Common use of Escrow Holdback Clause in Contracts

Escrow Holdback. At the Closing, Seller shall deliver to Escrow Agent an amount equal to One Million Five Hundred Thousand Dollars ($1,500,000.00) in cash (the “Holdback Amount”) or instruct Escrow Agent to retain the Holdback Amount from the sale proceeds which would otherwise be disbursed to Seller (such cash, the “Holdback”). The Holdback shall be security for any claims made by Buyer with respect to Seller’s liability after the Closing Date for breaches of any Seller representations, and shall be held by Escrow Agent pursuant to the terms of an escrow agreement in form attached as Exhibit Q hereto (the “Surviving Escrow Agreement”). Seller, Buyer and Escrow Agent shall execute and deliver the Surviving Escrow Agreement at the Closing. Following the Closing and the funding of the Holdback Amount, Seller shall have the right to assign all of its right, title and interest in and to the Surviving Escrow Agreement in accordance with the terms thereof. Following final determination or settlement of the amount of any costs, liabilities, damages or expenses for which Seller is liable in respect of any breach of any Seller representations, Seller and Buyer shall jointly execute a written instruction to the Escrow Agent setting forth the aggregate amount in dollars of the applicable loss that the Escrow Agent is required to disburse funds from the Holdback. From time to time, the Escrow Agent will disburse funds from the Holdback to Buyer or Seller or its designee, as applicable, as Escrow Agent may be directed in joint written instructions of Seller and Buyer or as directed by court order. In the event that there have been no claims asserted by Buyer prior to the last day of the Survival Period (as hereinafter defined) (time being of the essence as to such date), Escrow Agent shall automatically disburse the Holdback as directed by Seller on the first business day after the expiration of the Survival Period. In the event that there have been claims asserted by Buyer prior to the end of the Survival Period which in the aggregate (together with the amount of any previously resolved post-closing claims) are equal to or greater than the Floor but are less than the amount of the Holdback, then, upon the expiration of the Survival Period, Escrow Agent shall continue to hold an amount of the Holdback equal to the aggregate amount so claimed by Buyer, and the balance shall be disbursed as directed by Seller. The provisions of this Section 10 shall survive the Closing.

Escrow Holdback. At (a) Pursuant to the Closingterms of a mutually acceptable Escrow Holdback Agreement for a term of three and one-half (3 ½) years entered into by Purchasers, Seller shall deliver to OWNERS and NEW OPERATORS (the “Escrow Agent Holdback Agreement”), OWNERS will deposit on the Closing Date into escrow an amount equal to One Million Five Hundred Thousand Dollars the Maximum Indemnity Amount ($1,500,000.00as defined in the Asset Purchase Agreement) in cash (the “Escrow Holdback AmountDeposit”) as security for (i) any OTA Claims (as defined in the Asset Purchase Agreement) of Purchasers or instruct Escrow Agent NEW OPERATORS, (ii) any OTA Post-Closing Adjustments (as defined in the Asset Purchase Agreement) and (iii) any indemnity obligations or liabilities of OWNERS of any kind whatsoever under this Agreement or the Asset Purchase Agreement to retain Purchasers or the Holdback Amount from the sale proceeds which would otherwise be disbursed to Seller NEW OPERATORS (such cashOTA Claims, OTA Post-Closing Adjustments and any indemnity obligations or liabilities of OWNERS of any kind whatsoever under this Agreement or the Asset Purchase Agreement are collectively referred to herein as “HoldbackOWNERS’ Surviving Liabilities”). The Escrow Holdback Agreement referenced in this Agreement is one and the same agreement as the Escrow Holdback Agreement referenced in the Asset Purchase Agreement. The parties hereto acknowledge and agree that the Escrow Holdback Deposit referenced in this Agreement and the Asset Purchase Agreement is a single escrow holdback deposit which is 10370946.3 31 intended to secure any claims by Purchasers or NEW OPERATORS for OWNERS’ Surviving Liabilities under this Agreement or Sellers’ Surviving Liabilities (as defined in the Asset Purchase Agreement) under the Asset Purchase Agreement. (b) If OWNERS’ Surviving Liabilities under this Agreement and Sellers’ Surviving Liabilities under the Asset Purchase Agreement cumulatively exceed the Maximum Indemnity Amount, such excess liabilities shall be security the sole responsibility of Purchasers or NEW OPERATORS and OWNERS shall have no liability whatsoever for any claims made by Buyer with respect to Seller’s liability after the Closing Date for breaches such excess. (c) Purchasers or NEW OPERATORS shall promptly notify OWNERS in writing of any Seller representationsOTA Claim, OTA Post-Closing Adjustments and any indemnity obligations or liabilities of OWNERS of any kind whatsoever under this Agreement or the Asset Purchase Agreement (including, without limitation, those requests for payment from the Escrow Holdback Deposit), which notification, if applicable, shall include the necessary supporting documentation to show that the Escrow Holdback Deposit should be held by Escrow Agent distributed to Purchasers or NEW OPERATORS pursuant to the terms of an escrow agreement in form attached as Exhibit Q hereto (the “Surviving Escrow Agreement”). Seller, Buyer and Escrow Agent shall execute and deliver the Surviving Escrow Agreement at the Closing. Following the Closing and the funding of the Holdback Amount, Seller shall