All references to a day or days shall be deemed to refer to a calendar day or calendar days, as applicable, unless otherwise specifically provided and whenever action is required on a day that is not a Business Day such action may be validly taken on the next Business Day.

(vii)         Any reference to any agreement or contract referenced herein shall be a reference to such agreement or contract as amended, restated, modified, supplemented and/or waived.

(viii)        All references to an Article, Section or Exhibit shall be deemed to refer to such Article, Section or Exhibit of this Agreement, unless otherwise specified. The terms “hereof,” “herein,” “hereunder” and derivative words refer to this entire Agreement, unless the context otherwise requires. The words “either,” “or,” “neither,” “nor” and “any” are not exclusive.

(ix)           The phrases “to the knowledge of the Company” or “known to the Company” and phrases of similar import or effect are used herein to qualify and limit the scope of any representation or warranty in which they appear and are not affirmations of any Person’s “superior knowledge” that the representation or warranty in which they are used is true.

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(x)           The word “shall” denotes a directive and obligation, and not an option.

(xi)          The contents of Exhibit A form an integral part of this Agreement and any reference to “this Agreement” will be deemed to include such Exhibit.

ARTICLE 9

MISCELLANEOUS

9A.        Survival. The representations, warranties, covenants and agreements of the parties contained in this Agreement shall not survive beyond the Closing, and there shall be no liability in respect thereof or otherwise in connection with the transactions contemplated by this Agreement, whether such liability has accrued prior to or after the Closing Date, on the part of any party, its Affiliates or any of their respective officers, directors, managers, members, agents or other Representative, except for (i) those covenants and agreements that by their terms apply or are to be performed in whole or in part at or after the Closing, and (ii) this Article 9. The covenants and agreements herein requiring performance after the Closing shall survive in accordance with their respective terms, and nothing in this Section 9A will be deemed to limit any rights or remedies of any Person for breach of any such surviving covenant or agreement. Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that this Agreement may only be enforced against, and any Action, suit or claim for breach of this Agreement may only be made against, the parties to this Agreement, and no Non-Recourse Party of such a party to this Agreement shall have any liability relating to this Agreement or any of the transactions contemplated herein.

9B.         Amendment and Waiver. This Agreement may be amended or any provision of this Agreement may be waived; provided that (i) any amendment shall be binding only if such amendment set forth in a writing executed by the Seller and the Buyer and (ii) any waiver of any provision of this Agreement shall be effective against a party only if set forth in a writing executed by such party. No course of dealing between or among any Persons having any interest in this Agreement shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any person under or by reason of this Agreement.

9C.         Notices. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing (including in electronic form) and shall be deemed to have been given (i) if personally delivered, on the date of delivery, (ii) if delivered by express courier service of national standing for next day delivery (with charges prepaid), on the Business Day following the date of delivery to such courier service, (iii) if deposited in the United States mail, first-class postage prepaid, on the date of delivery, (iv) if delivered by telecopy, provided the relevant transmission report indicates a full and successful transmission, (a) on the date of such transmission, if such transmission is completed at or prior to 5:00 p.m., local time of the recipient party, on a Business Day, and (b) on the next Business Day following the date of transmission if such transmission is completed after 5:00 p.m., local time of the recipient party, on a Business Day or at any time on a day that is not a Business Day, in each case, followed by delivery by next-day service from a courier service of national standing or (v) if delivered by electronic mail, provided no failure message is generated (a) on the date of such transmission, if such transmission is completed at or prior to 5:00 p.m., local time of the recipient party, on a Business Day and (b) on the next Business Day following the date of transmission, if such transmission is completed after 5:00 p.m., local time of the recipient party, on a Business Day or at any time on a day that is not a Business Day, in each case, followed by delivery by next-day service from a courier service of national standing. Notices, demands and communications shall, unless another address is specified in writing pursuant to the provisions hereof, be sent to the address indicated below:

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Notices to the Buyer and, following the Closing, the Blocker:

Vertex Splitter Corporation

c/o Vertex Energy Operating LLC

1331 Gemini Street, Suite 250

Houston, TX 77058

Attention: Ben Cowart,

Email: benc@vertexenergy.com

with a copy to:

Ruddy Gregory PLLC

44 Cook Street, Suite 640

Denver, CO 80206

Attention: James P. Gregory, Esq.

Email: jgregory@ruddylaw.com

Notices to the Seller and, prior to the Closing, the Blocker:

Tensile-Vertex Holdings, LLC

c/o Tensile Capital Management

700 Larkspur Landing Circle, Suite 255

Larkspur, CA 94939

Telephone: (415) 830-8160

Attention: Doug Dossey

Email: ddossey@tensilecapital.com

with a copy to:

Kirkland & Ellis LLP

555 California Street, Suite 2700

San Francisco, CA 94104

Attention: Noah D. Boyens, P.C.

Email: noah.boyens@kirkland.com

Without limiting the foregoing, any party hereto may give any notice, request, instruction, demand, document or other communication hereunder using any other means (including personal delivery, expedited courier, messenger service, ordinary mail or electronic mail), but no such notice, request, instruction, demand, document or other communication shall be deemed to have been duly given unless and until it actually is received by the party for whom it is intended.

9D.        Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned (including directly or indirectly by change of control or by operation of law) without the prior written consent of the Seller and the Buyer.

9E.         Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Agreement.

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9F.         No Strict Construction. Notwithstanding the fact that this Agreement has been drafted or prepared by one of the parties, each party hereto hereby confirms that they and their respective counsel have reviewed, negotiated and adopted this Agreement as the joint agreement and understanding of the parties hereto and the language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any Person. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, the terms and provisions of the execution version of this Agreement shall control and prior drafts of this Agreement shall not be considered or analyzed for any purpose (including in support of parol evidence proffered by any Person in connection with this Agreement).

9G.        Captions. The captions used in this Agreement are for convenience of reference only and do not constitute a part of this Agreement and shall not be deemed to limit, characterize or in any way affect any provision of this Agreement, and all provisions of this Agreement shall be enforced and construed as if no such caption had been used in this Agreement.

9H.        Complete Agreement. This Agreement and that certain side letter of even date herewith between Buyer and Seller contain the complete agreement among the parties hereto with respect to the subject matter hereof and supersede any prior understandings, agreements or representations by or among such parties, whether written or oral, or any prior course of dealing among them, which may have related to the subject matter hereof in any way.

9I.         No Additional Representations; Disclaimer.

(i)            The Buyer acknowledges and agrees that neither the Seller nor the Blocker, nor any of their respective Affiliates, counsel, advisors, consultants, agents or other representatives, nor any other Person acting on behalf of the any of the foregoing Persons or any of their respective Affiliates or representatives, has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Seller, the Blocker, the Company or any other Company Entity or their respective businesses, operations or assets, except as expressly set forth in this Agreement. Buyer further acknowledges and agrees that neither the Seller nor any of its direct or indirect Affiliates or representatives (or any of their directors, officers, employees, members, managers, partners, agents or otherwise), will have or be subject to any liability to Buyer or any other Person resulting from the distribution to Buyer, or Buyer’s use of, any such information, or any information, document or material made available to Buyer or its Affiliates or their respective, counsel, accountants, consultants, advisors, agents or other representatives in expectation or anticipation of the transactions contemplated by this Agreement.

(ii)           The Buyer acknowledges and agrees that, except for the representations and warranties of the Seller and the Blocker expressly set forth in Article 3 and Article 4, the Purchased Securities are being acquired AS IS WITHOUT ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR INTENDED USE OR ANY OTHER EXPRESSED OR IMPLIED WARRANTY. Buyer acknowledges and agrees that it is consummating the transactions contemplated by this Agreement without relying on any representation or warranty, express or implied, whatsoever by the Seller or any of its Affiliates, counsel, advisors, consultants, agents or other representatives, except for the representations and warranties of the Seller and the Blocker expressly set forth in Article 3 and Article 4. BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED AND HOWSOEVER CONVEYED (INCLUDING ANY RELATING TO THE PAST, PRESENT OR FUTURE FINANCIAL CONDITION, RESULTS OF OPERATIONS, ASSETS OR LIABILITIES OF THE COMPANY ENTITIES), ARE HEREBY SPECIFICALLY DISCLAIMED FOR ALL PURPOSES BY EACH SELLER PARTY.

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(iii)          In connection with Buyer’s investigation of the Company Entities and Blocker, Buyer has received, directly or indirectly, through its Affiliates, counsel, advisors, consultants, agents or other representatives, from or on behalf of the Company or its Affiliates, counsel, advisors, consultants, agents or other representatives, certain projections, including projected statements of operating revenues, income from operations, and cash flows of the Company Entities (and the business transactions and events underlying such statements) and certain business plan information, projections, presentations, predictions, calculations, estimates and forecasts of the Company Entities and other similar data. Buyer acknowledges that there are uncertainties inherent in attempting to make such estimates, projections, forecasts, plans, statements, predictions, presentations, calculations and other similar data, that Buyer is well aware of such uncertainties, that Buyer is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, forecasts, plans, statements, calculations, presentations, predictions and other similar data so furnished to it (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans, statements, calculations, predictions and other similar data), and that neither Buyer, nor any Buyer Party, shall have any claim under any circumstances against any Seller Party or any other Person with respect thereto or arising therefrom. Accordingly, the Seller does not make any representations or warranties whatsoever to Buyer or any other Person with respect to such estimates, projections, forecasts, plans, statements, calculations, presentations, predictions and other similar data (including the reasonableness of the assumptions underlying such projections, forecasts, plans, statements, calculations, presentations, predictions and other similar data) and no such Person shall be entitled to rely on such estimates, projections, forecasts, plans, statements, calculations, presentations, predictions and other similar data for any purpose, including in connection with the transactions contemplated by this Agreement or the financing thereof.

9J.         Counterparts. This Agreement may be executed in multiple counterparts (including by means of telecopied or electronically transmitted (including in .pdf or .tif formats) signature pages), all of which, taken together, shall constitute one and the same Agreement.

9K.        Governing Law. This Agreement, and all claims or causes of action (whether at law or in equity, in contract or in tort) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance hereof, or the transactions contemplated by this Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

9L.        CONSENT TO JURISDICTION. THE PARTIES AGREE THAT JURISDICTION AND VENUE IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY ANY PARTY PURSUANT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL PROPERLY AND EXCLUSIVELY LIE IN THE CHANCERY COURT OF THE STATE OF DELAWARE, AND ANY STATE APPELLATE COURT THEREFROM WITHIN THE STATE OF DELAWARE (OR, IF THE CHANCERY COURT OF THE STATE OF DELAWARE DECLINES TO ACCEPT JURISDICTION OVER A PARTICULAR MATTER, ANY STATE OR FEDERAL COURT WITHIN THE STATE OF DELAWARE). EACH PARTY ALSO AGREES NOT TO BRING ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY OTHER COURT (OTHER THAN UPON THE APPEAL OF ANY JUDGMENT, DECISION OR ACTION OF ANY SUCH COURT LOCATED IN DELAWARE OR, AS APPLICABLE, ANY FEDERAL APPELLATE COURT THAT INCLUDES THE STATE OF DELAWARE WITHIN ITS JURISDICTION). BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY IRREVOCABLY SUBMITS TO THE JURISDICTION OF SUCH COURTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY WITH RESPECT TO SUCH SUIT, ACTION OR PROCEEDING. THE PARTIES IRREVOCABLY AGREE THAT VENUE WOULD BE PROPER IN SUCH COURT, AND HEREBY WAIVE ANY OBJECTION THAT ANY SUCH COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE RESOLUTION OF SUCH SUIT, ACTION OR PROCEEDING. EACH OF THE PARTIES FURTHER IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES HEREIN OF THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

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9M.       WAIVER OF JURY TRIAL. THE PARTIES TO THIS AGREEMENT EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. THE PARTIES TO THIS AGREEMENT EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE IRREVOCABLE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

9N.       Third-Party Beneficiaries and Obligations. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto or their respective successors and permitted assigns any rights, remedies or liabilities under or by reason of this Agreement, other than sections that are specifically for the benefit of the Seller Parties and the officers, managers, directors, employees, fiduciaries and agents of the Company Entities and Persons to whom Company Expenses are owed, as applicable, each of which is intended to be for the benefit of the Persons covered thereby or to be paid thereunder and may be enforced by such Persons. The parties hereto further agree that the rights of third party beneficiaries shall not arise unless and until the Closing occurs. The representations and warranties in this Agreement are the product of negotiations among the parties hereto and are for the sole benefit of the parties hereto. Any inaccuracies in such representations and warranties are subject to waiver by the parties hereto in accordance with this Agreement without notice or liability to any other Person. In some instances, the representations and warranties in this Agreement may represent an allocation among the parties hereto of risks associated with particular matters regardless of the knowledge of any of the parties hereto. Consequently, Persons other than the parties hereto may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date hereof or as of any other date.

