Common use of Payments of Expenses; Holdbacks Clause in Contracts

Payments of Expenses; Holdbacks. (a) The Representative shall withhold and retain from any distributions to, or on behalf of, the Securityholders or withdrawals by the Representative on behalf of the Securityholders out of the Escrow Amount, such amount or amounts as shall be sufficient to pay all known, or reasonably anticipated, expenses which are required to be paid or borne by the Securityholders pursuant to this Agreement, the Indemnification Escrow Agreement and the other Transaction Documents or are otherwise incurred by the Representative in performance of its duties hereunder, including, but not limited to, the Representative's own out-of-pocket expenses and the payment of any fees and expenses under the Indemnification Escrow Agreement to the Escrow Agent, and shall pay all such expenses out of the amount or amounts so withheld. In the event that the amounts so withheld (if any) are insufficient to pay all such expenses, each Securityholder, upon written notification from the Representative of any such deficiency, shall promptly deliver to the Representative full payment of his, her or its ratable share of the amount of such deficiency in accordance with the shares of Fully-Diluted Common Stock held by such Securityholder. (b) If a Securityholder fails to make a payment referred to above or referred to in Section 12.5, or any portion thereof (a "Defaulting Securityholder"), all other Securityholders shall make such payment, or portion thereof, on behalf of each Defaulting Securityholder in proportion to their respective Shares of Fully-Diluted Common Stock (computed without reference to the Shares of Fully-Diluted Common Stock of any Defaulting Securityholder). In no event shall a Defaulting Securityholder be released from liability for failing to make such payment hereunder. A Defaulting Securityholder shall be liable to each other Securityholder, and to the Representative, for all payments, costs and expenses incurred as a result of the failure of the Defaulting Securityholder to comply with the terms hereof, including, but not limited to, any costs and expenses incurred in enforcing the provisions of this Agreement. (c) In connection with the performance of its obligations hereunder, the Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of the Securityholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Representative may deem necessary or desirable and incur other out-of-pocket expenses.

Payments of Expenses; Holdbacks. (a) The Sellers’ Representative shall withhold and retain from any distributions tothe Closing Payment, or on behalf of, and shall have the Securityholders or withdrawals right to withhold and retain from the funds distributed by the Escrow Agent to the Sellers’ Representative on behalf of the Securityholders out of from the Escrow AmountAccounts, such amount or amounts as shall be sufficient ratably in accordance with each Seller’s Percentage Interest, Two Hundred Fifty Thousand Dollars ($250,000.00) to pay all known, or reasonably anticipated, known expenses which are required to be paid or borne by the Securityholders Sellers pursuant to this Agreement, the Indemnification Escrow Agreement and the other Transaction Documents or are otherwise incurred by the Representative in performance of its duties hereunder, including, but not limited to, the Representative's own out-of-pocket expenses and the payment of any fees and expenses under the Indemnification Escrow Agreement to the Escrow Agent, and shall pay all such expenses out of the amount or amounts so withheld. The Sellers’ Representative shall provide to Sellers a breakdown of the expenses for which Sellers are responsible as such expenses are withheld and retained from the Closing Payment. In the event that the amounts so withheld (if any) are insufficient to pay all such expensesexpenses required to be paid or borne by Sellers or incurred for the benefit of Sellers, each SecurityholderSeller, upon written notification from the Sellers’ Representative of any such deficiency, shall promptly deliver to the Sellers’ Representative full payment of hisits, his or her or its ratable share of the amount of such deficiency in accordance with such Seller’s Percentage Interest or the shares Sellers’ Representative, at its election, may deduct from the Expense Account all amounts required to compensate the Sellers’ Representative for such deficiency. Within ninety (90) days after the second (2nd) anniversary of Fully-Diluted Common Stock held by such Securityholderthe date on which the funds in the Escrow Accounts have been disbursed in full, the Sellers’ Representative shall disburse to each Seller its, his or her ratable share of the amounts withheld pursuant to this Section 9.2(a), less any amounts expended or committed to be expended and less the amount of any pending disputes or claims. (b) If a Securityholder fails to make a payment referred to above or referred to in Section 12.5, or any portion thereof (a "Defaulting Securityholder"), all other Securityholders shall make such payment, or portion thereof, on behalf of each Defaulting Securityholder in proportion to their respective Shares of Fully-Diluted Common Stock (computed without reference to the Shares of Fully-Diluted Common Stock of any Defaulting Securityholder). In no event shall a Defaulting Securityholder be released from liability for failing to make such payment hereunder. A Defaulting Securityholder shall be liable to each other Securityholder, and to the Representative, for all payments, costs and expenses incurred as a result of the failure of the Defaulting Securityholder to comply with the terms hereof, including, but not limited to, any costs and expenses incurred in enforcing the provisions of this Agreement. (c) In connection with the performance of its obligations hereunder, the Sellers’ Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of Sellers in accordance with their Percentage Interests (to the Securityholdersextent hereinafter set forth), attorneys, accountants, investment bankers, advisors, consultants (including, without limitation, consultants specializing in environmental liability and similar matters), and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Sellers’ Representative may deem necessary or desirable and incur other out-of-pocket expenses. In furtherance of the foregoing and to enable the Sellers’ Representative to pay all costs and expenses payable pursuant to this Agreement, the Sellers’ Representative shall be authorized to withhold amounts received for the account of Sellers (including, without limitation, amounts otherwise distributable to Sellers from the Closing Payment and the Escrow Accounts).

