Common use of Holdbacks Clause in Contracts

Holdbacks. 22.1 To secure the obligations of Seller under the Seller Warranty following the Closing Date, there shall be withheld from the net proceeds payable to Seller at Closing, the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) (the “Warranty Holdback”) which shall be held by the Title Company as escrowee in accordance with an escrow agreement (the “Warranty Holdback Escrow Agreement”) in a form to be mutually agreed upon by Seller and Purchaser during the Due Diligence Period. Pursuant to the terms of the Warranty Holdback Escrow Agreement, Purchaser will have access to the Warranty Holdback funds in the event that Seller does not promptly complete repairs required under the Seller Warranty. The Warranty Holdback shall be deposited in an interest bearing account reasonably acceptable to Seller and Purchaser, with interest inuring to the benefit of Seller. Such sum shall be held in escrow and disbursed in accordance with the terms of the Warranty Holdback Escrow Agreement, which shall provide that after term of the Seller Warranty has ended, fifty percent (50%) of the funds remaining in the Warranty Holdback will be disbursed to Seller and 50% will be disbursed to Purchaser. Purchaser shall also have the right to withdraw funds from the Warranty Holdback in accordance with this Section 22.1. 22.2 The Warranty Holdback does not serve as a limitation on Seller’s liability and obligations with respect to the Seller Warranty.

Holdbacks. 22.1 To secure Advances from the obligations Holdbacks shall be available for disbursement upon satisfaction of Seller under the Seller Warranty applicable terms and conditions of this Agreement. Advances from each of the Holdbacks shall not exceed the amount of the applicable Holdback as set forth in Section 1.1 of this Agreement. Subject to Section 3.2.5, Borrower shall not, in the absence of prior written approval from Agent given in Agent’s sole and absolute discretion, reallocate funds in the Project Budget from one line item to another line item or from one Holdback to another Holdback. Notwithstanding anything contained herein to the contrary, commencing on the Amortization Commencement Date and except for the Working Capital Holdback, the Development Fee Holdback and the O&M Holdback, Borrower shall have no further right to request or receive any Advances from any other Holdback, and except for the Working Capital Holdback, the Development Fee Holdback and the O&M Holdback, Lenders shall have no further obligation to make any Advances from any other Holdback; provided that on the Amortization Commencement Date any undisbursed amounts of the Operating Deficit Holdback and the Pre-Opening Expense Holdback, if any, may, at Borrower’s written request, be allocated to the Working Capital Holdback. (a) Lenders shall make Advances to themselves from the Interest Holdback solely for the payment of Accrued Interest in an aggregate amount equal to the Monthly Interest Deficiency, and, to the extent Revenues are insufficient therefor, the payment of the Amortization Conversion Fee and the Exit Fee. (b) Lenders shall make Advances from the CapEx Holdback solely to pay for Approved CapEx Expenses. (c) Lenders shall make Advances from the Insurance Holdback solely to pay Monthly Insurance Deposits and Premiums next due and payable to the extent Revenues are insufficient therefor. (d) Lenders shall make Advances from the Real Estate Taxes Holdback solely to pay Monthly Tax Deposits and Impositions next due and payable to the extent Revenues are insufficient therefor. (e) Lenders shall make Advances from the Development Fee Holdback for the payment to Borrower (or at Borrower’s direction) of a development fee (the “Development Fee”); provided, however, that any such Advances of the Development Fee Holdback to pay the Development Fee shall be subject to the following terms and conditions: (i) as part of the Closing DateInitial Disbursement, there shall be withheld an Advance from the net proceeds payable Development Fee Holdback in the amount of $500,000; (ii) Borrower shall have the right to Seller at Closing, request an Advance from the sum Development Fee Holdback equal to $500,000 upon Agent’s confirmation that the second (2nd) payment milestone described in Appendix 2-B of Two Hundred Fifty Thousand Dollars the Proton System Purchase Agreement (extraction of beam from the cyclotron after installation in the Improvements) has been satisfied; (iii) Borrower shall have the right to request an Advance from the Development Fee Holdback equal to $250,000.00) 500,000 upon Agent’s receipt of written certification from each of Borrower and the Proton Equipment Vendor that the Proton System is fully installed and operational in all respects (the “Warranty Holdback”) which shall be held by the Title Company as escrowee in accordance with an escrow agreement (the “Warranty Holdback Escrow Agreement”) in a form to be mutually agreed upon by Seller and Purchaser during the Due Diligence Period. Pursuant subject to the terms written confirmation of the Warranty Construction Consultant) and that Final Acceptance has occurred; (iv) Borrower shall have the right to request an Advance from the Development Fee Holdback Escrow Agreementequal to $359,857 at such time that, Purchaser will in any twelve (12) month period, at least 18,000 treatment fractions have access been performed at the Facility; and (v) Borrower shall have the right to request an Advance from the Development Fee Holdback equal to the Warranty remaining undisbursed amount of the Development Fee Holdback funds at such time that, in any twelve (12) month period, at least 48,000 treatment fractions have been performed at the event that Seller does not promptly complete repairs required under the Seller Warranty. The Warranty Holdback shall be deposited Facility, and, at such time and in an interest bearing account reasonably acceptable to Seller and Purchaser, with interest inuring addition to the benefit of Seller. Such sum shall be held in escrow and disbursed in accordance with the terms of the Warranty Holdback Escrow Agreement, which shall provide that after term of the Seller Warranty has ended, fifty percent (50%) of the undisbursed funds remaining in the Warranty Holdback will be disbursed to Seller and 50% will be disbursed to Purchaser. Purchaser Development Fee Holdback, Borrower shall also have the right to withdraw funds request an Advance from the Warranty Holdback undisbursed funds remaining in accordance with this Section 22.1the Contingency Holdback, if any, in an amount up to $1,500,000. 