have the right to assign all of its right, title and interest in and to the Surviving Escrow Agreement in accordance with the terms thereof. Following final determination or settlement of the amount of any costs, liabilities, damages or expenses for which Seller is liable in respect of any breach of any Seller representations, Seller and Buyer shall jointly execute a written instruction to the Escrow Agent setting forth the aggregate amount in dollars of the applicable loss that the Escrow Agent is required to disburse funds from the Holdback. From time to time, the Escrow Agent will disburse funds from the Holdback to Buyer or Seller or its designee, as applicable, as Escrow Agent may be directed in joint written instructions of Seller and Buyer or as directed by court order. In the event that there have been no claims asserted by Buyer prior to the last day of the Survival Period (as hereinafter defined) (time being of the essence as to such date), Escrow Agent shall automatically disburse the Holdback as directed by Seller on the first business day after the expiration of the Survival Period. In the event that there have been claims asserted by Buyer prior to the end of the Survival Period which in the aggregate (together with the amount of any previously resolved post-closing claims) are equal to or greater than the Floor but are less than the amount of the Holdback, then, upon the expiration of the Survival Period, Escrow Agent shall continue to hold an amount of the Holdback equal to the aggregate amount so claimed by Buyer, and the balance shall be disbursed as directed by Seller. The provisions of this Section 10 shall survive the ClosingAgreement.

Escrow Holdback. At (a.) Pursuant to the Closingterms of a mutually acceptable Escrow Holdback Agreement for a term of three and one-half (3 ½) years entered into by Sellers and Purchasers (the “Escrow Holdback Agreement”), Seller shall deliver to Escrow Agent Sellers will deposit on the Closing Date into escrow an amount equal to One Million Five Hundred Thousand Dollars ($1,500,000.00) in cash the Maximum Indemnity Amount (the “Escrow Holdback AmountDeposit”) as security for (a) any OTA Claims of New Operators, (ii) any OTA Post-Closing Adjustments and (c) any indemnity obligations or instruct Escrow Agent liabilities of Sellers of any kind whatsoever under this Agreement to retain Purchasers or the Holdback New Operators (such OTA Claims, OTA Post-Closing Adjustments and any indemnity obligations or liabilities of Sellers of any kind whatsoever under this Agreement are collectively referred to hereinafter as “Sellers’ Surviving Liabilities”). (b.) If Sellers’ Surviving Liabilities exceed the Maximum Indemnity Amount (as such amount shall decrease pursuant to Section 15(l) herein) such excess liabilities shall be the sole responsibility of Purchasers or New Operators and Sellers shall have no liability whatsoever for such excess. (c.) Purchasers shall promptly notify Sellers in writing of any OTA Claim, OTA Post-Closing Adjustments and any indemnity obligations or liabilities of Seller of any kind whatsoever under this Agreement (including, without limitation, those requests for payment from the sale proceeds Escrow Holdback Deposit), which would otherwise notification, if applicable, shall include the necessary supporting documentation to show that the Escrow Holdback Deposit should be disbursed distributed to Seller (such cash, the “Holdback”). The Holdback shall be security for any claims made by Buyer with respect to Seller’s liability after the Closing Date for breaches of any Seller representations, and shall be held by Escrow Agent Purchasers or New Operator pursuant to the terms of an escrow agreement in form attached as Exhibit Q hereto (the “Surviving Escrow Agreement”). Seller, Buyer and Escrow Agent shall execute and deliver the Surviving Escrow Agreement at the Closing. Following the Closing and the funding of the Holdback Amount, Seller shall have the right to assign all of its right, title and interest in and to the Surviving Escrow Agreement in accordance with the terms thereof. Following final determination or settlement of the amount of any costs, liabilities, damages or expenses for which Seller is liable in respect of any breach of any Seller representations, Seller and Buyer shall jointly execute a written instruction to the Escrow Agent setting forth Holdback Agreement established under the aggregate amount in dollars of the applicable loss that the Escrow Agent is required to disburse funds from the Holdback. From time to time, the Escrow Agent will disburse funds from the Holdback to Buyer or Seller or its designee, as applicable, as Escrow Agent may be directed in joint written instructions of Seller and Buyer or as directed by court order. In the event that there have been no claims asserted by Buyer prior to the last day of the Survival Period (as hereinafter defined) (time being of the essence as to such date), Escrow Agent shall automatically disburse the Holdback as directed by Seller on the first business day after the expiration of the Survival Period. In the event that there have been claims asserted by Buyer prior to the end of the Survival Period which in the aggregate (together with the amount of any previously resolved post-closing claims) are equal to or greater than the Floor but are less than the amount of the Holdback, then, upon the expiration of the Survival Period, Escrow Agent shall continue to hold an amount of the Holdback equal to the aggregate amount so claimed by Buyer, and the balance shall be disbursed as directed by Seller. The provisions of this Section 10 shall survive the ClosingOTA.

