augustmackcomstock-asset






72520263v19    EXECUTION VERSION    ASSET PURCHASE AGREEMENT    THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of  March 31, 2022, by and among August Mack Environmental, Inc., an Indiana corporation (the “Buyer”),  Comstock Environmental Services, LLC, a Virginia limited liability company (the “Seller”), and Comstock  Holding Companies, Inc., a Delaware corporation  (the “CHCI” and, together with the Seller, the “Seller  Parties”).  The Buyer, the Seller and CHCI sometimes are collectively referred to as the “Parties” and  sometimes are individually referred to as a “Party”.      WITNESSETH THAT:    WHEREAS, the Seller is in the business of providing environmental engineering, environmental  consulting services and tank construction services (the “Business”);    WHEREAS, the Seller owns all of the assets (real, personal, tangible, intangible and mixed) used,  useful or held for use in the operation of the Business;     WHEREAS, CHCI is the sole owner and manager of the entity that directly owns all of the issued  and outstanding equity interests of Seller; and    WHEREAS, the Seller desires to sell, and the Buyer desires to buy, substantially all of the assets  (and assume certain of the liabilities) of the Seller used or useful in the operation of the Business, on the  terms and subject to the conditions set forth in this Agreement.    NOW THEREFORE, in consideration of the premises and for other good and valuable  consideration, the receipt and sufficiency of which hereby are acknowledged, the Parties agree as follows:    ARTICLE 1  ASSETS PURCHASED; LIABILITIES ASSUMED    1.1 Acquired Assets.  On the terms and subject to the conditions set forth in this Agreement,  at the Closing, the Seller shall sell to the Buyer and the Buyer shall buy from the Seller, free and clear of  any liens, restrictions, restrictions on transfer, options, pledges, rights of first refusal, mortgages, licenses,  easements, security interests, claims, charges or encumbrances of any kind or nature whatsoever  (collectively, “Liens”), substantially all of the assets of the Seller used or held for use by the Seller in or for  the operation of the Business (whether personal, tangible, intangible or mixed) (collectively, the “Acquired  Assets”), including without limitation the assets listed on Schedule 1.1 (but excluding the Excluded Assets).     1.2 Excluded Assets.  Notwithstanding the foregoing, the Seller shall not be obligated to sell,  and the Buyer shall not be obligated to purchase or acquire from the Seller, any assets of the Seller other  than the Acquired Assets, including any of the Seller’s assets listed on Schedule 1.2 (collectively, the  “Excluded Assets”).    1.3 Assumed Liabilities.  On the terms and subject to the conditions set forth in this Agreement,  at the Closing, the Buyer shall assume the liabilities and obligations of the Seller solely with respect to  (collectively, the “Assumed Liabilities”):     (a) the obligations of the Seller for the future performance after the Closing pursuant  to the Assumed Contracts (as defined on Schedule 1.1), other than for any act or omission (i)  occurring prior to the Closing that resulted in or could result in any breach or default thereunder or  violation of any law or (ii) that could obligate any party to indemnify, defend or hold the other  





 






72520263v19      2    party thereto harmless from any claim, loss, obligation or expense in connection with any work  performed on or prior to the Closing;    (b) all trade accounts payable (other than trade accounts payable owed to Persons that  are Affiliates of the Seller) and accrued expenses of the Seller that were incurred in the ordinary  course of business, in all cases solely to the extent included in the Purchase Price adjustment set  forth in Section 2.2 and that remain unpaid as of the Closing Date; and    (c) any accrued but unused vacation or other paid time off (“PTO”) for each  Transferred Employee.    1.4 Excluded Liabilities.  The Buyer expressly does not assume and does not and shall not  agree to assume any liability or obligation of the Seller or any owner thereof not expressly defined in this  Agreement as an Assumed Liability (collectively, the “Excluded Liabilities”), including, but not limited to,  the liabilities listed on Schedule 1.4.  The Seller shall promptly pay, discharge and perform in full all  Excluded Liabilities when and as the same become due.      ARTICLE 2  PURCHASE PRICE     2.1 Purchase Price.  The purchase price (the “Purchase Price”) for the Acquired Assets shall  be the assumption of the Assumed Liabilities, plus an amount equal to (i) the amount of Actual Net Working  Capital (as defined and ultimately determined in Section 2.2(a) below), plus (ii) $288,341.00.  The Purchase  Price shall be subject to adjustment in accordance with Section 2.2 below and shall be payable by the Buyer  on the Closing Date as follows:     (a) $150,000.00 in immediately available funds (the “Indemnity Escrow Amount”)  will be delivered to U.S. Bank (the “Escrow Agent”), to be held or disbursed in accordance with  the terms of an Escrow Agreement in substantially the form of Exhibit A (the “Escrow Agreement”)  for the purposes of securing the Seller’s obligations under Article 7;     (b) $250,000.00 in immediately available funds (the “Adjustment Escrow Amount”  and, together with the Indemnity Escrow Amount and all earnings thereon, the “Escrow Fund”)  will be delivered to the Escrow Agent, to be held or disbursed in accordance with the terms of the  Escrow Agreement for the purposes of securing the Seller’s obligations under Section 2.2; and     (c) an amount equal to $1,017,317.00 (the “Closing Payment”), which represents (i)  the amount of Estimated Net Working Capital (as defined in Section 2.2(a) below), plus (ii)  $288,341.00 minus (iii) the Escrow Fund, minus (iv) any debt, expenses, or other items directed by  the Seller in writing to be paid by Buyer on the Seller’s behalf, will be delivered by wire transfer  of immediately available funds to an account designated in writing by the Seller.    2.2 Purchase Price Adjustment.      (a) The Seller shall deliver to the Buyer at the Closing its Net Working Capital as of  the close of business on the Closing Date (the “Actual Net Working Capital”).  The Parties estimate  that Actual Net Working Capital is $1,128,976.00 (the “Estimated Net Working Capital”) for  purposes of the Closing and the Purchase Price will be adjusted after the Closing on a dollar for  dollar basis.  The Seller shall deliver to the Buyer all requested work papers and other details for  the Buyer and its advisors to agree upon the Estimated Net Working Capital.  After the Closing,  the Parties will true-up the amount equal to the Actual Net Working Capital minus the Estimated  





 






72520263v19      3    Net Working Capital (the “Post-Closing Adjustment”) in accordance with the terms set forth in  Section 2.2(b).  Within thirty (30) days after Closing, the Buyer shall prepare in accordance with  United States generally accepted accounting principles consistently applied (the “Commonly  Accepted Accounting Principles”) and deliver to the Seller a report of the Actual Net Working  Capital as of the Closing Date.  Upon receipt of the Actual Net Working Capital, the Seller shall  have thirty (30) days from receipt of the Actual Net Working Capital (the “Review Period”) to  review the Actual Net Working Capital and have reasonable access to the books and records  necessary to enable the Seller to verify the information and computations therein.  If the Seller  accepts the Actual Net Working Capital by written notice to the Buyer prior to the expiration of the  Review Period, then the Actual Net Working Capital as delivered by the Buyer shall be final and  binding upon the Parties and shall be deemed the “Actual Net Working Capital” as referenced  herein.  If the Seller disagrees with the Buyer’s delivery of the Actual Net Working Capital, the  Seller shall provide written notice to the Buyer of such disagreement within the Review Period,  which written notice must set forth in reasonable detail the nature of the Seller’s disagreement and  its proposed resolution of such disagreement.  If the Seller delivers written notice of disagreement,  the Seller and the Buyer shall use commercially reasonable efforts to agree in writing as to the  “Actual Net Working Capital” as referenced hereunder.  If the Parties are unable to reach such  agreement within thirty (30) days following the receipt by the Buyer of the Seller’s written notice  of disagreement, then the matter shall be submitted to a mutually agreeable independent regional- based accounting firm (the “Settlement Accountant”).  The Settlement Accountant shall determine  all matters in dispute and establish the “Actual Net Working Capital”, which in no event shall be  more favorable to either the Seller or the Buyer than what they had originally proposed, within  thirty (30) days following the submission of the matter to the Settlement Accountant, which  determination shall be final, non-appealable, binding and conclusive on the Parties, absent manifest  calculation error.  The fees and expenses of the Settlement Accountant shall be allocated ratably  between the Seller, on one part, and the Buyer, on one part, in the same proportion that the aggregate  dollar amount of items unsuccessfully disputed by each such party bears to the aggregate dollar  amount of all disputed items submitted to the Settlement Accountant.      (b) For purposes of clarity, within five (5) business days of the Post-Closing  Adjustment being finally determined, either the Buyer or the Seller will pay to the other party an  amount equal to the Post-Closing Adjustment in accordance with this Section 2.2(b).  If the amount  of the Post-Closing Adjustment is a positive number, then (i) the Buyer shall pay to the Seller an  amount equal to the Post-Closing Adjustment; and (ii) the parties shall jointly instruct the Escrow  Agent to release to the Seller such funds available in the escrow account relating to the Adjustment  Escrow Amount.  If the amount of the Post-Closing Adjustment is a negative number, then (y) the  parties shall jointly instruct the Escrow Agent to release to the Buyer an amount equal to the Post- Closing Adjustment from the escrow account holding the Adjustment Escrow Amount; provided,  however, that if the amount of the Post-Closing Adjustment that is owed to the Buyer exceeds the  Adjustment Escrow Amount, then the Seller shall pay to the Buyer any remaining Post-Closing  Adjustment in excess of the Adjustment Escrow Amount in wire transfer of immediately available  funds to an account designated in writing by the Buyer; and (z) the parties shall jointly instruct the  Escrow Agent to release to the Seller such funds remaining in the escrow account relating to the  Adjustment Escrow Amount, if any, after payment of the Adjustment Escrow Amount to the Buyer.    (c) For purposes of this Agreement, “Net Working Capital” means (x) only the current  assets of the Business as of the close of business on the Closing Date that are Acquired Assets and  are set forth on Schedule 2.2(c)(x), less (y) only the current liabilities of the Business as of the close  of business on the Closing Date that are Assumed Liabilities and are set forth on Schedule 2.2(c)(y)  and shall include amounts attributable to customer deposit liabilities and deferred revenue.   Notwithstanding anything to the contrary set forth herein, if, prior to Closing, any accounts  





