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     (ii) Buyer shall pay to Seller at Closing, in cash by wire transfer ofimmediately available funds to such account designated in writing by Seller prior tothe date hereof, an amount equal to Two Million Seven Hundred and Fifty ThousandDollars ($2,750,000) (the “ Closing Date Payment”).     (iii) Buyer shall pay Seller’s portion of the Retainage to Seller on an ongoingbasis within fifteen (15) days of receipt thereof by the Companies.     (e) Certain Purchase Price Provisions.     (i) After the Closing, Buyer shall prepare and deliver to Seller monthlystatements (“Retainage Statements”) showing the status of all Retainage by customer,including aging, payments received and payments made to Seller. Seller shall havereasonable access to the work papers, bank statements and other information used byBuyer in its preparation of the Retainage Statements. If the Seller disputes anyinformation in the Retainage Statements, the parties will first negotiate in goodfaith to resolve such dispute. If the parties are unable to reach a resolution,then the dispute will be submitted to a mutually agreeable independent certifiedpublic accounting firm (the “Accountants”) at Indianapolis, Indiana to audit theCompanies’ books and records. Each party will furnish to the Accountants such workpapers and other documents and information relating to the disputed issues as theAccountants may request and are available to that party or its affiliates (or itsindependent public accountants), and will be afforded the opportunity to present tothe Accountants any material relating to the determination and to discuss thedetermination with the Accountants. The determination by the Accountants, as setforth in a notice delivered to both parties by the Accountants no later than 60 daysafter the issues in dispute are submitted to the Accountants, will be binding andconclusive on the parties. Buyer and Seller will each bear 50% of the fees of theAccountants for such determination, unless it is determined that Buyer underpaidSeller by more than three percent (3%) in which case Buyer shall bear 100% of thefees of the Accountants. If the Accountants determine that Buyer owes Selleradditional Retainage, Buyer shall pay Seller such amount within five (5) days of theAccountants’ determination.     (ii) Buyer and the Companies each hereby represents and warrants to the Sellerthat (A) it will not take any actions in bad faith with the intent to avoid makingRetainage payments, (B) that it will not reduce, settle, discount, write-off orotherwise reduce the amount of Retainage without Seller’s prior written consent, and(C) it will use its best efforts to timely collect all Retainage payments.     2. Closing. The closing of the purchase and sale provided for in this Agreement (the” Closing”) shall take place on November 30, 2009 (the “ Closing Date”), at a timeand place mutually agreed upon by Seller and Buyer, which Closing shall be deemed to be effectiveas of 12:01 a.m. on December 1, 2009. The transaction shall be evidenced by the delivery of all ofthe items described in this Section 2, all in form and substance reasonably acceptable to therespective parties receiving such deliveries, as applicable. At Closing:
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     (a) Seller shall deliver to Buyer:     (i) the membership unit certificates evidencing the Units, if any, andinstruments of transfer duly executed by Seller, in proper form for transfer of theUnits to Buyer;     (ii) such proof and evidence of Seller’s authority and authorization to enterinto the transactions contemplated hereby, and such proof of the power and authorityof the individual(s) executing and delivering any instruments, documents orcertificates on behalf of any entity to act or bind such entity, as may bereasonably required by Buyer;     (iii) written resignations by Seller as manager of the Companies;     (iv) the closing certificate(s) pursuant to Sections 6(b)(i) and (ii); and     (v) all other documents, instruments or writings that may be reasonablyrequired by Buyer or its counsel to demonstrate satisfaction of the conditions toClosing and compliance with the covenants set forth in this Agreement.     (b) Buyer shall:     (i) deliver to Seller the closing certificate(s) pursuant to Sections 6(c)(i)and (ii);     (ii) deliver such proof and evidence of Buyer’s and GHC&K’s authority andauthorization to enter into the transactions contemplated hereby, and such proof ofthe power and authority of the individual(s) executing and delivering anyinstruments, documents or certificates on behalf of any entity to act or bind suchentity, as may be reasonably required by Seller;     (iii) issue and deliver to Seller the Holdback Note duly executed by Buyer; and     (iv) transfer the Closing Date Payment to Seller.     3. [Intentionally left blank].     4. Representations and Warranties of Seller. As a material inducement to Buyer toenter into this Agreement, Seller makes the following representations and warranties to Buyer, allof which shall be true as of the date hereof, except as otherwise specifically noted herein:     (a) Organization and Authorization of Seller. Seller is duly organized,validly existing and in good standing under the laws of the State of Delaware, is dulyqualified to do business and is in good standing in each jurisdiction in which the nature ofits business or the ownership, lease or operation of its assets makes such qualificationnecessary, and has all requisite power and authority to own, lease and operate itsproperties, to carry on
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its business as it is now being conducted, to execute and deliver this Agreement andeach other agreement, instrument or document to be executed and delivered by Seller pursuanthereto (collectively, the “ Seller Related Agreements”), to perform its obligationshereunder and thereunder and to consummate the transactions contemplated hereby and thereby.The execution and delivery of this Agreement and the Seller Related Agreements by Seller,the performance of this Agreement and the Seller Related Agreements by Seller, and theconsummation of the transactions contemplated hereby and thereby, have been duly authorizedby all necessary action on the part of Seller, and no other proceeding on the part of Selleris necessary to authorize this Agreement or the Seller Related Agreements or to consummatethe transactions contemplated hereby and thereby. This Agreement has been duly executed anddelivered by Seller and constitutes the valid and binding obligation of Seller, enforceableagainst Seller in accordance with its terms. Upon its execution and delivery by Seller,each Seller Related Agreement will constitute the valid and binding obligation of Seller,enforceable against Seller in accordance with its terms.     (b) Organization and Qualification of the Companies. The Companies are dulyorganized, validly existing and in good standing under the laws of the State of Indiana, andhave all requisite power and authority to own, lease and operate their properties and assetsand to carry on their businesses as they are now being conducted. From April 1, 2008through the Closing Date, the Companies have been duly qualified to do business and are ingood standing in each jurisdiction in which the nature of their businesses or the ownership,lease or operation of their assets made such qualification necessary.     (c) No Conflict; Required Filings and Consents. Except as set forth in Section4(c) of the Disclosure Schedule delivered by Seller to Buyer concurrently herewith (the“ Disclosure Schedule”), the execution and delivery of this Agreement and the SellerRelated Agreements by Seller do not, and the performance of this Agreement and the SellerRelated Agreements by Seller and the consummation of the transactions contemplated herebyand thereby will not (i) conflict with or violate the articles of organization, operatingagreements or other organizational documents, in each case as amended or restated, of Selleror any of the Companies, (ii) conflict with or violate any United States federal, state,local or foreign law, statute, ordinance, rule, regulation, order, judgment or decreeapplicable to Seller or any of the Companies or by or to which any of their respectiveproperties or assets are bound or subject, (iii) result in any breach of, or constitute adefault (or an event that with notice or lapse of time or both would constitute a default)under, or give to others any rights of termination, amendment, acceleration or cancellationof, or require payment under, or result in the creation of any lien, encumbrance, securityinterest, mortgage, pledge, claim, option or restriction of any kind whatsoever(collectively “ Liens”) on any of the properties or assets of Seller or any of theCompanies pursuant to, any agreement, lease, license, contract, note, mortgage, indenture,arrangement or other obligation (collectively, “ Contracts”) to which Seller or anyof the Companies is a party or by which any of their respective properties or assets arebound, or (iv) require the consent, approval or action of or any filing with or notice toany other individual or entity, including any partnership, corporation, limited liabilitycompany or trust (each, a “ Person”), or any court, administrative agency orcommission
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or other governmental authority or instrumentality, domestic or foreign (each, a“ Governmental Entity”).     (d) Ownership and Capitalization of the Companies.     (i) Seller owns 3,000 Class A Preferred Units and 7,000 Class B Common Units ofSummit Contracting, LLC which represent one hundred percent (100%) of the issued andoutstanding Units of Summit Contracting, LLC (collectively, the “Units”).     (ii) Seller is the true and lawful owner of, and owns all right, title andinterest in and to, all of the Units, free and clear of all Liens. Upon the saleand transfer of the Units to Buyer pursuant to this Agreement, all right, title andinterest in and to all of the Units, free and clear of all Liens, will pass to Buyeron the Closing Date. No Person has any right to assert any Lien in any amountagainst any of the Units.     (iii) Since April 1, 2008, the Seller has not entered into any Contractsrelating to the issuance, sale, or transfer of any membership interests or otherownership interests of any of the Companies. None of the Companies own, and they donot have any Contract to acquire, any equity securities or other ownership interestsof any Person or any direct or indirect equity ownership interest in any otherbusiness.     (e) Financial Statements. Seller has previously delivered to Buyer theconsolidated Balance Sheet and Income Statement for the year-end December 31, 2008 and theperiod ended August 31, 2009 (the “ Companies Financial Statements”). Except as setforth in Section 4(e) of the Disclosure Schedules, the Companies’ Financial Statements havebeen prepared in accordance with GAAP (excluding footnotes) applied on a consistent basisthroughout the periods involved and fairly and accurately present in all material respectsthe financial position of the Companies at the respective dates indicated therein and theresults of operations of the Companies for the periods set forth therein.     (f) Undisclosed Liabilities. Except as set forth in the Companies’ FinancialStatements or Section 4(f) of the Disclosure Schedule, (A) the Companies are not subject toany liability or obligation (whether direct or indirect, accrued, fixed, contingent orotherwise) arising on or after April 1, 2008, other than immaterial current liabilities andobligations incurred in the ordinary and usual course of business consistent with pastpractice, and (B) there are no facts or circumstances arising on or after April 1, 2008 ofwhich Seller or any of the Companies has knowledge that could result in any claims againstor obligations or liabilities of any of the Companies that, alone or in the aggregate,reasonably could be expected to have a material adverse effect on the business, assets,results of operations, condition (financial or otherwise) or prospects of the Companies (a“Material Adverse Effect”).