Escrow Holdback. At (a) As provided in Section 2.7(b)(iii), at the Closing, Seller Buyer shall deliver to deposit in escrow with ▇▇▇▇▇ Fargo Bank, N.A. (the “Escrow Agent Agent”) an amount equal to One Million Five Hundred Thousand Dollars the Base Escrow Amount plus the Net Working Capital Escrow Amount ($1,500,000.00) in cash (the “Holdback Amount”) or instruct Escrow Agent to retain the Holdback Amount from the sale proceeds which would otherwise be disbursed to Seller (such cashcollectively, the “HoldbackEscrow Amount”). The Holdback Escrow Amount shall be security for any claims made delivered by Buyer to the Escrow Agent at the Closing and shall be held in an account (the “Escrow Account”) and disbursed by the Escrow Agent in accordance with the terms and provisions of the Escrow Agreement. Any amounts owed by the Seller Parties to Buyer with respect to Seller’s liability after (i) the amount, if any, by which the Final Net Working Capital is less than Estimated Net Working Capital and (ii) Sellers indemnification obligations under Article IX (collectively, (i) and (ii), the “Escrow Matters”). Within five (5) days of the determination of the Final Net Closing Date for breaches Statement pursuant to Section 2.9, the Net Working Capital Escrow Amount (less the amount, if any, of any Seller representations, and Net Working Capital Deficit) shall be held released to the Seller Representative. Upon the eighteen month anniversary of the Effective Time (the “Escrow Release Date”) the remainder of the Escrow Amount (less the amount of any pending, paid or payable claims for Escrow Matters), will be released to the Seller Representative. Any amounts owed to Buyer or the Buyer Indemnitees with respect to the Escrow Matters pursuant to the terms and conditions of this Agreement shall be satisfied by deducting such amount from the Escrow Amount pursuant to the terms of this Agreement and the Escrow Agreement. Buyer and the Seller Parties will share equally the payment of any fees and expenses payable to the Escrow Agent pursuant to the terms of an escrow agreement in form attached as Exhibit Q hereto (the “Surviving Escrow Agreement”). Seller. (b) Seller Representative shall hold the Holdback Amount as a fund from which Seller Representative shall reimburse itself for or pay directly any out-of-pocket fees, Buyer expenses or costs it incurs in performing its duties and Escrow Agent shall execute and deliver the Surviving Escrow obligations under this Agreement at the Closing. Following the Closing and the funding other Ancillary Documents (including the Escrow Agreement), including out-of-pocket fees and expenses incurred pursuant to the procedures and provisions set forth herein and legal and consultant fees, expenses and costs for reviewing, analyzing and defending any claim or process arising under or pursuant to this Agreement. Seller Representative will not be liable for any loss of principal of the Holdback AmountAmount other than as a result of its gross negligence or willful misconduct. From time to time as Seller Representative shall determine, Seller Representative shall have pay by wire transfer of immediately available funds to an account specified by the right to assign all Seller Parties the remainder of its right, title and interest in and to the Surviving Escrow Agreement Holdback Amount in accordance with the terms thereof. Following final determination or settlement of the amount of any costs, liabilities, damages or expenses for which Seller is liable in respect of any breach of any Seller representations, Seller and Buyer shall jointly execute a written instruction to the Escrow Agent setting forth the aggregate amount in dollars of the applicable loss that the Escrow Agent is required to disburse funds from the Holdback. From time to time, the Escrow Agent will disburse funds from the Holdback to Buyer or Seller or its designee, as applicable, as Escrow Agent may be directed in joint written instructions of Seller and Buyer or as directed by court order. In the event that there have been no claims asserted by Buyer prior to the last day of the Survival Period (as hereinafter defined) (time being of the essence as to such date), Escrow Agent shall automatically disburse the Holdback as directed by Seller on the first business day after the expiration of the Survival Period. In the event that there have been claims asserted by Buyer prior to the end of the Survival Period which in the aggregate (together with the amount of any previously resolved post-closing claims) are equal to or greater than the Floor but are less than the amount of the Holdback, then, upon the expiration of the Survival Period, Escrow Agent shall continue to hold an amount of the Holdback equal to the aggregate amount so claimed by Buyer, and the balance shall be disbursed as directed by Seller. The provisions of this Section 10 shall survive the ClosingStockholder Distribution Schedule attached hereto.