Payments of Expenses; Holdbacks. (a) The Representative shall withhold and retain from any distributions to, or on behalf of, the Securityholders Securityholder Parties or withdrawals by the Representative on behalf of the Securityholders Securityholder Parties out of the Escrow Amount, such amount or amounts as shall be sufficient to pay all known, or reasonably anticipated, expenses which are required to be paid or borne by the Securityholders Securityholder Parties pursuant to this Agreement, the Indemnification Escrow Agreement and the other Transaction Documents or are otherwise incurred by the Representative in performance of its duties hereunder, including, but not limited to, the Representative's ’s own out-of-pocket expenses and the payment of any fees and expenses under the Indemnification Escrow Agreement to the Escrow Agent, and shall pay all such expenses out of the amount or amounts so withheld. In the event that the amounts so withheld (if any) are insufficient to pay all such expenses, each SecurityholderSecurityholder Party, upon written notification from the Representative of any such deficiency, shall promptly deliver to the Representative full payment of his, her or its ratable share of the amount of such deficiency in accordance with the shares of Fully-Diluted Common Stock held by such SecurityholderSecurityholder Party relative to the shares of Fully-Diluted Common Stock held by all Securityholder Parties. (b) If a Securityholder Party fails to make a payment referred to above or referred to in Section 12.5, or any portion thereof (a "“Defaulting Securityholder"Securityholder Party”), all other Securityholders Securityholder Parties shall make such payment, or portion thereof, on behalf of each Defaulting Securityholder Party in proportion to their respective Shares shares of Fully-Diluted Common Stock relative to the shares of Fully-Diluted Common Stock held by all Securityholder Parties (computed without reference to the Shares shares of Fully-Diluted Common Stock of any Defaulting SecurityholderSecurityholder Party). In no event shall a Defaulting Securityholder Party be released from liability for failing to make such payment hereunder. A Defaulting Securityholder Party shall be liable to each other SecurityholderSecurityholder Party, and to the Representative, for all payments, costs and expenses incurred as a result of the failure of the Defaulting Securityholder Party to comply with the terms hereof, including, but not limited to, any costs and expenses incurred in enforcing the provisions of this Agreement. (c) In connection with the performance of its obligations hereunder, the Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of the SecurityholdersSecurityholder Parties, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Representative may deem necessary or desirable and incur other out-of-pocket expenses.

Payments of Expenses; Holdbacks. (a) The Representative shall withhold and retain from any distributions tothe Payment Fund, or on behalf ofand shall have the right to withhold and retain from the funds distributed by the Escrow Agent to the Representative from the Indemnity Escrow Account, the Securityholders or withdrawals by Purchase Price Adjustment Escrow Account and the Representative on behalf of the Securityholders out of the Environmental Escrow AmountAccount, ratably in accordance with each Equity Holder's Percentage Interest, such amount or amounts as shall be sufficient to pay all known, or reasonably anticipated, known fees and expenses (the "Seller Expenses") which are required to be paid or borne by the Securityholders Representative or the Equity Holders pursuant to this AgreementAgreement (including, without limitation, the Indemnification fees and expenses of the Accounting Arbitrator payable by the Representative pursuant to Section 3.5(d) and pursuant to Section 13.2), the Escrow Agreement and the other Transaction Documents or are otherwise incurred by the Representative in performance of its duties hereunder, including, but not limited to, the Representative's own out-of-pocket expenses and the payment of any fees and expenses under the Indemnification Environmental Escrow Agreement to the Escrow AgentAgreement, and shall pay all such fees and expenses out of the amount or amounts so withheld. The Representative shall provide to the Equity Holders a breakdown of the expenses for which the Equity Holders are responsible as such expenses are withheld and retained from the Payment Fund, the Indemnity Escrow Account, the Purchase Price Adjustment Escrow Account and the Environmental Escrow Account. In the event that the amounts so withheld (if any) are insufficient to pay all such expensesexpenses required to be paid or borne by the Equity Holders or incurred for the benefit of the Equity Holders, each SecurityholderEquity Holder, upon written notification from the Representative of any such deficiency, shall promptly deliver to the Representative full payment of his, his or her or its ratable share of the amount of such deficiency in accordance with such Equity Holder's Percentage Interest or the shares of Fully-Diluted Common Stock held by Representative, at its election, may deduct from the Expense Account all amounts required to compensate the Representative for such Securityholderdeficiency. (b) If a Securityholder fails to make a payment referred to above or referred to in Section 12.5, or any portion thereof (a "Defaulting Securityholder"), all other Securityholders shall make such payment, or portion thereof, on behalf of each Defaulting Securityholder in proportion to their respective Shares of Fully-Diluted Common Stock (computed without reference to the Shares of Fully-Diluted Common Stock of any Defaulting Securityholder). In no event shall a Defaulting Securityholder be released from liability for failing to make such payment hereunder. A Defaulting Securityholder shall be liable to each other Securityholder, and to the Representative, for all payments, costs and expenses incurred as a result of the failure of the Defaulting Securityholder to comply with the terms hereof, including, but not limited to, any costs and expenses incurred in enforcing the provisions of this Agreement. (c) In connection with the performance of its obligations hereunderhereunder and under the Escrow Agreement and the Environmental Escrow Agreement, the Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of the SecurityholdersEquity Holders (to the extent hereinafter set forth), attorneys, accountants, investment bankers, advisors, consultants (including, without limitation, consultants specializing in environmental liability and similar matters), paying agents, and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Representative may deem necessary or desirable and incur other out-of-pocket expenses. In furtherance of the foregoing and to enable the Representative to pay all costs and expenses payable pursuant to this Agreement, the Representative shall be authorized to withdraw funds from the Expense Account (including such costs and expenses which are required to be paid or borne by the Equity Holders pursuant to this Agreement, the Escrow Agreement and the Environmental Escrow Agreement), which Expense Account shall be maintained by the Representative. To the extent that the balance in the Expense Account shall decrease to below $100,000, the Representative shall have the right to replenish the Expense Account by withholding amounts received for the account of the Equity Holders (including, without limitation, amounts otherwise distributable to the Equity Holders from the Indemnity Escrow Account, the Purchase Price Adjustment Escrow Account, the Environmental Escrow Account) and depositing such amounts into the Expense Account. Any income earned from investments of funds in the Expense Account shall be deposited in the Expense Account. In the sole and absolute discretion of the Representative, any amounts on deposit in the Expense Account, including, without limitation, any income earned from investments of funds in the Expense Account, may be distributed from time-to-time by the Representative to the Equity Holders in accordance with their respective Percentage Interests. Upon the final distribution of any remaining amounts in the Indemnity Escrow Account and the Environmental Escrow Account to the Equity Holders and the termination of each of the Escrow Agreement and the Environmental Escrow Agreement pursuant to its respective terms, all funds in the Expense Account, after payment of any remaining expenses incurred by the Representative, shall be distributed to the Equity Holders in accordance with their respective Percentage Interests.