 






72520263v19      4    receivable are deemed by the Buyer as uncollectible or otherwise impaired, such accounts  receivable shall not be credited to the Seller for purposes of calculating Net Working Capital,  Estimated Net Working Capital or Actual Net Working Capital (the “Impaired Accounts  Receivable”).  Seller shall retain the rights to any such Impaired Accounts Receivable and may  pursue collection of such Impaired Accounts Receivable after the Closing; provided, however, that  collection efforts shall be consistent with the past practices of the Seller, which include, among  other things, commercially reasonable efforts not to injure any ongoing customer relationships of  the Business as it relates to the Buyer after the Closing.    (d) Notwithstanding the foregoing provisions of this Section 2.2, if any accounts  receivable (or portion thereof) constituting part of the Actual Net Working Capital that are not  retainage receivables are not collected within one hundred eighty (180) days after the Closing or if  any accounts receivable (or portion thereof) constituting part of the Actual Net Working Capital  that are retainage receivables are not collected within one year after the Closing, then the Buyer  shall, at the Buyer’s sole discretion, have the right to:    (i) require the Seller, and the Seller shall have an obligation with fifteen (15)  days of any such request, to purchase all such uncollected accounts receivable at face value  against assignment of such accounts receivable back to the Seller; and/or     (ii) make a claim against the Indemnity Escrow Amount in accordance with  the Escrow Agreement for the amount of any such uncollected accounts receivable.     A list of the retainage receivables will be included in the calculation of Estimated Net Working  Capital.  With respect to any payments received after the Closing from an account debtor that had  an accounts receivable constituting part of the Actual Net Working Capital, any such payments  shall be first applied to any invoice as directed by such account debtor and, if not so directed, then  against the oldest accounts receivable of such account debtor.  Buyer shall use commercially  reasonable efforts to collect all accounts receivable that are included in the Actual Net Working  Capital; provided that Buyer shall have no obligation to file a complaint or pursue litigation against  any account debtor.  Once Seller has indemnified Buyer for any such uncollectible accounts  receivable, Buyer shall assign such rights to the uncollectible receivable to the Seller, and Seller  may pursue collection of such uncollectible receivable; provided, however, that collection efforts  shall be consistent with the past practices of the Seller, which include, among other things,  commercially reasonable efforts not to injure any customer relationships of the Business as it relates  to the Buyer after the Closing.     2.3 Allocation of the Purchase Price.  The Purchase Price (and any amount of Assumed  Liabilities required to be treated as consideration for U.S. federal income tax purposes and any other  relevant items) shall be allocated, including the Escrow Fund once paid to the Seller to the extent actually  paid, among the Acquired Assets as set forth in Exhibit B.  Seller and Buyer agree to report the allocation  as provided in the applicable sections of the Internal Revenue Code of 1986, as amended (the “Code” and  the regulations issued thereunder, the “Treasury Regulations”) and the rules and regulations promulgated  thereunder and in accordance with such allocation and agree to prepare and file all income Tax Returns in  a manner consistent with such allocation (including on Form 8594 of the United States Internal Revenue  Service (“IRS”), or any successor to such form).  Seller and Buyer shall make their respective IRS Forms  8594 (and any amendments thereof) filed or to be filed with the IRS available for inspection by the other  party for the purpose of verifying compliance with this Section 2.4.  For purposes of this Agreement, “Tax  Return” shall mean any return, declaration, report, claim for refund, information return or statement or other  document relating to Taxes, including any schedule or attachment thereto, and including any amendment  thereof.  





 






72520263v19      5      ARTICLE 3  CLOSING      3.1 Closing.  The consummation of the transactions contemplated by this Agreement (the  “Closing”) shall be deemed to have taken place at 11:59 p.m. Pennsylvania time on the date of this  Agreement (the “Closing Date”).  Notwithstanding anything to the contrary set forth herein, the Closing  will take place by facsimile, email or other electronic communication.    3.2 Seller’s Closing Deliveries.  In addition to any other documents to be delivered under the  provisions of this Agreement, the Seller shall deliver the following to the Buyer at the Closing, all of which  shall be in form and substance reasonably satisfactory to the Buyer and its counsel:     (a) a Bill of Sale and Assignment in substantially the form of Exhibit C, duly executed  by the Seller;       (b) an Assignment and Assumption Agreement in substantially the form of Exhibit D,  duly executed by the Seller;    (c) the Escrow Agreement in substantially the form of Exhibit A, duly executed by the  Seller;     (d) a certificate of the Secretary or Assistant Secretary of the Seller, certifying (i) the  resolutions duly adopted by the Board of Managers, authorizing and approving the execution,  delivery and performance of this Agreement by the Seller and the transactions contemplated by this  Agreement, and (ii) the Articles of Organization and Operating Agreement of the Seller, as  amended as of the Closing Date;     (e) a Certificate of Good Standing (or its equivalent) of the Seller, certified by the  Virginia State Corporation Commission, dated no earlier than ten (10) days prior to the Closing  Date;     (f) an Assignment and Assumption of lease agreement for the leased property at 806  Fayette Street, Conshohocken PA 19428, duly executed by the Seller;      (g) an IRS Form W-9, duly executed by the Seller;     (h) all necessary consents of third parties to the assignment of any Material Contracts  that are included in the Assumed Contracts;     (i) (i) payoff letters evidencing the payment and satisfaction in full of all indebtedness  of the Seller related to the Business (including capital leases), and (as applicable) the release of the  respective Liens of each holder’s portion of such indebtedness, and (ii) without limiting in any  respect the foregoing, evidence of the release of any and all other Liens against the Acquired Assets;      (j) a SUTA Account Termination or Transfer Request for the Pennsylvania  Department of Labor and Industry reflecting that 100% of the Business is transferred, duly executed  by the Seller;     (k) originals of all certificates of titles of all vehicles or other equipment owned by the  Seller and set forth on Schedule 4.6; and  





 