Escrow Holdback. At (a) Pursuant to the Closingterms of a mutually acceptable Escrow Holdback Agreement for a term of three and one-half (3 ½) years entered into by Purchasers, Seller shall deliver to OWNERS and NEW OPERATORS (the “Escrow Agent Holdback Agreement”), OWNERS will deposit on the Closing Date into escrow an amount equal to One Million Five Hundred Thousand Dollars the Maximum Indemnity Amount ($1,500,000.00as defined in the Asset Purchase Agreement) in cash (the “Escrow Holdback AmountDeposit”) as security for (i) any OTA Claims (as defined in the Asset Purchase Agreement) of Purchasers or instruct Escrow Agent NEW OPERATORS, (ii) any OTA Post-Closing Adjustments (as defined in the Asset Purchase Agreement) and (iii) any indemnity obligations or liabilities of OWNERS of any kind whatsoever under this Agreement or the Asset Purchase Agreement to retain Purchasers or the Holdback Amount from the sale proceeds which would otherwise be disbursed to Seller NEW OPERATORS (such cashOTA Claims, OTA Post-Closing Adjustments and any indemnity obligations or liabilities of OWNERS of any kind whatsoever under this Agreement or the Asset Purchase Agreement are collectively referred to herein as “HoldbackOWNERS’ Surviving Liabilities”). The Escrow Holdback Agreement referenced in this Agreement is one and the same agreement as the Escrow Holdback Agreement referenced in the Asset Purchase Agreement. The parties hereto acknowledge and agree that the Escrow Holdback Deposit referenced in this Agreement and the Asset Purchase Agreement is a single escrow holdback deposit which is 10370946.3 31 intended to secure any claims by Purchasers or NEW OPERATORS for OWNERS’ Surviving Liabilities under this Agreement or Sellers’ Surviving Liabilities (as defined in the Asset Purchase Agreement) under the Asset Purchase Agreement. (b) If OWNERS’ Surviving Liabilities under this Agreement and Sellers’ Surviving Liabilities under the Asset Purchase Agreement cumulatively exceed the Maximum Indemnity Amount, such excess liabilities shall be security the sole responsibility of Purchasers or NEW OPERATORS and OWNERS shall have no liability whatsoever for any claims made by Buyer with respect to Seller’s liability after the Closing Date for breaches such excess. (c) Purchasers or NEW OPERATORS shall promptly notify OWNERS in writing of any Seller representationsOTA Claim, OTA Post-Closing Adjustments and any indemnity obligations or liabilities of OWNERS of any kind whatsoever under this Agreement or the Asset Purchase Agreement (including, without limitation, those requests for payment from the Escrow Holdback Deposit), which notification, if applicable, shall include the necessary supporting documentation to show that the Escrow Holdback Deposit should be held by Escrow Agent distributed to Purchasers or NEW OPERATORS pursuant to the terms of an escrow agreement in form attached as Exhibit Q hereto (the “Surviving Escrow Agreement”). Seller, Buyer and Escrow Agent shall execute and deliver the Surviving Escrow Agreement at the Closing. Following the Closing and the funding of the Holdback Amount, Seller shall have the right to assign all of its right, title and interest in and to the Surviving Escrow Agreement in accordance with the terms thereof. Following final determination or settlement of the amount of any costs, liabilities, damages or expenses for which Seller is liable in respect of any breach of any Seller representations, Seller and Buyer shall jointly execute a written instruction to the Escrow Agent setting forth the aggregate amount in dollars of the applicable loss that the Escrow Agent is required to disburse funds from the HoldbackHoldback Agreement. From time to time, the Escrow Agent will disburse funds from the Holdback to Buyer or Seller or its designee, as applicable, as Escrow Agent may be directed in joint written instructions of Seller and Buyer or as directed by court order. In the event that there have been no claims asserted by Buyer prior to the last day of the Survival Period (as hereinafter defined) (time being of the essence as to such date), Escrow Agent shall automatically disburse the Holdback as directed by Seller on the first business day after the expiration of the Survival Period. In the event that there have been claims asserted by Buyer prior to the end of the Survival Period which in the aggregate (together with the amount of any previously resolved post-closing claims) are equal to or greater than the Floor but are less than the amount of the Holdback, then, upon the expiration of the Survival Period, Escrow Agent shall continue to hold an amount of the Holdback equal to the aggregate amount so claimed by Buyer, and the balance shall be disbursed as directed by Seller. The provisions of this Section 10 shall survive the Closing.ARTICLE X