22.2 The Warranty Holdback does not serve as a limitation on Seller’s liability and obligations with respect (f) Subject to the Seller Warrantyterms and provisions of Section 2.5.2, Lenders shall make a single Advance from the Operating Deficit Holdback solely to deposit the Operating Deficit Escrow Funds in the Operating Deficit Escrow Account as and when required under the Facility Lease and prior to delinquency under the Facility Lease, to the extent Revenues are insufficient therefor. (g) Subject to the terms and provisions of Section 2.5.2, Lenders shall make a single Advance from the Pre-Opening Expense Holdback solely to deposit the Pre-Opening Escrow Funds in the Pre-Opening Expenses Escrow Account as and when required under the Facility Lease and prior to delinquency under the Facility Lease, to the extent Revenues are insufficient therefor. (h) Subject to the terms and provisions of Section 2.5.2, Lenders shall make a single Advance from the Working Capital Holdback solely to deposit the Minimum Working Capital Amount in the Working Capital Escrow Account as and when required under the Facility Lease and prior to delinquency under the Facility Lease, to the extent Revenues are insufficient therefor. (i) Lenders shall make Advances from the Contingency Holdback upon written request from Borrower, and with such accompanying documentation as Agent shall request, for the purpose of paying certain costs and expenses relating to the Project approved by Agent. Notwithstanding the foregoing, any amounts reallocated to the Contingency Holdback pursuant to Section 3.2.5 from line items constituting “soft costs” may be used only for “soft costs” relating to the Project, as reasonably determined by Agent. (j) Lenders shall make Advances from the O&M Holdback solely to pay the Support Services Fees next due and payable to the extent Revenues and amounts then held in the O&M Reserve, if any, are insufficient therefor. (k) Lenders shall make Advances from the Project Working Capital Holdback solely to pay Eligible Expenses to the extent Revenues are insufficient therefor.

Holdbacks. 22.1 To secure Parent shall be entitled to retain the Adjustment Holdback Amount as security for the obligations of Seller under the Seller Warranty following Effective Time Holders (or the Closing Date, there shall be withheld from the net proceeds payable Securityholders’ Agent on their behalf) pursuant to Seller at Closing, the sum of Two Hundred Fifty Thousand Dollars ($250,000.00Section 1.14(e) (the “Warranty Adjustment Holdback”) which shall be held by and the Title Company Indemnity Holdback Amount as escrowee partial security for the indemnification obligations of the Indemnitors to the Indemnitees in accordance with an escrow agreement this Agreement (the “Warranty Holdback Escrow AgreementIndemnity Holdback” and together with the Adjustment Holdback, the “Holdbacks”) in a form to be mutually agreed upon by Seller and Purchaser during the Due Diligence Period. Pursuant to the terms of the Warranty Holdback Escrow Agreement, Purchaser will have access to the Warranty Holdback funds in the event that Seller does not promptly complete repairs required under the Seller Warranty). The Warranty Adjustment Holdback Amount shall be deducted and held back from the Lock-up Initial Stock Consideration, and the Adjustment Holdback Amount shall be allocated among the applicable Effective Time Holders based on the Holdback Percentage. The Indemnity Holdback Amount shall be deducted and held back from the Lock-up Initial Stock Consideration, and the Indemnity Holdback Amount shall be allocated among the applicable Indemnitors based on each Indemnitor’s Holdback Percentage. Each Holdback shall be deposited in an interest bearing account reasonably acceptable to Seller and Purchaser, with interest inuring to the benefit of Seller. Such sum shall be held in escrow retained by Parent and disbursed solely for the purposes and in accordance with the terms of this Agreement. Neither Holdback (or portion thereof) nor any beneficial interest therein may be pledged, subjected to any Lien, sold, assigned or transferred by any Indemnitor. In the Warranty Holdback Escrow Agreementevent of any stock splits, which shall provide that after term of the Seller Warranty has endedstock dividends, fifty percent (50%) of the funds remaining in the Warranty Holdback will be disbursed to Seller and 50% will be disbursed to Purchaser. Purchaser shall also have the right to withdraw funds from the Warranty Holdback in accordance with this Section 22.1. 22.2 The Warranty Holdback does not serve as a limitation on Seller’s liability and obligations combinations, reorganizations, reclassifications or similar events with respect to the Seller WarrantyParent Common Stock, appropriate adjustments shall be made to the Parent Common Stock comprising the Holdbacks. The Securityholder’s Agent shall deliver to Parent a schedule (each, a “Holdback Percentage Schedule”) setting forth each applicable Indemnitor’s Holdback Percentage at the Closing (with the Merger Consideration Spreadsheet), following the final determination of any Earnout in accordance with Section 1.9 (with the Earnout Allocation Spreadsheet), and prior to any release of any Holdback to the Indemnitors. Parent shall be entitled to rely on the applicable Holdback Percentage Schedule for all purposes of this Agreement, and Parent shall have no liability whatsoever to any Indemnitor (nor shall any Indemnitor seek to recover any losses) resulting from or with respect to any inaccuracies in any Holdback Percentage Schedule.