9O.       Obligations of Buyer. Whenever this Agreement requires a Subsidiary of Buyer (including, after the Closing, the Blocker and the Company Entities) to take any action, such requirement shall be deemed to include an undertaking on the part of Buyer to cause such Person to take such action.

9P.        Specific Performance. The parties hereto agree that irreparable damage, for which monetary relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached, including if the parties hereto fail to take any action required of them hereunder to consummate the transactions contemplated by this Agreement. It is accordingly agreed that (i) the parties hereto shall be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement and (ii) the right of specific performance and other equitable relief is an integral part of the transactions contemplated by this Agreement and without that right neither the Sellers nor Buyer would have entered into this Agreement. The parties hereto agree not to assert that a remedy of specific performance or other equitable relief is unenforceable, invalid, contrary to law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. The parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with any such order or injunction.

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9Q.       Release. Effective as of the Closing, each of the Buyer, the Blocker, the Company and each other Company Entity and their respective Affiliates, successors and assigns, hereby fully and unconditionally releases, acquits and forever discharges the current and former directors, managers, partners, officers and employees of the Seller and its respective Affiliates, and their respective Affiliates’ former, current and future direct and indirect equityholders, controlling persons, directors, officers, employees, agents, representatives, Affiliates, members, managers, general or limited partners, or assignees (or any former, current or future direct or indirect equityholder, controlling person, director, officer, employee, agent, representative, Affiliate, member, manager, general or limited partner, or assignee of any of the foregoing) from any and all manner of actions, causes of actions, claims, obligations, demands, damages, costs, expenses, compensation or other relief, whether known or unknown, whether at Law or in equity, arising out of or relating to or accruing from their relationship with or ownership of the Blocker, the Company and the Company Entities prior to the Closing. Effective as of the Closing, the Seller and its respective Affiliates, successors and assigns, hereby fully and unconditionally releases, acquits and forever discharges the current and former directors, managers, partners, officers and employees of the Buyer and its respective Affiliates, and their respective Affiliates’ former, current and future direct and indirect equityholders, controlling persons, directors, officers, employees, agents, representatives, Affiliates, members, managers, general or limited partners, or assignees (or any former, current or future direct or indirect equityholder, controlling person, director, officer, employee, agent, representative, Affiliate, member, manager, general or limited partner, or assignee of any of the foregoing) from any and all manner of actions, causes of actions, claims, obligations, demands, damages, costs, expenses, compensation or other relief, whether known or unknown, whether at Law or in equity, arising out of or relating to or accruing from their relationship with or ownership of the Blocker, the Company and the Company Entities prior to the Closing. Notwithstanding the foregoing, and for the avoidance of doubt, nothing in this Section 9Q shall be deemed to constitute a release of any executory obligations of any party hereto (or any other Person) under this Agreement or any other contract remaining in full force and effect as of the Closing.

[Remainder of Page Intentionally Left Blank]

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

SELLER
TENSILE-VERTEX HOLDINGS, LLC
By:
Name: Douglas J. Dossey
Its: Authorized Signatory

[Signature Page to Purchase and Sale Agreement]

BLOCKER
TENSILE-HEARTLAND ACQUISITION CORPORATION
By:
Name: Douglas J. Dossey
Its: Authorized Signatory

[Signature Page to Purchase and Sale Agreement]

BUYER
VERTEX SPLITTER CORPORATION
By:
Name: Ben Cowart
Its: President

[Signature Page to Purchase and Sale Agreement]

EXHIBIT A

DEFINITIONS

“Affiliate” means, with respect to any specified Person, any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the Person specified; provided that Affiliate shall not include any portfolio company of the Seller or any of its Affiliates.

“Agreement” has the meaning set forth in the preamble.

“Blocker” has the meaning set forth in the preamble.

“Business Day” means any day, other than a Saturday, Sunday or any other date on which banks located in New York, New York are closed for business as a result of a federal, state or local holiday.

“Buyer” has the meaning set forth in the preamble.

“Buyer Material Adverse Effect” means a material adverse effect upon the financial condition or operating results of Buyer and its Subsidiaries taken as a whole or on the ability of Buyer and its Subsidiaries to consummate the transactions contemplated hereby.

“Closing” has the meaning set forth in Section 1C.

“Closing Date” has the meaning set forth in Section 1C.

“Code” means the Internal Revenue Code of 1986, as amended.

“Company” means HPRM LLC.

“Company Entities” means the Company and any of its Subsidiaries.

“D&O Indemnified Parties” has the meaning set forth in Section 6C(i).

“Delaware Corporation Law” means the General Corporation Law of the State of Delaware.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Lien” means any mortgage, pledge, lien, hypothec, encumbrance, easement, charge or other security interest.

“Material Adverse Effect” means any change, effect, event, occurrence, state of facts or development that, individually or in the aggregate, has had a materially adverse effect on the legal ability of the parties hereto to consummate the transactions contemplated hereby.

“Person” means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a Governmental Entity.

“Privileged Communications” has the meaning set forth in Section 6D.

A-1 

“Purchase Price” has the meaning set forth in Section 1B.

“Purchased Securities” has the meaning set forth in the recitals.

“Securities Act” means the Securities Act of 1933, as amended.

“Seller” has the meaning set forth in the recitals.

“Seller Parties” means any Seller, any Affiliate of any Seller, and each of their respective officers, directors, employees, partners, members, managers, agents, attorneys, representatives, successors and permitted assigns.

“Seller Representation Group” has the meaning set forth in Section 6D.

“Subsidiary” means, with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a partnership, association or other business entity if such Person or Persons shall be allocated a majority of partnership, association or other business entity gains or losses or shall be or control the managing director or general partner of such partnership, association or other business entity.

“Tax” or “Taxes” means any federal, state, local or foreign income, gross receipts, capital stock, license, payroll, employment, excise, severance, stamp, occupation, premium, property or windfall profits taxes, environmental taxes, customs duties, franchise, withholding, social security, unemployment, disability, real property, personal property, sales, use, transfer, value added, goods and services, alternative or add-on minimum, estimated or other tax, fee, assessment or charge of any kind whatsoever including any interest, penalties or additional amounts in respect of the foregoing.

“Tax Return” means any return, declaration, report, claim for refund or information return or statement relating to Taxes (including any schedule thereto or amendment thereof).

A-2

EX-10.2

Vertex Energy, Inc. 8-K

Exhibit 10.2

PURCHASE AND SALE AGREEMENT

THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into as of February 25, 2022, by and among Tensile-Vertex Holdings LLC, a Delaware limited liability company (the “Seller”), Tensile-Myrtle Grove Acquisition Corporation, a Delaware corporation (the “Blocker”), and Vertex Splitter Corporation, a Delaware corporation (the “Buyer”). Unless otherwise defined herein, capitalized terms used herein are defined in Exhibit A.

WHEREAS, the Seller owns all of the issued and outstanding common stock of the Blocker; and

WHEREAS, on the terms and subject to the conditions set forth in this Agreement, Buyer desires to purchase from the Seller, and the Seller desires to sell to Buyer, all of the issued and outstanding shares of the common stock of the Blocker (the “Purchased Securities”) for the consideration described herein.

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties and covenants contained herein, and intending to be legally bound, the parties hereto hereby agree as follows:

ARTICLE 1
PURCHASE AND SALE

1A.        Purchase and Sale of the Purchased Securities. On the terms and subject to the conditions set forth in this Agreement, at the Closing, Buyer shall purchase and acquire from the Seller, and the Seller shall sell, assign, transfer, convey and deliver to Buyer, all of the Purchased Securities, free and clear of all Liens (other than Liens (i) arising under the Securities Act and applicable state securities laws or (ii) created or incurred by, or at the direction of, Buyer).

1B.         Purchase Price. The aggregate purchase price for the Purchased Securities (the “Purchase Price”) shall be an amount equal to the sum of the aggregate Class B Preference plus the aggregate Unreturned Capital (in each case, attributable to all of the issued and outstanding Class B Units of the Company as of the Closing Date) plus an amount equal to any and all cash and cash equivalents of Blocker.

1C.         Closing. On the terms and subject to the conditions set forth in this Agreement, the closing of the purchase and sale of the Purchased Securities and the other transactions contemplated by this Agreement (the “Closing”) shall take place on March 31, 2022, or any earlier date agreed upon in writing by Buyer and Seller, subject only to the satisfaction or waiver of the conditions set forth in Article 2 (other than those conditions that by their terms or nature are to be satisfied by performance at the Closing, provided that such conditions are satisfied at the Closing). The date on which the Closing shall occur is referred to herein as the “Closing Date.”

1D. Closing Deliveries.

(i)           At the Closing, Buyer shall deliver or cause to be delivered to the Sellers, each of the following: (a) an aggregate amount in cash equal to the Purchase Price by wire transfer of immediately available funds to the account or accounts designated in writing by the Seller prior to the Closing Date; (b) certified copies of the resolutions or consents of the board of directors (or equivalent governing body) of Buyer authorizing and approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; and (c) a certificate of good standing of Buyer from the jurisdiction in which Buyer is incorporated or formed dated within 30 days of the Closing Date; and

(ii)           At the Closing, the Seller shall deliver or cause to be delivered to Buyer each of the following: (a) duly executed stock powers or similar instruments of assignment and conveyance in customary form, transferring the Purchased Securities from the Seller to Buyer; and (b) certified copies of the resolutions or consents of the board of directors (or equivalent governing body) of the Seller authorizing and approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby.

ARTICLE 2
CONDITIONS TO CLOSING

2A.       Conditions to All Parties’ Obligations. The obligation of the Seller and the Buyer to consummate the transactions contemplated by this Agreement to take place at the Closing is subject to the satisfaction, or waiver by the Seller and the Buyer, of each of the following conditions as of immediately prior to the Closing:

(i)          No law, judgment, ruling, injunction or order of any Governmental Entity shall be in effect as of the Closing enjoining, restraining, preventing or prohibiting consummation of the transactions contemplated by this Agreement or making their consummation illegal; and

(ii) This Agreement shall not have been terminated in accordance with Section 7A.

2B.         Conditions to Buyer’s Obligations. The obligation of the Buyer to consummate the transactions contemplated by this Agreement to take place at the Closing is subject to the satisfaction or waiver by the Buyer of each of the following additional conditions as of immediately prior to the Closing:

(i)           The representations and warranties of the Seller and the Blocker contained in Article 3 and Article 4 of this Agreement (interpreted without giving effect to any limitation or qualification based on materiality or other terms of similar import or effect) shall be true and correct as of the Closing Date as if made anew as of such date (except to the extent any such representation or warranty expressly relates to an earlier date (in which case solely as of such earlier date)), except for any failure of such representations and warranties to be true and correct that would not reasonably be expected to have, either individually or in the aggregate with all such other failures, a Material Adverse Effect;

(ii)           Each of the covenants and agreements of the Seller and the Blocker to be performed as of or prior to the Closing shall have been performed in all material respects; and

(iii)          The Seller shall have delivered to Buyer a certificate dated as of the Closing Date confirming the foregoing matters in Section 2B(i) and Section 2B(ii).

2C.         Conditions to the Seller’s Obligations. The obligation of the Seller to consummate the transactions contemplated by this Agreement to take place at the Closing is subject to the satisfaction or waiver by the Seller of each of the following additional conditions as of immediately prior to the Closing:

(i)           The representations and warranties of Buyer contained in Article 5 of this Agreement (interpreted without giving effect to any limitation or qualification based on materiality or other terms of similar import or effect) shall be true and correct as of the Closing Date as if made anew as of such date (except to the extent any such representation or warranty expressly relates to an earlier date (in which case solely as of such earlier date)), except for any failure of such representations and warranties to be true and correct that would not reasonably be expected to have, either individually or in the aggregate with all such other failures, a Material Adverse Effect;

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(ii)           Each of the covenants and agreements of Buyer to be performed as of or prior to the Closing shall have been performed in all material respects; and

(iii)          Buyer shall have delivered to the Seller a certificate dated as of the Closing Date confirming the foregoing matters in Section 2C(i) and Section 2C(ii).

2D.        Waiver of Conditions. All conditions to the Closing shall be deemed to have been satisfied or waived from and after the Closing.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF THE SELLER

As an inducement to Buyer to enter into this Agreement, the Seller hereby represents and warrants to Buyer that:

3A.        Organization. Seller is a limited liability company validly existing and in good standing under the laws of its jurisdiction of formation.

3B.       Authority. Seller has all requisite capacity, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of, and performance by, the Seller of this Agreement has been authorized by all necessary action on the part of the Seller. This Agreement has been duly executed and delivered by the Seller and, subject to the due authorization, execution and delivery by the other parties hereto, this Agreement is a valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as limited by the application of bankruptcy, moratorium and other laws affecting creditors’ rights generally and as limited by the availability of specific performance and the application of equitable principles.