Escrow Holdback. At the Closing, Seller shall deliver ▇▇▇▇▇▇ agrees to Escrow Agent an amount equal to One Million Five escrow the sum of Six Hundred Thousand Dollars ($1,500,000.00600,000) in cash (the “Holdback AmountEscrow Funds”) or instruct with Escrow Agent Agent, to retain the Holdback Amount from the sale proceeds which would otherwise be disbursed to Seller (such cash, the “Holdback”). The Holdback shall be security for any claims made by Buyer with respect to Seller’s liability after the Closing Date for breaches of any Seller representations, and shall be held by Escrow Agent pursuant to the terms of an escrow agreement in substantially the form of Exhibit A attached as Exhibit Q hereto (the “Surviving Escrow Agreement”). Seller, Buyer and Escrow Agent shall execute and deliver If the Surviving Escrow Agreement at Additional Phase II Assessment Report confirms the Closing. Following release of contamination from the Closing operations of Seller and the funding results indicate that remediation of the Holdback Amountsame is required under environmental laws binding upon or applicable to the Property (“Applicable Environmental Law”) (such confirmed release being a “Confirmed Condition”), then Seller agrees to remediate such Confirmed Condition to a standard no more stringent than the Remediation Standard (defined below), but only to the extent the Escrow Funds are available to pay for the same (a “Required Remediation”) and Seller shall be entitled to draw on such Escrow Funds to reimburse Seller for actual out-of-pocket expenses incurred by Seller in connection with the Required Remediation or otherwise related to the remediation of the Confirmed Condition. In addition, Seller shall have be entitled to draw on the right Escrow Funds to assign all of its right, title and interest in and to reimburse Seller for the Surviving Escrow Agreement in accordance with the terms thereof. Following final determination or settlement cost of the amount of any costs, liabilities, damages or expenses for which Seller is liable in respect of any breach of any Seller representations, Seller and Buyer shall jointly execute a written instruction to the Escrow Agent setting forth the aggregate amount in dollars of the applicable loss that the Escrow Agent is required to disburse funds from the Holdback. From time to time, the Escrow Agent will disburse funds from the Holdback to Buyer or Seller or its designee, as applicable, as Escrow Agent may be directed in joint written instructions of Seller and Buyer or as directed by court orderAdditional Phase II Assessment. In the event that there have been no claims asserted by Buyer prior of a Required Remediation, the Post-Closing Lease shall be extended to allow Seller access to the last day Property to perform the same and Purchaser will cause any other occupant of the Survival Period (as hereinafter defined) (time being of Property to reasonably cooperate with Seller’s activities in performing the essence as Required Remediation. Notwithstanding anything herein to such date)the contrary, Escrow Agent shall automatically disburse release the Holdback as directed entirety of the Escrow Funds then-held by Escrow Agent to the Seller on the first business day after the expiration to occur of (i) receipt of the Survival Period. In Additional Phase II Assessment that does not identify any Confirmed Condition, (ii) the event date that there have been claims asserted by Buyer prior to is twelve (12) months following the end of the Survival Period which in the aggregate (together with the amount of any previously resolved post-closing claims) are equal to or greater than the Floor but are less than the amount of the Holdback, then, upon the expiration of the Survival Period, Escrow Agent shall continue to hold an amount of the Holdback equal to the aggregate amount so claimed by BuyerClosing Date, and (iii) receipt of a no further action letter from TCEQ with respect to any Required Remediation (the balance shall be disbursed as directed by Seller. The provisions of this Section 10 shall survive the Closing“Escrow Termination Date”).

