Common use of Final Foreclosure Clause in Contracts

Final Foreclosure. If (i) the Seller has not Foreclosed on the Interim Security (or was not entitled to Foreclose on the Interim Security) pursuant to Section 2.4(g) and (ii) the total aggregate Earn-Out Payments during the Earn-Out Period plus the First Interim Buy-Out Right paid by Buyer (if any) plus the Second Interim Buy-Out Right paid by Buyer (if any) fails to equal or exceed the Final Threshold, then upon such failure Seller shall receive a security interest in eighty percent (80%) of the Interests (the “Final Security”) and shall have the right, as its sole and exclusive remedy for such failure, and exercisable by delivering written notice to Buyer within sixty (60) days following its payment of the Fifth Payment (the “Final Foreclosure Notice”), to Foreclose upon the Final Security within twenty (20) days following Seller’s delivery of the Final Foreclosure Notice (subject to Section 2.4(i)). Notwithstanding the foregoing, upon Seller’s delivery of the Final Foreclosure Notice, Buyer shall have the right (the “Final Buy-Out Right”), exercisable by delivering written notice to Seller within fifteen (15) days following Buyer’s receipt of the Final Foreclosure Notice (or such longer time period as is provided for pursuant to Section 2.4(i)), to terminate Seller’s right of Foreclosure under this Section 2.4(h) by paying Seller an amount (the “Final Buy-Out Amount”) equal to the difference between (1) the Final Threshold and (2) the total aggregate Earn-Out Payments made by Buyer during the Earn-Out Period plus the First Interim Buy-Out Right paid by Buyer (if any) plus the Second Interim Buy-Out Right paid by Buyer (if any). Upon the failure of Seller to deliver the Final Foreclosure Notice within the sixty (60) day period specified above or upon the payment of the Final Buy-Out Amount (which shall be payable by Buyer within thirty (30) days of Buyer’s delivery to Seller of its notice to exercise its Final Buy-Out Right), Seller’s aforementioned security interest in the Final Security and right of Foreclosure upon the Final Security shall be terminated, Buyer shall maintain ownership of such Final Security and Seller shall have no further recourse against Buyer with respect to the failure of the aggregate Earn-Out Payments during the Earn-Out Period plus the First Interim Buy-Out Right paid by Buyer (if any) plus the Second Interim Buy-Out Right paid by Buyer (if any) to equal or exceed the Final Threshold. If Buyer does not exercise its Final Buy-Out Right following Seller’s proper delivery of the Final Foreclosure Notice, then (A) the transfer of the Final Security shall be consummated by Buyer and Seller on the date (the “Final Transfer Date”) that is five (5) Business Days following the earliest of (i) Buyer’s written election not to exercise the Final Buy-Out Right, (ii) the expiration (without payment by Buyer of the Final Buy-Out Amount) of thirty (30) days following Buyer’s delivery to Seller of its notice to exercise its Final Buy-Out Right, or (iii) the expiration of the fifteen (15) day period following Buyer’s receipt of the Final Foreclosure Notice (or such longer time period as is provided for pursuant to Section 2.4(i)) without Buyer’s exercise of the Final Buy-Out Right; (B) Seller shall be responsible for the payment of all transfer Taxes relating to the transfer of such Final Security from Buyer to Seller; and (C) as a condition to such transfer, (1) Buyer and Seller shall enter into the Company Operating Agreement, which Company Operating Agreement will govern the operation and management of the Company following the consummation of the transfer of the Final Security, (2) Buyer shall release, or cause to be released, all Liens on the Final Security and/or assets of the Company, and (3) any remaining payment obligations pursuant to the Marathon Agreement shall be assigned and assumed by Seller (and Buyer shall be released from the same and indemnified by Seller for such obligations).”