72520263v19      6      (l) Employment Agreements and other employment documentation with employees  of the Business listed in Schedule 3.2(l), in form and substance satisfactory to the Buyer.       3.3 Buyer’s Closing Deliveries.  In addition to any other documents to be delivered under the  provisions of this Agreement, the Buyer shall deliver the following to the Seller at the Closing, all of which  shall be in form and substance reasonably satisfactory to the Seller and its counsel:     (a) the Closing Payment, as set forth in Section 2.1 above;     (b) counterparts to the agreements set forth in Section 3.2 above to which it is a party;     (c) an Officer’s certificate of the Buyer certifying the resolutions duly adopted by the  Board of Directors, authorizing and approving the execution, delivery and performance of this  Agreement by Buyer and the transactions contemplated by this Agreement; and    (d) a Certificate of Good Standing of the Buyer, certified by the Indiana Secretary of  State, dated no earlier than ten (10) days prior to the Closing Date.    ARTICLE 4  REPRESENTATIONS AND WARRANTIES OF THE SELLER     The Seller Parties jointly and severally represent and warrant the following to the Buyer as of the  Closing:    4.1 Organization and Good Standing.  The Seller is a limited liability company duly organized,  validly existing and in good standing under the laws of Virginia.  CHCI is a corporation duly incorporated,  validly existing and in good standing under the laws of the State of Delaware. The Seller is duly qualified  to do business as a foreign entity and is in existence or good standing (where such concept has meaning)  under the laws of Pennsylvania and each state or other jurisdiction in which either the ownership or use of  the properties owned or used by it, or the nature of the activities conducted by it, requires such qualification.    4.2 Authorization.  The Seller Parties have full power and authority to execute and deliver this  Agreement and to perform their obligations hereunder, and have full power and authority to own and  operate their assets, properties and business and carry on their businesses as presently conducted.  The  execution, delivery and performance of this Agreement (and all related agreements hereto) has been duly  authorized by all necessary corporate action on the part of the Seller Parties.     4.3 Validity; Binding Effect.  This Agreement has been duly and validly executed and  delivered by the Seller Parties.  This Agreement constitutes a valid and legally binding obligation of the  Seller Parties, enforceable against the Seller Parties in accordance with its terms (subject to applicable  bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights of creditors  generally and the availability of equitable remedies).    4.4 Noncontravention.  Except as set forth in Schedule 4.4, the execution, delivery and  performance of this Agreement by the Seller Parties, the consummation of the transactions contemplated  by this Agreement and the compliance with or fulfillment of the terms and provisions hereof or of any other  agreement or instrument contemplated hereby, does not and shall not (a) conflict with or result in a breach  of any of the provisions of the Articles of Organization or Operating Agreement of the Seller; (b) contravene  any Law which affects or binds the Seller Parties; (c) result in a breach of, constitute a default under or give  rise to a right of termination or acceleration under any Material Contract; or (d) require the Seller Parties to  





 






72520263v19      7    obtain the approval, consent or authorization of, or to make any declaration, filing or registration with, any  third party or any federal, state, local, municipal, foreign or other governmental authority (“Governmental  Authority”) which has not been obtained in writing prior to the Closing Date.    4.5 Financial Statements; Absence of Changes.    (a) Attached hereto as Schedule 4.5(a) are true, accurate and complete copies of the  following: (i) the internally prepared balance sheets of the Seller as of December 31, 2020, and  December 31, 2021, and the related statements of income for the fiscal years then ended; and (ii)  the internally prepared balance sheet of the Seller as of January 31, 2022 (the “Interim Balance  Sheet”), and the related statement of income for the time period then ended (items in clauses (i) and  (ii), collectively, the “Financial Statements”).    (b) The Financial Statements (i) fairly present in all material respects the operating  results and the financial condition on the dates and for the periods indicated; (ii) are correct and  complete in all material respects; (iii) are consistent with the books and records of the Seller (which  books and records are correct and complete in all material respects); and (iv) were prepared in  accordance with the Commonly Accepted Accounting Principles.  No financial statements of any  person or entity other than the Seller are required to be included in the Financial Statements.  The  Seller has no liabilities or obligations of any nature (whether absolute, accrued, contingent or  otherwise), except for (x) liabilities or obligations reflected or reserved against in the Interim  Balance Sheet, (y) liabilities or obligations incurred since the date of the Interim Balance Sheet in  the ordinary course of business and (z) liabilities or obligations set forth in Schedule 4.5(b).    (c) Except as set forth in Schedule 4.5(c), since January 31, 2022, (i) there has not  been any material adverse change in the business, operations, assets, prospects or condition of the  Seller, and to the Knowledge of the Seller Parties, no event has occurred or circumstance exists that  could reasonably be expected to result in such a change; (ii) the Seller has operated only in the  ordinary course of business; (iii) no party has accelerated, terminated, modified or cancelled any  material agreement, contract, lease or license to which the Seller is a party or by which the Seller  is bound; (iv) the Seller has not experienced any material damage, destruction or loss (whether or  not covered by insurance) to any of its material assets; and (v) the Seller has not changed its  accounting, invoicing or collection practices.    4.6 Title to and Sufficiency of Acquired Assets.  Except as set forth on Schedule 4.6, the Seller  has good and marketable title to all of the Acquired Assets, free and clear of any and all Liens and other  than the Excluded Assets and such assets set forth on Schedule 4.6, the Acquired Assets constitute all of  the assets used by the Seller in the Business and constitute all of the assets necessary for the Buyer to  continue the operations of the Business after the Closing as it has been conducted prior to the Closing.  The  Acquired Assets are in good operating condition and repair, in all material respects, ordinary wear and tear  excepted.  Except for the vehicles or equipment set forth on Schedule 4.6, none of the Acquired Assets  have, or are required by applicable Law to have, a certificate of title.    4.7 Real Estate.  The Seller leases the properties described and set forth on Schedule 4.7 (the  “Real Estate”) pursuant to those certain lease agreements set forth and described on Schedule 4.7.  The  Real Estate is the only real property used in the operation of the Business.  There are no other leases,  agreements, or understandings between the Seller and the applicable landlords relating to the Real Estate.      





 






72520263v19      8    4.8 Taxes.    (a) For purpose of this Agreement, “Taxes” means all income, gross receipts, license,  payroll, employment, excise, severance, stamp, occupation, premium, property, franchise, profits,  withholding, social security (or similar), unemployment, disability, real property, personal  property, sales, use, transfer, registration, value added, alternative, add-on minimum, estimated, or  other tax, fee, assessment, levy, tariff, charge or duty of any kind whatsoever.  The Seller has filed  or caused to be filed all Tax Returns required to have been filed by the Seller, including with respect  to the Acquired Assets or the Business.  All such Tax Returns and reports were true, accurate,  correct and complete in all material respects and all Taxes shown as due and owing on such Tax  Returns and reports have been paid.  All Taxes due and owing by the Seller (whether or not shown  on any Tax Return), including with respect to the Acquired Assets or the Business, have been timely  and fully paid.  All Taxes due and owing by any Affiliate of the Seller with respect to the business,  assets or activities of the Seller have been timely and fully paid (whether or not shown on any Tax  Return).  The Seller is not the beneficiary of any extension of time within which to file any Tax  Return.  “Affiliate” means, with respect to any person or entity, any other person or entity that  directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under  common control with, such person or entity; with the term “control” including the power to direct  the management and policies of a person or entity.    (b) The Seller, and each Affiliate of Seller, have withheld, deducted, collected and  paid all Taxes required to have been withheld, deducted, collected or paid by the Seller.  No claim  has ever been made by a Governmental Authority in a jurisdiction where the Seller does not file  Tax Returns that they are or may be subject to taxation by such jurisdiction.  No Tax Return of the  Seller has been audited or is currently under audit or examination.  There is no current dispute  between the Seller and any Governmental Authority with respect to Taxes.  There are no Liens for  Taxes (other than for Taxes not yet due and payable) upon any of the assets of the Seller.    (c) There is no Tax sharing agreement, Tax allocation agreement, Tax indemnity  obligation or similar written or unwritten agreement, arrangement, statutory or regulatory  obligation, understanding or practice with respect to Taxes (including any advance pricing  agreement, closing agreement or other arrangement relating to Taxes) that will require any payment  by the Seller.  The Seller is classified as a pass-through entity for U.S. federal income Tax purposes.    (d) The Seller has not, nor has any Affiliate of the Seller with respect to the Seller,  waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect  to a Tax assessment or deficiency.  The Seller has never been a party to any “listed transaction,” as  defined in Section 6707A(c)(2) of the Code and Treasury Regulations Section 1.6011-4(b)(2).    (e) The Seller has maintained adequate records and documentation with respect to  customer exemptions from any applicable sales Tax.      4.9 Compliance with Law.  The Seller is in compliance and at all times has been in compliance  in all material respects with all applicable laws (including statutes, ordinances, requirements, rules,  regulations, codes, plans, injunctions, judgments, orders, decrees, rulings and charges thereunder) of  federal, state, local, municipal and foreign governments (and all agencies thereof) (the “Laws”), and no  claims, actions, suits, proceedings, demands, charges, complaints, investigations, inquiries, notices,  hearings, litigation, arbitration, or governmental or regulatory investigations, proceedings or audits (the  “Actions”) have been filed or commenced against the Seller alleging any failure so to comply.  To the  Knowledge of the Seller, no event has occurred or circumstance exists that (with or without notice or lapse  