Payments of Expenses; Holdbacks. (a) The Representative LCG Representatives shall withhold and retain from any distributions to, or to the LCG Representatives on behalf of, of the Securityholders Stockholders and the Option Holders or withdrawals by the Representative LCG Representatives on behalf of the Securityholders Stockholders and the Option Holders out of the Escrow Amount, Custodial Accounts such amount or amounts as shall be sufficient to pay all known, or reasonably anticipated, expenses which are required to be paid or borne by the Securityholders Stockholders and the Option Holders pursuant to this AgreementAgreement (including, without limitation, all transaction costs, fees and expenses), the Indemnification Indemnity Escrow Agreement and the other Transaction Documents or are otherwise incurred by the Representative LCG Representatives in performance of its their duties hereunder, including, but not limited towithout limitation, the Representative's their own out-of-pocket expenses and the payment of any fees and expenses under the Indemnification Indemnity Escrow Agreement to the Escrow Agent, and shall pay all such expenses out of the amount or amounts so withheld. In the event that the amounts so withheld (if any) are insufficient to pay all such expenses, each SecurityholderStockholder and Option Holder, upon written notification from the Representative LCG Representatives of any such deficiency, shall promptly deliver to the Representative LCG Representatives full payment of his, her or its ratable share of the amount of such deficiency in accordance with the shares of Fully-Diluted Common Stock held by such SecurityholderStockholder's or Option Holder's Pro Forma Outstanding Shares. (b) If a Securityholder Stockholder or an Option Holder fails to make a payment referred to above or referred to in Section 12.512.5 below, or any portion thereof (a "Defaulting SecurityholderStockholder"), all other Securityholders Stockholders and Option Holders shall make such payment, or portion thereof, on behalf of each Defaulting Securityholder Stockholder in proportion to their respective Pro Forma Outstanding Shares of Fully-Diluted Common Stock (computed without reference to the Pro Forma Outstanding Shares of Fully-Diluted Common Stock of any Defaulting SecurityholderStockholder). In no event shall a Defaulting Securityholder Stockholder be released from liability for failing to make such payment hereunder. A Defaulting Securityholder Stockholder shall be liable to each other SecurityholderStockholder, Option Holder and to the Representative, LCG Representatives for all payments, costs and expenses incurred as a result of the failure of the Defaulting Securityholder Stockholder to comply with the terms hereof, including, but not limited towithout limitation, any costs and expenses incurred in enforcing the provisions of this Agreement. (c) In connection with the performance of its their obligations hereunderhereunder and under the Indemnity Escrow Agreement, the Representative LCG Representatives shall have the right at any time and from time to time to select and engage, at the cost and expense of the SecurityholdersStockholders and the Option Holders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Representative LCG Representatives may deem necessary or desirable and incur other out-of-pocket expenses.