Common use of Hold Back Clause in Contracts

Hold Back. Any Tranche 2 Consideration earned but not yet paid at any Installment Payment Date shall be available to the Purchaser for the satisfaction of any Loss arising during the Indemnified Period (“Hold Back Amount”) in respect of: (i) the amount of any Substantiated Claim for breaches of, or inaccuracies in, the Warranties given by the Sellers and/or the Warrantors herein or the nonfulfillment of, or failure to perform, any covenant or agreement on the part of any Seller and/or Warrantor contained in this Agreement or the Transaction Documents and/ or brought by the Purchaser against any or all Warrantors and/or Sellers pursuant to the indemnifications granted under Section 10; or (ii) a bona fide estimate of Loss where a Claim has been duly made by the Purchaser in respect of any of the matters referred to in paragraph (i) above but such claim has not become a Substantiated Claim and provided always that once such Claim has become a Substantiated Claim (“Resolution”) any excess of the Hold Back Amount over the actual Loss shall be paid to the Sellers and/or Warrantors within 15 days of Resolution. The Purchaser may set off and apply any such amounts owed to it by the Sellers or Warrantors (as the case may be) against the Hold Back Amount to reduce the amount of any Tranche 2 Installment due to any Seller or Warrantor in proportion to the amount prospectively due to each Seller or Warrantor and the amount of any Hold Back in respect of breach of the Warranties shall be held back from the Warrantors only. For the avoidance of doubt, this Section 2.02(h) does not limit in any way the liability of the Sellers to the Purchaser for any breach of this Agreement.

Hold Back. Any Tranche 2 Consideration earned but not yet paid at any Installment Payment Date (a) Subject to the provisions of SECTIONS 2.5(b) and 2.5(c), WHI shall hold back from the Members, WHI Shares which constitute in aggregate 10% of the total number of WHI Shares issued to the Members ("Held Back Shares"), with executed stock powers. Such holdback shall be available made on a pro rata basis so that 10% of each Member's portion of the Exchange Consideration is held back. It is understood and agreed that the Held Back Shares shall not be taken from the Registration Shares, but rather shall be taken from the 50% of the WHI Shares that are not among the Registration Shares. WHI may cause a number of Held Back Shares (valued at the Stock Price) to the Purchaser for the be surrendered and cancelled in satisfaction of any Loss arising during Exchange Consideration Adjustment or WHI Indemnification Amount; provided, however, that except as provided in SECTION 2.5(b), the Indemnified Period Held Back Shares may be utilized to satisfy claims for Exchange Consideration Adjustments and WHI Indemnification Amounts for breach of representations and warranties regarding the existence and/or value of assets and liabilities reflected on the Financial Statements only if such claims are asserted by WHI by the earlier of (“Hold i) one year following the Closing Date or (ii) the date of the issuance of the first audited statements reflecting combined operations of Four Points and WHI; provided further that WHI may only exercise such rights after (A) there has been a Resolution. The Members grant WHI a security interest in the Held Back Amount”) Shares to secure claims for WHI Indemnification Amounts and the Exchange Consideration Adjustment. Any surrender of shares under this clause shall be effected on a pro-rata basis among the Members. If there is a dispute regarding any Exchange Consideration Adjustment alleged to be due which is not Resolved, in respect of: no event shall any Held Back Shares be taken by WHI for surrender in satisfaction of such Exchange Consideration Adjustment unless and until there is a Resolution thereof. If there is a dispute regarding any WHI Indemnification Amount alleged to be due which is not Resolved, in no event shall any Held Back Shares be taken by WHI for surrender in satisfaction of such disputed WHI Indemnification Amount unless and until there is a Resolution thereof. If as of the earlier of (i) the amount date of any Substantiated Claim for breaches of, or inaccuracies in, release of the Warranties given by the Sellers and/or the Warrantors herein or the nonfulfillment of, or failure to perform, any covenant or agreement on the part audited financial statements of any Seller and/or Warrantor contained in this Agreement or the