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     (g) Inventory and Accounts Receivable.     (i) All of the accounts receivable reflected on the Companies’ FinancialStatements represent valid obligations arising from bona fide arm’s lengthtransactions in the ordinary course of business; neither Seller nor any of theCompanies has received any notice from any obligor thereof challenging the validityor collectability of any such accounts receivable; and Seller and the Companies haveno knowledge of any events or circumstances that would reasonably be expected toresult in any such accounts receivable not being collectible in the ordinary courseof business, except as set forth in Section 4(g)(i) of the Disclosure Schedule.     (ii) All of the inventory reflected on the Companies’ Financial Statementsconsists of a quality and quantity usable and salable in the ordinary course ofbusiness, except for obsolete and below-standard quality items which have beenwritten off or written down on the Companies’ Financial Statements. The quantitiesof each item of inventory (whether raw materials, work in process or finishedproducts) are consistent with the Companies’ past practices in the ordinary andusual course of business.     (iii) All reserves and prepaid expenses reflected on the Companies’ FinancialStatements are adequate and consistent with the reserves and prepaid expensescustomarily maintained by the Companies with respect to the matters covered therebyin the ordinary course of business.     (h) Absence of Certain Change Events. Except as set forth in Section 4(h) ofthe Disclosure Schedule, since January 1, 2009, (i) the Companies have operated theirbusinesses only in the ordinary and usual course of business consistent with past practice;and (ii) there has not occurred any other event, circumstance or other change in thebusinesses, properties, results of operations, condition (financial or otherwise) orprospects of the Companies that, alone or in the aggregate, has had or reasonably could beexpected to have a Material Adverse Effect.     (i) Ownership of Assets. Except as set forth in Section 4(i) of the DisclosureSchedule, the Companies are the true and lawful owners of, or have the lawful right to use,all of the assets, whether real, personal or mixed, tangible or intangible, used in theirbusinesses, free and clear of all Liens. Except as set forth in Section 4(i) of theDisclosure Schedule, no Person has any right to assert any Lien in any amount against any ofthe assets of the Companies. The assets of the Companies, including assets leased to theCompanies, constitute all of the assets necessary for the continued conduct of thebusinesses of the Companies after the Closing in the same manner as now conducted.     (j) Property and Equipment.     (i) Section 4(j)(i) of the Disclosure Schedule sets forth a true, correct and amaterially complete list of all furniture, fixtures, machinery, equipment, computersand computer equipment, vehicles, parts, tools, supplies, signage,
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manuals, training materials and other items of equipment of the Companies withan original cost of Five Thousand Dollars ($5,000) or more (collectively, the“ Equipment”) (other than immaterial items of Equipment such as stationary,office supplies and the like) as of October 13, 2009. Except as set forth inSection 4(j)(i) of the Disclosure Schedule, such list remains true, correct andcomplete in all material respects as of the date hereof.     (ii) Except as set forth in Section 4(j)(ii) of the Disclosure Schedule, all ofthe Equipment and the buildings, plants, improvements, structures, machinery andother equipment and tangible assets of the Companies (A) are structurally sound, arein materially good operating condition (normal wear and tear excepted) and repair(subject to routine maintenance in the ordinary course of business), and areadequate for the uses to which they are being put (B) constitute all of the materialassets and properties necessary and sufficient for the continued conduct of thebusinesses of the Companies after the Closing in the same manner as conducted priorto the Closing and (C) are reflected on the Companies’ Financial Statements inaccordance with GAAP.     (k) Contracts; Leases. Section 4(k) of the Disclosure Schedule sets forth atrue, correct and complete list as of August 31, 2009 of all material Contracts (including,without limitation, all purchase orders) to which any of the Companies is a party or bywhich any of the properties or assets of any of the Companies are bound, other than (i) theinsurance policies and Employee Plans listed in other sections of the Disclosure Schedules;and (ii) other Contracts involving future payments to or by any of the Companies during anytwelve-month period of One Hundred Thousand Dollars ($100,000) or less and which areterminable by any of the Companies for any reason on not more than thirty (30) days’ notice.Except as set forth in Section 4(k) of the Disclosure Schedule, each of the Contractslisted in Section 4(k) of the Disclosure Schedule is valid, binding and enforceable inaccordance with its terms, and there is not any existing default or event of default, or anyevent which, with or without notice or lapse of time or both, would constitute a defaultunder any of such Contracts by any of the Companies or, to the knowledge of Seller and theCompanies, by any other party thereto. In addition, with respect to each such Contract thatis a lease of personal property, (i) such lease creates a valid leasehold interest in allproperty purported to be leased thereunder, and (ii) the Companies are in possession of allof such property.     (l) Related Party Arrangements. Except as set forth in Section 4(l) of theDisclosure Schedule, since April 1, 2008, neither Seller nor any current or former director,officer or employee of Seller or any of the Companies, or any affiliate or associate ofSeller or any of the Companies or any such director, officer or employee, is a party to anyContract or other commitment to which any of the Companies is a party or by which any oftheir properties or assets are bound, or has a material interest in any Contract or any ofthe assets or properties owned by, used in or pertaining to the business of any of theCompanies.     (m) Major Customer Relationships. Section 4(m) of the Disclosure Schedule setsforth a true, correct and complete list of each customer of the Companies to which the
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Companies made sales of Five Hundred Thousand Dollars ($500,000) during the eight monthperiod ended August 31, 2009 (collectively, “ Major Customers”). Except as set forthin Section 4(m) of the Disclosure Schedule, the Companies’ relationships with the MajorCustomers are good and, since January 1, 2009 (and other than changes or events affectingeconomic conditions applicable to any Major Customer or its industry generally), to theknowledge of Seller and the Companies, (i) there has been no event or occurrence that hasadversely affected the Companies’ relationships with any Major Customer, and (ii) neitherSeller nor any of the Companies has received any notice that any Major Customer isdissatisfied with the Companies or their products, services or business practices.     (n) Intellectual Property. Section 4(n) of the Disclosure Schedule sets fortha true, correct and complete list of all of the patents, copyrights, service marks,trademarks and trade names, and all licenses, franchises, authorizations and other rightsthereto, of the Companies that is patented, registered or otherwise the subject of anyfiling with any Governmental Entity (other than charter documents, local business licenses,qualifications to do business and other similar documents filed with the secretaries ofstate or similar officials of any jurisdiction) (collectively, the “ IntellectualProperty”). Except as set forth in Section 4(n) of the Disclosure Schedule, to theknowledge of Seller (i) the Companies are the true and lawful owners of, and own all rights,titles and interests in and to, all of their Intellectual Property, free and clear of allLiens, (ii) the use of the Intellectual Property does not infringe any rights of any otherPerson and are not being infringed by any other Person, and (iii) there is no action, suitor proceeding pending or, to the knowledge of Seller and the Companies, threatened, by oragainst any of the Companies regarding the ownership of, or rights to sell or use, any ofthe Intellectual Property.     (o) Permits. The Companies possess all licenses, permits and otherauthorizations from any Governmental Entity (other than charter documents, local businesslicenses, qualifications to do business and other similar documents filed with thesecretaries of state or similar officials of any jurisdiction) or required pursuant to anyEnvironmental Law or applicable provision of law, ordinance, rule or regulation(collectively, the “ Permits”), necessary for the operation of their businesses asthey exist on the date hereof, all of which are listed in Section 4(o) of the DisclosureSchedule. All of such Permits are in full force and effect.     (p) Compliance with Law. Except as set forth in Section 4(p) of the DisclosureSchedule, the Companies are in compliance with the terms and conditions of all of thePermits and all laws, rules, regulations and orders applicable to the Companies or theirbusinesses; and since April 1, 2008, neither Seller nor any of the Companies has receivedany notification that any of the Companies or any of their business practices are inmaterial violation of any Permit or any such law, rule, regulation or order or that anyinvestigation or review by any Governmental Entity with respect to any of the Companies ispending or that such investigation or review is contemplated.     (q) Absence of Litigation. Except as set forth in Section 4(q) of theDisclosure Schedule, (i) there is no claim, action, suit, proceeding or investigation of anykind, at
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law or in equity (including actions or proceedings seeking injunctive relief), by orbefore any Governmental Entity pending or, to the knowledge of Seller and the Companies,threatened against any of the Companies, and (ii) none of the Companies is a party orsubject to or in default under any judgment, order or decree of any Governmental Entity, orany settlement agreement.     (r) Insurance.     (i) Section 4(r)(i) of the Disclosure Schedule sets forth a true, correct andcomplete list of all liability, fire, casualty, fidelity, workers’ compensation andother insurance policies currently held by or on behalf of the Companies, and adescription of any self-insurance arrangements by or affecting the Companies,including any reserves established thereunder. Such policies are in amounts deemedto be adequate by the Companies, and are sufficient for compliance with allrequirements of Governmental Entities and Contracts to which any of the Companies issubject. All of such policies are in full force and effect, all premiums withrespect thereto are currently paid and none of the Companies has received any noticeof cancellation or other notice that any such policy will not be renewed.     (ii) Section 4(r)(ii) of the Disclosure Schedule sets forth for the period fromApril 1, 2008 through the date hereof, a summary of the loss experience under eachinsurance policy and self-insurance arrangement with respect to Companies.     (s) Taxes.     (i) As used in this Agreement:     (A) “ Audit” means any audit, assessment of Taxes, examinationor other proceeding by the IRS or any other Governmental Entity responsiblefor the administration of any Taxes, proceeding or appeal of such proceedingrelating to Taxes.     (B) “ Code” means the Internal Revenue Code of 1986, as amended.     (C) “ IRS” means the Internal Revenue Service of the UnitedStates.     (D) “ Regulations” means the permanent, temporary, proposed, orproposed and temporary regulations of the Department of the Treasury underthe Code, as such regulations may be changed from time to time.     (E) “ Taxes” or “ Tax” means all federal, state, localand foreign taxes, assessments, charges, duties and fees or similar chargesof any kind whatsoever (whether imposed directly or through withholding),including, without limitation, all net income, gross income, gross receipts,excise,
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property, sales, use (or any similar taxes), transfer, franchise,payroll, withholding, social security, employment, environmental businesslicense fees, or other taxes, including any interest, penalties andadditions imposed with respect to such amounts, in each case with respect tothe income, operations or assets of the Companies.     (F) “ Tax Returns” means all federal, state, local and foreigntax returns, declarations, estimates, statements, reports, claims forrefund, schedules, forms and information returns and other documents(including any related supporting information) and any amended Tax Returnsfiled or required to be filed in connection with the determination,assessment or collection of any Tax or the administration of any laws,regulations or administrative requirements relating to any Tax.     (ii) (A) all Tax Returns of the Companies required to be filed on or prior tothe Closing Date have been duly and timely filed, each such Tax Return has beenprepared in compliance with all applicable laws and regulations, and all such TaxReturns are true, accurate and complete in all material respects, and (B) all Taxeshave been duly paid on a timely basis, except for Taxes not yet due and payable forwhich adequate reserves have been established in the Companies’ Financial Statementsin accordance with GAAP.     (iii) Except as set forth in Section 4(s)(iii) of the Disclosure Schedule, (A)no Tax Return is currently under Audit by any taxing authority and no notice of anysuch Audit has been received, (B) no deficiencies for any Taxes have been proposed,asserted or assessed by any taxing authority with respect to liabilities for Taxeswhich have not been fully paid or finally settled, and (C) an adequate reserve inaccordance with GAAP has been established in the Companies’ Financial Statementswith respect to any Taxes which may successfully be proposed, assessed or asserted.Since April 1, 2008, there has been no IRS Audits of any of the Companies. Thereare no outstanding agreements or waivers extending the statute of limitationsapplicable to any taxable year or Tax Returns of any of the Companies from April 1,2008 through the present.     (iv) Except as set forth in Section 4(s)(iv) of the Disclosure Schedule, sinceApril 1, 2008, each of the Companies has complied with all withholding andremittance Tax requirements and procedures and, in the case of social security,unemployment, employee payroll and withholding Taxes, has withheld amounts from itsemployees and, with respect to such employees, has filed all Tax Returns regardingemployee income Tax withholding and social security, unemployment Taxes and allother payroll Taxes in compliance with applicable Tax withholding provisions and hasmade all required remittances in respect of such amounts withheld.     (v) Since April 1, 2008, there has been no change in any method of accountingutilized by the Companies that would require any adjustment to taxable incomepursuant to the Code (or any similar or corresponding provision of
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state, local or foreign law), and to Seller’s knowledge neither the IRS nor anyother Governmental Entity has proposed any such adjustment or change in the methodof accounting.     (vi) Except as set forth in Section 4(s)(vi) of the Disclosure Schedule, sinceApril 1, 2008, neither Seller nor any of the Companies has been a party to anyagreement providing for the allocation or apportionment of any liability for Taxes,payments of Taxes or Tax benefits or refunds.     (t) Benefit Plans.     (i) As used in this Agreement:     (A) “ Employees” means the employees or former employees of theCompanies.     (B) “ Employee Plans” means any pension, retirement,profit-sharing, deferred compensation, stock purchase, stock option, bonusor other incentive plan, any program, arrangement, agreement orunderstanding relating to or otherwise affecting the delivery of medical,dental or other health benefits to Employees, any life insurance, accident,disability, workers’ compensation, severance or separation plan, or anyother employee benefit plan, including, without limitation, any Plan, and,with respect to all of the above, to which any of the Companies contributesor is a party or is bound or under which it may have liability and underwhich Employees are eligible to participate or derive a benefit.     (C) “ ERISA” means the Employee Retirement Income Security Actof 1974, as amended from time to time, or any successor statute.     (D) “ Plan” means any employee benefit plan (as defined inSection 3(3) of ERISA) maintained, contributed to or required to becontributed to by any of the Companies.     (ii) Section 4(t)(ii) of the Disclosure Schedule sets forth a true, correct andcomplete list of all of the current Employee Plans. Seller has delivered to Buyertrue and complete copies of such Employee Plans, each as amended and in full forceand effect.     (iii) Section 4(t)(iii) of the Disclosure Schedule sets forth a true, correctand complete list of each Employee Plan that is subject to Title IV of ERISA (the“ Defined Benefit Plans”) which any of the Companies maintains or hadmaintained since April 1, 2008. None of the Companies has, at any time since April1, 2008, terminated or withdrawn from a Defined Benefit Plan. Benefits payableunder the Defined Benefit Plans are determined by years of service and not finalaverage compensation.