Holdbacks. 22.1 To secure the obligations of Seller under the Seller Warranty following the Closing Date, there shall be withheld from the net proceeds payable to Seller at (a) At Closing, $100,000 of the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) (the “Warranty Holdback”) which shall be held by the Title Company as escrowee in accordance with an escrow agreement (the “Warranty Holdback Escrow Agreement”) Cash Portion was deposited in a form separate interest-bearing account satisfactory to be mutually agreed upon by Seller and Purchaser during the Due Diligence Period. Pursuant to the terms of the Warranty Holdback Escrow Agreement, Purchaser will have access to the Warranty Holdback funds Shareholders in the event that Seller does not promptly complete repairs required under the Seller Warranty. The Warranty Holdback shall be deposited in an interest bearing account reasonably acceptable to Seller and Purchasername of Parent, with interest inuring to the benefit pending final resolution of Seller. Such sum shall be held in escrow and disbursed in accordance with the terms of the Warranty Holdback Escrow Agreement, which shall provide that after term of the Seller Warranty has ended, fifty percent (50%) of the funds remaining in the Warranty Holdback will be disbursed to Seller and 50% will be disbursed to Purchaser. Purchaser shall also have the right to withdraw funds from the Warranty Holdback in accordance with this Section 22.1. 22.2 The Warranty Holdback does not serve as a limitation on Seller’s liability and Mosa's obligations with respect to the Seller WarrantyNote (such $100,000 plus all interest accrued thereon are collectively referred to herein as the "Note Holdback"). In the event Surviving Corporation becomes obligated to pay the Note or the Note is deemed cancelled or no longer in effect by Purchaser and Purchaser incurs a tax obligation in connection therewith ("Note Cancellation"), Purchaser shall be entitled to credit the amount of the Note Holdback against any amounts actually paid by Purchaser, with the balance of the Note Holdback, if any, remitted to the Shareholders within five (5) Business Days from the date of the Note Cancellation. Upon the occurrence of a Note Cancellation, the Shareholders jointly and severally shall pay to Parent within five (5) Business Days after written demand an amount equal to the amount by which the amounts actually paid on the Note or any such tax obligation incurred exceeds the Note Holdback. (b) (i) At Closing, $100,000 of the Cash Portion was held back by Parent (the "Balance Sheet Holdback"). Within three (3) weeks after the Closing Date, Shareholders shall deliver to Parent a balance sheet as of the Closing Date prepared in accordance with GAAP using the same accounting methods and principles used in the preparation of the audited May 31, 2001 balance sheet included in the Mosa Financial Statements. Within ten (10) Business Days of Parent's receipt of such balance sheet, Parent may give written notice to the Shareholders that it disputes such balance sheet and the reasons therefor (the "Balance Sheet Dispute Notice"); provided, however, that if Parent does not deliver a Balance Sheet Dispute Notice by such date, Parent will be deemed to have accepted such balance sheet. Upon timely delivery of the Balance Sheet Dispute Notice, the Shareholders and Parent agree to confer with regard to the matter and an appropriate adjustment to the balance sheet shall be made as agreed upon by such parties. If within thirty (30) days the parties are unable to resolve the matter, either party may thereafter notify in writing the Independent Accountant, who shall adjudicate those issues still in dispute and whose decision on the matter shall be binding on the parties. The fees and expenses of the Independent Accountant with respect to this matter shall be allocated by the Independent Accountant in accordance with its view of the merits of the Parties' positions in this dispute. The balance sheet agreed upon by the Parties (or deemed accepted by Parent) under this subsection, as adjusted, if necessary based on a decision by the Independent Accountant hereunder, is referred to herein as the "Closing Balance Sheet."