Transaction Documents and/ or brought by the Purchaser against any or all Warrantors and/or Sellers pursuant to the indemnifications granted under Section 10; or WHI reflecting combined operations of Four Points and WHI and (ii) a bona fide estimate of Loss where a Claim has been duly made by the Purchaser in respect of any one-year anniversary of the matters referred Closing, there is no dispute pending regarding an Exchange Consideration Adjustment or claimed WHI Indemnification Amount (including for any Particular Indemnified Matters) which have not been Resolved and satisfied through the Held Back Shares, any remaining Held Back Shares will be released by WHI to in paragraph the Members on a pro rata basis. If, however, there is a dispute pending regarding an Exchange Consideration Adjustment or claimed WHI Indemnification Amount (including for any Particular Indemnified Matter) which has not been Resolved and satisfied through the Held Back Shares prior to the earlier of (i) above but the date of release of the audited financial statements of WHI reflecting combined operations of Four Points and WHI and (ii) the one-year anniversary of the Closing, then a number of Held Back Shares reasonably sufficient (taking into consideration market factors) to satisfy the maximum potential recovery for the Particular Indemnified Matters and reasonably sufficient (taking into consideration market factors) to satisfy any other claimed WHI Indemnification Amount or pending Net Worth Adjustment Proposal ("Special Holdback") shall continue to be held by WHI until such claim has time that the disputes or open Particular Indemnified Matters have been Resolved. If any such Resolution results in an Exchange Consideration Adjustment or a right of WHI to a WHI Indemnification Amount, then WHI shall cause a number of shares of the Special Holdback (valued at the Stock Price) to be surrendered and cancelled pursuant to SECTION 2.4(a) toward satisfaction of such Exchange Consideration Adjustment or WHI Indemnification Amount. If all claimed WHI Indemnification Amounts and any Net Worth Adjustment Proposals have been Resolved and shares remain in the Special Holdback after application by WHI toward any Resolved Net Worth Adjustment Proposal or claimed WHI Indemnification Amount, the remaining shares (or any cash held in escrow as provided below) shall be released to the Members on a pro rata basis without unreasonable delay. If a Special Holdback is made pursuant to this SECTION 2.5(b), any Held Back Shares not become a Substantiated Claim and provided always that once such Claim has become a Substantiated Claim (“Resolution”) any subject to surrender in excess of the Hold Back Amount over the actual Loss Special Holdback shall be paid released to the Sellers and/or Warrantors within 15 days Members. In the event of Resolutiona Special Holdback, WHI shall permit the Members to sell the Held Back Shares on a national securities exchange or the Nasdaq Stock Market effected through a broker approved by WHI, provided that WHI is reasonably satisfied that the arrangements for such sales preserve its rights to the Held Back Shares or the proceeds thereof for the purposes of this Section 2.5, including that WHI be given a duly executed power of attorney in form reasonably satisfactory to WHI to conduct all such sales, at the expense of the Members. The Purchaser may set off Such proceeds shall be segregated and, provided that WHI receives sufficient taxpayer identification information signed by the Members beneficially owning the Held Back Shares, deposited into a separate interest bearing account in a federally insured bank chosen by WHI and apply identified as the property of the Shareholders over which WHI has control only pursuant to this Agreement. In the event of any such amounts owed to it by the Sellers or Warrantors (as the case may be) against the Hold Back Amount to reduce the amount sales all of any Tranche 2 Installment due to any Seller or Warrantor in proportion WHI's rights to the amount prospectively due to each Seller or Warrantor and the amount of any Hold Back in respect of breach proceeds of the Warranties Held Back Shares and interest thereon shall be held back from the Warrantors only. For same as its rights to the avoidance of doubt, this Section 2.02(hHeld Back Shares hereunder. (b) does not limit in any way the liability WHI agrees to hold and dispose of the Sellers to the Purchaser for any breach of Held Back Shares solely in accordance with this AgreementSECTION 2.