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     (iv) Except as set forth in Section 4(t)(iv) of the Disclosure Schedules, noneof the Companies has any accumulated funding deficiencies (within the meaning ofERISA and the Code), whether or not waived, with respect to any Defined Benefit Plancurrently maintained by it or to which it has contributed since April 1, 2008. Thefair market value of assets together with the minimum contribution payable for thecurrent and most recent plan years for each Defined Benefit Plan equals the presentvalue of benefit liabilities on a termination basis.     (v) Except as set forth in Section 4(t)(v) of the Disclosure Schedule, none ofthe Companies contributes to, is obligated to contribute to, has contributed to, orhas been obligated to contribute to, and none of the Employees is a participant in,any multiemployer plan, within the meaning of Section 4001(a)(3) or Section 3(37) ofERISA.     (vi) All of the Employee Plans which are subject to Section 4980B of the Codeare in compliance in all respects with the requirements of such Section.     (vii) Each Employee Plan is, and its administration is and has been sinceinception, in all material respects in compliance with, and neither Seller nor anyof the Companies has received any claim or notice, or is aware of any claim ornotice, that any such plan is not in compliance with, all applicable law, includingthe requirements of ERISA, the Age Discrimination in Employment Act, the Equal PayAct and Title VII of the Civil Rights Acts of 1964. Each Employee Plan intended tobe qualified under Section 401(a) of the Code has received a favorable determinationletter as to such qualification, has been amended to meet the requirements of suchsection applicable since such determination or remains within the remedial amendmentperiod for such amendments, and has been operated in compliance with therequirements of Section 401(a) of the Code. Each Employee Plan intended to meet therequirements of Section 401(k) or Section 125 of the Code is in compliance with allrequirements of such Sections as are applicable to such Plan.     (viii) None of the Companies is in material default in performing any of itscontractual obligations under any Employee Plan or any related trust agreement orinsurance contract. All contributions and other payments required to be made to anyEmployee Plan have been made, or reserves adequate for such contributions or otherpayments have been set aside therefor. The Companies have paid all liabilities forinsurance premiums for benefits provided on or prior to the date hereof under theinsured Employee Plans and have paid all amounts due prior to the date hereof ascontributions under each Employee Plan that is a pension plan within the meaning ofSection 3(2) of ERISA. There are no outstanding liabilities under any Employee Planother than liabilities for benefits to be paid in the ordinary course of business toparticipants in such Plan and their beneficiaries.     (ix) Except as set forth in Section 4(t)(ix) of the Disclosure Schedule, noevent has occurred, and there exists no condition or set of circumstances in
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connection with any Employee Plan, under which any of the Companies could besubject to any risk of liability under ERISA Sections 409, 502(i) or 502(l), ERISATitle IV, or Section 4975 of the Code.     (x) Except as set forth in Section 4(t)(x) of the Disclosure Schedule, notransaction under any Contract will result in liability to the Pension BenefitGuaranty Corporation (the “ PBGC”) or any other entity under Sections 4062,4063, 4064 or 4069 of ERISA or Subtitle E of Title IV of ERISA, or otherwise, withrespect to any of the Companies, and no event or condition exists or has existedwhich could result in any such liability with respect to any of the Companies.     (xi) No benefit under any Employee Plan will be established or becomeaccelerated, vested or payable by reason of any transaction contemplated by thisAgreement or any Seller Related Agreement.     (xii) There is no pending or, to the knowledge of Seller and the Companies,threatened claim by or on behalf of any Employee Plan, by any Person covered therebyor otherwise, which alleges violations of law which could reasonably be expected toresult in liability of any Employee Plan or any fiduciary thereof, nor to Seller’sknowledge is there any basis for such a claim.     (xiii) No reportable event, within the meaning of Section 4043(b) of ERISA, asto which the requirements of Section 4043(a) of ERISA have not been waived by thePBGC, has occurred with respect to any Employee Plan, except as set forth in Section4(t)(xiii) of the Disclosure Schedule.     (xiv) Except as set forth in Section 4(t)(xiv) of the Disclosure Schedule, noneof the Plans that are welfare plans, within the meaning of Section 3(i) of ERISA,provide for any retiree benefits, and none of the Companies has any obligation toprovide health care coverage for any former Employees or dependents, relatives orbeneficiaries of former Employees, other than continuation coverage mandated underSection 4980B of the Code or any comparable law.     (u) Labor Matters.     (i) Section 4(u)(i) of the Disclosure Schedule sets forth a true, correct andcomplete list of all Employees as of August 31, 2008.     (ii) Except as set forth in Section 4(u)(ii) of the Disclosure Schedule, toSeller’s knowledge, the Companies have since April 1, 2008 complied in all materialrespects with all applicable laws respecting employment and employment practices,terms and conditions of employment, wages and hours of work and occupational safetyand health, including, without limitation, any such laws respecting employmentdiscrimination, and are not engaged in any unfair labor practice as defined in theNational Labor Relations Act or other applicable law, ordinance or regulation.