 






72520263v19      9    of time) may constitute or result in a violation by the Seller of, or a failure on the part of the Seller to comply  with, any Law.      4.10 Permits.  Schedule 4.10 hereto sets forth a complete and accurate list of each authorization,  license, certificate, certification, registration or permit issued, granted, given or otherwise made available  by or under the authority of any Governmental Authority, pursuant to any Law or any business certification  or licensing organization (the “Permits”) that is held by the Seller or that otherwise relates to the Business  or the Acquired Assets.  Each Permit listed or required to be set forth in Schedule 4.10 is valid and in full  force and effect.  The Seller is, and at all times has been, in material compliance with all of the terms and  requirements of each Permit.  The Permits set forth in Schedule 4.10 collectively constitute all of the Permits  necessary or advisable to permit the Buyer to lawfully conduct and operate the Business in the manner in  which the Seller currently conducts and operates the Business.     4.11 Litigation.  There is no pending or, to the Knowledge of the Seller, threatened Actions by  or against the Seller or that otherwise relates to or may affect the Business or the Acquired Assets, and  except as set forth on Schedule 4.11, no such Litigation existed at any time within the past three (3) years.   No event has occurred or circumstance exists that is reasonably likely to give rise to or serve as a basis for  the commencement of any such Action.  There is no Action that could have a material adverse effect on the  business, operations, assets, condition, or prospects of the Seller or upon the Acquired Assets.    4.12 Material Contracts.  Schedule 4.12 hereto sets forth all (i) customer contracts and  agreements (whether oral or written) to which the Seller is a party and which the gross amounts invoiced  by the Seller exceed $5,000.00 per annum and all Material Supplier agreements; and (ii) all agreements  between the Seller and any employee, officer, manager or director (collectively, the “Material Contracts”).   With respect to each Assumed Contract, (a) the agreement is legal, valid, binding, enforceable and in full  force and effect, (b) other than the failure to obtain any consent to assignment that may be required in  connection with the transactions contemplated by this Agreement, the Seller is in full compliance with all  applicable terms and requirements of such agreement, (c) to the Seller’s Knowledge, each other person or  entity that has or has had any obligation or liability under such agreement is, and at all times has been, in  full compliance with all applicable terms and requirements of such agreement, (d) other than the failure to  obtain any consent to assignment that may be required in connection with the transactions contemplated by  this Agreement, no party is in breach or default thereof, and no event has occurred which with notice or  lapse of time, or both, would constitute a breach or default thereof, or permit termination, modification or  acceleration thereunder, and (e) no party has repudiated any provision of the agreement.  The Seller has  delivered to the Buyer a correct and complete copy of each Material Contract.      4.13 Labor and Employment Matters.      (a) Schedule 4.13 hereto sets forth a complete and accurate list of the following  information for each employee, manager, officer and director of the Seller, including each  employee on leave of absence or layoff status: name; job title; date of hiring or engagement; date  of commencement of employment or engagement; current compensation paid or payable; any  bonuses payable or otherwise related to such person; sick and vacation leave that is accrued but  unused; if such individual is employed in the Business; and service credited for purposes of vesting  and eligibility to participate under any benefit plan of the Seller or that is made available to  employees of the Seller.  Except as set forth in Schedule 4.13 hereto, (i) the Seller is not, nor has  ever been, a party to any collective bargaining agreement or other labor contract; (ii) there has not  been, there is not presently pending or existing and, to the Knowledge of the Seller there is not  threatened, any strike, slowdown, picketing, work stoppage, lock out or employee grievance  process involving the Seller; (iii) there is no organizational activity or other labor dispute against  or affecting the Seller and has not been any in the past three (3) years; (iv) no application or petition  





 






72520263v19      10    for an election of or for certification of a collective bargaining agent is pending with respect to the  Seller; and (v) there has been no charge of discrimination filed against or, to the Knowledge of the  Seller, threatened against the Seller with the Equal Employment Opportunity Commission or  similar Governmental Authority.    (b) The Seller has complied in all material respects with all Laws and contracts and  agreements relating to employment practices, terms and conditions of labor, employment, equal  employment opportunity, nondiscrimination, immigration, wages, hours, benefits, worker  classification (including proper classification of employees as exempt or non-exempt and of  independent contractors as such and not employees), overtime and collective bargaining and labor  relations.  The Seller is not materially delinquent in payments to any of its employees for any wages,  salaries, commissions, bonuses or other direct compensation for any services performed for the  Seller as of the date hereof or amounts required to be reimbursed to such employees.  All  agreements or contracts between the Seller and any employee, officer, manager, or director of the  Seller are set forth on Schedule 4.13 and all such agreements.       4.14 Benefit Plans.      (a) Schedule 4.14(a) contains a true and complete list of each pension, benefit,  retirement, profit-sharing, deferred compensation, welfare, employment, severance, termination,  bonus, incentive, retention, change in control, equity, equity-linked, fringe-benefit or other  compensation, benefit or perquisite agreement, plan, policy, or program, whether or not written,  including each “employee benefit plan” within the meaning of Section 3(3) of the Employee  Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA,  which is maintained, sponsored, contributed to, or required to be contributed to by the Seller for  the benefit of any current or former employee or other service provider of the Seller or any spouse  or dependent of such individual or as to which the Seller has any obligation or liability, contingent  or otherwise (each, a “Benefit Plan”).       (b) Each Benefit Plan and related trust agreement, annuity contract or other funding  instrument complies with, and has been established, administered, operated and maintained in  material compliance with its terms and any applicable Laws.  There are no pending or, to the  Seller’s Knowledge, threatened: (i) Actions, by or on behalf of any of the Benefit Plans, by any  employee or beneficiary covered under any such Benefit Plans, or otherwise involving any such  Benefit Plans or the assets thereof (other than routine claims for benefits) or (ii) Actions by any  Governmental Authority with respect to any Benefit Plan.  All benefits accrued under any unfunded  Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by,  and in accordance with, the Commonly Accepted Accounting Principles.  Each Benefit Plan that is  intended to meet the requirements of a “qualified plan” under Section 401(a) of the Code has  received a favorable determination letter from the Internal Revenue Service (or, if it is a prototype  plan, is the subject of a favorable opinion letter issued by the Internal Revenue Service) to the effect  that such Benefit Plan meets the requirements of Section 401(a) of the Code, and no events have  occurred that could reasonably be expected to adversely affect such qualified status.  The Seller has  no liability with respect to any “employee benefit plan” (as defined in Section 3(3) of ERISA)  subject to Title IV of ERISA, including by reason of being treated as a single employer under  Section 414 of the Code with any person or entity other than the Seller.  The Seller has no current  or potential obligation to provide postemployment health, life or other welfare benefits other than  as required under Section 4980B of the Code or any similar applicable Law.  Except as set forth on  Schedule 4.14(b), the consummation of the transactions contemplated by this Agreement and any  other transfer instrument, certificate, document, agreement, writing or instrument delivered  pursuant to this Agreement (collectively, “Ancillary Documents”) will not (A) entitle any current  





 