3C.        No Conflict; Required Filings and Consents. The execution, delivery and performance by the Seller of this Agreement, and the consummation of the transactions contemplated hereby, do not and will not, with or without the giving of notice or passage of time or both: (i) conflict with or violate the Seller’s organizational documents; (ii) conflict with or violate any law applicable to Seller or by which any property or asset of Seller is bound or affected; or (iii) (a) result in any material breach of any of the provisions of, (b) constitute a material default under, (c) give any third party the right to terminate, (d)   result in the creation of any lien, security interest, charge or encumbrance upon any of the units , shares of capital stock or other equity securities or any material assets of the Seller pursuant to the provisions of, or (e) require any authorization, consent, approval, exemption or other action by, or notice to, any Governmental Entity, in each case, except as has been obtained or as contemplated in this Agreement, under (I) any material contract to which the Seller is a party or by which any of its properties or assets are bound or affected or (II) any other material licenses, filings, qualifications, franchises, permits, certificates, approvals or other similar authorizations issued by applicable Governmental Entities necessary for the lawful conduct of the Seller’s business or to own or use its properties or assets as conducted as of the date hereof, except in the case of clauses (ii) and (iii), as to matters that have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Seller’s ability to consummate the transactions contemplated by this Agreement.

3D.         Title. The Seller is the holder of record and beneficially owns the Purchased Securities and has title to such Purchased Securities, and the Purchased Securities have not been (directly or indirectly) pledged or assigned to any Person and are held free and clear of all Liens (other than any restrictions on transfer imposed by federal and state securities laws and any restrictions on transfer expressly set forth in this Agreement). There are no voting trusts, irrevocable proxies or contracts or understandings respecting transfer to which the Seller is a party or is bound with respect to the Purchased Securities.

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3E.        Legal Proceedings. As of the date hereof, there are no material actions, suits, proceedings or orders pending or, insofar as known to the Seller, threatened against the Seller at law or in equity, by any Governmental Entity, except for any such actions, suits, proceedings or orders that have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the parties to consummate the transactions contemplated hereby.

3F.      Brokerage. There are no claims for brokerage commissions, finder’s fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of the Seller.

ARTICLE 4 

REPRESENTATIONS AND WARRANTIES OF THE BLOCKER

As an inducement to Buyer to enter into this Agreement, the Blocker hereby represents and warrants to Buyer that:

4A.         Organization and Power. The Blocker is a corporation, validly existing and in good standing under the laws of the State of Delaware.

4B.         Capitalization of Blocker.

(i)           The authorized capital stock of the Blocker consists of 1,000 shares of common stock, all of which, as of the date hereof, are issued and outstanding and owned of record by the Seller.

(ii)           All of the shares of the common stock of the Blocker have been duly authorized and are validly issued, fully paid and non-assessable. There are no rights, subscriptions, warrants or options to purchase or otherwise acquire any shares of capital stock or other equity securities of the Blocker or securities or obligations of any kind convertible into or exchangeable for any shares of capital stock or other equity securities of the Blocker.

4C.         Authorization; No Breach.

(i)           The Blocker has (a) approved and authorized the execution and delivery of this Agreement and (b) approved the consummation of the transactions contemplated hereby. No other corporate proceedings by the Blocker are necessary to authorize the transaction contemplated by this Agreement. This Agreement has been duly executed and delivered by the Blocker and constitutes the valid and binding obligation of the Blocker, enforceable in accordance with its terms, except as limited by the application of bankruptcy, moratorium and other laws affecting creditors’ rights generally and as limited by the availability of specific performance and the application of equitable principles.

(ii)           The execution and delivery of this Agreement by the Blocker does not (a) result in any material breach of any of the provisions of, (b) constitute a material default under, (c) give any third party the right to terminate, (d) result in the creation of any lien, security interest, charge or encumbrance upon any of the units, shares of capital stock or other equity securities or any material assets of the Blocker pursuant to the provisions of or (e) require any authorization, consent, approval, exemption or other action by, or notice to, any Governmental Entity, in each case, except as has been obtained or as contemplated in this Agreement, under (A) the organizational documents of the Blocker, (B) any material contract to which the Blocker is a party, (C) any material judgment, order or decree to which the Blocker is subject or (D) any material law, statute, rule or regulation to which the Blocker is subject.

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4D.    Conduct of Business. The Blocker is a holding company and does not directly engage in any business activities and does not directly own any assets or properties used in the conduct of any such business activities. Except for liabilities and obligations incurred in connection with its incorporation, organization and capitalization and the ownership of the Company, the Blocker has not incurred, directly or indirectly, any liabilities and obligations or engaged in any business activities of any type or kind, other than activities ancillary to or contemplated by this Agreement and holding units of the Company.

4E.    Legal Proceedings. As of the date hereof, there are no material actions, suits, proceedings or orders pending or, insofar as known to the Blocker, threatened against the Blocker at law or in equity, by any Governmental Entity, except for any such actions, suits, proceedings or orders that have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the parties to consummate the transactions contemplated hereby.

4F.   Brokerage. There are no claims for brokerage commissions, finder’s fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of the Blocker.

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF THE BUYER

As an inducement to the Seller to enter into this Agreement, Buyer hereby represents and warrants to the Seller that:

5A.         Organization and Corporate Power. Buyer is a corporation validly existing and in good standing under the laws of Delaware.

5B.         Authorization; No Breach.

(i)           The board of directors (or equivalent governing body) of Buyer, by resolutions duly adopted at a meeting duly called and held, or by written consent in lieu of a meeting, has (a) approved and authorized the execution and delivery of this Agreement and (b) approved the consummation of the transactions contemplated hereby. No other proceedings on the part of Buyer are necessary to authorize the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by Buyer and constitutes the valid and binding obligation of Buyer, enforceable in accordance with its terms, except as limited by the application of bankruptcy, moratorium and other laws affecting creditors’ rights generally and as limited by the availability of specific performance and the application of equitable principles.

(ii)           The execution and delivery of this Agreement by Buyer does not (a) result in any material breach of any of the provisions of, (b) constitute a material default under, (c) give any third party the right to terminate, (d) result in the creation of any lien, security interest, charge or encumbrance upon any of the shares of capital stock or other equity securities or any material assets of Buyer or any of its Subsidiaries pursuant to the provisions of or (e) require any authorization, consent, approval, exemption or other action by, or notice to, any Governmental Entity, in each case, except as has been obtained or as contemplated in this Agreement, under (I) the organizational documents of Buyer or any of its Affiliates, (II)  any material contract to which Buyer or any of its Affiliates is party, (III) any material judgment, order or decree to which Buyer or any of its Subsidiaries is subject or (IV) any material law, statute, rule or regulation to which Buyer or any of its Affiliates is subject.

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5C.         Legal Proceedings. There are no material actions, suits, proceedings or orders pending or, insofar as known to Buyer, threatened against Buyer or any of its Subsidiaries at law or in equity, by any Governmental Entity, except for any such actions, suits, proceedings or orders that have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the parties to consummate the transactions contemplated hereby.

5D.         Investigation. Buyer acknowledges that Buyer is relying on its own investigation and analysis in entering into the transactions contemplated hereby. Buyer is knowledgeable about the industries in which the Company Entities operate and is capable of evaluating the merits and risks of the transactions contemplated by this Agreement and is able to bear the substantial economic risk of such investment for an indefinite period of time. Buyer has been afforded full access to the books and records, facilities and personnel of the Company Entities, Blocker and their respective Subsidiaries for purposes of conducting a due diligence investigation, has received all information requested by it and its representatives from the Company Entities and Blocker and has conducted a full due diligence investigation of the Blocker and the Company Entities.

5E.          Brokerage. No agent, broker, investment banker, financial advisor or other firm or Person is or will be entitled to any broker’s or finder’s fee or any other similar commission or fee in connection with any of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Buyer or any of its Affiliates, other than any agent, broker, investment banker, financial advisor or other firm or Person the fees and expenses of which shall be paid by Buyer.

5F.         Solvency; Fraudulent Conveyance. Immediately after giving effect to the transactions contemplated hereby, Buyer and each of its Subsidiaries (including the Blocker and the Company Entities) shall be able to pay their respective debts as they become due and shall own property with a fair saleable value greater than the amounts required to pay their respective debts when due (including all contingent liabilities). Immediately after giving effect to the transactions contemplated hereby, Buyer and each of its Subsidiaries (including the Blocker and the Company Entities) shall have adequate capital to carry on their respective businesses. No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated by this Agreement with the intent to hinder, delay or defraud either present or future creditors of Buyer and its Subsidiaries (including the Blocker and the Company Entities).

5G.         Acquisition for Investment. The Purchased Securities are being acquired for investment only and not with a view to any public distribution thereof, and Buyer will not offer to sell or otherwise dispose of the Purchased Securities in violation of any of the registration requirements of the Securities Act or any comparable state law. Buyer is an “accredited investor” within the meaning of Regulation D promulgated pursuant to the Securities Act. Buyer has had an opportunity to ask questions of and receive answers from the Company Entities, Blocker and their respective Subsidiaries concerning the terms and conditions of this Agreement and to obtain additional information relating to the Company Entities, Blocker and their respective Subsidiaries and businesses. Buyer acknowledges that the Purchased Securities have not been registered under the Securities Act or the Exchange Act or any state or foreign securities laws and that the Purchased Securities may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of unless such sale, transfer, offer, pledge, hypothecation or other disposition is pursuant to the terms of an effective registration statement under the Securities Act and are registered under any applicable state or foreign securities laws or pursuant to an exemption from registration under the Securities Act or the Exchange Act and any applicable state or foreign securities laws.

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ARTICLE 6

COVENANTS AND AGREEMENTS

6A.        Press Release and Announcements. The parties hereto agree that, from the date hereof through the Closing Date, no public release or announcement concerning the transactions contemplated hereby shall be issued or made by or on behalf of Buyer, on the one hand, without the prior consent of the Seller, or by or on behalf of any Company Entity or the Seller, on the other hand, without the prior consent of Buyer. The parties hereto agree to keep the terms of this Agreement confidential, except to the extent and to the Persons to whom disclosure is required by applicable law or for purposes of compliance with financial reporting obligations; provided that the parties may disclose such terms to their respective employees, accountants, advisors and other representatives as necessary in connection with the ordinary conduct of their respective businesses (so long as such Persons agree to, or are bound by contract to, keep the terms of this Agreement confidential). The parties hereto further acknowledge and agree that the Sellers may disclose such terms and the existence of this Agreement and the transactions contemplated hereby to their Affiliates in order that such Persons may provide information about the subject matter of this Agreement and the transactions contemplated hereby to their respective limited partners and prospective limited partners in connection with any fundraising, reporting or similar activities.

6B.         Reasonable Best Efforts. Subject to the terms of this Agreement, each of the parties hereto shall use its reasonable best efforts to cause its conditions to Closing to be satisfied and for the Closing to occur as promptly as practicable and no party shall take any action designed to prevent, impede or delay the Closing.

6C.         Director and Officer Liability and Indemnification.

(i)           Without limiting any additional rights that any Person may have under any other agreement, from the Closing Date through the sixth anniversary of the Closing Date, Buyer shall indemnify and hold harmless each present (as of immediately prior to the Closing) and former officer, director, manager or employee of the Blocker (the “D&O Indemnified Parties”) against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (a) the fact that the D&O Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Blocker or (b) matters existing or occurring at or prior to the Closing Date (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Closing Date, to the fullest extent permitted under applicable law save and except any such Costs actually covered by a policy of directors and officers liability insurance maintained by Seller or any Affiliate of Seller. In the event of any such claim, action, suit, proceeding or investigation, (x)  each D&O Indemnified Party will be entitled to advancement of expenses incurred in its defense from Buyer or the Company within ten business days of receipt by Buyer from the D&O Indemnified Party of a request therefor, provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the Delaware Corporation Law or the Blocker’s organizational documents as in effect immediately prior to the Closing, to repay such advances if it is ultimately determined that such person is not entitled to indemnification, (y) neither Buyer nor any of its Affiliates, shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such D&O Indemnified Party hereunder) unless such settlement, compromise or consent includes an unconditional release of such D&O Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such D&O Indemnified Party otherwise consents and (z) Buyer, the Company and their respective Affiliates shall cooperate in the defense of any such matter.

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(ii)           Buyer shall not, and shall not permit the Blocker to, amend, repeal or modify in a manner adverse to the beneficiary thereof any provision in the Blocker’s organizational documents relating to the exculpation or indemnification of former officers, managers, directors, employees, fiduciaries or agents of the Blocker in effect immediately prior to the Closing, it being the intent of the parties that the officers, managers, directors, employees, fiduciaries and agents of the Blocker prior to the Closing shall continue to be entitled to such exculpation and indemnification to the fullest extent permitted under applicable law.

(iii)          Notwithstanding anything contained in this Agreement to the contrary, this Section 6C shall survive the consummation of the Closing indefinitely. In the event that Buyer or any of its Affiliates (including the Company Entities) or any of their respective successors or assigns (a) consolidates with or merges into any other Person or (b) transfers all or substantially all of its properties or assets to any Person, then, and in each case, the successors and assigns of Buyer or its Affiliates (including the Company Entities), as the case may be, shall expressly assume and be bound by the obligations set forth in this Section 6C.