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     (iii) Except as set forth in Section 4(u)(iii) of the Disclosure Schedule, nounion or labor organization claims to represent the Employees, and Seller and theCompanies have no knowledge of any current union organizing activities among theEmployees, nor does any question concerning representation exist concerning suchEmployees. Except as set forth in Section 4(u)(iii) of the Disclosure Schedule,there is no unfair labor practice charge or complaint against any of the Companiespending or, to the knowledge of Seller and the Companies, threatened before theNational Labor Relations Board or any comparable state, local or foreign agency, andthere is no labor strike, dispute, slowdown, stoppage or lockout actually pendingor, to the knowledge of Seller and the Companies, threatened against or directlyaffecting any of the Companies, and since April 1, 2008 there has not been any suchaction.     (iv) Except as set forth in Section 4(u)(iv) of the Disclosure Schedule, noneof the Companies is a party to or bound by any collective bargaining or similaragreement with any labor organization, or work rules or practices agreed to with anylabor organization or employee association applicable to the Employees. No suchagreement restricts any of the Companies from relocating or closing any operations.     (v) Except as set forth in Section 4(u)(v) of the Disclosure Schedule, none ofthe Companies is delinquent in payments to any Employees for any wages, salaries,commissions, bonuses or other direct compensation for any services performed by themfrom April 1, 2008 through the date hereof or amounts required to be reimbursed tosuch Employees.     (vi) Except as set forth in Section 4(u)(vi) of the Disclosure Schedule, fromApril 1, 2008 through the present, the Companies have not entered into anyemployment contracts or agreements for a specified duration, agreements providingfor severance or other benefits in the event of termination of employment for anyreason, or agreements establishing a standard of just cause for dismissal betweenany of the Companies and any of the current or former Employees.     (vii) Except as set forth in Section 4(u)(vii) of the Disclosure Schedule, theCompanies have no severance policies applicable to the Employees.     (viii) Except as set forth in Section 4(u)(viii) of the Disclosure Schedule,there are no complaints, charges, lawsuits or other proceedings pending or, to theknowledge of Seller and the Companies, threatened by or before any GovernmentalEntity by or on behalf of any present or former Employee, any applicant foremployment or classes of the foregoing alleging breach of any express or impliedcontract of employment, any law or regulation governing employment or thetermination thereof or other discriminatory, wrongful or tortious conduct inconnection with the employment relationship. Except as set forth in Section4(u)(viii) of the Disclosure Schedule, there is no grievance or arbitrationproceeding with respect to or relating to any of the Companies arising
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out of or under collective bargaining agreements or other grievance procedurespending or, to the knowledge of Seller and the Companies, threatened, and to theknowledge of Seller and the Companies no claims therefor exist. Neither Seller norany of the Companies has received any notice of the intent of any GovernmentalEntity responsible for the enforcement of labor or employment laws to conduct aninvestigation with respect to or relating to any of the Companies and, to theknowledge of Seller and the Companies, no such investigation is in progress.     (v) Environmental Matters.     (i) As used in this Agreement:     (A) “ Environmental Laws” shall include, without limitation, thefollowing laws: (1) Comprehensive Environmental Response, Compensation, andLiability Act of 1980, as amended by the Superfund Amendments andReauthorization Act of 1986; (2) Solid Waste Disposal Act, as amended by theResource Conservation and Recovery Act of 1976, as amended by the Hazardousand Solid Waste Amendments of 1984; (3) Federal Water Pollution Control Actof 1972, as amended by the Clean Water Act of 1977, as amended; (4) ToxicSubstances Control Act of 1976, as amended; (5) Emergency Planning andCommunity Right-to-Know Act of 1986; (6) Clean Air Act of 1966, as amendedby the Clean Air Act Amendments of 1990; (7) National Environmental PolicyAct of 1970, as amended; (8) Rivers and Harbors Act of 1899, as amended; (9)Endangered Species Act of 1973, as amended; (10) Occupational Safety andHealth Act of 1970, as amended; (11) Safe Drinking Water Act of 1974, asamended; (12) Environmental Emergencies Fund Act; (13) the Regulation forControl of Hazardous Waste; (14) the Non-Hazardous Solid Waste ManagementRegulation; (15) the Regulation for the Control of Atmospheric Pollution;(16) Water Quality Standards Regulation; (17) Underground Injection ControlRegulation; (18) Underground Storage Tank Control Regulation; and (19) alllaws of the United States or any political subdivision of the United Statesrelating to the regulation or protection of human health, safety, theenvironment, natural resources (including, without limitation, ambient air,surface water, groundwater, wetlands, land, surface or subsurface strata,wildlife, aquatic species or vegetation), including, without limitation,laws relating to emissions, discharges, releases or threatened releases ofHazardous Materials or otherwise relating to the manufacture, processing,distribution, use, treatment, storage, disposal, transport or handling ofHazardous Materials.     (B) “ Environmental Liabilities” means all liabilities arisingfrom April 1, 2008 through the present under any Environmental Law or anyPermit issued under Environmental Law and consisting of or relating to: (1)any environmental matters or conditions (including on-site or off-sitecontamination and regulation of chemical substances or products); (2)
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fines, penalties, judgments, awards, settlements, legal oradministrative proceedings, surcharges, damages, losses, claims, demands andresponse, investigative, remedial, or inspection costs and expenses arisingunder any Environmental Law (including any claims involving liability intort, strict, absolute or otherwise), Liens, notices of noncompliance orviolation, or legal fees or costs of investigations or proceedings relatingin any way to any Environmental Law or any Permit issued under suchEnvironmental Law, or arising from the presence or release (or allegedpresence or release) into the environment of any Hazardous Materials(hereinafter also referred to as “ Environmental Claims”) including,without limitation, all Environmental Claims, regardless of the merit ofsuch Environmental Claims, by any Governmental Entity or by any third partyfor enforcement, cleanup, removal response, remedial, or other actions ordamages, contribution, indemnification, cost recovery, compensation orinjunctive relief pursuant to any Environmental Law or any alleged injury orthreat of injury to health, safety or the environment; (3) financialresponsibility under Environmental Laws for cleanup costs or correctiveaction, including any investigation, cleanup, removal, containment, or otherremediation or response actions required by any applicable Environmental Lawand for any natural resource damages; (4) any other compliance, corrective,investigative or remedial measures required under any Environmental Law; or(5) any breach of any of the representations and warranties of Seller setforth in Section 4(v).     (C) “ Hazardous Materials” means any substance that has beendefined by applicable Environmental Law to be radioactive, toxic, hazardousor otherwise a pollutant or contaminant, including PCBs, asbestos, petroleumproducts or any fraction thereof, urea-formaldehyde and all substanceslisted as a “hazardous substance,” “hazardous waste,” “hazardous material”or “toxic substance” or words of similar import, under any EnvironmentalLaw.     (ii) Except as set forth in Section 4(v)(ii) of the Disclosure Schedule(without conducting an environmental assessment or audit):     (A) The Companies have obtained all Permits that are required inrespect of their facilities or in the conduct of their businesses underapplicable Environmental Laws, all such Permits are in full force andeffect, and the Companies’ operation of their businesses are in materialcompliance with the terms and conditions of all such Permits. Since April1, 2008, the Companies have kept and maintained their facilities (including,without limitation, the groundwater on or under their facilities) andconducted their businesses in material compliance with all applicableEnvironmental Laws, and the facilities are in material compliance with allEnvironmental Laws. Since April 1, 2008, the Companies have filed allmaterial reports and notices required by all applicable Environmental Lawsand have maintained all material environmental and operating
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documents and records in the manner and for the periods required by allapplicable Environmental Laws. Since April 1, 2008, neither Seller nor anyof the Companies has received any written or oral notice from anyGovernmental Entity that any of the Companies or Seller may be a responsibleparty under any Environmental Law with regard to its facilities or as theresult of its business.     (B) To the knowledge of Seller and the Companies, since April 1, 2008,there has been no release of Hazardous Materials in the course of conductingthe businesses or on, under, in or about any of the Companies’ facilities byany of the Companies or by any of the Companies’ agents or contractors orencroachment of Hazardous Materials onto or under any of the Companies’facilities from adjacent property or activities of third parties.     (C) To the knowledge of Seller and the Companies, since April 1, 2008,none of the Companies has transported, stored, used, manufactured, disposedof or released any Hazardous Materials from its facilities or in theperformance or conduct of its business in violation of Environmental Laws.     (D) To the knowledge of Seller and the Companies, since April 1, 2008,there has been no remediation or corrective action underway at any of theCompanies’ facilities, and no remediation or corrective action is needed atany of their facilities under any Environmental Law.     (E) To the knowledge of Seller and the Companies, there are nounderground storage tanks, PCBs, PCB-containing materials, asbestos,asbestos-containing materials or lead or lead-containing materials at any ofthe Companies’ facilities.     (F) Neither any of the Companies nor Seller is subject to anyoutstanding judgment, order or decree under any Environmental Law; there isno claim, action, suit, notice, surcharge, proceeding or investigationpending, or to the knowledge of Seller and the Companies, threatened by orbefore any third party, including any Governmental Entity, against any ofthe Companies, or, to the knowledge of Seller and the Companies, any currentor previous owner or tenant of any of the Companies’ facilities relating toany Environmental Law; and there are no enforcement, cleanup, removal,mitigation or other governmental or regulatory actions instituted, or, tothe knowledge of Seller and the Companies, threatened against any of theCompanies pursuant to any Environmental Laws concerning or dealing with theperformance or conduct of its business.
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     (G) To the knowledge of the Seller, the Companies own no real propertyconsidered in or in the vicinity of any wetlands, protected historic areas,wildlife or endangered species habitat or archeological sites.     (w) Books and Records. The minute books and other records of the Companies,all of which have been made available to Buyer, have been maintained in accordance withSeller’s past practices.     (x) Real Property Owned and Leased.      (i) Except as set forth in Section 4(x)(i) of the Disclosure Schedule, noCompany has granted an unaffiliated third-party the right to use or occupy thebuildings and real property owned by the Companies or any portion thereof (the“Real Property”). Except as set forth in Section 4(x)(i) of the DisclosureSchedule, there are no outstanding options, rights of first offer or rights of firstrefusal to purchase such owned Real Property or any portion thereof or interesttherein. Each Company has delivered to Buyer true, complete and correct copies ofall leases, subleases and all amendments and modifications thereof with respect tothe leased real property and buildings (“Leased Property.”) Except as setforth in Section 4(x)(i) of the Disclosure Schedule, none of the Companies are alessor or sublessor with respect to any of the Real Property. All leases andsubleases of the Leased Property are in full force and effect and are enforceableagainst the parties thereto in accordance with their respective terms, except aslimited by the applicable bankruptcy, reorganization, insolvency, moratorium orother similar laws affecting the enforcement of creditors’ rights generally fromtime to time in effect.     (ii) Except as set forth in Section 4(x)(ii) of the Disclosure Schedule, to theknowledge of Seller (without conducting a title search or other investigation), eachCompany, as applicable, has good and marketable indefeasible fee simple title freeand clear of all liens to all of the Real Property owned by it, excluding liens forreal estate taxes assessed but not delinquent. No event has occurred which (withthe giving of notice or passage of time or both) would impair, and the consummationof the transactions contemplated by this Agreement will not impair, any right ofeach Company to exercise and obtain the rights and benefits under any leases orsubleases of any of the Leased Property, including without limitation, any optionsor rights of first offer or refusal of any kind, contained in any such lease orsublease and there is no default by any Company (or by any lessor or sublessor) orbasis for acceleration or termination by the lessor or sublessor thereunder, nor tothe knowledge of Seller has any event occurred which (with the giving of notice orpassage of time or both) would constitute a default by any Company (or by any lessoror sublessor), or result in or permit the acceleration of any obligation by thelessor or sublessor, under any such lease or sublease.     (iii) Except as set forth in Section 4(x)(iii) of the Disclosure Schedule, tothe Sellers’ Knowledge (without conducting a survey or other investigation), no