72520263v19      11    or former employee or officer of the Seller to severance pay, unemployment compensation or any  other payment, (B) accelerate the time of payment or vesting, or increase the amount of,  compensation due any such employee or officer, or (C) result in the forfeiture of compensation or  benefits under any Benefit Plan.  Schedule 4.14(b) sets forth each Benefit Plan that is subject to  Section 409A of the Code. Each such Benefit Plan has, since January 1, 2005, complied in all  material respects in operation and form with Section 409A of the Code and the Treasury  Regulations promulgated thereunder.     4.15 Customers and Suppliers.  Schedule 4.15 lists the Seller’s top twenty-five (25) customers  and top ten (10) suppliers by dollar volume of sales or purchases during the calendar year ended December  31, 2021, and year to date through February 28, 2022 (each, a “Material Customer or Supplier”).  Except  as set forth on Schedule 4.15, no Material Customer or Supplier has terminated, or, to the Knowledge of  the Seller Parties, intends to terminate, its business relationship with the Seller or has materially reduced,  or, to the Knowledge of the Seller Parties, intends to materially reduce, the dollar volume of business it  does or intends to do with the Seller from historic levels.        4.16 Intellectual Property.      (a) “Intellectual Property” means any and all of the following in any jurisdiction  throughout the world: (i) trademarks and service marks, whether registered or unregistered,  including all applications and registrations and the goodwill connected with the use of and  symbolized by the foregoing; (ii) copyrights, whether registered or unregistered, including all  applications and registrations related to the foregoing; (iii) trade secrets and confidential know- how; (iv) patents and patent applications; (v) internet domain name registrations; and (vi) other  intellectual property and related proprietary rights, interests and protections (including all rights to  sue and recover and retain damages, costs and attorneys’ fees for past, present and future  infringement and any other rights relating to any of the foregoing).    (b) Schedule 4.16(b) lists all Intellectual Property included in the Acquired Assets  (“Acquired IP”).  The Seller owns or has adequate, valid and enforceable rights to use all the  Acquired IP, free and clear of all Liens.  The Seller is not bound by any outstanding judgment,  injunction, order or decree restricting the use of the Acquired IP, or restricting the licensing thereof  to any person or entity.  With respect to the registered Intellectual Property that is Acquired IP, (i)  all such Intellectual Property is valid, subsisting and in full force and effect and (ii) the Seller has  paid all maintenance fees and made all filings required to maintain the Seller’s ownership thereof.   For all such registered Intellectual Property, Schedule 4.16(b) lists (A) the jurisdiction where the  application or registration is located, (B) the application or registration number, and (C) the  application or registration date.  Notwithstanding anything herein or Schedule 4.16(b), Acquired  IP shall not include any software ownership or licenses including, but not limited to, software  programs commonly known and utilized as QuickBooks, Big Time and Salesforce.    (c) The Seller’s prior and current use of the Acquired IP has not and does not infringe,  violate, dilute or misappropriate the Intellectual Property of any person or entity and there are no  claims pending or threatened by any person or entity with respect to the ownership, validity,  enforceability, effectiveness or use of the Acquired IP.  No person or entity is infringing,  misappropriating, diluting or otherwise violating any of the Acquired IP, and neither the Seller nor  any Affiliate of the Seller has made or asserted any claim, demand or notice against any person or  entity alleging any such infringement, misappropriation, dilution or other violation.     4.17 Insurance.  Schedule 4.17 hereto sets forth a summary of all insurance policies maintained  by the Seller or that provide coverage for the Seller’s assets or the Business, including their coverages,  





 






72520263v19      12    expiration dates, deductibles and limits.  To the Knowledge of the Seller, all such insurance policies are  valid, outstanding and enforceable and are sufficient for compliance with all Material Contracts and the  operation of the Business as currently conducted.  All premiums due and payable with respect to any such  insurance policy have been paid.  The Seller has not received any written notice of cancellation or  termination or other indication that any insurance policy is no longer in full force or effect or will not be  renewed.  Schedule 4.17 sets forth, for the current policy year and each of the three (3) preceding policy  years, claims loss or loss runs history for each such insurance policy (or equivalent that was then in effect).       4.18 Environmental Matters.  Except as set forth on Schedule 4.18(a), the Seller is, and at all  times in the past five (5) years has been, in compliance, in all material respects, with all environmental  Laws and has not received any: (i) environmental claims or notices; or (ii) written requests for information  pursuant to environmental Law, which, in each case, either remains pending or unresolved, or is the source  of ongoing obligations or requirements as of the Closing.  The Seller has obtained and is in material  compliance with all federal, state, and local environmental Permits and approvals (each of which is listed  on Schedule 4.18(b)) necessary for the ownership, lease, operation or use of the Business or assets of the  Seller and all such environmental Permits and approvals are in full force and effect.  No real property  owned, operated or leased by the Seller in the past five (5) years is listed on, or has been proposed for listing  on, the National Priorities List (or CERCLIS) under the Comprehensive Environmental Response,  Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization  Act of 1986, 42 U.S.C. §§ 9601 et seq, or any similar state list (“CERCLA”).  The Seller is not and has not  been an arranger, handler, owner, operator, treater, storer, transporter, generator or disposer of hazardous  waste under the Resource Conservation and Recovery Act, CERCLA, or any other Law.  The Seller has  removed and properly disposed of any and all hazardous, infectious, radioactive, asbestos, industrial and  manufacturing, and construction demolition waste and debris stored at or associated with the business along  with any equipment that is contaminated with the aforementioned waste or materials prior to the Closing.   Except as set forth on Schedule 4.18(a), in the past five (5) years there has been no release of any hazardous  materials in contravention of environmental Law with respect to the Business or assets of the Seller or any  real property owned, operated or leased by the Seller during such period, and the Seller has not received an  environmental notice that any real property owned, operated or leased during such period in connection  with the Business (including soils, groundwater, surface water, buildings and other structure located on any  such real property) has been contaminated with any hazardous material which would reasonably be  expected to result in an environmental claim against, or a material violation of environmental Law or term  of any environmental Permit by, the Seller.  The Seller has made available to the Buyer true and complete  copies of all sampling results, environmental or safety audits or inspections, or other written reports or  documents concerning environmental, health or safety issues pertaining to the Real Estate, to the extent the  same are in the Seller’s or its Affiliates’ possession.    4.19 Affiliate Transactions.  Neither the Seller nor any of its shareholders, affiliates, directors  or officers or their family members (collectively, “Affiliates”) owns or has owned, of record or as a  beneficial owner, an equity interest or any other financial or profits interest in any person or entity that has:  (a) had business dealings with the Seller (and each such business dealing has been conducted in the ordinary  course of business at substantially prevailing market prices and on substantially prevailing market terms)  or (b) engaged in competition with the Seller.  The Seller does not have, and in the past three (3) years has  not had, any contractual relationship (other than with employees solely for the purposes of employment  with the Seller) with any equity holder of the Seller or any of its Affiliates.     4.20 Broker’s Fees.  The Seller Parties do not, nor do any of their Affiliates, have any liability  or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions  contemplated by this Agreement for which the Buyer could become liable or obligated.    





 






72520263v19      13    4.21 Disclosure.  Except as set forth in this Article 4, neither the Seller nor any of its agents,  employees, Affiliates, or other representatives have made, nor are any of them making any representation  or warranty, express or implied, in respect of the Seller or the Business, and any other representations or  warranties are hereby expressly disclaimed.    ARTICLE 5  REPRESENTATIONS AND WARRANTIES OF BUYER     The Buyer represents and warrants to the Seller that the following statements are true and correct  as of the Closing:     5.1 Organization and Good Standing.  The Buyer is a corporation duly organized and validly  existing under the laws of the State of Indiana.    5.2 Authorization.  The Buyer has full corporate power and company authority to execute and  deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance  of this Agreement have been duly authorized by all necessary corporate action on the part of the Buyer.    5.3 Validity; Binding Effect.  This Agreement has been duly and validly executed and  delivered by the Buyer.  This Agreement constitutes a valid and legally binding obligation of the Buyer,  enforceable against the Buyer in accordance with its terms.    5.4 Noncontravention.  The execution, delivery and performance of this Agreement by the  Buyer, the consummation of the transactions contemplated by this Agreement and the compliance with or  fulfillment of the terms and provisions hereof or of any other agreement or instrument contemplated hereby,  do not and shall not (a) conflict with or result in a breach of any of the provisions of the Articles of  Incorporation or the Bylaws of the Buyer; (b) contravene any Law which affects or binds the Buyer or any  of its properties; or (c) require the Buyer to obtain the approval, consent or authorization of, or to make any  declaration, filing or registration with, any third party or any Governmental Authority which has not been  obtained in writing.    5.5 Broker’s Fees.  The Buyer does not, nor does any of its Affiliates, have any liability or  obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions  contemplated by this Agreement for which the Seller could become liable or obligated.    ARTICLE 6  COVENANTS    6.1  Employees and Employee Benefits.    (a) Employment of Employees by Buyer.  The Buyer may (in its sole discretion), but  is not obligated to, offer to hire each person employed by the Seller in the Business on the Closing  Date (each a “Transferred Employee”).  Subject to applicable Law, the Buyer will have reasonable  access to personnel records (including performance appraisals, disciplinary actions and grievances)  of the Seller for all such persons.  Effective immediately before Closing, the Seller will terminate  the employment of all such persons that the Buyer agrees to hire.  Any employment offered by the  Buyer is “at will” and may be terminated by the Buyer or by an employee at any time for any reason  (subject to any written commitments to the contrary made by the Buyer or an employee and  applicable Law).  Nothing in this Agreement shall be deemed to prevent or restrict in any way the  right of the Buyer to terminate, reassign, promote or demote any such person after the Closing or  to change adversely or favorably the title, powers, duties, responsibilities, functions, locations,  





