Common use of Escrow Holdback Clause in Contracts

Escrow Holdback. (a.) Pursuant to the terms 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”), Sellers will deposit on the Closing Date into escrow an amount equal to the Maximum Indemnity Amount (the “Escrow Holdback Deposit”) as security for (a) any OTA Claims of New Operators, (ii) any OTA Post-Closing Adjustments and (c) any indemnity obligations or liabilities of Sellers of any kind whatsoever under this Agreement to Purchasers or the 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 Escrow Holdback Deposit), which notification, if applicable, shall include the necessary supporting documentation to show that the Escrow Holdback Deposit should be distributed to Purchasers or New Operator pursuant to the terms the Escrow Holdback Agreement established under the OTA.

Escrow Holdback. (a.a) Pursuant to the terms of a mutually acceptable Escrow Holdback Agreement for a term of three and one-half (3 ½) years entered into by Sellers Purchasers, OWNERS and Purchasers NEW OPERATORS (the “Escrow Holdback Agreement”), Sellers OWNERS will deposit on the Closing Date into escrow an amount equal to the Maximum Indemnity Amount (as defined in the Asset Purchase Agreement) (the “Escrow Holdback Deposit”) as security for (ai) any OTA Claims (as defined in the Asset Purchase Agreement) of New OperatorsPurchasers or NEW OPERATORS, (ii) any OTA Post-Closing Adjustments (as defined in the Asset Purchase Agreement) and (ciii) any indemnity obligations or liabilities of Sellers OWNERS of any kind whatsoever under this Agreement or the Asset Purchase Agreement to Purchasers or the New Operators NEW OPERATORS (such OTA Claims, OTA Post-Closing Adjustments and any indemnity obligations or liabilities of Sellers OWNERS of any kind whatsoever under this Agreement or the Asset Purchase Agreement are collectively referred to hereinafter herein as “SellersOWNERS’ Surviving Liabilities”). (b.) If . 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 (as such amount shall decrease pursuant to Section 15(l) herein) Amount, such excess liabilities shall be the sole responsibility of Purchasers or New Operators NEW OPERATORS and Sellers OWNERS shall have no liability whatsoever for such excess. (c.c) Purchasers or NEW OPERATORS shall promptly notify Sellers OWNERS in writing of any OTA Claim, OTA Post-Closing Adjustments and any indemnity obligations or liabilities of Seller 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 distributed to Purchasers or New Operator NEW OPERATORS pursuant to the terms of the Escrow Holdback Agreement established under the OTAAgreement.

Escrow Holdback. At the Closing, Seller shall deliver to Escrow Agent an amount equal to One Million Five Hundred Thousand Dollars (a.$1,500,000.00) Pursuant 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 a mutually acceptable Escrow Holdback Agreement for a term of three and one-half (3 ½) years entered into by Sellers and Purchasers an escrow agreement in form attached as Exhibit Q hereto (the “Surviving Escrow Holdback Agreement”). Seller, Sellers 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 deposit 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 Closing Date into escrow 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 Maximum Indemnity Amount (aggregate amount so claimed by Buyer, and the “Escrow Holdback Deposit”) as security for (a) any OTA Claims of New Operators, (ii) any OTA Post-Closing Adjustments and (c) any indemnity obligations or liabilities of Sellers of any kind whatsoever under this Agreement to Purchasers or the 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 balance shall be disbursed as directed by Seller. The provisions of this Section 10 shall survive the sole responsibility of Purchasers or New Operators and Sellers shall have no liability whatsoever for such excessClosing. (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 Escrow Holdback Deposit), which notification, if applicable, shall include the necessary supporting documentation to show that the Escrow Holdback Deposit should be distributed to Purchasers or New Operator pursuant to the terms the Escrow Holdback Agreement established under the OTA.