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structures on the Real Property fail to conform in any material respect withapplicable Laws and restrictive covenants or, encroaches on property of others; andno Real Property is, to the Sellers’ Knowledge (without conducting a survey or otherinvestigation), encroached on by structures of others. Except as set forth inSection 4(x)(iii) of the Disclosure Schedule, to the Sellers’ Knowledge (withoutconducting a title search or other investigation), none of the Real Property issubject to or requires any variance, special use permit or rezoning under anyapplicable Laws. Except as set forth in Section 4(x)(iii) of the DisclosureSchedule, to the Sellers’ Knowledge (without conducting a survey or otherinvestigation), the use or occupancy of any of the Real Property does not constitutea non-conforming use under any applicable laws.     (iv) To the Sellers’ Knowledge, neither the whole nor any portion of the RealProperty is subject to any order to be sold or is being condemned, expropriated orotherwise taken by any governmental body or other Person with or without payment ofcompensation therefor nor, to the Sellers’ Knowledge, has any such condemnation,expropriation or taking been proposed. All water, oil, gas, electrical, steam,compressed air, telecommunications, sewer, storm and waste water systems and otherutility services or systems, to the extent applicable, for the Real Property havebeen installed and are operational and sufficient for the operation of the Companiesas it is currently being conducted thereon.     (y) No Misleading Statements. Neither this Agreement (including the DisclosureSchedule), the Seller Related Agreements nor any certificate or other document delivered bySeller or any of the Companies in connection herewith contains, or will contain whendelivered, any untrue statement of a material fact or omits to state, or will omit to statewhen delivered, a material fact necessary in order to make the statements made herein ortherein (or in the Disclosure Schedule or any such certificate or other document), in lightof the circumstances under which they were made, not misleading.     (z) Brokers. No broker, finder or investment banker, including any director,officer, employee, affiliate or associate of Seller, is entitled to any brokerage, finder’sor other fee or commission in connection with the transactions contemplated by thisAgreement based on arrangements made by or on behalf of Seller or any of its affiliates.     (aa) Limitation on Representations and Warranties. Notwithstanding anything inthis Agreement to the contrary, there shall be no breach of any representation or warrantyof Seller if such breach would have also constituted a breach by Summit Contracting, Inc.pursuant to that certain Purchase Agreement by and between Summit Contracting, Inc. and ACLProfessional Services Inc. dated March 31, 2008, the terms of which are expresslyincorporated herein by reference.     5. Representations and Warranties of Buyer. As a material inducement to Seller toenter into this Agreement, Buyer and GHC&K, jointly and severally, makes the followingrepresentations and warranties to Seller, all of which shall be true as of the date hereof:
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     (a) Organization and Authorization of Buyer. Buyer is a limited liabilitycompany duly organized, validly existing and in good standing under the laws of the State ofIndiana. Buyer has the requisite power and authority to execute and deliver this Agreement,the Holdback Note, and each other agreement, instrument or document to be executed anddelivered by Buyer pursuant hereto (the “Buyer Related Agreements”), to perform itsobligations hereunder and thereunder and to consummate the transactions contemplated herebyand thereby. The execution and delivery of this Agreement, the Holdback Note and the BuyerRelated Agreements, the performance of this Agreement, the Holdback Note and the BuyerRelated Agreements by Buyer, and the consummation of the transactions contemplated herebyand thereby, have been duly authorized by all necessary action on the part of Buyer, and noother proceeding on the part of Buyer is necessary to authorize this Agreement, the HoldbackNote or the Buyer Related Agreements or to consummate the transactions contemplated herebyand thereby. This Agreement has been duly executed and delivered by Buyer and constitutesthe valid and binding obligation of Buyer, enforceable against Buyer in accordance with itsterms. Upon its execution and delivery by Buyer, the Holdback Note and each Buyer RelatedAgreement will constitute the valid and binding obligation of Buyer, enforceable againstBuyer in accordance with its terms.     (b) Organization and Authorization of GHC&K.GHC&K is a limited liabilitycompany duly organized, validly existing and in good standing under the laws of the State ofIndiana. GHC&K has the requisite power and authority to execute and deliver this Agreement,the Real Estate Purchase Agreement and each other agreement, instrument or document to beexecuted and delivered by GHC&K pursuant hereto (“GHC&K Related Agreements”), to perform itsobligations hereunder and thereunder and to consummate the transactions contemplated herebyand thereby. The execution and delivery of this Agreement, the Real Estate PurchaseAgreement and the GHC&K Related Agreements, the performance of this Agreement, the RealEstate Purchase Agreement and the GHC&K Related Agreements, and the consummation of thetransactions contemplated hereby and thereby, have been duly authorized by all necessaryaction on the part of GHC&K, and no other proceeding on the part of GHC&K is necessary toauthorize this Agreement, the Real Estate Purchase Agreement and the GHC&K RelatedAgreements or to consummate the transactions contemplated hereby and thereby. ThisAgreement has been duly executed and delivered by GHC&K and constitutes the valid andbinding obligation of GHC&K, enforceable against GHC&K in accordance with its terms. Uponits execution and delivery by GHC&K, the Real Estate Purchase Agreement and each GHC&KRelated Agreement will constitute the valid and binding obligation of GHC&K, enforceableagainst GHC&K in accordance with its terms.     (c) No Conflict; Required Filings and Consents. The execution and delivery ofthis Agreement, the Holdback Note and the Buyer Related Agreements do not, and theperformance of this Agreement, the Holdback Note and the Buyer Related Agreements by Buyerand the consummation of the transactions contemplated hereby and thereby will not, (i)conflict with or violate the organizational documents of Buyer; (ii) conflict with orviolate any United States federal, state, local or foreign law, statute, ordinance, rule,regulation, order, judgment or decree applicable to Buyer or by or to which any of its
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properties or assets are bound or subject; (iii) result in any breach of, or constitutea default (or an event that with notice or lapse of time or both would constitute a default)under, or give to others any rights of termination, amendment, acceleration or cancellationof, or require payment under, or result in the creation of any Lien on any of the propertiesor assets of Buyer pursuant to, any Contract to which Buyer is a party or by which any ofits properties or assets are bound; or (iv) require the consent, approval or action of orany filing with or notice to any other Person or any Governmental Entity, other than anyconsents, filings or notices that have been obtained or made prior to the date hereof.     (d) No Conflict; Required Filings and Consents. The execution and delivery ofthis Agreement, the Real Estate Purchase Agreement and the GHC&K Related Agreements do not,and the performance of this Agreement and the GHC&K Related Agreements by GHC&K and theconsummation of the transactions contemplated hereby and thereby will not, (i) conflict withor violate the organizational documents of GHC&K; (ii) conflict with or violate any UnitedStates federal, state, local or foreign law, statute, ordinance, rule, regulation, order,judgment or decree applicable to GHC&K or by or to which any of its properties or assets arebound or subject; (iii) result in any breach of, or constitute a default (or an event thatwith notice or lapse of time or both would constitute a default) under, or give to othersany rights of termination, amendment, acceleration or cancellation of, or require paymentunder, or result in the creation of any Lien on any of the properties or assets of GHC&Kpursuant to, any Contract to which GHC&K is a party or by which any of its properties orassets are bound; or (iv) require the consent, approval or action of or any filing with ornotice to any other Person or any Governmental Entity, other than any consents, filings ornotices that have been obtained or made prior to the date hereof.     (e) Investment Intent. Buyer is acquiring the Units for its own account andnot with a view to their distribution within the meaning of Section 2(11) of the SecuritiesAct of 1933, as amended.     (f) No Misleading Statements. Neither this Agreement, the Holdback Note, theReal Estate Purchase Agreement, the Buyer Related Agreements, the GHC&K Related Agreementsnor any certificate or other document delivered by Buyer or GHC&K in connection herewithcontains, or will contain when delivered, any untrue statement of a material fact or omitsto state, or will omit to state when delivered, a material fact necessary in order to makethe statements made herein or therein (or in any such certificate or other document), inlight of the circumstances under which they were made, not misleading.     (g) Independent Assessment of Business and Purchased Units. Buyer acknowledgesthat it has had full opportunity to examine the status of, title to, and the operationalcondition of, the Companies, as applicable, and to investigate the businesses of theCompanies and to make all other inquiries it deems appropriate. Buyer understands thatSeller is not making any representations, warranties or projections about the sales,profitability or other operating results of the Companies that may be achieved after theClosing. Buyer further acknowledges and represents and warrants that Buyer
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has made its own independent judgment and/or has sought the expert advice, counsel andjudgment from qualified experts, of the commercial potential, condition and usefulness ofthe businesses of the Companies. Buyer has had the opportunity and has or has elected notto, consult legal, accounting and/or any other experts to evaluate the potential and/or thevalue of the businesses of the Companies. Buyer has had the opportunity to effectively andaccurately evaluate the advantages and disadvantages of consummating the transactioncontemplated by this Agreement.     (h) Business Experience. Buyer has such experience in business and financialaffairs in general, and knows and/or has experience in the industry and business practicesof the businesses of the Companies, to be independently capable of evaluating the risks andmerits of the transaction contemplated herein and the value of the businesses of theCompanies.     (i) No Knowledge of Inaccuracy. Neither Buyer nor GHC&K has failed to adviseSeller in writing of Buyer’s or GHC&K’s actual knowledge that any representations orwarranties of Seller or the Companies contained in this Agreement, including, withoutlimitation, the Disclosure Schedule are not true, correct and complete in all materialrespects.     (j) Brokers. No broker, finder or investment banker, including any director,officer, employee, affiliate or associate of Buyer or GHC&K, is entitled to any brokerage,finder’s or other fee or commission in connection with the transactions contemplated by thisAgreement based on arrangements made by or on behalf of Buyer or GHC&K or any of its ortheir affiliates.     6. Conditions to Closing.     (a) Conditions to Each Party’s Obligations. Buyer’s obligation to purchase theUnits from Seller and Seller’s obligation to sell and transfer the Units to Buyer aresubject to the satisfaction of the following conditions set forth in this Section 6(a), onor before the Closing Date:     (i) No temporary restraining order, preliminary or permanent injunction orother legal restraint or prohibition preventing the consummation of the transactionscontemplated by this Agreement shall be in effect, nor shall Buyer have notice of,and have verified, the pendency of an inquiry or investigation by any GovernmentalEntity in respect of the transactions contemplated by this Agreement which couldreasonably result in any such order, preliminary or permanent injunction or otherlegal restraint or prohibition.     (ii) The project at the E.W. Brown Generating Station (the “E.W. BrownProject”) will be reflected on the books and records, as of the Closing Date, as abreak-even project (i.e., without a profit or a loss).     (iii) All intercompany accounts receivables and accounts payables between theCompanies and American Commercial Lines, Inc. and its other affiliates andsubsidiaries have been settled (except for those receivables related
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to the July 23, 2008 Collision Incident as described in more detail in Section14(e)).     (iv) Buyer and Seller shall have entered into a three-year Non-CompetitionAgreement, in the form of Exhibit B attached hereto.     (v) Seller has prepared and delivered to Buyer, and Buyer has reviewed andapproved, a determination of the estimated Working Capital as of the Closing Date(the “ Estimated Determination”), which Estimated Determination is set forthin Exhibit C attached hereto.     (vi) The Non-Competition, Non-Solicitation and Non-Disclosure Agreement betweenSummit Contracting, LLC and Eric B. Dodd dated March 31, 2008 shall be terminated.     (vii) Concurrently with the Closing, GHC&K shall have acquired from theCompanies the real property described in Schedule 6(a)(vii) of the DisclosureSchedules (the “Acquired Real Property”) pursuant to the Real Estate PurchaseAgreement in the form of Exhibit D attached hereto.     (viii) Seller and Summit Environmental Services, LLC shall enter into anAmendment to the Specific Services Agreement (Emergency Professional Services)Summit # 06/1371 extending the term of such agreement for a period of three (3)years from the Closing, in the form of Exhibit E.     (b) Conditions to Obligations of Buyer. The obligations of Buyer to purchasethe Units are subject to the satisfaction or waiver on and as of the Closing of each of thefollowing conditions:     (i) The representations and warranties of Seller set forth in this Agreementshall be true and correct in all material respects (or with respect to anyrepresentation or warranty qualified by materiality, in all respects) as of the datehereof, and Buyer shall have received a certificate signed by an authorized officerof Seller to such effect.     (ii) The Companies and Seller shall have performed or complied in all materialrespects (or with respect to any obligation, condition or covenant qualified bymateriality, in all respects) with all obligations, conditions and covenantsrequired to be performed by them under this Agreement at or prior to the datehereof, and Buyer shall have received a certificate signed by an authorized officerof Seller to such effect.     (iii) Seller shall have resigned as manager of the Companies effective as ofthe Closing.     (iv) Seller shall have delivered all other Closing deliverables set forth inSection 2(a).