(iv)         The obligations of Buyer and its Affiliates (including the Company Entities) under this Section 6C shall not be terminated or modified in such a manner as to adversely affect any Person to whom this Section 6C applies without the prior written consent of such affected Person.

6D.         Provisions Respecting Representation of the Company. Each of the parties to this Agreement hereby agrees, on its own behalf and on behalf of its directors, managers, members, partners, officers, employees and Affiliates, that Kirkland & Ellis LLP (“Kirkland”) may serve as counsel to each and any of the Seller and its Affiliates (individually and collectively, the “Seller Representation Group”), on the one hand, and the Blocker and / or Company Entities, on the other hand, in connection with the negotiation, preparation, execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, and that, following consummation of the transactions contemplated hereby, Kirkland (or any successor) may serve as counsel to the Seller Representation Group or any director, manager, member, partner, officer, employee or Affiliate of any member of the Seller Representation Group, in connection with any litigation, claim or obligation arising out of or relating to this Agreement or the transactions contemplated by this Agreement notwithstanding such representation, and each of the parties hereto (on its own behalf and on behalf of its Affiliates) hereby consents thereto and irrevocably waives any conflict of interest arising therefrom, and each of such parties shall cause any Affiliate thereof to consent to irrevocably waive any conflict of interest arising from such representation. The parties agree to take the steps necessary to ensure that any privilege attaching as a result of Kirkland representing the Company Entities and Blocker in connection with the transactions contemplated by this Agreement shall survive the Closing and shall remain in effect, provided that such privilege from and after the Closing shall be controlled by the Seller. As to any privileged attorney-client communications between Kirkland and the Blocker, the Company or any of the other Company Entities prior to the Closing Date (collectively, the “Privileged Communications”), Buyer, the Blocker and the Company Entities together with any of their respective Affiliates, Subsidiaries, successors or assigns agree that no such party may use or rely on any of the Privileged Communications in any action against or involving any of the parties after the Closing. In addition, if the transactions contemplated by this Agreement are consummated, all Privileged Communications related to such transactions will become property of (and be controlled by) the Seller and none of Buyer, the Blocker, the Company Entities or any of their respective Affiliates, Subsidiaries, successors or assigns shall retain any copies of such records or have any access to them.

6E.         Expenses; Transfer Taxes. If this Agreement is terminated by Buyer prior to consummation of the Closing pursuant to Section 7A(ii), then Seller shall pay, or cause to be paid, all fees and expenses incurred by each party hereto in connection with this Agreement and the transactions contemplated hereby or otherwise required by applicable law. If this Agreement is terminated by Seller or Buyer prior to consummation of the Closing pursuant to Section 7A(iii), (iv) or (v), then Buyer shall pay, or cause to be paid, all fees and expenses incurred by each party hereto in connection with this Agreement and the transactions contemplated hereby or otherwise required by applicable law. If this Agreement is terminated pursuant to Section 7A(i), or the Closing occurs, each party shall pay all fees and expenses incurred by such party in connection with this Agreement and the transactions contemplated hereby or otherwise required by applicable law, but Buyer shall pay, or cause to be paid, all gross receipts, excise, transfer, property, documentary, sales, use, stamp, registration and other such Taxes, and all conveyance fees, recording charges and other similar fees and charges (including any penalties and interest) incurred in connection with the consummation of the transactions contemplated by this Agreement, whether imposed on Blocker, the Company Entities or any Seller resulting from the transactions contemplated by this Agreement. Buyer shall prepare and file, at its own expense, any Tax Returns and other documentation with respect to all such Taxes, fees and charges, and the parties hereto shall, and shall cause their Affiliates to, join in the execution of such Tax Returns and other documentation to the extent required by applicable law.

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ARTICLE 7
TERMINATION

7A.         Termination. Anything contained herein to the contrary notwithstanding, this Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing:

(i) by the mutual written consent of the Buyer and the Seller;

(ii)          by Buyer, if (x) the Seller has failed to consummate the Closing when required in accordance with this Agreement or (y) there has been a violation or breach by the Seller of any covenant, representation or warranty contained in this Agreement that has prevented the satisfaction of any condition to the obligations of Buyer at the Closing (and such violation or breach has not been waived by Buyer) and such violation or breach is not capable of being cured or, if capable of being cured, has not been cured prior to thirty (30) days after written notice thereof from Buyer; provided that the right to terminate this Agreement pursuant to this Section 7A(ii) shall not be available to Buyer at any time that Buyer has violated, or is in breach of, any covenant, representation or warranty hereunder, if such violation or breach has prevented satisfaction of any of the Sellers’ or the Company’s conditions to Closing hereunder (and has not been waived by the Sellers’ Representative) or, if capable of being cured, has not been cured by Buyer;

(iii)         by the Seller, if (x) Buyer has failed to consummate the Closing when required in accordance with this Agreement or (y) there has been a violation or breach by Buyer of any covenant, representation or warranty contained in this Agreement that has prevented the satisfaction of any condition to the obligations of the Seller at the Closing (and such violation or breach has not been waived by the Seller) and such violation or breach is not capable of being cured or, if capable of being cured, has not been cured prior to thirty (30) days after written notice thereof from the Sellers’ Representative; provided that the right to terminate this Agreement pursuant to this Section 7A(iii) shall not be available to the Seller at any time that the Blocker or the Seller has violated, or is in breach of, any covenant, representation or warranty hereunder if such violation or breach has prevented satisfaction of Buyer’s conditions to Closing hereunder (and has not been waived by Buyer) or, if capable of being cured, has not been cured by the Blockers or the Seller; or

(iv)         by the Buyer or the Seller, if there is any final, non-appealable law, judgment, ruling, injunction or order enacted, promulgated, issued, entered, amended or enforced by any Governmental Entity enjoining, restraining, preventing or prohibiting consummation of the Closing or making the consummation of the Closing illegal.

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7B.         Effect of Termination. In the event of any termination of this Agreement by the Buyer or the Seller as provided in Section 7A, (i) this Agreement shall forthwith become void and of no further force or effect (except that this Section 7B, Section 6E and Article 9 shall survive the termination of this Agreement and shall be enforceable by the parties hereto) and (ii) there shall be no liability or obligation on the part of the Buyer, the Seller or the Blocker to any other party hereto with respect to this Agreement; provided that, notwithstanding clause (ii) of this Section 7B, no party shall be relieved from liability for any willful breach of this Agreement by such party arising prior to termination.

ARTICLE 8
DEFINITIONS

8A.         Definitions. The terms defined in Exhibit A, whenever used herein, shall have the meanings set forth in Exhibit A for all purposes of this Agreement. The definitions in Exhibit A are incorporated into this Agreement as if fully set forth herein and all references to a section in Exhibit A are references to such section of this Agreement.

8B.         Usage.

(i)           Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation.”

(ii)          Words denoting any gender shall include all genders (including the neutral gender). Where a word is defined herein, references to the singular shall include references to the plural and vice versa.

(iii)         Where specific language is used to clarify by example a general statement contained herein, such specific language shall not be deemed to modify, limit or restrict in any manner the construction of the general statement to which it relates.

(iv)         A reference to any party to this Agreement or any other agreement or document shall include such party’s successors and permitted assigns.

(v)          All references to “$” and dollars shall be deemed to refer to United States currency unless otherwise specifically provided.

(vi)         All references to a day or days shall be deemed to refer to a calendar day or calendar days, as applicable, unless otherwise specifically provided and whenever action is required on a day that is not a Business Day such action may be validly taken on the next Business Day.

(vii)        Any reference to any agreement or contract referenced herein shall be a reference to such agreement or contract as amended, restated, modified, supplemented and/or waived.

(viii)      All references to an Article, Section or Exhibit shall be deemed to refer to such Article, Section or Exhibit of this Agreement, unless otherwise specified. The terms “hereof,” “herein,” “hereunder” and derivative words refer to this entire Agreement, unless the context otherwise requires. The words “either,” “or,” “neither,” “nor” and “any” are not exclusive.

(ix)         The phrases “to the knowledge of the Company” or “known to the Company” and phrases of similar import or effect are used herein to qualify and limit the scope of any representation or warranty in which they appear and are not affirmations of any Person’s “superior knowledge” that the representation or warranty in which they are used is true.

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(x) The word “shall” denotes a directive and obligation, and not an option.

(xi)         The contents of Exhibit A form an integral part of this Agreement and any reference to “this Agreement” will be deemed to include such Exhibit.

ARTICLE 9
MISCELLANEOUS

9A.         Survival. The representations, warranties, covenants and agreements of the parties contained in this Agreement shall not survive beyond the Closing, and there shall be no liability in respect thereof or otherwise in connection with the transactions contemplated by this Agreement, whether such liability has accrued prior to or after the Closing Date, on the part of any party, its Affiliates or any of their respective officers, directors, managers, members, agents or other Representative, except for (i) those covenants and agreements that by their terms apply or are to be performed in whole or in part at or after the Closing, and (ii) this Article 9. The covenants and agreements herein requiring performance after the Closing shall survive in accordance with their respective terms, and nothing in this Section 9A will be deemed to limit any rights or remedies of any Person for breach of any such surviving covenant or agreement. Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that this Agreement may only be enforced against, and any Action, suit or claim for breach of this Agreement may only be made against, the parties to this Agreement, and no Non-Recourse Party of such a party to this Agreement shall have any liability relating to this Agreement or any of the transactions contemplated herein.

9B.         Amendment and Waiver. This Agreement may be amended or any provision of this Agreement may be waived; provided that (i) any amendment shall be binding only if such amendment set forth in a writing executed by the Seller and the Buyer and (ii) any waiver of any provision of this Agreement shall be effective against a party only if set forth in a writing executed by such party. No course of dealing between or among any Persons having any interest in this Agreement shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any person under or by reason of this Agreement.

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9C.         Notices. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing (including in electronic form) and shall be deemed to have been given (i) if personally delivered, on the date of delivery, (ii) if delivered by express courier service of national standing for next day delivery (with charges prepaid), on the Business Day following the date of delivery to such courier service, (iii) if deposited in the United States mail, first-class postage prepaid, on the date of delivery, (iv) if delivered by telecopy, provided the relevant transmission report indicates a full and successful transmission, (a) on the date of such transmission, if such transmission is completed at or prior to 5:00 p.m., local time of the recipient party, on a Business Day, and (b) on the next Business Day following the date of transmission if such transmission is completed after 5:00 p.m., local time of the recipient party, on a Business Day or at any time on a day that is not a Business Day, in each case, followed by delivery by next-day service from a courier service of national standing or (v) if delivered by electronic mail, provided no failure message is generated (a) on the date of such transmission, if such transmission is completed at or prior to 5:00 p.m., local time of the recipient party, on a Business Day and (b) on the next Business Day following the date of transmission, if such transmission is completed after 5:00 p.m., local time of the recipient party, on a Business Day or at any time on a day that is not a Business Day, in each case, followed by delivery by next-day service from a courier service of national standing. Notices, demands and communications shall, unless another address is specified in writing pursuant to the provisions hereof, be sent to the address indicated below:

Notices to the Buyer and, following the Closing, the Blocker:

Vertex Splitter Corporation 

c/o Vertex Energy Operating LLC

1331 Gemini Street, Suite 250 

Houston, TX 77058

Attention: Ben Cowart, 

Email: benc@vertexenergy.com

with a copy to:

Ruddy Gregory PLLC 

44 Cook Street, Suite 640 

Denver, CO 80206 

Attention: James P. Gregory, Esq.

Email: jgregory@ruddylaw.com

Notices to the Seller and, prior to the Closing, the Blocker:

Tensile-Vertex Holdings, LLC

c/o Tensile Capital Management 

700 Larkspur Landing Circle, Suite 255 

Larkspur, CA 94939 

Telephone: (415) 830-8160

Attention: Doug Dossey 

Email: ddossey@tensilecapital.com

with a copy to:

Kirkland & Ellis LLP 

555 California Street, Suite 2700

San Francisco, CA 94104

Attention: Noah D. Boyens, P.C.

Email: noah.boyens@kirkland.com

Without limiting the foregoing, any party hereto may give any notice, request, instruction, demand, document or other communication hereunder using any other means (including personal delivery, expedited courier, messenger service, ordinary mail or electronic mail), but no such notice, request, instruction, demand, document or other communication shall be deemed to have been duly given unless and until it actually is received by the party for whom it is intended.

9D.         Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned (including directly or indirectly by change of control or by operation of law) without the prior written consent of the Seller and the Buyer.

9E.         Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Agreement.

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9F.          No Strict Construction. Notwithstanding the fact that this Agreement has been drafted or prepared by one of the parties, each party hereto hereby confirms that they and their respective counsel have reviewed, negotiated and adopted this Agreement as the joint agreement and understanding of the parties hereto and the language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any Person. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, the terms and provisions of the execution version of this Agreement shall control and prior drafts of this Agreement shall not be considered or analyzed for any purpose (including in support of parol evidence proffered by any Person in connection with this Agreement).