 






72520263v19      14    salaries, employee benefits, other compensation or terms or conditions of employment of such  persons.    (b) Salaries and Benefits.  The Seller shall be responsible for the payment of, and shall  pay, all wages and other remuneration and/or compensation due to its employees with respect to  their services as employees of the Seller through the close of business on the Closing Date, bonus  payments (including without limitation any stay bonuses), the payment of any termination,  severance or stay-bonus payments, and the provision of health plan continuation coverage in  accordance with the requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985,  as amended (and the regulations and other guidance promulgated thereunder), and Sections 601  through 608 of ERISA.  The Seller shall remain solely responsible for all workers’ compensation  claims of any current or former employees, directors, independent contractors or consultants which  relate to events occurring on or prior to the Closing Date.  The Seller shall also be liable for any  claims made or incurred by their employees, directors, independent contractors or consultants or  the spouses, dependents or beneficiaries thereof through the Closing Date under the benefit plans  of Seller.  For purposes of the immediately preceding sentence, a charge will be deemed incurred,  in the case of hospital, medical or dental benefits, when the services that are the subject of the  charge are performed and, in the case of other benefits (such as disability or life insurance), when  an event has occurred or when a condition has been diagnosed that entitles the employee to the  benefit.  The Seller shall pay, or cause to be paid, all such amounts to the appropriate persons as  and when due.     6.2  Customer and Other Business Relationships.  Following the Closing, the Seller and its  officers, employees, and agents will (a) reasonably cooperate with the Buyer to obtain any consents required  under the Assumed Contracts and (b) refer to the Buyer all inquiries relating to the Business.  Following  the Closing: (i) the Buyer shall have the right to receive all payments related to the Acquired Assets or  under the Assumed Contracts, and the Seller shall promptly deliver to the Buyer any and all payments  received by the Seller related to the Acquired Assets or under the Assumed Contracts or otherwise related  to the Business as operated by the Buyer after the Closing; and (ii) the Seller shall be required to pay, settle  and discharge all accounts payable or other liabilities that are Excluded Liabilities.    6.3  Restrictive Covenants.  In consideration of the sale of the Acquired Assets and in order to  protect the value of the Business after the Closing, the Seller Parties hereby acknowledge, covenant and  agree as follows:    (a) During the Restricted Period, the Seller Parties shall not (and shall cause their  Affiliates, not to) directly or indirectly, invest in, own, manage, operate, finance, control, advise,  render services to, provide financial assistance to or guarantee the obligations of any person or  entity engaged in or planning to become engaged in the Business anywhere in the Restricted  Territory; provided, however, that the Seller Parties may purchase or otherwise acquire up to (but  not more than) five percent (5%) of any class of the securities of any entity (but may not otherwise  participate in the activities of such entity) engaged in the Business if such securities are listed on  any national or regional securities exchange or have been registered under Section 12(g) of the  Securities Exchange Act of 1934, as amended.    For purposes of this Section 6.3, (i) “Restricted Period” means the period commencing on  the Closing Date and expiring on the second (2nd) anniversary of this Agreement (which shall be  extended by the length of any period during which a Restricted Party is in violation of this Section  6.3), and (ii) “Restricted Territory” means anywhere in the areas described on Exhibit E hereto.    





 






72520263v19      15    (b) During the Restricted Period, the Seller Parties shall not (and shall cause their  Affiliates, not to) directly or indirectly (i) solicit any customer that was a party to an Assumed  Contract for the purpose of selling or providing any competitive Business products or services, or  (ii) sell or provide any products or services, that are competitive Business’s products or services,  to any such customer.      (c) During the Restricted Period, the Seller Parties shall not (and shall cause their  Affiliates, not to), directly or indirectly, hire, employ, engage or solicit the employment or  engagement of any individual that was employed by Seller immediately prior to the Closing and  who is employed in the Business by Buyer after the Closing.    (d) The Seller Parties shall not (and it shall cause their Affiliates, not to), directly or  indirectly, disparage, denigrate or make any inaccurate, untruthful or incorrect statement (whether  verbally, in writing, electronically, through social media, by word or by gesture, or through any  other means of communication) about Buyer, the Business or any of its employees, agents,  Affiliates or representatives.     6.4 Confidentiality.  The Seller hereby (a) acknowledges and agrees that prior to the  consummation of the transactions contemplated by this Agreement that it has had access to trade secrets  and other information which is confidential with respect to the Acquired Assets and valuable to the  operation of the Business (the “Confidential Information”), and (b) understands the necessity of keeping  the Confidential Information confidential and secret.  The Seller will hold the Confidential Information in  confidence, unless required to disclose such Confidential Information by judicial or administrative process  or by other legal requirement, including, without limitation, any disclosures required by the rules of the  U.S. Securities and Exchange Commission or any United States stock exchange.      6.5 Remedies.  Without limiting the right of the Buyer to pursue all other legal or equitable  remedies available for any violation of Section 6.3 or Section 6.4 and to recover its legal fees and expenses,  the Parties agree that monetary damages are inadequate for such violation given the unique nature of the  Business, and that the Buyer shall be entitled to injunctive relief to prevent violation or continuing violation  thereof and that no bond or other security shall be required in connection therewith.  It is the intent and  understanding of each Party hereto that if, in any action before any court or agency legally empowered to  enforce Section 6.3 or Section 6.4 any term, restriction, covenant or promise is found to be unreasonable  and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed  modified to the minimum extent necessary to make it enforceable by such court or agency.  Nothing herein  shall be construed as prohibiting the Buyer from pursuing any other remedies at Law or in equity which it  may have.  The Seller acknowledges and agrees that the existence of any claim or cause of action by any  of them against the Buyer shall not relieve any of the Seller Parties of their obligations under this Agreement  and otherwise shall not operate as a defense to the enforcement of this Agreement.    6.6 Books and Records.  Following the Closing, each Party will afford the other Party, and the  other Party’s counsel and accountants, during normal business hours, reasonable access to and assistance  from each Party’s accountants, accounting firm, or other financial advisors, and to the books, records and  other data in each Party’s possession or control (including without limitation accounting, Tax and financial  records) relating to the Business with respect to periods prior to the Closing and the right to make copies  and extracts therefrom, to the extent that such access may be reasonably desired by a Party in connection  with: (a) the preparation of Tax Returns; (b) the determination or enforcement of rights and obligations  under this Agreement, including by any Buyer Indemnified Person or Seller Indemnified Person; (c)  compliance with the requirements of any Governmental Authority; or (d) in connection with any actual or  threatened Action.    