Final Foreclosure. If (i) either (a) the aggregate amount of the First Payment and the Second Payment equaled or exceeded the Interim Threshold, or (b) the aggregate amount of the First Payment and the Second Payment was less than the Interim Threshold but Seller has did not Foreclosed on exercise its right to Foreclose upon the Interim Security (or was not entitled to Foreclose on the Buyer exercised its Interim Security) pursuant to Section 2.4(g) Buy-Out Right and (ii) the total aggregate Earn-Out Payments during the Earn-Out Period plus the First Interim Buy-Out Right (if paid by Buyer (if any) plus the Second Interim Buy-Out Right paid by Buyer (if anyBuyer) fails to equal or exceed the Final Threshold, then upon such failure Seller shall receive a security interest in eighty percent (80%) of the Interests (the “Final Security”) and shall have the right, as its sole and exclusive remedy for such failure, and exercisable by delivering written notice to Buyer within sixty (60) days following its payment of the Fifth Payment (the “Final Foreclosure Notice”), to Foreclose upon the Final Security within twenty (20) days following Seller’s delivery of the Final Foreclosure Notice (subject to Section 2.4(i)). Notwithstanding the foregoing, upon Seller’s delivery of the Final Foreclosure Notice, Buyer shall have the right (the “Final Buy-Out Right”), exercisable by delivering written notice to Seller within fifteen (15) days following Buyer’s receipt of the Final Foreclosure Notice (or such longer time period as is provided for pursuant to Section 2.4(i)), to terminate Seller’s right of Foreclosure under this Section 2.4(h) by paying Seller an amount (the “Final Buy-Out Amount”) equal to the difference between (1) the Final Threshold and (2) the total aggregate Earn-Out Payments made by Buyer during the Earn-Out Period plus the First Interim Buy-Out Right (if paid by Buyer (if any) plus the Second Interim Buy-Out Right paid by Buyer (if anyBuyer). Upon the failure of Seller to deliver the Final Foreclosure Notice within the sixty (60) day period specified above or upon the payment of the Final Buy-Out Amount (which shall be payable by Buyer within thirty (30) days of Buyer’s delivery to Seller of its notice to exercise its Final Buy-Out Right), Seller’s aforementioned security interest in the Final Security and right of Foreclosure upon the Final Security shall be terminated, Buyer shall maintain ownership of such Final Security and Seller shall have no further recourse against Buyer with respect to the failure of the aggregate Earn-Out Payments during the Earn-Out Period plus the First Interim Buy-Out Right (if paid by Buyer (if any) plus the Second Interim Buy-Out Right paid by Buyer (if anyBuyer) to equal or exceed the Final Threshold. If Buyer does not exercise its Final Buy-Out Right following Seller’s proper delivery of the Final Foreclosure Notice, then (A) the transfer of the Final Security shall be consummated by Buyer and Seller on the date (the “Final Transfer Date”) that is five (5) Business Days following the earliest of (i) Buyer’s written election not to exercise the Final Buy-Out Right, (ii) the expiration (without payment by Buyer of the Final Buy-Out Amount) of thirty (30) days following Buyer’s delivery to Seller of its notice to exercise its Final Buy-Out Right, or (iii) the expiration of the fifteen (15) day period following Buyer’s receipt of the Final Foreclosure Notice (or such longer time period as is provided for pursuant to Section 2.4(i)) without Buyer’s exercise of the Final Buy-Out Right; (B) Seller shall be responsible for the payment of all transfer Taxes relating to the transfer of such Final Security from Buyer to Seller; and (C) as a condition to such transfer, (1) Buyer and Seller shall enter into the Company Operating Agreement, which Company Operating Agreement will govern the operation and management of the Company following the consummation of the transfer of the Final Security, (2) Buyer shall release, or cause to be released, all Liens on the Final Security and/or assets of the Company, and (3) any remaining payment obligations pursuant to the Marathon Agreement shall be assigned and assumed by Seller (and Buyer shall be released from the same and indemnified by Seller for such obligations).”