9G.         Captions. The captions used in this Agreement are for convenience of reference only and do not constitute a part of this Agreement and shall not be deemed to limit, characterize or in any way affect any provision of this Agreement, and all provisions of this Agreement shall be enforced and construed as if no such caption had been used in this Agreement.

9H.         Complete Agreement. This Agreement and that certain side letter between Buyer and Seller of even date herewith contain the complete agreement among the parties hereto with respect to the subject matter hereof and supersede any prior understandings, agreements or representations by or among such parties, whether written or oral, or any prior course of dealing among them, which may have related to the subject matter hereof in any way.

9I.           No Additional Representations; Disclaimer.

(i)           The Buyer acknowledges and agrees that neither of the Seller or the Blocker, nor any of their respective Affiliates, counsel, advisors, consultants, agents or other representatives, nor any other Person acting on behalf of the any of the foregoing Persons or any of their respective Affiliates or representatives, has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Seller, the Blocker, the Company or any other Company Entity or their respective businesses, operations or assets, except as expressly set forth in this Agreement. Buyer further acknowledges and agrees that neither the Seller nor any of its direct or indirect Affiliates or representatives (or any of their directors, officers, employees, members, managers, partners, agents or otherwise), will have or be subject to any liability to Buyer or any other Person resulting from the distribution to Buyer, or Buyer’s use of, any such information, or any information, document or material made available to Buyer or its Affiliates or their respective, counsel, accountants, consultants, advisors, agents or other representatives in expectation or anticipation of the transactions contemplated by this Agreement.

(ii)          The Buyer acknowledges and agrees that, except for the representations and warranties of the Seller and the Blocker expressly set forth in Article 3 and Article 4, the Purchased Securities are being acquired AS IS WITHOUT ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR INTENDED USE OR ANY OTHER EXPRESSED OR IMPLIED WARRANTY. Buyer acknowledges and agrees that it is consummating the transactions contemplated by this Agreement without relying on any representation or warranty, express or implied, whatsoever by the Seller or any of its Affiliates, counsel, advisors, consultants, agents or other representatives, except for the representations and warranties of the Seller and the Blocker expressly set forth in Article 3 and Article 4. BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED AND HOWSOEVER CONVEYED (INCLUDING ANY RELATING TO THE PAST, PRESENT OR FUTURE FINANCIAL CONDITION, RESULTS OF OPERATIONS, ASSETS OR LIABILITIES OF THE COMPANY ENTITIES), ARE HEREBY SPECIFICALLY DISCLAIMED FOR ALL PURPOSES BY EACH SELLER PARTY.

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(iii)         In connection with Buyer’s investigation of the Company Entities and Blocker, Buyer has received, directly or indirectly, through its Affiliates, counsel, advisors, consultants, agents or other representatives, from or on behalf of the Company or its Affiliates, counsel, advisors, consultants, agents or other representatives, certain projections, including projected statements of operating revenues, income from operations, and cash flows of the Company Entities (and the business transactions and events underlying such statements) and certain business plan information, projections, presentations, predictions, calculations, estimates and forecasts of the Company Entities and other similar data. Buyer acknowledges that there are uncertainties inherent in attempting to make such estimates, projections, forecasts, plans, statements, predictions, presentations, calculations and other similar data, that Buyer is well aware of such uncertainties, that Buyer is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, forecasts, plans, statements, calculations, presentations, predictions and other similar data so furnished to it (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans, statements, calculations, predictions and other similar data), and that neither Buyer, nor any Buyer Party, shall have any claim under any circumstances against any Seller Party or any other Person with respect thereto or arising therefrom. Accordingly, the Seller does not make any representations or warranties whatsoever to Buyer or any other Person with respect to such estimates, projections, forecasts, plans, statements, calculations, presentations, predictions and other similar data (including the reasonableness of the assumptions underlying such projections, forecasts, plans, statements, calculations, presentations, predictions and other similar data) and no such Person shall be entitled to rely on such estimates, projections, forecasts, plans, statements, calculations, presentations, predictions and other similar data for any purpose, including in connection with the transactions contemplated by this Agreement or the financing thereof.

9J.          Counterparts. This Agreement may be executed in multiple counterparts (including by means of telecopied or electronically transmitted (including in .pdf or .tif formats) signature pages), all of which, taken together, shall constitute one and the same Agreement.

9K.         Governing Law. This Agreement, and all claims or causes of action (whether at law or in equity, in contract or in tort) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance hereof, or the transactions contemplated by this Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

9L.          CONSENT TO JURISDICTION. THE PARTIES AGREE THAT JURISDICTION AND VENUE IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY ANY PARTY PURSUANT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL PROPERLY AND EXCLUSIVELY LIE IN THE CHANCERY COURT OF THE STATE OF DELAWARE, AND ANY STATE APPELLATE COURT THEREFROM WITHIN THE STATE OF DELAWARE (OR, IF THE CHANCERY COURT OF THE STATE OF DELAWARE DECLINES TO ACCEPT JURISDICTION OVER A PARTICULAR MATTER, ANY STATE OR FEDERAL COURT WITHIN THE STATE OF DELAWARE). EACH PARTY ALSO AGREES NOT TO BRING ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY OTHER COURT (OTHER THAN UPON THE APPEAL OF ANY JUDGMENT, DECISION OR ACTION OF ANY SUCH COURT LOCATED IN DELAWARE OR, AS APPLICABLE, ANY FEDERAL APPELLATE COURT THAT INCLUDES THE STATE OF DELAWARE WITHIN ITS JURISDICTION). BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY IRREVOCABLY SUBMITS TO THE JURISDICTION OF SUCH COURTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY WITH RESPECT TO SUCH SUIT, ACTION OR PROCEEDING. THE PARTIES IRREVOCABLY AGREE THAT VENUE WOULD BE PROPER IN SUCH COURT, AND HEREBY WAIVE ANY OBJECTION THAT ANY SUCH COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE RESOLUTION OF SUCH SUIT, ACTION OR PROCEEDING. EACH OF THE PARTIES FURTHER IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES HEREIN OF THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

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9M.        WAIVER OF JURY TRIAL. THE PARTIES TO THIS AGREEMENT EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. THE PARTIES TO THIS AGREEMENT EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE IRREVOCABLE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

9N.         Third-Party Beneficiaries and Obligations. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto or their respective successors and permitted assigns any rights, remedies or liabilities under or by reason of this Agreement, other than sections that are specifically for the benefit of the Seller Parties and the officers, managers, directors, employees, fiduciaries and agents of the Company Entities and Persons to whom Company Expenses are owed, as applicable, each of which is intended to be for the benefit of the Persons covered thereby or to be paid thereunder and may be enforced by such Persons. The parties hereto further agree that the rights of third party beneficiaries shall not arise unless and until the Closing occurs. The representations and warranties in this Agreement are the product of negotiations among the parties hereto and are for the sole benefit of the parties hereto. Any inaccuracies in such representations and warranties are subject to waiver by the parties hereto in accordance with this Agreement without notice or liability to any other Person. In some instances, the representations and warranties in this Agreement may represent an allocation among the parties hereto of risks associated with particular matters regardless of the knowledge of any of the parties hereto. Consequently, Persons other than the parties hereto may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date hereof or as of any other date.

9O.         Obligations of Buyer. Whenever this Agreement requires a Subsidiary of Buyer (including, after the Closing, the Blocker and the Company Entities) to take any action, such requirement shall be deemed to include an undertaking on the part of Buyer to cause such Person to take such action.

9P.          Specific Performance. The parties hereto agree that irreparable damage, for which monetary relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached, including if the parties hereto fail to take any action required of them hereunder to consummate the transactions contemplated by this Agreement. It is accordingly agreed that (i) the parties hereto shall be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement and (ii) the right of specific performance and other equitable relief is an integral part of the transactions contemplated by this Agreement and without that right neither the Sellers nor Buyer would have entered into this Agreement. The parties hereto agree not to assert that a remedy of specific performance or other equitable relief is unenforceable, invalid, contrary to law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. The parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with any such order or injunction.

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9Q.         Release. Effective as of the Closing, each of the Buyer, the Blocker, the Company and each other Company Entity and their respective Affiliates, successors and assigns, hereby fully and unconditionally releases, acquits and forever discharges Seller and the current and former directors, managers, partners, officers and employees of the Seller and its respective Affiliates, and their respective Affiliates’ former, current and future direct and indirect equityholders, controlling persons, directors, officers, employees, agents, representatives, Affiliates, members, managers, general or limited partners, or assignees (or any former, current or future direct or indirect equityholder, controlling person, director, officer, employee, agent, representative, Affiliate, member, manager, general or limited partner, or assignee of any of the foregoing) from any and all manner of actions, causes of actions, claims, obligations, demands, damages, costs, expenses, compensation or other relief, whether known or unknown, whether at Law or in equity, arising out of or relating to or accruing from their relationship with or ownership of the Blocker, the Company and the Company Entities prior to the Closing. Effective as of the Closing, each of the Seller and its respective Affiliates, successors and assigns, hereby fully and unconditionally releases, acquits and forever discharges the current and former directors, managers, partners, officers and employees of the Buyer and its respective Affiliates, and their respective Affiliates’ former, current and future direct and indirect equityholders, controlling persons, directors, officers, employees, agents, representatives, Affiliates, members, managers, general or limited partners, or assignees (or any former, current or future direct or indirect equityholder, controlling person, director, officer, employee, agent, representative, Affiliate, member, manager, general or limited partner, or assignee of any of the foregoing) from any and all manner of actions, causes of actions, claims, obligations, demands, damages, costs, expenses, compensation or other relief, whether known or unknown, whether at Law or in equity, arising out of or relating to or accruing from their relationship with or ownership of the Blocker, the Company and the Company Entities prior to the Closing. Notwithstanding the foregoing, and for the avoidance of doubt, nothing in this Section 9Q shall be deemed to constitute a release of any executory obligations of any party hereto (or any other Person) under this Agreement or any other contract remaining in full force and effect as of the Closing.

[Remainder of Page Intentionally Left Blank]

- 16 - 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

SELLER
TENSILE-VERTEX HOLDINGS, LLC
By:
Name: Douglas J. Dossey
Its: Authorized Signatory

[Signature Page to Purchase and Sale Agreement] 

BLOCKER
TENSILE-MYRTLE GROVE ACQUISITION CORPORATION
By:
Name: Douglas J. Dossey
Its: Authorized Signatory

[Signature Page to Purchase and Sale Agreement] 

BUYER
VERTEX SPLITTER CORPORATION
By:
Name: Ben Cowart
Its: President

 [Signature Page to Purchase and Sale Agreement]

EXHIBIT A

DEFINITIONS

“Affiliate” means, with respect to any specified Person, any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the Person specified; provided that Affiliate shall not include any portfolio company of the Seller or any of its Affiliates.

“Agreement” has the meaning set forth in the preamble.

“Blocker” has the meaning set forth in the preamble.

“Business Day” means any day, other than a Saturday, Sunday or any other date on which banks located in New York, New York are closed for business as a result of a federal, state or local holiday.

“Buyer” has the meaning set forth in the preamble.

“Buyer Material Adverse Effect” means a material adverse effect upon the financial condition or operating results of Buyer and its Subsidiaries taken as a whole or on the ability of Buyer and its Subsidiaries to consummate the transactions contemplated hereby.

“Closing” has the meaning set forth in Section 1C.

“Closing Date” has the meaning set forth in Section 1C.

“Code” means the Internal Revenue Code of 1986, as amended.

“Company” means Vertex Refining Myrtle Grove LLC.

“Company Entities” means the Company and any of its Subsidiaries.

“D&O Indemnified Parties” has the meaning set forth in Section 6C(i).

“Delaware Corporation Law” means the General Corporation Law of the State of Delaware.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Lien” means any mortgage, pledge, lien, hypothec, encumbrance, easement, charge or other security interest.

“Material Adverse Effect” means any change, effect, event, occurrence, state of facts or development that, individually or in the aggregate, has had a materially adverse effect on the legal ability of the parties hereto to consummate the transactions contemplated hereby.

“Person” means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a Governmental Entity.

“Privileged Communications” has the meaning set forth in Section 6D.

A-1 

“Purchase Price” has the meaning set forth in Section 1B.

“Purchased Securities” has the meaning set forth in the recitals.

“Securities Act” means the Securities Act of 1933, as amended.

“Seller” has the meaning set forth in the recitals.

“Seller Parties” means any Seller, any Affiliate of any Seller, and each of their respective officers, directors, employees, partners, members, managers, agents, attorneys, representatives, successors and permitted assigns.

“Seller Representation Group” has the meaning set forth in Section 6D.

“Subsidiary” means, with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a partnership, association or other business entity if such Person or Persons shall be allocated a majority of partnership, association or other business entity gains or losses or shall be or control the managing director or general partner of such partnership, association or other business entity.