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     (c) Conditions to Obligations of Seller. The obligations of Seller to sell andtransfer the Units are subject to the satisfaction or waiver on and as of the Closing ofeach of the following conditions:     (i) The representations and warranties of Buyer and GHC&K set forth in thisAgreement shall be true and correct in all material respects (or with respect to anyrepresentation or warranty qualified by materiality, in all respects) as of the datehereof, and Seller shall have received a certificate signed by an authorized officerof Buyer and GHC&K to such effect.     (ii) Buyer and GHC&K shall have performed or complied in all material respects(or with respect to any obligation, condition or covenant qualified by materiality,in all respects) with all obligations, conditions and covenants required to beperformed by it under this Agreement at or prior to the date hereof, and Sellershall have received a certificate signed by an authorized officer of Buyer and GHC&Kto such effect.     (iii) Buyer shall have delivered all other Closing deliverables, and taken allother actions, set forth in Section 2(b).     7. Survival. Subject to the terms, conditions and limitations of Section 9 hereof,all representations, warranties, covenants, and obligations in this Agreement, the DisclosureSchedule and any certificate or document delivered pursuant to this Agreement will survive theClosing, and the Closing shall not be deemed a waiver by Buyer of the representations, warranties,covenants and agreements of Seller contained herein or in any documents relating to thistransaction. Likewise, the Closing shall not be deemed a waiver by Seller of the representations,warranties, covenants and agreements of Buyer, GHC&K or the Companies contained herein or in anydocuments relating to this transaction.     8. Indemnification.     (a) Indemnification by Seller. Subject to the limitations set forth in Section9, Seller shall indemnify and hold Buyer, its affiliates, successors and assigns, theirrespective officers, directors and employees, and the Companies harmless from and againstany liability, loss, damage, claim, cost or expense (including, without limitation, expensesof investigation and defense and reasonable fees and disbursements of counsel), Liens orother obligations of any nature whatsoever (collectively, the “ Buyer Losses”),incurred by Buyer, its affiliates, successors and assigns, their respective officers,directors or employees, or any of the Companies and arising out of or based upon:     (i) any breach of any representation or warranty made by Seller in thisAgreement;     (ii) any breach by Seller of any of its covenants or obligations in thisAgreement or any breach by any of the Companies of any of its respective covenantsor obligations in this Agreement to be performed prior to or with respect to theperiod prior to the Closing; and
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     (iii) any Taxes of any of the Companies with respect to any period from April1, 2008 through the Closing which were not accrued for in the Companies’ FinancialStatements.Seller shall have no right to seek contribution from the Companies with respect to all orany part of its indemnification obligations hereunder.     (b) Indemnification by Buyer. Subject to the limitations set forth in Section9, Buyer, GHC&K and each of the Companies, jointly and severally, shall indemnify and holdSeller, its affiliates, successors and assigns, and their respective officers, directors andemployees, harmless from and against any liability, loss, damage, claim, cost or expense(including, without limitation, expenses of investigation and defense and reasonable feesand disbursements of counsel), Liens or other obligations of any nature whatsoever(collectively with the “Seller Losses”), incurred by Seller, its affiliates,successors and assigns, and their respective officers, directors or employees, and arisingout of or based upon:     (i) any breach of any representation or warranty made by Buyer in thisAgreement;     (ii) any breach of any representation or warranty made by GHC&K in thisAgreement     (iii) any breach by Buyer of any of its covenants or obligations in thisAgreement or any breach by any of the Companies of any of its respective covenantsor obligations in this Agreement to be performed on or after the Closing;     (iv) any breach by GHC&K of any of its covenants or obligations in thisAgreement;     (v) any third-party claim, action, suit, proceeding or investigation of anykind, at law or in equity, arising primarily from any acts, omissions, events orother conditions that occurred after the Closing, but only to the extent that suchclaim or the basis therefor, including the facts giving rise thereto, did not existor did not occur prior to the Closing Date;     (vi) all Taxes (or the non-payment thereof) of the Buyer and the Companies forall post-Closing Tax periods; and     (vii) any Environmental Liabilities existing, arising or related to the periodprior to April 1, 2008, with respect to the approximately 6.5 acres of real propertylocated at 327 South Tekopel Avenue, Evansville, Indiana.     9. Limitations on Indemnification.     (a) Survival. The representation and warranties of Seller, Buyer and GHC&Kcontained in this Agreement shall survive the execution and delivery of this Agreement
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and the Closing, and shall be enforceable against the party making such representationsand warranties for a period of eighteen (18) months after the Closing Date;provided, however, that the representations and warranties of Sellercontained in Sections 4(a), (b) and (d) shall survive indefinitely and the representationsand warranties of Seller in Sections 4(q), (r), (s), (t), (u) and (v) shall survive untilthe expiration of the applicable statute of limitations. Any claim for indemnification, orotherwise, with respect to the inaccuracy or breach of any representation or warranty thatis not asserted by a notice given to the indemnifying party specifically identifying theparticular inaccuracy or breach underlying such claim and specifically identifying inreasonable detail the facts and circumstances relating to such claim within the period ofsurvival described in this Section 9(a) may not be pursued.     (b) Basket. Notwithstanding the provisions of Section 8 to the contrary,neither Seller nor Buyer shall have any liability or obligation to the other, or to any ofthe Companies, until the aggregate amount of its claims exceeds One Hundred Thousand Dollars($100,000) (the “ Basket”), and then only to the extent the aggregate amount of suchclaims exceeds the Basket; provided, however, that the limitations containedin this Section 10(b) shall not apply to any Buyer Losses relating to a breach of arepresentation or warranty contained in Sections 4(a), (b), (d) or (v) , any claims forindemnification arising as a result of fraud, or any Seller Losses relating to thenon-payment of the Purchase Price, the nonpayment of the Retainage or the breach of any ofthe post-closing covenants in Section 14.     (c) Cap. Under no circumstances shall Seller or Buyer be liable or obligatedto indemnify the other or any of the Companies under the provisions of Section 8 for Lossesin an aggregate amount in excess of One Million Seventy Hundred and Fifty Thousand Dollars($1,750,000), provided, however, that the limitations contained in thisSection 10(c) shall not apply to any Seller Losses relating to the non-payment of thePurchase Price , the nonpayment of the Retainage or the breach of any of the post-closingcovenants in Section 14, which Losses shall be excluded from such calculation.     (d) GHC&K Limitations. Under no circumstances shall GHC&K be liable orobligated to indemnify Seller under the provisions of Section 8 for Losses in an aggregateamount in excess of the fair market value of the Acquired Real Property.     (e) Other Limitations. Notwithstanding anything to the contrary in Section 8,neither Seller nor Buyer shall be liable for any incidental or consequential damages,including, without limitation, loss of anticipated profits or loss or diminution ofrevenues.     (f) Exclusive Remedy. The parties acknowledge that, in the absence of fraud,their sole and exclusive remedy after the Closing for any inaccuracy or breach of anyrepresentation, warranty or covenant contained in this Agreement shall be theindemnification provisions set forth in Section 8 and the rights under the Holdback Note.     (g) Mitigation, Subrogation. A party shall take all reasonable steps to avoidand to mitigate all indemnifiable damages upon and after becoming aware of any event thatcould reasonably be expected to give rise to a right to indemnification hereunder,
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including incurring costs and expenses only to the minimum extent necessary to remedythe breach which gives rise to the damage or remedy. To the extent that an indemnifyingparty has discharged any claim for indemnification hereunder, the indemnifying party shallbe subrogated to all rights of the indemnified party against any third party.     (h) Miscellaneous Indemnification Matters. In determining the amount of anyLosses suffered by an indemnitee for which it is entitled to payment or indemnificationpursuant hereto or otherwise, there shall be deducted any insurance proceeds or otheramounts received or receivable by the indemnitee and attributable to or derived from suchLoss.     (i) Set-Off under the Holdback Note. Subject to the procedures of Section 10hereof, Seller agrees that Buyer shall have the right to set off against the Holdback Noteany amounts owed to Buyer under Section 8(a) upon thirty (30) days prior written notice toSeller by Buyer. Buyer agrees to first set off any amounts owed by Buyer to Seller underthe Holdback Note (in accordance with the procedures set forth in Section 10 hereof) priorto seeking to recover any Buyer Losses against any other assets of Seller.     10. Procedures for Indemnification.     (a) A claim for indemnification under Section 8 (an “ Indemnification Claim”)shall be made by a party by delivery of a written declaration to the other party requestingindemnification and specifying the basis on which indemnification is sought and the amountof asserted Losses and, in the case of a Third Party Claim (as defined in Section 10(d)hereof), containing such other information as the party seeking indemnity shall haveconcerning such Third Party Claim.     (b) If the Indemnification Claim involves a Third Party Claim, the procedures set forthin Section 10(d) hereof shall be observed by the parties.     (c) If the Indemnification Claim involves a matter other than a Third Party Claim, theparty to provide indemnity shall have twenty (20) business days to object to suchIndemnification Claim by delivery of a written notice of such objection to the party seekingindemnity specifying in reasonable detail the basis for such objection. Failure to timelyso object shall constitute acceptance of the Indemnification Claim by the party to provideindemnity.     (d) Should any claim be made, or suit or proceeding be instituted against a party by athird party which, if prosecuted successfully, would be a matter for which the party isentitled to indemnification under this Agreement (a “ Third Party Claim”), theobligations and liabilities of the parties hereunder with respect to such Third Party Claimshall be subject to the following terms and conditions:     (i) The party seeking indemnity shall give to the party to provide indemnitywritten notice of any such claim promptly after receipt by the party seekingindemnity of notice thereof, and the party to provide indemnity will undertake thedefense thereof by representatives of such party’s (or its insurer’s) choosing. Theassumption of the defense of any such claim by the party to
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provide indemnity shall be an acknowledgment by the party to provide indemnityof its obligation to indemnify the party seeking indemnity with respect to suchclaim hereunder. The party seeking indemnity shall be entitled to participate withthe party to provide indemnity in the defense of such matters at its own expense.If the party to provide indemnity fails or refuses to undertake the defense of suchclaim within twenty (20) business days after written notice of such claim has beengiven to the party to provide indemnity by the party seeking indemnity, the partyseeking indemnity shall have the right to undertake the defense, compromise and,subject to Section 10(e), settlement of such claim with counsel of its own choosing.In the circumstances described in the preceding sentence, the party seekingindemnity shall promptly, upon its assumption of the defense of such claim, make anIndemnification Claim as specified in Section 10(a).     (ii) Buyer and Seller shall reasonably cooperate with each other in connectionwith the defense of any Third Party Claim.     (e) No settlement of a Third Party Claim involving the asserted liability of any partyunder this Section 10 shall be made without the prior written consent of such party, whichconsent shall not be unreasonably withheld or delayed. In the event of any disputeregarding the reasonableness of any proposed settlement, (i) the party to provide indemnityshall make the final determination in respect thereto in cases in which the party to provideindemnity has assumed the defense of such claim pursuant to Section 10(d)(i), whichdetermination shall be final and binding on all parties, or (ii) with regard to any disputeregarding the reasonableness of any proposed settlement of any such claim, if the party toprovide indemnity does not assume the defense of such claim, the advisability and terms ofany such settlement shall be a matter for the good faith determination of the party seekingindemnity.     11. Dispute Resolution. Except any action by Seller in the exercise of its rightsunder the Holdback Note, any dispute among the parties hereto shall be resolved in accordance withthe provisions of this Section 11:     (a) The parties shall attempt in good faith to resolve any dispute arising out of orrelating to this Agreement, the breach, termination or validity thereof, or the transactionscontemplated herein promptly by negotiation between representatives who have authority tosettle the controversy, then proceed to mediation, and then proceed to arbitration as setforth in this Section 11. Any party may give the other party written notice that a disputeexists (a “ Notice of Dispute”). The Notice of Dispute shall include a statement ofsuch party’s position. Within twenty (20) business days of the delivery of the Notice ofDispute, representatives of the parties shall meet at a mutually acceptable time and place,and thereafter as long as they both reasonably deem necessary, to exchange relevantinformation and attempt to resolve the dispute. All negotiations pursuant to this clauseare confidential and shall be treated as compromise and settlement negotiations for purposesof the arbitration and the arbitrator shall not be entitled to consider such settlementnegotiations in rendering a decision. No party hereto shall institute an arbitration, orany other proceeding to resolve such disputes between the parties hereto, before that partyhas sought to resolve disputes through direct negotiation with the other