Hold Back. Any Tranche 2 Consideration earned but not yet paid at any Installment Payment Date (a) After the execution of this Agreement and prior to the close of business on the Closing Date, no transfers of shares in QCC shall be available registered other than as contemplated by this Agreement. Subject to the Purchaser for provisions of Section 2.5(b) and 2.5(c), WHI shall hold WHI Shares not subject to registration under Article X which constitute 10% of each Shareholder's pro- rata share of Exchange Consideration after any Exchange Consideration Adjustment ("Held Back Shares", such Held Back Shares being identified on Schedule 2.5(a)), with executed stock powers, to be surrendered to WHI (valued at the Stock Price) in satisfaction of any Loss arising during WHI Indemnification Amount (other than with respect to the Indemnified Period (“Hold Dispute as set forth below) due within one year following the Closing except that the Held Back Amount”) Shares may be utilized to satisfy claims for WHI Indemnification Amounts for breach of representations and warranties regarding the existence and/or value of assets and liabilities reflected on the Financial Statements only if such claims are asserted by WHI by the date of the issuance of the first audited statements reflecting combined operations of QCC and WHI. Any WHI Indemnification Amount with respect to the Indemnified Dispute shall be satisfied by the surrender of Held Back Shares only if the Shareholders fail to pay such WHI Indemnification Amount directly in respect of:cash. Any surrender of shares under this clause shall be effected on a pro-rata basis. In no event shall any Held Back Shares be released from escrow to WHI in settlement of any WHI Indemnification Amount alleged to be due unless and until such dispute is settled by written agreement of the parties hereto or final court judgement not subject to appeal. (ib) If there is no dispute pending regarding a claimed WHI Indemnification Amount and the Indemnified Dispute has been resolved and satisfied as of the one-year anniversary of the Closing, any remaining Held Back Shares will be released from escrow by WHI to the Shareholders. If there is a dispute pending regarding a claimed WHI Indemnification Amount or the Indemnified Dispute has not been resolved and satisfied by the Shareholders prior to the one-year anniversary, an amount of Held Back Shares sufficient to satisfy the claimed recovery under the Indemnified Dispute ("Special Holdback") and sufficient to satisfy any Substantiated Claim other claimed WHI Indemnification Amount shall continue to be held subject to surrender to WHI for breaches ofany WHI Indemnification Amount incurred with respect to the Indemnified Dispute or any pending dispute, not to be delivered to the Shareholders until such time the Indemnified Dispute has been settled by written agreement of the parties thereto or inaccuracies infinal court judgement not subject to appeal, but any additional Held Back Shares which do not relate to the Warranties given by the Sellers and/or the Warrantors herein disputed amount or the nonfulfillment of, or failure Indemnified Dispute shall be released to perform, any covenant or agreement the Shareholders on the part one-year anniversary of any Seller and/or Warrantor contained the Closing. WHI shall permit the Shareholders, in the event of a Special Holdback, to sell the Held Back Shares into the market and the proceeds of such sale shall continue to be held under this Agreement or as if such proceeds were "Held Back Shares," except that such proceeds shall be segregated and deposited in a separate account identified as the Transaction Documents and/ or brought by property of the Purchaser against any or all Warrantors and/or Sellers Shareholders over which WHI has control only pursuant to the indemnifications granted under Section 10; or (ii) a bona fide estimate of Loss where a Claim has been duly made by the Purchaser in respect of any of the matters referred to in paragraph (i) above but such claim has not become a Substantiated Claim and provided always that once such Claim has become a Substantiated Claim (“Resolution”) any excess of the Hold Back Amount over the actual Loss shall be paid to the Sellers and/or Warrantors within 15 days of Resolution. The Purchaser may set off and apply any such amounts owed to it by the Sellers or Warrantors (as the case may be) against the Hold Back Amount to reduce the amount of any Tranche 2 Installment due to any Seller or Warrantor in proportion to the amount prospectively due to each Seller or Warrantor and the amount of any Hold Back in respect of breach of the Warranties shall be held back from the Warrantors only. For the avoidance of doubt, this Section 2.02(h) does not limit in any way the liability of the Sellers to the Purchaser for any breach terms of this Agreement. (c) WHI, as escrow agent, will hold and dispose of the Held Back Shares in escrow for WHI and the Shareholders in regard of the indemnification obligations of the Shareholders under Article VIII hereof until the Held Back Shares are to be released pursuant to the terms hereof. The Held Back Shares deposited by Shareholders pursuant hereto shall, until released to WHI or the Shareholders pursuant to the terms hereof, remain registered in the name of such Shareholders, and such Shareholders shall be entitled to vote the same and WHI will take all reasonable steps to allow and facilitate the exercise of such rights. Except for tax-free dividends paid in stock declared with respect to the Held Back Shares pursuant to Section 305(a) of the Code, the Shareholders shall be entitled to receive any cash dividends, dividends payable in securities or distributions of any kind made in respect of the Held Back Shares. In the event of any meeting of Stockholders of WHI during the period in which the Held Back Shares are held by WHI pursuant hereto, WHI shall send to each Shareholder promptly copies of any notices, proxies and proxy material in connection with such meeting.