Escrow Holdback. (a.i) Pursuant At Closing, the Buyer will (in accordance with Section 2.1(d)(ii)(B)) deliver to the Escrow Agent the Escrow Amount to be held in escrow pursuant to the Escrow Agreement and to be disbursed in accordance with the terms of this Agreement and the Escrow Agreement. The Escrow Amount, together with any interest and earnings thereon, 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 a mutually acceptable the Escrow Holdback Agreement for a term payment to the holders thereof. A portion of three and one-half (3 ½) years entered into by Sellers and Purchasers (the “Escrow Holdback Agreement”), Sellers will deposit on the Closing Date into escrow an such disbursed amount equal to the Maximum Indemnity Amount (aggregate of the “Escrow Holdback Deposit”) as security for (a) any OTA Claims Pro Rata Shares of New Operators, (ii) any OTA Post-Closing Adjustments and (c) any indemnity obligations or liabilities of Sellers of any kind whatsoever under this Agreement to Purchasers or the 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 disbursed amount shall decrease pursuant to Section 15(l) herein) such excess liabilities represented by all Vested Company Options 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 paid by the Escrow Holdback Deposit), which notification, if applicable, shall include Agent to the necessary supporting documentation to show that the Escrow Holdback Deposit should be distributed to Purchasers or New Operator 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 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 established under for the OTAbenefit 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 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)(iii), deliver to the Buyer a Post-Closing Disbursement Certificate in respect of such disbursement.

Escrow Holdback. At the Closing, Seller shall deliver to Escrow Agent an amount equal to One Million Six Hundred Forty-Five Thousand Dollars (a.$1,645,000.00) Pursuant 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. The Holdback shall be held and disbursed by Escrow Agent pursuant to the terms of a mutually acceptable Escrow Holdback Agreement for a term of three and one-half (3 ½) years entered into by Sellers and Purchasers an escrow agreement in form attached as Exhibit L hereto (the “Surviving Escrow Holdback Agreement”). Seller, Sellers 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 pursuant to Section 10.2 of this Agreement, Escrow Agent shall be authorized to disburse the remaining Holdback funds pursuant to the Surviving Escrow Agreement. From time to time, the Escrow Agent will deposit 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, as directed by court order 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 defined below) (time being of the essence as to such date), Escrow Agent shall automatically disburse the Holdback as directed by Seller on the Closing Date into escrow an 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 Maximum Indemnity Amount (amount of the “Holdback, then, upon the expiration of the Survival Period, Escrow Agent shall continue to hold an amount of the Holdback Deposit”) as security for (a) any OTA Claims of New Operatorsequal to the aggregate amount so claimed by Buyer, (ii) any OTA Post-Closing Adjustments and (c) any indemnity obligations or liabilities of Sellers of any kind whatsoever under this Agreement to Purchasers or and, the 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 balance shall be disbursed as directed by Seller. The provisions of this Section 8.3 shall survive the sole responsibility of Purchasers or New Operators and Sellers shall have no liability whatsoever for such excessClosing. (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 Escrow Holdback Deposit), which notification, if applicable, shall include the necessary supporting documentation to show that the Escrow Holdback Deposit should be distributed to Purchasers or New Operator pursuant to the terms the Escrow Holdback Agreement established under the OTA.

Escrow Holdback. (a.) Pursuant The Sellers hereby agree that the Escrow Amount shall not be paid to the terms Sellers at the Closing, but instead, at the election of the Purchaser, shall be either (or in a mutually acceptable combination of the following): 1.3.1. held back (in whole or in part with respect to any portion of the Escrow Holdback Agreement for a term of three and one-half (3 ½Amount not deposited in escrow pursuant to Section 1.3.2 below) years entered into by the Purchaser to offset any amount due by Sellers under Sections 1.2 and Purchasers 9 hereof (the “Escrow Holdback AgreementHoldback”), Sellers will deposit and the remaining amount shall be 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 Date into escrow an amount equal to the Maximum Indemnity Amount (the “Escrow Holdback DepositRelease Date”) as security for pursuant to Section 9 hereof. In the event that the Purchaser elects to effect the Holdback, then: (ai) if the Holdback is effected with respect to with respect to the entire Escrow Amount, the Indemnity Escrow Agreement shall automatically terminate, without the need of any OTA Claims action from any party thereto, and be of New Operatorsno 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) any OTA Post-Closing Adjustments the parties shall enter into the Pledge and Security Agreement and (cif 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 indemnity obligations or liabilities portion of Sellers of any kind whatsoever under this Agreement to Purchasers or the 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 Escrow Amount (as such amount shall decrease not held back pursuant to Section 15(l1.3.1 above) 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 by the Escrow Holdback Deposit), which notification, if applicable, shall include Agent in a separate bank account in the necessary supporting documentation to show that name of the Escrow Holdback Deposit should Agent, to be distributed to Purchasers or New Operator held by the Escrow Agent pursuant to the terms Indemnity Escrow Agreement, to secure the obligations of the Sellers under Sections 1.2 and 9 hereof (the “Indemnity Escrow”), and the remaining amounts shall be paid (if any) to the Sellers upon the lapse of the Escrow Holdback Period pursuant to Section 9 hereof. In the event that the Purchase elects to effect the Indemnity Escrow with respect to the entire Escrow Amount, then the Pledge and Security Agreement established under the OTAand Subordination Agreement shall be of no force and effect.