Escrow Holdback. At the Closing, Seller shall deliver to Escrow Agent an amount equal to One Million Six Hundred Forty-Five Hundred Thousand Dollars ($1,500,000.001,645,000.00) in cash (the “Holdback Amount”) or instruct Escrow Agent to retain the Holdback Amount from the sale proceeds which would otherwise be disbursed to Seller (such cash, the “Holdback”). The Holdback shall be security for any claims made by Buyer with respect to Seller’s liability after the Closing Date for breaches of any Seller representations, and . The Holdback shall be held and disbursed by Escrow Agent pursuant to the terms of an escrow agreement in form attached as Exhibit Q L hereto (the “Surviving Escrow Agreement”). Seller, Buyer and Escrow Agent shall execute and deliver the Surviving Escrow Agreement at the Closing. Following the Closing and the funding of the Holdback Amount, Seller shall have the right to assign all of its right, title and interest in and to the Surviving Escrow Agreement in accordance with the terms thereof. Following final determination or settlement of the amount of any costs, liabilities, damages or expenses for which Seller is liable in respect pursuant to Section 10.2 of any breach of any Seller representationsthis Agreement, Seller and Buyer Escrow Agent shall jointly execute a written instruction be authorized to disburse the remaining Holdback funds pursuant to the Surviving Escrow Agent setting forth the aggregate amount in dollars of the applicable loss that the Escrow Agent is required to disburse funds from the HoldbackAgreement. From time to time, the Escrow Agent will disburse funds from the Holdback to Buyer or Seller or its designee, as applicable, as Escrow Agent may be directed in joint written instructions of Seller and Buyer or Buyer, as directed by court orderorder or as otherwise set forth in the Surviving Escrow Agreement. In the event that there have been no claims asserted by Buyer prior to the last day of the Survival Period (as hereinafter defineddefined below) (time being of the essence as to such date), Escrow Agent shall automatically disburse the Holdback as directed by Seller on the first business day after the expiration of the Survival Period. In the event that there have been claims asserted by Buyer prior to the end of the Survival Period which in the aggregate (together with the amount of any previously resolved post-closing claims) are equal to or greater than the Floor (as defined below) but are less than or equal to the amount of the Holdback, then, upon the expiration of the Survival Period, Escrow Agent shall continue to hold an amount of the Holdback equal to the aggregate amount so claimed by Buyer, and and, the balance shall be disbursed as directed by Seller. The provisions of this Section 10 8.3 shall survive the Closing.

Escrow Holdback. At The Sellers hereby agree that the Escrow Amount shall not be paid to the Sellers at the Closing, Seller but instead, at the election of the Purchaser, shall deliver be either (or in a combination of the following): 1.3.1. held back (in whole or in part with respect to any portion of the Escrow Agent an Amount not deposited in escrow pursuant to Section 1.3.2 below) by the Purchaser to offset any amount equal to One Million Five Hundred Thousand Dollars due by Sellers under Sections 1.2 and 9 hereof ($1,500,000.00) in cash (the “Holdback Amount”) or instruct Escrow Agent to retain the Holdback Amount from the sale proceeds which would otherwise be disbursed to Seller (such cash, the “Holdback”). The Holdback , and the remaining amount shall be security for any claims made by Buyer paid (if any) to the Sellers, together with interest thereon at the rate of 7% per annum on the Escrow Amount, computed on the basis of actual number of days elapsed over a 360-day year, upon the second anniversary of the Closing (the “Holdback Release Date”) pursuant to Section 9 hereof. In the event that the Purchaser elects to effect the Holdback, then: (i) if the Holdback is effected with respect to Seller’s liability after with respect to the Closing Date for breaches entire Escrow Amount, the Indemnity Escrow Agreement shall automatically terminate, without the need of any Seller representationsaction from any party thereto, and be of no force and effect, and the parties hereto, acting pursuant to Section 4(b) of the Indemnity Escrow Agreement, hereby agree that the Indemnity Escrow Agreement shall be deemed to have been amended to this effect; and (ii) the parties shall enter into the Pledge and Security Agreement and (if the Purchaser purchases any Senior Notes) the Subordination Agreement with respect to the Escrow Amount subject to Holdback; and/or 1.3.2. retained (in whole or in part with respect to any portion of the Escrow Amount not held back pursuant to Section 1.3.1 above) by the Escrow Agent in a separate bank account in the name of the