Hold Back. Any Tranche 2 Consideration earned but not yet paid at any Installment Payment Date shall be available In connection with the initial sale of the Premises from Lessee to Lessor, Lessor has held back the Purchaser amount of $1,411,833 as security for the satisfaction performance of any Loss arising during the Indemnified Period Lessee's obligations hereunder (“"Hold Back Amount”) "). The Hold Back Amount shall be held in respect of: escrow by Lessor during the term of this Lease in an interest bearing account at a federally insured financial institution, having a maturity of not less than six months, and shall be reinvested upon maturity unless drawn upon as provided herein. The Hold Back Amount shall not be commingled with other funds of Lessor or of other persons. Provided, if Lessor's Lender shall require the Hold Back Amount be assigned to it as security, Lessor shall use its reasonable efforts to cause the foregoing investment and interest provisions to be applied, but Lessor shall not be responsible for the payment of interest on the Hold Back Amount if Lessor's Lender declines to so comply. If at any time an Event of Default shall have occurred and be continuing, Lessor shall be entitled, at its sole discretion, to withdraw the Hold Back Amount from the above-described account and to apply the proceeds in payment of (i) any Rent or other charges for the amount payment of which Lessee shall be in default (including any Substantiated Claim for breaches ofLate Rate), or inaccuracies in, the Warranties given by the Sellers and/or the Warrantors herein or the nonfulfillment of, or failure to perform, any covenant or agreement on the part of any Seller and/or Warrantor contained in this Agreement or the Transaction Documents and/ or brought by the Purchaser against any or all Warrantors and/or Sellers pursuant to the indemnifications granted under Section 10; or (ii) a bona fide estimate any expense incurred by Lessor in curing any default of Loss where a Claim has been duly made Lessee, and/or (iii) any other sums due to Lessor in connection with any default or the curing thereof, including, without limitation, any damages incurred by the Purchaser in respect Lessor by reason of such default or to do any combination of the matters referred foregoing, all in such order or priority as Lessor shall so determine in its sole discretion and Lessee acknowledges and agrees that such proceeds shall not constitute assets or funds of Lessee or its estate, or be deemed to be held in paragraph trust for Lessee, but shall be, for all purposes, the property of Lessor (ior a lender, to the extent assigned). Lessee further acknowledges and agrees that (1) above but such claim has not become a Substantiated Claim and provided always that once such Claim has become a Substantiated Claim (“Resolution”) any excess Lessor's application of the Hold Back Amount over towards the actual Loss payment of Basic Rent, Additional Rent or the reduction of any damages due Lessor, constitutes a fair and reasonable use of such proceeds, and (2) the application of such proceeds by Lessor towards the payment of Basic Rent, Additional Rent or any other sums due under this Lease shall be paid to not constitute a cure by Lessee of the Sellers and/or Warrantors within 15 days applicable default; provided, an Event of Resolution. The Purchaser may set off and apply any such amounts owed to it by the Sellers or Warrantors (as the case may be) against Default shall not exist if Lessee restores the Hold Back Amount to reduce its full original amount within five (5) days so that the original amount of any Tranche 2 Installment due to any Seller or Warrantor in proportion to the amount prospectively due to each Seller or Warrantor and the amount of any Hold Back in respect of breach Amount shall be again on deposit with Lessor. Beginning on the date which is no later than the twentieth (20th) day of the Warranties ninth month preceding the end of the Lease Term, and provided no Event of Default then exists (or on any subsequent date on which a payment is due hereunder), the Lessor shall return to Lessee an amount equal to one-eighth of the Hold Back Amount then in its possession (including any accrued interest). This obligation to return the Hold Back Amount shall continue for each succeeding month thereafter until the Hold Back Amount is returned to Lessee. Provided, this subsection shall not apply if Lessor and Lessee shall have agreed that the Hold Back Amount shall continue to be held back from by Lessor during any Extended Term. In such latter case, the Warrantors onlyprovisions of this paragraph regarding return of the Hold Back Amount shall continue during any Extended Term in the same fashion as during the Primary Term. For Lessor shall have the avoidance right to designate a lender or any other holder of doubt, a mortgage as the beneficiary of the Hold Back Amount during the term of the applicable loan which designee shall have all of the rights of Lessor under this Section 2.02(h) does not limit in any way the liability of the Sellers to the Purchaser for any breach of this Agreement13.1.