 






72520263v19      16    6.7 Information Technology and Digital Records.  Following the Closing, the Seller will afford  the Buyer and its counsel, during normal business hours, reasonable access at the Seller’s expense to Seller’s  digital books, records and other data in the Seller’s possession or control relating to electronically stored  data, information and systems (including without limitation records of the Seller’s data collection and  security policies) of the Business with respect to periods prior to the Closing and the right to make copies  and extracts therefrom.  The Seller shall, or at the Seller’s expense engage a third party technology  consultant, to transfer all of Seller’s digital books, records, and other data to the Buyer (the “IT Transition”).   In connection with the IT Transition, the Seller shall provide the Buyer with access to the Seller’s website  (to have website traffic directed to the Buyer’s website and to the extent the Seller’s website is viewed by  the public containing a disclosure that Buyer purchased the assets of Seller) for a period of one (1) year and  the use of Seller’s email accounts for a period of six (6) months following the Closing.  Notwithstanding  the foregoing, (i) the Seller shall not be obligated to pay for the IT Transition for a period longer than six  (6)months after the Closing and (ii) Buyer may not utilize the ‘Comstock’ name after Closing for any public,  marketing, or advertising purposes excepting disclosures that Buyer purchased the assets of Seller.  For a  period of two (2) years following the Closing, Seller shall forward all e-mails sent on Seller’s e-mail  accounts to Buyer.     6.8 Cease Using Name.  After the Closing, the Seller shall not operate any business under the  name “Comstock Environmental Services”.       6.9 Cooperation.  If any further action is necessary or desirable to carry out the purposes of  this Agreement, each of the Parties will take such further action (including the execution and delivery of  such further instruments and documents) as any other Party reasonably may request, all at the sole cost and  expense of the requesting Party (unless the requesting Party is entitled to indemnification therefor under  Article 7 below).  After the Closing, in the event and for so long as any Party actively is contesting or  defending against any third-party action, suit, proceeding, hearing, investigation, charge, complaint, claim,  or demand in connection with (a) any transaction contemplated under this Agreement or (b) any fact,  situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure  to act, or transaction that existed on or prior to the Closing Date involving the Seller, the other Party(ies)  will reasonably cooperate with such Party and such Party’s counsel in the contest or defense, make available  their personnel, and provide such testimony and access to their books and records as is reasonably necessary  in connection with the contest or defense, all at the sole cost and expense of the contesting or defending  Party (unless the contesting or defending Party is entitled to indemnification therefor under Article 7).  This  provision will be inapplicable to any direct claims between Seller and the Buyer.         6.10 Operation of Business After the Closing.  The Parties hereto acknowledge that certain  Permits required or desirable for the operation of the Business after the Closing may not be transferable by  the Seller to the Buyer at the Closing, or may not be obtainable by the Buyer until after the Closing, and  that transfer of or application for any such Permits may require the Seller to sign certain documents,  affidavits and certifications.  As and when requested from time to time by the Buyer until any such Permits  are transferred to or obtained by the Buyer, the Seller shall, in accordance with applicable Laws, use  commercially reasonable efforts (a) to provide all necessary and lawful cooperation for the voluntary  transfer or surrender of any such Permits, assets or contracts or the use of any such Permits for the operation  of the Business by the Buyer after the Closing; and (b) to facilitate the Buyer’s successful application for  any such Permit.  In the event Seller seeks to recover amounts due under Contracts consistent with the terms  of this Agreement and through the course of Seller’s final audits, Buyer shall provide reasonable  cooperation efforts to Seller in coordination with such activities including, but not limited to, access to and  coordination efforts with employees listed in Schedule 3.2(m) of this Agreement.     





 






72520263v19      17    ARTICLE 7  INDEMNIFICATION AND REMEDIES    7.1 Indemnification and Reimbursement by Seller.  Subject to the limitations and other  provisions of this Agreement, the Seller Parties jointly and severally shall indemnify, defend and hold  harmless the Buyer, and its officers, directors, managers, employees, equity holders, representatives, agents,  subsidiaries and Affiliates (collectively, the “Buyer Indemnified Persons”), and will reimburse the Buyer  Indemnified Persons for any loss, liability, claim, damage, expense whatsoever (including reasonable costs  of investigation and defense and reasonable professional and attorney fees and expenses) and whether  direct, between, or among the Parties or with respect to any third party (collectively, “Damages”), arising  from, related to or in connection with: (a) any inaccuracy or breach of any representation or warranty made  by any of the Seller Parties in this Agreement; (b) any breach of any covenant or obligation of the Seller in  this Agreement; (c) the Seller’s ownership or operation of the Acquired Assets and the Business prior to  the Closing; (d) the Excluded Assets; (e) the Excluded Liabilities; (f) any failure of the Seller to comply  with, or any other liability arising under or in connection with, the Worker Adjustment Retraining and  Notification Act, or any similar Laws; and (g) any and all Actions, claims, demands, assessments,  judgments, costs and expenses (including interest, penalties, reasonable legal fees and accounting fees)  related to the foregoing clauses (a) through (f), inclusive, and the enforcement of the provisions of this  Section 7.1.    7.2 Indemnification and Reimbursement by Buyer.  Subject to the limitations and other  provisions of this Agreement, the Buyer will indemnify, defend and hold harmless the Seller and its officers,  directors, managers, employees, equity holders, representatives, agents, subsidiaries and Affiliates  (collectively, the “Seller Indemnified Persons”), and will reimburse the Seller Indemnified Persons for any  Damages arising from, related to or in connection with: (a) any inaccuracy or breach of any representation  or warranty made by the Buyer in this Agreement; (b) any breach of any covenant or obligation of the Buyer  in this Agreement; (c) the Assumed Liabilities; and (d) any and all Actions, claims, demands, assessments,  judgments, costs and expenses (including interest, penalties, reasonable legal fees and accounting fees)  related to the foregoing clauses (a) through (c), inclusive, and the enforcement of the provisions of this  Section 7.2.    7.3 Limitations.  All representations and warranties made by any Party in this Agreement shall  survive the Closing for eighteen (18) months, at which time they shall expire and be of no further force and  effect, other than the representations and warranties set forth in Sections 4.1, 4.2, 4.3, 4.4, the first sentence  of 4.6, 4.8, 4.14, 4.18, 4.20, 5.1, 5.2, 5.3, 5.4, and 5.5, which shall survive the Closing until the date that is  sixty (60) days after the expiration of the applicable statute of limitations, at which time they shall expire  and be of no further force and effect (representations and warranties listed in the immediately forgoing  exceptions clause, each a “Fundamental Representation and Warranty”).  Notwithstanding the foregoing  sentence, if a written notice regarding the inaccuracy or breach of any representation or warranty shall have  been timely delivered as required by this Article 7 on or prior to the applicable expiration date, such  representation and warranty shall survive with respect to such claim until the related claim for  indemnification has been satisfied or otherwise resolved as provided in this Article 7.  The covenants  contained in this Agreement shall survive until fully performed.  In no event shall the Buyer Indemnified  Persons be entitled to indemnification under Section 7.1(a) (other than with respect to claims for the  inaccuracy or breach of a Fundamental Representation and Warranty to which the following limitation shall  not apply) until the aggregate amount of all Damages in respect of the matters described in Section 7.1(a)  exceeds $35,000.00 (the “Basket”).  Once the Basket is exceeded, then the Buyer Indemnified Persons shall  be entitled to pursue recovery of all such Damages in excess of the Basket; provided that, in no event shall  the Buyer Indemnified Persons be entitled to indemnification under Section 7.1(a) for the inaccuracy or  breach of a representation or warranty (other than with respect to claims for the inaccuracy or breach of a  Fundamental Representation and Warranty to which the following limitation shall not apply) if the  





 