“Tax” or “Taxes” means any federal, state, local or foreign income, gross receipts, capital stock, license, payroll, employment, excise, severance, stamp, occupation, premium, property or windfall profits taxes, environmental taxes, customs duties, franchise, withholding, social security, unemployment, disability, real property, personal property, sales, use, transfer, value added, goods and services, alternative or add-on minimum, estimated or other tax, fee, assessment or charge of any kind whatsoever including any interest, penalties or additional amounts in respect of the foregoing.

“Tax Return” means any return, declaration, report, claim for refund or information return or statement relating to Taxes (including any schedule thereto or amendment thereof).

A-2 

EX-10.3

Vertex Energy, Inc. 8-K

Exhibit 10.3

SIDE LETTER RE PURCHASE AND SALE AGREEMENTS

THIS SIDE LETTER RE PURCHASE AND SALE AGREEMENTS (this “Agreement”) is made and entered into as of February 25, 2022, by and among Tensile-Vertex Holdings LLC, a Delaware limited liability company (the “Seller”), and Vertex Splitter Corporation., a Delaware corporation (the “Buyer”) and Vertex Energy, Inc., a Nevada corporation (“Vertex” and, together with the Buyer, the “Vertex Parties”). Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed thereto in the Heartland Purchase Agreement (as defined below).

WHEREAS, certain parties hereto are also parties to (a) that certain Purchase and Sale Agreement, of even date herewith (the “Heartland Purchase Agreement”), pertaining to the sale of all of the issued and outstanding stock of Tensile-Heartland Acquisition Corporation from Seller to Buyer, and (b) that certain Purchase and Sale Agreement, of even date herewith (the “Myrtle Grove Purchase Agreement” and, together with the Heartland Purchase Agreement, the “Purchase Agreements”), pertaining to the sale of all of the issued and outstanding stock of Tensile-Myrtle Grove Acquisition Corporation from Seller to Buyer.

NOW, THEREFORE, as a material inducement of Seller to enter into the Purchase Agreements, and in consideration of the premises and the mutual representations, warranties and covenants contained herein, and intending to be legally bound, the parties hereto hereby agree as follows:

ARTICLE 1
AGREEMENT

1A. Failure to Close. In the event that (i) the closing of the transactions contemplated by the Myrtle Grove Purchase Agreement does not occur on or prior to March 31, 2022, and / or (ii) 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 made by Buyer under the Purchase Agreements, in each case on commercially reasonable terms and conditions as reasonably determined by the board of 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 Buyer, and without consent of the Class B Unitholders of HPRM, invoke the provisions of Section 12.9 of the amended and restated limited liability company agreement of HPRM (the “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) and notwithstanding anything to the contrary set forth in the HPRM LLC Agreement, Seller will be entitled to proceeds in such Sale of the Company equal to the greater of (i) 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 customary working capital adjustment, minus indebtedness (which may be a negative number) and transaction expenses, plus cash, and including, for the avoidance of doubt, all unpaid amounts owing to the Company under the Note), and (ii) the amount due to the Seller under the HPRM Purchase Agreement as of the date of the consummation of such Sale of the Company.

ARTICLE 2
MISCELLANEOUS

2A. Amendment and Waiver. This Agreement may be amended or any provision of this Agreement may be waived; provided that (i) any amendment shall be binding only if such amendment is set forth in a writing executed by the Seller and the Buyer and (ii) any waiver of any provision of this Agreement shall be effective against a party only if set forth in a writing executed by such party. Except as expressly amended as set forth herein, the HPRM LLC Agreement shall continue in full force and effect in accordance with its terms. No course of dealing between or among any Persons having any interest in this Agreement shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any person under or by reason of this Agreement.

- 2 - 

2B. Notices. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing (including in electronic form) and shall be deemed to have been given (i) if personally delivered, on the date of delivery, (ii) if delivered by express courier service of national standing for next day delivery (with charges prepaid), on the Business Day following the date of delivery to such courier service, (iii) if deposited in the United States mail, first-class postage prepaid, on the date of delivery, (iv) if delivered by telecopy, provided the relevant transmission report indicates a full and successful transmission, (a) on the date of such transmission, if such transmission is completed at or prior to 5:00 p.m., local time of the recipient party, on a Business Day, and (b) on the next Business Day following the date of transmission if such transmission is completed after 5:00 p.m., local time of the recipient party, on a Business Day or at any time on a day that is not a Business Day, in each case, followed by delivery by next-day service from a courier service of national standing or (v) if delivered by electronic mail, provided no failure message is generated (a) on the date of such transmission, if such transmission is completed at or prior to 5:00 p.m., local time of the recipient party, on a Business Day and (b) on the next Business Day following the date of transmission, if such transmission is completed after 5:00 p.m., local time of the recipient party, on a Business Day or at any time on a day that is not a Business Day, in each case, followed by delivery by next-day service from a courier service of national standing. Notices, demands and communications shall, unless another address is specifierd in writing pursuant to the provisions hereof, be sent to the address indicated below:

Notices to the Buyer and/or Vertex:

Vertex Splitter

Corporation Vertex Energy Inc. 

c/o Vertex Energy Operating LLC

1331 Gemini Street, Suite 250 

Houston, TX 77058

Attention: Ben Cowart, 

Email: benc@vertexenergy.com

with a copy to:

Ruddy Gregory PLLC 

44 Cook Street, Suite 640 

Denver, CO 80206 

Attention: James P. Gregory, Esq.

Email: jgregory@ruddylaw.com

Notices to the Seller:

Tensile-Vertex Holdings, LLC

c/o Tensile Capital Management 

700 Larkspur Landing Circle, Suite 255 

Larkspur, CA 94939 

Telephone: (415) 830-8160

Attention: Doug Dossey 

Email: ddossey@tensilecapital.com

with a copy to:

Kirkland & Ellis LLP 

555 California Street, Suite 2700

San Francisco, CA 94104

Attention: Noah D. Boyens, P.C.

Email: noah.boyens@kirkland.com

Without limiting the foregoing, any party hereto may give any notice, request, instruction, demand, document or other communication hereunder using any other means (including personal delivery, expedited courier, messenger service, ordinary mail or electronic mail), but no such notice, request, instruction, demand, document or other communication shall be deemed to have been duly given unless and until it actually is received by the party for whom it is intended.

2C. Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned (including directly or indirectly by change of control or by operation of law) without the prior written consent of the Seller and the Buyer.

2D. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Agreement.

- 3 - 

2E. No Strict Construction. Notwithstanding the fact that this Agreement has been drafted or prepared by one of the parties, each party hereto hereby confirms that they and their respective counsel have reviewed, negotiated and adopted this Agreement as the joint agreement and understanding of the parties hereto and the language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any Person. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, the terms and provisions of the execution version of this Agreement shall control and prior drafts of this Agreement shall not be considered or analyzed for any purpose (including in support of parol evidence proffered by any Person in connection with this Agreement).

2F. Captions. The captions used in this Agreement are for convenience of reference only and do not constitute a part of this Agreement and shall not be deemed to limit, characterize or in any way affect any provision of this Agreement, and all provisions of this Agreement shall be enforced and construed as if no such caption had been used in this Agreement.

2G. Complete Agreement. This Agreement and the Purchase Agreements contain the complete agreement among the parties hereto with respect to the subject matter hereof and supersede any prior understandings, agreements or representations by or among such parties, whether written or oral, or any prior course of dealing among them, which may have related to the subject matter hereof in any way.

2H. Counterparts. This Agreement may be executed in multiple counterparts (including by means of telecopied or electronically transmitted (including in .pdf or .tif formats) signature pages), all of which, taken together, shall constitute one and the same Agreement.

2I. Governing Law. This Agreement, and all claims or causes of action (whether at law or in equity, in contract or in tort) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance hereof, or the transactions contemplated by this Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

2J. CONSENT TO JURISDICTION. THE PARTIES AGREE THAT JURISDICTION AND VENUE IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY ANY PARTY PURSUANT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL PROPERLY AND EXCLUSIVELY LIE IN THE CHANCERY COURT OF THE STATE OF DELAWARE, AND ANY STATE APPELLATE COURT THEREFROM WITHIN THE STATE OF DELAWARE (OR, IF THE CHANCERY COURT OF THE STATE OF DELAWARE DECLINES TO ACCEPT JURISDICTION OVER A PARTICULAR MATTER, ANY STATE OR FEDERAL COURT WITHIN THE STATE OF DELAWARE). EACH PARTY ALSO AGREES NOT TO BRING ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY OTHER COURT (OTHER THAN UPON THE APPEAL OF ANY JUDGMENT, DECISION OR ACTION OF ANY SUCH COURT LOCATED IN DELAWARE OR, AS APPLICABLE, ANY FEDERAL APPELLATE COURT THAT INCLUDES THE STATE OF DELAWARE WITHIN ITS JURISDICTION). BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY IRREVOCABLY SUBMITS TO THE JURISDICTION OF SUCH COURTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY WITH RESPECT TO SUCH SUIT, ACTION OR PROCEEDING. THE PARTIES IRREVOCABLY AGREE THAT VENUE WOULD BE PROPER IN SUCH COURT, AND HEREBY WAIVE ANY OBJECTION THAT ANY SUCH COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE RESOLUTION OF SUCH SUIT, ACTION OR PROCEEDING. EACH OF THE PARTIES FURTHER IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES HEREIN OF THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

- 4 - 

2K. WAIVER OF JURY TRIAL. THE PARTIES TO THIS AGREEMENT EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. THE PARTIES TO THIS AGREEMENT EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE IRREVOCABLE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

2L. Specific Performance. The parties hereto agree that irreparable damage, for which monetary relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached, including if the parties hereto fail to take any action required of them hereunder to consummate the transactions contemplated by this Agreement. It is accordingly agreed that (i) the parties hereto shall be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement and (ii) the right of specific performance and other equitable relief is an integral part of the transactions contemplated by this Agreement and without that right neither the Sellers nor Buyer would have entered into this Agreement. The parties hereto agree not to assert that a remedy of specific performance or other equitable relief is unenforceable, invalid, contrary to law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. The parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with any such order or injunction.

[Remainder of Page Intentionally Left Blank]

- 5 - 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

SELLER
TENSILE-VERTEX HOLDINGS, LLC
By:
Name: Douglas J. Dossey
Its: Authorized Signatory

[Signature Page to Purchase and Sale Agreement] 

BUYER
VERTEX SPLITTER CORPORATION
By:
Name: Ben Cowart
Its: President

VERTEX
VERTEX ENERGY INC.
By:
Name: Ben Cowart
Its: President

[Signature Page to Purchase and Sale Agreement]

EX-10.4

Vertex Energy, Inc. 8-K

Exhibit 10.4

SECOND AMENDMENT TO
PROMISSORY NOTE

THIS SECOND AMENDMENT TO PROMISSORY NOTE (the “Second Amendment”) is made and entered into effective as of this 25th day of February, 2022, by and between Vertex Energy Operating, LLC, a Texas limited liability company (“Vertex”), and HPRM LLC, a Delaware limited liability company (“HPRM”).

W I T N E S S E T H:

WHEREAS, HPRM and Vertex entered into that certain Promissory Note dated July 1, 2021, reference to which is hereby made for all purposes (the “Original Note”); and

WHEREAS, VERTEX and HPRM entered into that certain First Amendment to Promissory Note dated October 11, 2021 (the “First Amendment”); and

WHEREAS, Vertex and HPRM desire to further amend the Original Note (as amended by the First Amendment, the “Note”) to extend the maturity date as provided for herein.

NOW, THEREFORE, in consideration of the mutual promises herein contained and other good and valuable consideration, it is agreed as follows:

1.      Amendment of Section 2. Section 2 of the Note is hereby amended in its entirety to read as follows:

Due Date. The principal amount of this Note together with accrued interest (the sum of such principal and accrued interest being hereinafter referred to as the “Amount Due”) shall be due on or before the earlier of (the “Due Date”): (i) June 30, 2022; and (ii) five (5) calendar days following the closing of a sale of substantially all the assets of Vertex Refining OH, LLC (“VROH”), and/or the sale of membership interests in VROH possessing voting control (with the consent of Vertex). This Note may be prepaid in whole or in part at any time without premium or penalty and without the consent of the Lender.

2.      Continuation of Note. Except as amended hereby, the Note shall remain in full force and effect.

3.      Execution in Counterparts. This Second Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. Signatures delivered by facsimile or via e-mail in portable document format (“pdf”) shall be binding for all purposes hereof. Section headings are intended for convenience of reference only and shall not affect in any way the meaning or interpretation of this instrument.

[Signature pages follow.]

1

IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment as of the day and year first above written.