Escrow Holdback. 00.0.0. Xx Closing, a portion of the Purchase Price proceeds payable to Seller in an aggregate amount equal to Two Million Dollars (a.$2,000,000.00) Pursuant (the “Holdback”) shall remain held by Escrow Agent in accordance with the provisions of this Section 10.3. The Holdback shall be security for any claims made by Buyer with respect to Seller’s liability after the Closing for any Buyer claims under this Agreement, and shall be held by Escrow Agent pursuant to the terms of a mutually acceptable Escrow Holdback Agreement for a term of three and one-half (3 ½) years entered into by Sellers and Purchasers an escrow agreement in the form attached as Exhibit K hereto (the “Surviving Escrow Holdback Agreement”). Seller, Sellers Buyer and Escrow Agent shall execute and deliver the Surviving Escrow Agreement at Closing. 10.3.2. Following final determination or settlement of the amount of any costs, liabilities, damages or expenses, if any, for which Seller is liable following the Closing, 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 deposit disburse funds from the Holdback as Escrow Agent may be directed in joint written instructions of Seller and Buyer or as directed by court order. ​ ​ 00.0.0. Xx the event that there have been no claims asserted by Buyer in excess of the amount of the Floor on or prior to the Closing Date into escrow last day of the Survival Period (time being of the essence as to such date), Escrow Agent shall automatically disburse an amount equal to the Maximum Indemnity Amount (Holdback to Seller on the “Escrow Holdback Deposit”) as security for (a) any OTA Claims first Business Day after the expiration of New Operators, (ii) any OTA Post-Closing Adjustments and (c) any indemnity obligations or liabilities of Sellers of any kind whatsoever under this Agreement to Purchasers or the 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”)Survival Period. (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 Escrow Holdback Deposit), which notification, if applicable, shall include the necessary supporting documentation to show that the Escrow Holdback Deposit should be distributed to Purchasers or New Operator pursuant to the terms the Escrow Holdback Agreement established under the OTA.

Escrow Holdback. (a.a) Pursuant to the terms of a mutually acceptable Escrow Holdback Agreement for a term of three and one-half (3 ½) years entered into by Sellers Purchasers, OWNERS and Purchasers NEW OPERATORS (the “Escrow Holdback Agreement”), Sellers OWNERS will deposit on the Closing Date into escrow an amount equal to the Maximum Indemnity Amount (as defined in the Asset Purchase Agreement) (the “Escrow Holdback Deposit”) as security for (ai) any OTA Claims (as defined in the Asset Purchase Agreement) of New OperatorsPurchasers or NEW OPERATORS, (ii) any OTA Post-Closing Adjustments (as defined in the Asset Purchase Agreement) and (ciii) any indemnity obligations or liabilities of Sellers OWNERS of any kind whatsoever under this Agreement or the Asset Purchase Agreement to Purchasers or the New Operators NEW OPERATORS (such OTA Claims, OTA Post-Closing Adjustments and any indemnity obligations or liabilities of Sellers OWNERS of any kind whatsoever under this Agreement or the Asset Purchase Agreement are collectively referred to hereinafter herein as “SellersOWNERS’ Surviving Liabilities”). (b.) If . 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 (as such amount shall decrease pursuant to Section 15(l) herein) Amount, such excess liabilities shall be the sole responsibility of Purchasers or New Operators NEW OPERATORS and Sellers OWNERS shall have no liability whatsoever for such excess. (c.c) Purchasers or NEW OPERATORS shall promptly notify Sellers OWNERS in writing of any OTA Claim, OTA Post-Closing Adjustments and any indemnity obligations or liabilities of Seller 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 distributed to Purchasers or New Operator NEW OPERATORS pursuant to the terms of the Escrow Holdback Agreement established under the OTA.Agreement. ARTICLE X