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party. If disputes are not resolved within forty-five (45) days after a demand fordirect negotiation, the parties shall attempt to resolve disputes through mediationconducted in Marion County, Indiana. If the parties do not agree on a mediator within ten(10) days after direct negotiations have failed, either party may request any judge in saidcounty courts to appoint a mediator who shall be an attorney who has substantial experiencein commercial law issues. The mediation shall take place within forty-five (45) days aftera demand for direct negotiations has been made. If the mediator is unable to facilitate asettlement of disputes within such forty-five (45) day period, the mediator shall issue awritten statement to the parties to that effect and the aggrieved party may then seek reliefthrough arbitration as provided above. The fees and expenses of the mediator shall bedivided and paid equally by each of the parties to the dispute. Mediation shall beconducted in accordance with Indiana’s Alternative Dispute Resolution Rules.     (b) Any controversy or claim arising out of or relating to this Agreement, the breach,termination, or validity thereof, or the transactions contemplated herein, if not settled bynegotiation and/or mediation as provided in Section 11(a), shall be settled by arbitrationin Evansville, Indiana, in accordance with the Indiana Rules of Alternative DisputeResolution relating to arbitration and the arbitration shall occur before a singlearbitrator. The arbitrator shall be selected by mutual agreement of the parties withintwenty (20) days following the initiation of arbitration hereunder. Such arbitration shalloccur within forty-five (45) days after demand for arbitration has been made. Thearbitration hearing or hearings and the written decision of the arbitrator shall occur andbe rendered within ninety (90) days after a demand for arbitration has been made under thisAgreement. If the arbitrator is unable to reach a decision upon the issues presented in thearbitration within such ninety (90) day period, the arbitrator shall issue a writtenstatement to each party to that effect and the aggrieved party may then seek relief throughlitigation. The arbitrator shall be required to make written findings of fact andconclusions of law to support its award and shall present such written findings of fact andconclusions of law to the parties. The arbitrator shall not be authorized or empowered toaward punitive or exemplary damages and the parties hereto especially hereby waive any claimto such fees or damages in such arbitration. Determination by an arbitrator shall be finaland binding upon the parties except as otherwise provided by the laws of the State ofIndiana.     (c) Subject to the negotiation and mediation provisions in this Section 11, eitherparty may initiate an arbitration. The initiating party shall do so by providing writtennotice of the arbitration to the other party. The notice shall bear a current date, shallstate the name of the initiating party and shall briefly state the matter to be arbitrated.     (d) Notwithstanding anything contained to the contrary in the Indiana Rules ofAlternative Dispute Resolution, the arbitrator shall assess an award against anon-prevailing party for all costs of the other party relating to the arbitration,including, without limitation, reasonable attorney’s fees, arbitration costs, filing feesand other costs related to the arbitration. If the arbitrator determines that there is nota prevailing party, each party shall be instructed to bear its own costs and to shareequally the fees and expenses of the arbitrator.
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     (e) Each party hereby consents to a single, consolidated arbitration proceeding ofmultiple arbitratable claims, or claims involving more than two (2) parties. Either partymay apply to any court of competent jurisdiction for injunctive relief or other interimmeasures as provided for elsewhere in this Agreement, in aid of the arbitration proceedings,or to enforce the arbitration award, but not otherwise. Any such application to a courtshall not be deemed incompatible or a waiver of this Section. The arbitrator shall berequired to make written findings of fact and conclusions of law to support its award.Notwithstanding anything to the contrary in the Indiana Rules of Alternative DisputeResolution and supplementary procedures, the arbitrator shall not be authorized or empoweredto award punitive, exemplary, consequential or special damages and the parties expresslywaive any claim to such damages.     12. Covenants     (a) Conduct of Business. From and after the date of this Agreement and pendingthe Closing, unless Buyer shall otherwise consent in writing, and except for such mattersthat are disclosed on the Disclosure Schedule, Seller shall, and shall cause the Companiesto (i) operate their business only in the ordinary and usual course of business diligentlyand in good faith, consistent with past practice; (ii) maintain their properties, machineryand equipment in good operating condition (normal wear and tear excepted) and repair(subject to routine maintenance); (iii) maintain all existing policies of insurance (orcomparable policies) of or relating to the them in full force and effect; (iv) use theirreasonable commercial efforts to preserve their business organizations intact; (v) usereasonable commercial efforts to keep available the services of the present officers andemployees of the Companies; and (vi) use their reasonable commercial efforts to preserve theCompanies existing relationships with suppliers, distributors, customers and others havingbusiness relations with the Companies such that its business will not be unreasonablyimpaired. Seller shall, and shall cause the Companies to, confer with Buyer on a regularbasis to keep it informed with respect to operational matters of a material nature and toreport the general status of the ongoing operations of the Companies.      (b) Notification of Certain Matters. Between the date of this Agreement andthe Closing Date, Seller shall give prompt notice to Buyer of (i) the discovery by Seller ofany breach by Seller of any of its representations and warranties contained herein, or ofany of its covenants contained in this Agreement; or (ii) any event, circumstance or otherchange in the business, properties, results of operations, condition (financial orotherwise) or prospects of the Companies that, alone or in the aggregate, has had or, so faras reasonably can be foreseen at the time of its occurrence, reasonably could be expected tohave, a Material Adverse Effect, to the extent not already disclosed in the DisclosureSchedule. Each of Seller and Buyer shall give prompt notice to the other party of anynotice or other communication from any third party alleging that the consent of such thirdparty is or may be required in connection with the transactions contemplated by thisAgreement.     (c) Payment of Transaction Expenses. All legal, accounting and transactionexpenses incurred by Seller in connection with the transaction contemplated by thisAgreement shall be timely paid by Seller in the ordinary course of business by Seller. All
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legal, accounting and transaction expenses incurred by Buyer in connection with thetransaction contemplated by this Agreement shall be timely paid by Buyer in the ordinarycourse of business by Buyer.     13. Public Announcements. Buyer and GHC&K will consult with Seller before issuing anypress releases or otherwise making any public statements with respect to this Agreement or thetransactions contemplated hereby and shall not issue any press release or make any public statementprior to such consultation and agreement as to the form and content of such press release or publicstatement, except as may be required by law.     14. Post Closing Matters.     (a) Guarantees. Buyer, GHC&K and each of the Companies acknowledge theexistence of certain guarantees and general indemnities granted by Seller, AmericanCommercial Lines, Inc. or any of its or their affiliates or subsidiaries prior to theClosing and as set forth on Exhibit F attached hereto (the “ ACLGuarantees”), which are related to current obligations of the Companies. The ACLGuarantees are contemplated to continue in accordance with their terms until released uponcompletion of the respective underlying contractual obligations. Following the Closing,Buyer, GHC&K and each of the Companies shall, jointly and severally, indemnify and holdSeller, American Commercial Lines, Inc. or any of its or their affiliates or subsidiariesharmless from any liability, loss, damage, cost or expense (including, without limitation,reasonable attorneys’ fees) incurred in connection the ACL Guarantees, amounts duethereunder or the enforcement thereof. In addition, Buyer, GHC&K and the Companies agreenot to utilize or rely upon the guarantees or general indemnities for any new project, tosecure any new bonds or for any other purpose. Notwithstanding anything in this Agreementto the contrary, the indemnification obligation under this Section 14(a) shall not besubject to any limitations in Section 9 and shall survive the Closing and continue in fullforce and effect until such time the ACL Guarantees are fully released.     (b) Conduct of Business. For a period equal to the longer of eighteen (18)months after the Closing Date, or a full release of Seller, American Commercial Lines, Inc.and any of its or their affiliates or subsidiaries from the ACL Guarantees, Buyer shall, andshall cause the Companies to (i) operate their business diligently and in good faith; (ii)maintain their properties, machinery and equipment (excluding the CMI Reclaimer (tiller)) ingood operating condition (normal wear and tear excepted) and repair (subject to routinemaintenance); (iii) maintain all existing policies of insurance (or comparable policies) ofor relating to the them in full force and effect; (iv) use their reasonable commercialefforts to preserve their business organizations intact, (v) diligently complete the E.W.Brown project, (vi) not sell, convey, encumber or otherwise transfer the Real Property(except pursuant to the Real Estate Purchase Agreement), (vii) not sell, transfer, ordispose of any material asset except for legitimate business purposes, (viii) pay theirdebts and obligations as they come due in the ordinary course of business, (ix) not make anydistributions, draws or other payments of cash or property to its members (other than forincome tax liabilities attributed to the Companies, to reimburse the members for actualexpenses incurred on behalf of the Companies, for a reasonable guaranteed salary based onthe work performed by a member for the Companies, or for
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reasonable quarterly distributions of up to 25% of the profits of the Companies,provided the Companies are each balance sheet solvent, are in compliance with theother provisions of this Agreement, no indemnification claim has been made against the Buyeror the Companies that remains unresolved and, such distributions will not reasonably impairthe Companies’ ability to satisfy its indemnification obligations under this Agreement), and(x) not make any bonus payments to employees, managers, directors or officers other than inthe normal course of business consistent with past practices.     (c) Employee Benefits     (i) Buyer 401(k). Buyer agrees to permit employees of the Companieswho have met the eligibility requirements of the 401(k) plan sponsored by Buyer tocommence participation in such 401(k) plan after the Closing. Buyer further agreesto cause all service with the Companies prior to the Closing to be credited underthe 401(k) plan sponsored by Buyer for all purposes, including, without limitation,eligibility to participate and vesting.     (ii) COBRA. Buyer agrees to accept responsibility following theClosing for compliance with the continuation of health coverage requirements of theConsolidated Omnibus Budget Reconciliation Act of 1985 as amended (“COBRA”) withrespect to the employees of the Companies as of the Closing, and their spouses anddependents, former employees and other qualified beneficiaries receiving COBRAcoverage as of the Closing, and the former employees and other persons with rightsto elect COBRA continuation coverage under the Companies’ health plan.     (iii) Restricted Stock. Buyer and the Companies acknowledge andunderstand that all Restricted Stock Units under the ACL Stock Incentive Planbelonging to employees of the Companies which have not vested prior to the Closingwill be forfeit.     (iv) Employees*.*     (A) The Companies agree to continue the employment of all currentemployees for a period of at least fifteen (15) days following the ClosingDate.     (B) Buyer shall be responsible for and timely pay all unemploymentclaims, severance payments or other expenses related to the termination ofemployees on or after the Closing.     (d) Long Term Liabilities. Seller hereby agrees to assume and timely pay whendue all long term indebtedness of the Companies for borrowed money as set forth in Section14(d) of the Disclosure Schedules.     (e) July 23, 2008 Collision on Incident, Mile Marker 97 of the MississippiRiver.