VERTEX:
VERTEX ENERGY OPERATING LLC
By:

Print Name: Ben Cowart

Title: CEO

HPRM:
HPRM LLC
Tensile-Heartland Acquisition Corporation Its: Managing Member
By:

	Douglas J. Dossey
Its:	Authorized Representative

EX-10.5

Vertex Energy, Inc. 8-K

Exhibit 10.5

ESCROW AGREEMENT

THIS ESCROW AGREEMENT (this “Agreement”) is entered into as of March 2, 2022, by and among (1) Vertex Energy Inc., a Nevada corporation (“Parent”), (2) Vertex Refining Alabama LLC, a Delaware limited liability company (“Borrower”), (3) certain funds managed or advised by Whitebox Advisors, LLC, as lenders (“Whitebox”), certain funds managed by Highbridge Capital Management, LLC, as lenders (“Highbridge”), certain funds and accounts under management by BlackRock Financial Management, Inc. or its affiliates, as lenders (“BlackRock”), Chambers Energy Capital IV, LP, as a lender (“Chambers”), CrowdOut Capital LLC, as a lender (“CrowdOut Capital”), CrowdOut Credit Opportunities Fund LLC, as a lender (“CrowdOut Credit”, and collectively with Whitebox, Highbridge, BlackRock, Chambers and CrowdOut Capital, the “Initial Lenders” and, together with the Borrower and Parent, each referred to individually as a “Party” and collectively as the “Parties”) and (4) Cantor Fitzgerald Securities (“Cantor”), in its capacity as escrow agent (in such capacity, the “Escrow Agent”).

WHEREAS, this Agreement is being entered into in connection with (1) that certain Commitment Letter, dated as of February 17, 2022 (the “Commitment Letter”) by and among Parent, Borrower and the Initial Lenders and (2) that certain Credit Agreement expected to be entered into by and among Parent, Borrower, the Initial Lenders, Cantor, in its capacity as administrative agent for the lenders (in such capacity, the “Administrative Agent”) and certain other persons, pursuant to which the Initial Lenders shall make certain extensions of credit to the Borrower (the “Credit Agreement”) subject to the satisfaction of the Conditions Precedent;

WHEREAS, pursuant to the Commitment Letter and subject to the satisfaction of the Escrow Funding Condition, the Initial Lenders shall deposit in escrow certain funds, and the Parties wish such deposit to be subject to the terms and conditions set forth herein;

WHEREAS, the Parties desire to provide for the prompt disbursement of funds under the Credit Agreement upon the satisfaction of the Conditions Precedent and the conditions to the occurrence of the Closing Date and, in order to facilitate the same, the Parties desire to enter into this Agreement;

WHEREAS, the Parties wish to appoint Cantor as Escrow Agent and Cantor is willing to accept such appointment and to act as Escrow Agent, in each case upon the terms and conditions of this Agreement;

WHEREAS, capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Commitment Letter; and

NOW, THEREFORE, in consideration of the foregoing premises and of the representations, warranties, covenants and agreements set forth in this Agreement, the Parties and the Escrow Agent, intending to be legally bound, agree as follows:

1. Appointment. The Parties hereby appoint Cantor as their escrow agent for the purposes set forth herein, and Cantor hereby accepts such appointment under the terms and conditions set forth herein.

2. Escrow Account; Funds.

a. On the Funding Effective Date, and pursuant to the Commitment Letter, each Initial Lender, severally and not jointly, agrees to deposit its Agreed Commitment Amount, net of the Upfront Fee (as defined in the Fee Letter) by wire transfer of immediately available funds, in the account designated by the Escrow Agent and listed on Schedule 1 hereto (the “Escrow Account”). The total aggregate amount to be funded by the Initial Lenders into the Escrow Account is $123,125,000.00 (the “Escrow Amount”).

b. During the term of this Agreement, the funds in the Escrow Account (collectively, the “Funds”) shall be held by Escrow Agent in one or more non-interest bearing demand deposit accounts and will not be invested.

c. The Parties intend that each Initial Lender be treated as the owner of the portion of the Funds it funded into the Escrow Account for all purposes including U.S. federal and applicable state and local income tax purposes. The Parties hereby represent to Escrow Agent that to their knowledge there is no tax withholding or information reporting of any kind required by Escrow Agent. Escrow Agent shall have no responsibility for the tax consequences of this Agreement and the Parties shall consult with independent counsel concerning any and all tax matters. The Parties shall provide Escrow Agent Form W-9 and an original Form W-8, as applicable, for each payee, together with any other documentation and information requested by Escrow Agent in connection with Escrow Agent’s reporting obligations under applicable IRS regulations, if any. The Parties agree to assume all obligations imposed now or hereafter by any applicable tax law or regulation with respect to payments or performance under this Agreement and indemnify and hold the Escrow Agent harmless pursuant to Section 8 hereof from any liability or obligation on account of taxes, assessments, additions for late payment, interest, penalties, expenses and other governmental charges, if any, that may be assessed or asserted against Escrow Agent.

3. Disposition and Termination.

a. Upon the execution and delivery to Escrow Agent by the Borrower and the Initial Lenders of a joint written instruction substantially in the form of Exhibit A-1 annexed hereto (each such written instruction, a “Joint Release Instruction”), the Escrow Agent shall, within one (1) Business Day of its receipt of such Joint Release Instruction (provided such Joint Release Instruction is received by 4:00 pm New York time), release the Funds to the Borrower by wire transfer of immediately available funds to one or more accounts designated by the Borrower in accordance with the instructions set forth therein; provided that the Escrow Agent may assume that any Joint Release Instruction is in compliance with the Commitment Letter without further inquiry.

b. Upon the execution and delivery to Escrow Agent by either the Borrower pursuant to clauses (a) or (d) of the definition of Termination Date or the Initial Lenders pursuant to clauses (a), (b) or (e) of the definition of Termination Date of a written instruction substantially in the form of Exhibit A-2 annexed hereto (each such written instruction, a “Lender Return Instruction” and, together with the Joint Release Instruction, collectively, the “Release Instructions”), the Escrow Agent shall, within one (1) Business Day of its receipt of such Lender Return Instruction (provided such Lender Return Instruction is received by 4:00 pm New York time), release the portion of the Funds to the Initial Lender that originally funded such amount by wire transfer of immediately available funds to one or more accounts designated by such Initial Lender in accordance with the instructions set forth therein; provided that if neither Joint Release Instructions nor Lender Return Instructions are received by the Escrow Agent by 4:00 pm New York time on April 1, 2022, on the next Business Day the Escrow Agent shall release the respective Funds to each relevant Initial Lender in accordance with such other written instructions provided to the Escrow Agent by such Initial Lender; provided further that the Escrow Agent may assume that any Lender Return Instruction is in compliance with the Commitment Letter without further inquiry.

c. Following the release of the full amount of the Funds, the Escrow Account shall be terminated, subject to the provisions of Sections 6 and 7.

d. Notwithstanding anything to the contrary set forth in Section 10, any instructions setting forth, claiming, containing, objecting to, or in any way related to the transfer or distribution of the Funds must be in writing and executed by the appropriate Party or Parties as evidenced by the signatures of the person or persons signing this Agreement or one of their designated persons as set forth on the Designation of Authorized Representatives attached hereto as Schedule 2 (each an “Authorized Representative”), and delivered to Escrow Agent only by facsimile (as evidenced by a confirmed transmittal to the applicable Party’s or Parties’ transmitting fax number) or as a Portable Document Format (“PDF”) attached to an email only at the fax number or email address set forth in Section 9 below (as may be updated or supplemented). Each Designation of Authorized Representatives shall be signed by a duly authorized officer or representative of the named Party. No instruction for or related to the transfer or distribution of the Funds shall be deemed delivered and effective unless Escrow Agent actually shall have received it on a Business Day by facsimile or as a PDF attached to an email only at the fax number or email address set forth in Section 9, and in the case of a facsimile, as evidenced by a confirmed transmittal to the Party’s or Parties’ transmitting fax number. Escrow Agent shall not be liable to any Party or other person for refraining from acting upon any instruction for or related to the transfer or distribution of the Funds if delivered to any other fax number or email address, including but not limited to a valid email address of any employee of Escrow Agent. Notwithstanding anything to the contrary, the Parties acknowledge and agree that Escrow Agent may not transfer or distribute the Funds until Escrow Agent has completed its security procedures set forth in this Section 3.

e. In the event of any Release Instructions, Escrow Agent may confirm such Release Instructions by a telephone call-back or email confirmation to an Authorized Representative of such Party or Parties, or such other method as may approved by the Escrow Agent in its sole discretion. No funds may be disbursed until such confirmation occurs. Each Party agrees that after such confirmation, Escrow Agent may continue to rely solely upon such Release Instructions and all identifying information set forth therein for such beneficiary without an additional telephone call-back or email confirmation. If multiple disbursements are provided for under this Agreement pursuant to any Release Instructions, only the date, amount and/or description of payments may change without requiring a telephone call-back or email confirmation.

f. The persons designated as Authorized Representatives and telephone numbers and email addresses for the same may be changed only in a writing executed by an Authorized Representative or other duly authorized person of the applicable Party setting forth such changes and actually received by Escrow Agent via facsimile or as a PDF attached to an email. Escrow Agent will confirm any such change in Authorized Representatives by a telephone call-back or email confirmation to an Authorized Representative, or such other method as may be approved by the Escrow Agent in its sole discretion.

g. Escrow Agent, any intermediary bank and the beneficiary’s bank in any funds transfer may rely upon the identifying number of the beneficiary, the beneficiary’s bank or any intermediary bank included in a Release Instruction provided by a Party or the Parties and, if applicable, confirmed by an Authorized Representative of the appropriate Party. Further, the beneficiary’s bank in the Release Instructions may make payment on the basis of the account number provided in such Party’s or Parties’ instruction and, if applicable, confirmed by an Authorized Representative in accordance with this Agreement even though it identifies a person different from the named beneficiary.

h. As used in this Agreement, “Business Day” shall mean any day other than a Saturday, Sunday or any other day on which Escrow Agent located at the notice address set forth below is authorized or required by law or executive order to remain closed. The Parties acknowledge that the security procedures set forth in this Section 3 are commercially reasonable.

i. Notwithstanding anything to the contrary contained in this Agreement, in the event that an electronic signature is affixed to an instruction issued hereunder to disburse or transfer funds, such instruction may, in the Escrow Agent’s sole discretion, be confirmed by a verifying call-back (or email confirmation) to an Authorized Representative.

4. Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties, including, but not limited to, any fiduciary duty, shall be implied. Notwithstanding anything to the contrary, Escrow Agent has no knowledge of, nor any obligation to comply with, the terms and conditions of any other agreement among the Parties (other than the Credit Agreement and related documents thereto and for the avoidance of doubt, expressly disclaims knowledge of the Commitment Letter and Fee Letter), Escrow Agent shall not be responsible for determining the meaning of any capitalized term not entirely defined herein, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement or document. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent with respect to the Funds. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it in good faith to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. Escrow Agent may consult legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving any party hereto, and shall incur no liability and shall be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. The Parties shall promptly pay, upon demand, the reasonable fees and expenses of any such counsel. The Parties agree to perform or cause to be performed all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. ESCROW AGENT SHALL NOT BE LIABLE FOR ANY ACTION TAKEN, SUFFERED OR OMITTED TO BE TAKEN BY IT IN GOOD FAITH EXCEPT TO THE EXTENT THAT ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS DETERMINED BY A FINAL ORDER OF A COURT OF COMPETENT JURISDICTION, WAS THE CAUSE OF ANY DIRECT LOSS TO ANY PARTY. Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the event Escrow Agent shall be uncertain, or believes there is some ambiguity, as to its duties or rights hereunder or receives instructions, claims or demands from either Party hereto which in Escrow Agent’s good faith judgment conflict with the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent shall be entitled either to: (a) refrain from taking any action until it shall be given (i) a Joint Release Instruction or Lender Return Instruction which eliminates such ambiguity or conflict or (ii) a final and binding court order issued by a court of competent jurisdiction (it being understood that Escrow Agent shall be entitled conclusively to rely and act upon any such court order and shall have no obligation to determine whether any such court order is final); or (b) file an action in interpleader. Escrow Agent shall have no liability to the Parties or any other person with respect to any such suspension of performance or disbursement into court, specifically including any liability or claimed liability that may arise, or be alleged to have arisen, out of or as a result of any delay in the disbursement of the Escrow Funds or any delay in or with respect to any other action required or requested of Escrow Agent. Escrow Agent shall have no duty to solicit any payments which may be due to it or the Funds, nor shall Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT SHALL ESCROW AGENT BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF ESCROW AGENT HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION, IN EACH CASE OTHER THAN IN THE EVENT OF ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS DETERMINED BY A FINAL ORDER OF A COURT OF COMPETENT JURISDICTION.