Escrow Agent, to be held by the Escrow Agent pursuant to the terms Indemnity Escrow Agreement, to secure the obligations of an escrow agreement in form attached as Exhibit Q hereto the Sellers under Sections 1.2 and 9 hereof (the “Surviving Escrow AgreementIndemnity Escrow”). Seller, Buyer and Escrow Agent shall execute and deliver the Surviving Escrow Agreement at the Closing. Following the Closing and the funding remaining amounts shall be paid (if any) to the Sellers upon the lapse of the Holdback Amount, Seller shall have the right Escrow Period pursuant to assign all of its right, title and interest in and to the Surviving Escrow Agreement in accordance with the terms thereof. Following final determination or settlement of the amount of any costs, liabilities, damages or expenses for which Seller is liable in respect of any breach of any Seller representations, Seller and Buyer shall jointly execute a written instruction to the Escrow Agent setting forth the aggregate amount in dollars of the applicable loss that the Escrow Agent is required to disburse funds from the Holdback. From time to time, the Escrow Agent will disburse funds from the Holdback to Buyer or Seller or its designee, as applicable, as Escrow Agent may be directed in joint written instructions of Seller and Buyer or as directed by court orderSection 9 hereof. In the event that there have been no claims asserted by Buyer prior the Purchase elects to effect the Indemnity Escrow with respect to the last day of entire Escrow Amount, then the Survival Period (as hereinafter defined) (time being of the essence as to such date), Escrow Agent shall automatically disburse the Holdback as directed by Seller on the first business day after the expiration of the Survival Period. In the event that there have been claims asserted by Buyer prior to the end of the Survival Period which in the aggregate (together with the amount of any previously resolved post-closing claims) are equal to or greater than the Floor but are less than the amount of the Holdback, then, upon the expiration of the Survival Period, Escrow Agent shall continue to hold an amount of the Holdback equal to the aggregate amount so claimed by Buyer, Pledge and the balance Security Agreement and Subordination Agreement shall be disbursed as directed by Seller. The provisions of this Section 10 shall survive the Closingno force and effect.

Escrow Holdback. At the Closing, Seller shall deliver to Escrow Agent an amount equal to One Million Five Hundred Thousand Dollars ($1,500,000.00) in cash (the “Holdback Amount”) or instruct Escrow Agent to retain the Holdback Amount from the sale proceeds which would otherwise be disbursed to Seller (such cash, the “Holdback”). The Holdback shall be security for any claims made by Buyer with respect to Seller’s liability after the Closing Date for breaches of any Seller representations, and shall be held by Escrow Agent pursuant to the terms of an escrow agreement in form attached as Exhibit Q hereto (the “Surviving Escrow Agreement”). Seller, Buyer and Escrow Agent shall execute and deliver the Surviving Escrow Agreement at the Closing. Following the Closing and the funding of the Holdback Amount, Seller shall have the right to assign all of its right, title and interest in and to the Surviving Escrow Agreement in accordance with the terms thereof. Following final determination or settlement of the amount of any costs, liabilities, damages or expenses for which Seller is liable in respect of any breach of any Seller representations, Seller and Buyer shall jointly execute a written instruction to the Escrow Agent setting forth the aggregate amount in dollars of the applicable loss that the Escrow Agent is required to disburse funds from the Holdback. From time to time, the Escrow Agent will disburse funds from the Holdback to Buyer or Seller or its designee, as applicable, as Escrow Agent may be directed in joint written instructions of Seller and Buyer or as directed by court order. In the event that there have been no claims asserted by Buyer prior to the last day of the Survival Period (as hereinafter defined) (time being of the essence as to such date), Escrow Agent shall automatically disburse the Holdback as directed by Seller on the first business day -18- after the expiration of the Survival Period. In the event that there have been claims asserted by Buyer prior to the end of the Survival Period which in the aggregate (together with the amount of any previously resolved post-closing claims) are equal to or greater than the Floor but are less than the amount of the Holdback, then, upon the expiration of the Survival Period, Escrow Agent shall continue to hold an amount of the Holdback equal to the aggregate amount so claimed by Buyer, and the balance shall be disbursed as directed by Seller. The provisions of this Section 10 shall survive the Closing.