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     (i) Seller hereby agrees to (i) assume the defense of the third-party claimsagainst the Companies listed in Item 1 of Schedule 4(q) of the Disclosure Schedulerelated to payment of receivables arising out of or related to clean-up activitiesperformed at the request of the Companies related to the July 23, 2008 collisionincident at Mile Marker 97 of the Mississippi River, and (ii) indemnify and holdBuyer and its affiliates, successors and assigns, harmless from and against anyjudgment, settlement or other payment in connection with such third-party claims(which shall be made in accordance with Section 10(e)(i)); provided, theCompanies shall, at their own cost and expense, fully cooperate with Seller in thedefense of such third-party claims; furtherprovided, that upon anysettlement by Seller of such third-party claims, Buyer and Companies shall release,waive and discharge its corresponding receivable related to such third-party claim,and shall hold Seller and its affiliates harmless with respect thereto.     (ii) To the extent Seller or any of its affiliates makes a payment directly toBuyer or the Companies which relate to any Company payable arising out of or relatedto the July 23, 2008 collision incident at Mile Marker 97 of the Mississippi River,Buyer or the Companies shall immediately use such payment to satisfy thecorresponding payable.     (g) Taxes.     (i) Seller shall have the exclusive authority and obligation and shall beresponsible for the correct and timely filing of all Tax Returns of the Companieswith respect to Taxes for which Seller has sole or primary liability imposed by anyTaxing Authority for all periods ending on or prior to the Closing Date. After theClosing Date, as Seller may reasonably request with respect to the preparation ofsuch Tax Returns, Buyer will cause each of the Companies to provide such schedules,summaries and other information, consistent with past practices, to the Seller andits accountants and will cause employees of the Companies and any outsideaccountants of the Companies and Buyer to provide such other reasonable assistanceincluding reasonable access to books and records of each of the Companies, includingassistance in making copies thereof, all at no cost to Seller.     (ii) Buyer shall have the exclusive authority and obligation and shall beresponsible for the correct and timely filing of all Tax Returns of the Companiesother than those specified in Section 14(f)(i). Buyer shall be responsible andliable for the timely payment of all Taxes imposed on or with respect to theproperties, income and operations of the Companies for all periods beginning afterthe Closing Date.     (iii) Seller, at its sole expense, has the right to exercise sole authority onbehalf of each of the Companies and Buyer (i) to control, in whole or in part, anyTax audit or contest, (ii) to resolve and defend against any assessment, notice ofdeficiency, or other adjustment or proposed adjustment, (iii) to consent to anyextension or waiver of the limitation period applicable to any Tax claim orassessment, (iv) to initiate any claim for refund, and (v) to amend any Tax Return,
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in each case relating to Taxes for which the Sellers have the authority andobligation to file Tax Returns as set forth in forth in Section 14(f)(i). Buyershall notify Seller as expeditiously as possible of any audit that could give riseto any liability of Seller.     (iv) Any Tax refund received by any of the Companies relating to a period orpartial period ending on or before the Closing Date shall be paid to the Seller.     (h) For a period equal to the longer of eighteen (18) months after the Closing Date, ora full release of Seller, American Commercial Lines, Inc. and any of its or their affiliatesor subsidiaries from the ACL Guarantees, GHC&K shall not sell, convey, encumber or otherwisetransfer the Acquired Real Property.     15. Notices. Any notice or request required or permitted to be given hereunder (each,a “ Notice” or a “ notice”) shall be in writing and shall be (as elected by the partygiving such Notice) (a) transmitted by certified or registered mail, return receipt requested,postage prepaid, (b) transmitted by a nationally recognized overnight courier service or (c)transmitted by facsimile transmission. Except as otherwise specified herein, all notices and othercommunications shall be deemed to have been duly given (i) five (5) business days after the date ofposting if transmitted by certified or registered mail, (ii) the first business day after the dateof posting if delivered by a national overnight courier service or (iii) the date of transmissionwith confirmed answer back if transmitted by facsimile (provided that such notice or othercommunication is also sent in the manner described in (i) or (ii) above within one (1) business dayafter being sent by facsimile). Any party may change its address for purposes hereof by noticegiven to the other party. Notices hereunder shall be directed to the parties at their respectiveaddresses as follows:   If to Seller: ACL Professional Services Inc.  1701 East Market Street  Jeffersonville, Indiana 47130  Attn: Thomas R. Pilholski, Senior Vice President   With a copy to: American Commercial Lines LLC  1701 East Market Street  Jeffersonville, Indiana 47130  Attn: General Counsel   If to Buyer: E & J Ventures, LLC  2125 Glenview Drive  Evansville, Indiana 47720  Attn: Eric B. Dodd   With a copy to: Marc D. Fine  Rudolph, Fine, Porter & Johnson, LLP  221 N.W. Fifth Street  P. O. Box 1507
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     Evansville, Indiana 47706-1507   If to Companies: Summit Civil Services or Summit Environmental Services  2125 Glenview Drive  Evansville, Indiana 47720  Attn: Eric B. Dodd   With a copy to: Marc D. Fine  Rudolph, Fine, Porter & Johnson, LLP  221 N.W. Fifth Street  P. O. Box 1507  Evansville, Indiana 47706-1507   If to GHC&K: GHC&K, LLC 2125 Glenview Drive  Evansville, Indiana 47720  Attn: Eric B. Dodd   With a copy to: Marc D. Fine  Rudolph, Fine, Porter & Johnson, LLP  221 N.W. Fifth Street  P. O. Box 1507  Evansville, Indiana 47706-1507     16. Complete Agreement. This Agreement, together with Holdback Note, the SellerRelated Agreements and the Buyer Related Agreements, represent the entire agreement between theparties hereto covering everything agreed upon or understood in this transaction. There are nooral promises, conditions, representations, understandings, interpretations or terms of any kind asconditions or inducements to the execution hereof or in effect between the parties. No change oraddition shall be made to this Agreement except by a written agreement executed by all the partieshereto. Notwithstanding the foregoing, Seller and Buyer acknowledge and agree that Seller’s rightsunder that certain Purchase Agreement by and between Summit Contracting, Inc. and ACL ProfessionalServices Inc. dated March 31, 2008, shall not be affected by this Agreement, and any claims thatmay exist against Summit Contracting, Inc. by the Companies pursuant to such agreement are herebyassigned to Seller.     17. Authorized Signatories. The persons executing this Agreement for and on behalf ofeach party each represent that they have the requisite authority to bind the entities on whosebehalf they are signing.     18. Partial Validity. If any term, covenant or condition of this Agreement is held tobe invalid or unenforceable in any respect, such invalidity or unenforceability shall not affectany other provision hereof, and this Agreement shall be construed as if such invalid orunenforceable provision had never been contained herein.     19. Governing Law; Construction.
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     (a) This Agreement shall be interpreted and enforced according to the laws of the Stateof Indiana.     (b) The parties hereby stipulate that the exclusive, proper and preferred venue of anyclaim or cause of action brought in respect of the interpretation hereof or the rights ofthe parties hereunder, both during the term of this Agreement or subsequent to anytermination hereof, shall lie in the Marion County, Circuit or Superior Courts,Indianapolis, Indiana, or in the United States District Court for the Southern District ofIndiana. Each party hereby consents to the exclusive jurisdiction and venue of the State andFederal courts serving Marion County, Indiana.     (c) All headings and sections of this Agreement are inserted for convenience only anddo not form part of this Agreement or limit, expand or otherwise alter the meaning of anyprovisions hereof.     (d) This Agreement may be executed in any number of counterparts, each of which shallbe deemed to be an original and all of which shall constitute one and the same agreement.     (e) The provisions of this Agreement are intended to be for the sole benefit of theparties hereto and their respective successors and assigns, and none of the provisions ofthis Agreement are intended to be, nor shall they be constituted to be, for the benefit ofany third party.     20. Good Faith. All acts and action by the parties to this Agreement shall be takenonly in good faith by the respective party.     21. Knowledge. For the purposes of this Agreement, the phrase “to the knowledge ofSeller and the Companies,” “of which Seller or any of the Companies has knowledge” or any phrase ofsimilar import shall be deemed to refer only to the actual knowledge of Seller and the Companiesafter due inquiry (unless otherwise noted). For the purposes of this Agreement, the phrase “to theknowledge of Buyer,” “of which Buyer has knowledge” or any phrase of similar import shall be deemedto refer only to the actual knowledge of Buyer, GHC&K and Eric Dodd after due inquiry (unlessotherwise noted).     22. Material Adverse Effect. For the purposes of this Agreement, “ MaterialAdverse Effect”, as first referenced in Section 4(f)(B), shall mean any event, occurrence,fact, audit, change or effect that has, or could reasonably be expected to have, individually or inthe aggregate, a material adverse effect on the businesses, assets, results of operations,condition (financial or otherwise) or prospects of the Companies; provided, however that a materialchange or effect, individually or in the aggregate, shall be greater than Two Hundred FiftyThousand Dollars ($250,000).[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;