5. Resignation; Removal; Succession.

a. Escrow Agent may resign and be discharged from the performance of its duties and obligations hereunder by giving not less than thirty (30) days prior written notice to the Parties, or may be removed, with or without cause, by the Parties at any time by giving not less than fifteen (15) days prior joint written notice to Escrow Agent executed by an Authorized Representative of each of the Parties. Escrow Agent’s sole responsibility after such sixty (60) or fifteen (15) day notice period, respectively, expires shall be to hold the Funds (without any obligation to reinvest the same) and to deliver the same to a designated substitute escrow agent, if any, appointed by the Parties, or such other person designated by the Parties, or in accordance with the directions of a final court order, at which time of delivery, Escrow Agent’s obligations hereunder shall cease and terminate. If, prior to the effective resignation or removal date, the Parties have failed to appoint a successor escrow agent, or to instruct Escrow Agent to deliver the Funds to another person as provided above, or if such delivery is contrary to applicable law, at any time on or after the effective resignation or removal date, Escrow Agent may either (i) interplead the Funds with a court located in the State of New York or (ii) appoint a successor escrow agent of its own choice. Any appointment of a successor escrow agent shall be binding upon the Parties and no appointed successor escrow agent shall be deemed to be an agent of Escrow Agent. Upon the acceptance in writing of any appointment as successor escrow agent, such successor escrow agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from its duties and obligations under this Agreement.

b. Any entity into which Escrow Agent may be merged or converted or with which it may be consolidated, or any entity to which all or substantially all of the Escrow Agent’s escrow business may be transferred, shall be Escrow Agent under this Agreement without further act.

6. Compensation; Acknowledgment. Parent and Borrower, agree to, jointly and severally, pay Escrow Agent upon execution of this Agreement and from time to time thereafter reasonable compensation for the services to be rendered by Escrow Agent pursuant to this Agreement. The Escrow Agent agreed to serve as Escrow Agent in accordance with fee schedule set forth in Schedule 3 attached hereto. Parent and Borrower agree to pay all expenses of the Escrow Agent, including but not limited to the expenses of its counsel. The obligations of Parent and Borrower under this Section 6 shall survive any termination of this Agreement and the resignation or removal of Escrow Agent.

7. [Reserved]. ¹

8. Indemnification and Reimbursement.

a. Parent and Borrower agree to, jointly and severally, indemnify and hold harmless Escrow Agent and its affiliates and their respective successors, assigns, directors, agents and employees (the “Indemnitees”) from and against any and all losses, damages, claims, liabilities, or reasonable and other out-of-pocket costs or expenses (including reasonable and documented out-of-pocket attorneys’ fees) (collectively “Losses”), resulting directly or indirectly from (i) Escrow Agent’s performance of this Agreement, except to the extent that such Losses are determined by a court of competent jurisdiction to have been caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final order of a court of competent jurisdiction; and (ii) Escrow Agent’s following, accepting or acting upon any instructions or directions, whether joint or singular, from the Borrower received in accordance with this Agreement.

b. The Initial Lenders, on a several basis based on their pro rata share of the Agreed Commitment Amount, agree to indemnify and hold harmless Indemnitees from and against (i) any and all Losses resulting directly or indirectly from Escrow Agent’s following, accepting or acting upon any instructions or directions, whether joint or singular, from the Initial Lenders received in accordance with Section 3(b) of this Agreement and (ii) to the extent the Borrower and Parent do not promptly reimburse or indemnify the Indemnitees contemplated in clause (a) above, all Losses contemplated under clause (a) above.

c. The obligations set forth in this Section 8 shall survive the resignation, replacement or removal of Escrow Agent or the termination of this Agreement.

¹ Note to Stroock: Please let us know what information Borrower requires from the Lenders other than wire instructions (i.e., tax forms etc.) to pay the lenders ticking fee directly.

9. Notices. Except as otherwise expressly required in Section 3, all communications hereunder shall be in writing or set forth in a PDF attached to an email, and shall be delivered by facsimile, email or overnight courier only to the appropriate fax number, email address, or notice address set forth for each party as follows:

If to Borrower or Parent:

1331 Gemini Street, #250 

Houston, Texas 77058
Attn: Ben Cowart
E-mail: XXXXXXXXX

with a copy (which shall not constitute notice) to: 

Stroock & Stroock & Lavan LLP
180 Maiden Lane 

New York, NY 10038
Attention: Brian Rogers 

E-mail: XXXXXXXXX

If to Escrow Agent: Cantor Fitzgerald Securities

900 West Trade Street, Suite #725 

Charlotte, NC 28202 

Attn: Bobbie Young 

Phone: (704) 374-0574 

Email: XXXXXXXXX

with a copy (which shall not constitute notice) to: 

Cantor Fitzgerald Securities 

1801 N. Military Trail, Suite 202 

Boca Raton, FL 33431
Attention: Nils Horning 

E-mail: XXXXXXXXX

with a copy (which shall not constitute notice) to: 

Shipman & Goodwin LLP 

One Constitution Plaza 

Hartford, CT 06103 

Attention: Nathan Plotkin 

E-mail: XXXXXXXXX

If to BlackRock: c/o BlackRock Financial Management, Inc.

40 East 52^nd Street 

New York, NY 10022 

Attention: Zachary Viders and William Im 

E-mail: XXXXXXXXX and 

XXXXXXXXX

with a copy (which shall not constitute notice) to: 

c/o BlackRock, Inc. 

Office of the General Counsel 

40 East 52^nd Street 

New York, NY 10022 

Attention: Lucy Liu 

E-mail: XXXXXXXXX

With a copy (which shall not constitute notice) to: 

Clifford Chance US LLP 

31 West 52^nd Street 

New York, NY 10019 

Attention: Andrew Young 

E-mail: XXXXXXXXX

If to Whitebox: Whitebox Advisors LLC

3033 Excelsior Boulevard, Suite 500 

Minneapolis, MN 55416 

Attention: Andrew Thau and Parker Tornell 

E-mail: athau@whiteboxadvisors.com,

ptornell@whiteboxadvisors.com,

XXXXXXXXX

If to Highbridge:  

Highbridge Capital Management, LLC 

277 Park Avenue, 23rd Floor 

New York, NY 10172 

Attention: Damon Meyer 

E-mail: XXXXXXXXX

If to Chambers: Chambers Energy Capital IV, LP.

600 Travis Street, Suite 4700 

Houston, Texas 77002 

Attention: Rob Hendricks 

E-mail: XXXXXXXXX

If to CrowdOut Credit 

or CrowdOut Capital: 3001 S. Lamar Blvd.

Suite A-300 

Austin, TX 78704 

Attention: Alexander Schoenbaum 

E-mails: XXXXXXXXX

If to any Initial Lender: A copy to which shall not constitute notice) to:

Sidley Austin LLP 

787 7th Avenue 

New York, NY 10019 

Attention: Leslie Plaskon 

E-mail: XXXXXXXXX

10. Compliance with Directives. In the event that a legal garnishment, attachment, levy, restraining notice, court order or other governmental order (a “Directive”) is served with respect to any of the Funds, or the delivery thereof shall be stayed or enjoined by a Directive, Escrow Agent is hereby expressly authorized to obey and comply with all such Directives so entered or issued, and in the event that Escrow Agent obeys or complies with any such Directive it shall not be liable to either of the Parties hereto or to any other person by reason of such compliance, notwithstanding such Directive is subsequently reversed, modified, annulled, set aside or vacated.

11. Miscellaneous. The provisions of this Agreement may be waived, altered, amended or supplemented, in whole or in part, only by a writing signed by Escrow Agent and the Parties. Neither this Agreement nor any right or interest hereunder may be assigned by any Party without the prior written consent of Escrow Agent and each other Party, and any assignment in violation of this Agreement shall be ineffective and void. This Agreement shall be governed by and construed under the laws of the State of New York. Each Party and Escrow Agent irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts located in the State of New York. To the extent that in any jurisdiction either Party may now or hereafter be entitled to claim for itself or its assets, immunity from suit, execution, attachment (before or after judgment) or other legal process or immunity from liability, such Party shall not claim, and hereby irrevocably waives, such immunity. Escrow Agent and the Parties further hereby knowingly, voluntarily and intentionally irrevocably waive, to the fullest extent permitted by applicable law, any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement. No party to this Agreement is liable to any other party for losses due to, or if it is unable to perform its obligations under the terms of this Agreement because of, acts of God, fire, war, terrorism, floods, strikes, public health emergencies, electrical outages, equipment failure, or other causes reasonably beyond its control. This Agreement, any Joint Written Instruction or any Lender Release Instruction or any other directions or certificates delivered to the Escrow Agent from the Parties may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument or instruction, as applicable. This Agreement may be executed and transmitted by facsimile or as a PDF attached to an email and each such execution shall be of the same legal effect, validity and enforceability as a manually executed original, wet-inked signature. All signatures of the parties to this Agreement may be transmitted by facsimile or as a PDF attached to an email, and such facsimile or PDF will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces and will be binding upon such party. If any provision of this Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction. The Parties each represent, warrant and covenant that (i) each document, notice, instruction or request provided by such Party to Escrow Agent shall comply with applicable laws and regulations; (ii) such Party has full power and authority to enter into this Agreement and to perform all of the duties and obligations to be performed by it hereunder; and (iii) the person(s) executing this Agreement on such Party’s behalf and certifying Authorized Representatives in the applicable Schedule 1 have been duly and properly authorized to do so, and each Authorized Representative of such Party has been duly and properly authorized to take the actions specified for such person in the applicable Schedule 1. Except as expressly provided in Section 8 above, nothing in this Agreement, whether express or implied, shall be construed to give to any person or entity other than Escrow Agent and the Parties any legal or equitable right, remedy, interest or claim under or in respect of the Funds or this Agreement, or any funds deposited hereunder.

12. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

13. Dealings. Escrow Agent and any stockholder, director, officer or employee of the Escrow Agent may buy, sell, and deal in any of the securities of the Parent and become pecuniarily interested in any transaction in which the Parent may be interested, and contract and lend money to the Parent and otherwise act as fully and freely as though it were not Escrow Agent under this Agreement. Nothing herein shall preclude the Escrow Agent from acting in any other capacity for the Parties or for any other entity.

14. Termination. This Agreement may be terminated by a written agreement signed by the Parties and Escrow Agent at any time and shall terminate automatically upon the full distribution of the Funds, and all the related account(s) shall be closed, subject to the provisions of Sections 2(c), 6 and 8.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above.

PARTIES
VERTEX ENERGY INC., as Parent

By:	/s/ Ben Cowart
Name:	Ben Cowart
Title:	CEO

VERTEX REFINING ALABAMA LLC, as Borrower

By:	/s/ Ben Cowart
Name:	Ben Cowart
Title:	CEO

[Signature Page to Vertex Refining Alabama LLC Escrow Agreement] 

INITIAL LENDERS
Whitebox Multi-Strategy Partners, LP
By:	/s/ Daniel Altabef

Name:	Daniel Altabef
Title:	Deputy Chief Compliance Officer and
	Legal Counsel

Whitebox Relative Value Partners, LP
By:	/s/ Daniel Altabef

Name:	Daniel Altabef
Title:	Deputy Chief Compliance Officer and
	Legal Counsel

Whitebox GT Fund, LP
By:	/s/ Daniel Altabef

Name:	Daniel Altabef
Title:	Deputy Chief Compliance Officer and
	Legal Counsel

Pandora Select Partners, LP
By:	/s/ Daniel Altabef

Name:	Daniel Altabef
Title:	Deputy Chief Compliance Officer and
	Legal Counsel

[Signature Page to Vertex Refining Alabama LLC Escrow Agreement] 

HIGHBRIDGE TACTICAL CREDIT
MASTER FUND, L.P.,
By:	Highbridge Capital Management, LLC,
	as Trading Manager and not in its individual capacity

By:	/s/ Jonathan Segal
Name:	Jonathan Segal
Title:	Managing Director, Co-Chief Investment Officer

[Signature Page to Vertex Refining Alabama LLC Escrow Agreement]

BLACKROCK DIVERSIFIED PRIVATE
DEBT FUND MASTER LP
By:	BlackRock Financial Management, Inc.,
	its manager

By:	/s/ Zach Viders
Name:	Zach Viders
Title:	Authorized Signatory

GCO II Aggregator 2 L.P.
By:	BlackRock Financial Management, Inc.,
	its manager

By:	/s/ Zach Viders
Name:	Zach Viders
Title:	Authorized Signatory

[Signature Page to Vertex Refining Alabama LLC Escrow Agreement]

CHAMBERS ENERGY CAPITAL IV, LP
By: CEC Fund IV GP, LLC, its general partner
By:	/s/ Robert Hendricks
Name:	Robert Hendricks
Title:	Partner

[Signature Page to Vertex Refining Alabama LLC Escrow Agreement]

CROWDOUT CREDIT OPPORTUNITIES
FUND LLC
By:	/s/ Alexander Schoenbaum
Name:	Alexander Schoenbaum
Title:	Managing Member

CROWDOUT CAPITAL LLC
By:	/s/ Alexander Schoenbaum
Name:	Alexander Schoenbaum
Title:	Chief Executive Officer

[Signature Page to Escrow Agreement]

ESCROW AGENT
CANTOR FITZGERALD SECURITIES

By:	/s/ James Buccola
Name:	James Buccola
Title:	Head of Fixed Income

XML

Cover	Feb. 25, 2022
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Feb. 25, 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