Escrow Holdback. (a.a) Pursuant to As provided in Section 2.7(b)(iii), at the terms of a mutually acceptable Escrow Holdback Agreement for a term of three and one-half (3 ½) years entered into by Sellers and Purchasers Closing, Buyer shall deposit in escrow with Xxxxx Fargo Bank, N.A. (the “Escrow Holdback AgreementAgent”), Sellers will deposit on the Closing Date into escrow ) an amount equal to the Maximum Indemnity Base Escrow Amount plus the Net Working Capital Escrow Amount (collectively, the “Escrow Amount”). The Escrow Amount shall be delivered by Buyer to the Escrow Agent at the Closing and shall be held in an account (the “Escrow Holdback DepositAccount”) as security for 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 (ai) any OTA Claims of New Operatorsthe amount, if any, by which the Final Net Working Capital is less than Estimated Net Working Capital and (ii) any OTA Post-Closing Adjustments Sellers indemnification obligations under Article IX (collectively, (i) and (c) any indemnity obligations or liabilities of Sellers of any kind whatsoever under this Agreement to Purchasers or ii), the 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 LiabilitiesEscrow Matters”). . Within five (b.5) If Sellers’ Surviving Liabilities exceed days of the Maximum Indemnity Amount (as such amount shall decrease determination of the Final Net Closing Statement pursuant to Section 15(l2.9, the Net Working Capital Escrow Amount (less the amount, if any, of any Net Working Capital Deficit) herein) such excess liabilities shall be released to the sole responsibility Seller Representative. Upon the eighteen month anniversary of Purchasers or New Operators and Sellers shall have no liability whatsoever for such excess. the Effective Time (c.the “Escrow Release Date”) Purchasers shall promptly notify Sellers in writing the remainder of the Escrow Amount (less the amount of any OTA Claimpending, OTA Post-Closing Adjustments and any indemnity obligations paid or liabilities of payable claims for Escrow Matters), will be released to the Seller of any kind whatsoever under this Agreement (including, without limitation, those requests for payment from Representative. Any amounts owed to Buyer or the Buyer Indemnitees with respect to the Escrow Holdback Deposit), which notification, if applicable, shall include the necessary supporting documentation to show that the Escrow Holdback Deposit should be distributed to Purchasers or New Operator 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 Escrow Agreement. (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, expenses or costs it incurs in performing its duties and obligations under this Agreement established and the 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 OTAHoldback Amount other than as a result of its gross negligence or willful misconduct. From time to time as Seller Representative shall determine, Seller Representative shall pay by wire transfer of immediately available funds to an account specified by the Seller Parties the remainder of the Holdback Amount in accordance with the Stockholder Distribution Schedule attached hereto.

Escrow Holdback. At the Closing, Seller shall deliver to Escrow Agent an amount equal to One Million Five Hundred Thousand Dollars (a.$1,500,000.00) Pursuant 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 a mutually acceptable Escrow Holdback Agreement for a term of three and one-half (3 ½) years entered into by Sellers and Purchasers an escrow agreement in form attached as Exhibit Q hereto (the “Surviving Escrow Holdback Agreement”). Seller, Sellers 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 deposit 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 Closing Date into escrow 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 Maximum Indemnity Amount (aggregate amount so claimed by Buyer, and the “Escrow Holdback Deposit”) as security for (a) any OTA Claims of New Operators, (ii) any OTA Post-Closing Adjustments and (c) any indemnity obligations or liabilities of Sellers of any kind whatsoever under this Agreement to Purchasers or the 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 balance shall be disbursed as directed by Seller. The provisions of this Section 10 shall survive the sole responsibility of Purchasers or New Operators and Sellers shall have no liability whatsoever for such excessClosing. (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 Escrow Holdback Deposit), which notification, if applicable, shall include the necessary supporting documentation to show that the Escrow Holdback Deposit should be distributed to Purchasers or New Operator pursuant to the terms the Escrow Holdback Agreement established under the OTA.