Escrow Holdback. (i) At the Closing, Seller shall the Buyer will (in accordance with Section 2.1(d)(ii)(B)) deliver to the Escrow Agent an amount equal the Escrow Amount to One Million Five Hundred Thousand Dollars ($1,500,000.00) be held in cash (escrow pursuant to the “Holdback Amount”) or instruct Escrow Agent Agreement and to retain the Holdback Amount from the sale proceeds which would otherwise be disbursed to Seller (such cash, in accordance with the “Holdback”)terms of this Agreement and the Escrow Agreement. The Holdback shall be security for Escrow Amount, together with any claims made by Buyer with respect to Seller’s liability after the Closing Date for breaches of any Seller representationsinterest and earnings thereon, and shall be held by the Escrow Agent and released by the Escrow Agent to the Surviving Corporation, the Exchange and Paying Agent or the Buyer, as applicable, in accordance with the terms of the Escrow Agreement. (ii) Any portion of the Escrow Fund disbursed pursuant to the Escrow Agreement for the benefit of the Company Equityholders shall be disbursed in accordance with this Section 2.1(e)(ii). A portion of such disbursed amount equal to the aggregate of the Pro Rata Shares of such disbursed amount represented by all shares of Company Stock converted pursuant to Section 2.1(c) or any Company Warrant shall be paid by the Escrow Agent to the Exchange and Paying Agent pursuant to the terms of an escrow agreement in form attached as Exhibit Q hereto (the “Surviving Escrow Agreement”). Seller, Buyer and Escrow Agent shall execute and deliver the Surviving Escrow Agreement at the Closing. Following the Closing and the funding of the Holdback Amount, Seller shall have the right to assign all of its right, title and interest in and for payment to the Surviving Escrow Agreement in accordance with the terms holders thereof. Following final determination or settlement A portion of the such disbursed amount of any costs, liabilities, damages or expenses for which Seller is liable in respect of any breach of any Seller representations, Seller and Buyer shall jointly execute a written instruction to the Escrow Agent setting forth the aggregate amount in dollars of the applicable loss that the Escrow Agent is required to disburse funds from the Holdback. From time to time, the Escrow Agent will disburse funds from the Holdback to Buyer or Seller or its designee, as applicable, as Escrow Agent may be directed in joint written instructions of Seller and Buyer or as directed by court order. In the event that there have been no claims asserted by Buyer prior to the last day of the Survival Period (as hereinafter defined) (time being of the essence as to such date), Escrow Agent shall automatically disburse the Holdback as directed by Seller on the first business day after the expiration of the Survival Period. In the event that there have been claims asserted by Buyer prior to the end of the Survival Period which in the aggregate (together with the amount of any previously resolved post-closing claims) are equal to or greater than the Floor but are less than the amount of the Holdback, then, upon the expiration of the Survival Period, Escrow Agent shall continue to hold an amount of the Holdback equal to the aggregate of the Pro Rata Shares of such disbursed amount so claimed represented by Buyerall Vested Company Options shall be paid by the Escrow Agent to the Surviving Corporation pursuant to the terms of the Escrow Agreement for payment to the holders thereof (which amount shall be paid by the Surviving Corporation to such holders, subject to any applicable withholding as provided in Section 2.9). The Company Equityholder Representative shall, prior to any disbursement of funds for the benefit of Company Equityholders pursuant to this Section 2.1(e)(ii) and/or the Escrow Agreement, deliver to the Buyer a Post-Closing Disbursement Certificate in respect of such disbursement. (iii) Notwithstanding anything else in this Agreement to the contrary, but subject to the conditions and limitations set forth in Section 8.5, the balance Buyer shall withhold, in order to satisfy indemnification obligations owed to Buyer Indemnified Parties pursuant to Article VIII hereto and any Final Closing Adjustment in excess of the Escrow Funds, (A) the first $25,000,000 of Contingent Consideration that becomes actually due and payable to Company Equityholders pursuant to this Agreement and (B) 12.5% of any Contingent Consideration, in excess of the first such $25,000,000, in each case, that becomes actually due and payable under this Agreement prior to the date that is fifteen (15) months after the Closing Date (collectively, the “Holdback Amount”). Any remaining Holdback Funds shall be disbursed by the Buyer pursuant to this Agreement for the benefit of the Company Equityholders in accordance with, and on the date(s) specified by, this Section 2.1(e)(iii) and Section 8.5(d). A portion of such disbursed amount equal to the aggregate of the Pro Rata Shares of such disbursed amount represented by all shares of Company Stock converted pursuant to Section 2.1(c) or any Company Warrant converted pursuant to Section 2.5 shall be paid by the Buyer to the Exchange and Paying Agent pursuant to the terms of this Agreement for payment to the holders thereof. A portion of such disbursed amount equal to the aggregate of the Pro Rata Shares of such disbursed amount represented by all Vested Company Options shall be paid by the Buyer to the Surviving Corporation pursuant to the terms of this Agreement for payment to the holders thereof (which amount shall be paid by the Surviving Corporation to such holders, subject to any applicable withholding as directed by Sellerprovided in Section 2.9). The provisions Company Equityholder Representative shall, prior to any disbursement of funds for the benefit of Company Equityholders pursuant to this Section 10 shall survive 2.1(e)(iii), deliver to the ClosingBuyer a Post-Closing Disbursement Certificate in respect of such disbursement.