72520263v19      18    aggregate amount of all Damages in respect of the matters described in Section 7.1(a) (other than with  respect to claims for the inaccuracy or breach of a Fundamental Representation and Warranty) exceeds  $300,000.00.  The aggregate amount required to be paid by the Seller Indemnified Persons pursuant to  Section 7.1(a) as a result of Damages from Seller’s breach of or inaccuracy in Fundamental Representations  and Warranties and as a result of Damages arising under Sections 7.1(b) through (f) shall not exceed the  Purchase Price.  For purposes of determining the amount of Damages and for determining whether a  representation or warranty has been breached or is inaccurate, in connection with a claim under Section  7.1(a), for the inaccuracy or breach of a representation or warranty containing any material or materiality  or other similar qualification, such material or materiality or similar qualifier shall not be considered.  The  Parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims for  any breach of any representation, warranty, covenant, agreement or obligation set forth herein, shall be  pursuant to the indemnification provisions set forth in this Article 7; provided that, for purposes of clarity,  the foregoing shall not apply to any of the Ancillary Documents.  Notwithstanding the foregoing sentence,  nothing in this Article 7 shall limit any person or entity’s right to seek and obtain any equitable relief to  which it shall be entitled.  Notwithstanding anything else to the contrary, (a) nothing in this Article 7 shall  limit in any way any Party’s ability to make, or recover for, any claim for fraud, willful misconduct or  intentional misrepresentation related to this Agreement or the transactions contemplated hereby; and (b) no  adjustments, if any, required to be paid by the Seller under Section 2.2 of this Agreement shall be counted  against, or taken into account with respect to, the Basket or indemnification caps set forth in this Section  7.3.      7.4 Effect of Investigation.  Each Buyer Indemnified Person’s right to indemnification or other  remedy based on the representations, warranties, covenants and agreements of the Seller contained in this  Agreement will not be affected by any investigation conducted by the Buyer with respect to, or any  knowledge acquired by the Buyer at any time, with respect to the accuracy or inaccuracy of or compliance  with, any such representation, warranty, covenant or agreement.    7.5 Tax Treatment of Indemnification Payments.  All indemnification payments made by the  Seller Parties under this Agreement shall be treated by the Parties as an adjustment to the Purchase Price  for Tax purposes, unless otherwise required by Law.    7.6 Mitigation.  Each Indemnified Party shall use commercially reasonable efforts to mitigate  any Damages which are the subject of claims under this Agreement upon and after becoming aware of any  facts or circumstances that would reasonably be expected to result in any Damages that are indemnifiable  hereunder.    7.7 No Double Recovery.  Notwithstanding any provision of this Agreement to the contrary,  no Indemnified Party shall be entitled to double recovery for any Damages resulting from a state of facts  or circumstances constituting the breach of more than one of the representations, warranties, covenants,  agreements and obligations of the Indemnifying Party in this Agreement.  The Seller shall not have any  liability or obligation with respect to any claim for indemnification to the extent that the Damages related  to such matter actually served to reduce the amount of Actual Net Working Capital pursuant to Section 2.2  of this Agreement.  7.8 Insurance Proceeds.  Payments by an Indemnifying Party pursuant to this Article 7 in  respect of any Damages shall be limited to the amount that remains after deducting therefrom any insurance  proceeds paid to and actually received by the Indemnified Party (or its Affiliates) and any indemnity,  contribution or other similar payment paid to and actually received by the Indemnified Party (or its  Affiliates) in respect of any such claim to the extent specifically identifiable to an indemnification  obligation of the Indemnifying Party (net of costs of collection resulting from making any claim thereunder  and taking into account any deductible or retention amount paid or payable).  The Indemnified Party shall  





 






72520263v19      19    not be required to pursue recovery of such amounts prior to seeking indemnification under this Article 7,  but shall use its commercially reasonable efforts to recover under insurance policies or indemnity,  contribution or other similar agreements for any Damage specifically identifiable to an indemnification  obligation of the Indemnifying Party.       7.9 Recourse First against Indemnity Escrow Amount.  In the case of any indemnification  claim by a Buyer Indemnified Person against the Seller, the Buyer Indemnified Person shall, to the extent  there are sufficient amounts in the Escrow Fund, be required to first seek recourse against the Indemnity  Escrow Amount, with the balance of any claim for Damages being satisfied directly by the Seller Parties.  7.10 Right to Defend.  Promptly after acquiring knowledge of any loss, action, suit,  investigation, proceeding, demand, assessment, audit, judgment, or claim brought by a person or entity that  is not a party to this Agreement (each a “Third Party Claim”) to which it may be liable, any party entitled  to indemnification hereunder (the “Indemnified Party”) shall give to the party obligated to indemnify  hereunder (the “Indemnifying Party”) prompt written notice thereof; provided, that the failure to so notify  such Indemnifying Party will not relieve such Indemnifying Party of its obligations under this Article 7,  except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is  prejudiced by the Indemnified Party’s failure to give such claim notice.  Each Indemnifying Party shall, at  its own expense, promptly defend, contest or otherwise protect against any Third Party Claim against which  it has agreed to indemnify any Indemnified Party, and each Indemnifying Party shall receive from the  Indemnified Party all necessary and reasonable cooperation in said defense, including, but not limited to,  the services of employees of the Indemnified Party who are familiar with the transactions out of which any  such damage, loss, deficiency, liability, claim, encumbrance, penalty, cost, expense, action, suit,  investigation, proceeding, demand, assessment, audit, judgment or claim may have arisen.  The  Indemnifying Party shall have the right to control the defense of any such third party proceeding unless it  is relieved of its liability hereunder with respect to such defense by the Indemnified Party, and except for  claims involving (i) non-monetary Damages sought against the Indemnified Party; or (ii) criminal  allegations.  The Indemnifying Party shall have the right, at its option, and, unless so relieved, to  compromise or defend, at its own expense by its own counsel, any such matter involving the asserted  liability to a third party of the Indemnified Party involving monetary damages but may not compromise or  settle any matter involving equitable or injunctive recourse against the Indemnified Party without such  party’s written consent.  In the event that the Indemnifying Party shall undertake to compromise or defend  any such asserted liability, it shall promptly notify the Indemnified Party of its intention to do so.  In the  event that an Indemnifying Party, after written notice of a Third Party Claim from an Indemnified Party,  fails to take timely action to defend the same, the Indemnified Party shall have the right to defend the same  by counsel of its own choosing, but at the cost and expense of the Indemnifying Party.  In such an event,  the Indemnified Party shall not compromise any such asserted liability without the written consent of the  Indemnifying Party, such consent not to be unreasonably withheld, conditioned, or delayed.     ARTICLE 8  GENERAL PROVISIONS    8.1 Expenses.  Except as provided for in Section 6.5 and Article 7, each Party will bear its  respective expenses incurred in connection with the preparation, execution, and performance of this  Agreement, including all fees and expenses of agents, representatives, counsel and accountants.  The Buyer  shall timely and fully pay any and all transfer and sales Taxes resulting from the sale of the Acquired Assets  from the Seller to the Buyer, or the assumption of the Assumed Liabilities by the Buyer, as contemplated  by this Agreement; provided, however, that Seller agrees to promptly reimburse the Buyer for 50% of any  such transfer and sales Taxes but only up to a maximum Seller reimbursement amount of $10,000.00.    





 






72520263v19      20     8.2 Public Announcements.  Any public announcement or similar publicity with respect to this  Agreement will be issued, if at all at such time and in such manner as the Buyer and the Seller mutually  determine.  Unless consented to by the Parties in writing, the Parties shall keep this Agreement and the  transactions consummated hereby strictly confidential and may not make any disclosure of this Agreement  to any person or entity; provided, however, that the (x) Parties may disclose the terms of this Agreement to  their accountants, attorneys and similar professionals, who have an obligation to maintain the  confidentiality of such information, as necessary for tax returns, to enforce their rights under this Agreement  or the Ancillary Documents, and for similar purposes, and (y) Seller and its Affiliates may make any  disclosures necessary to comply with the SEC disclosure obligations or the rules of any United States stock  exchange.  The Seller and the Buyer shall consult with each other concerning the means by which the  Seller’s employees, customers, and suppliers and others persons or entities having dealings with the Seller  will be informed of the transactions contemplated herein.     8.3 Notices.  All notices, requests, demands, claims, and other communications hereunder will  be in writing.  Any notice, request, demand, claim, or other communication hereunder shall be deemed duly  given (a) when delivered personally to the recipient, (b) when sent by electronic mail or facsimile, on the  date of transmission to such recipient (with, in the case of electronic mail, the sender not receiving an  undeliverable message in connection with sending such electronic mail message or with, in the case of  facsimile, receipt by the sender thereof of a confirmation of transmission), (c) one (1) Business Day after  being sent to the recipient by reputable overnight courier service (charges prepaid), or (d) four (4) Business  Days after being mailed to the recipient by certified mail, return receipt requested and postage prepaid, and  addressed to the intended recipient, and in the case of clauses (b) through (d) above when sent or mailed to  the recipient pursuant to the contact information for such recipient set forth on the signature pages of this  Agreement, which contact information may be modified by a party hereto providing written notice of such  modification to all other Parties pursuant to this Section 8.3.  “Business Day” means any day except  Saturday, Sunday or any other day on which commercial banks located in Conshohocken, Pennsylvania are  authorized or required by Law to be closed for business.     8.4 Governing Law.  This Agreement shall be governed by and construed under the laws of  the Commonwealth of Pennsylvania without regard to conflict of law principles.       8.5 Waiver.  The rights and remedies of the Parties are cumulative and not alternative.  Neither  the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement or  the other documents and instruments referred to in this Agreement will operate as a waiver of such right,  power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude  any other or further exercise of such right, power, or privilege.  To the maximum extent permitted by  applicable Law, (a) no claim or right arising out of this Agreement or the documents referred to in this  Agreement can be discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or  right unless in writing signed by the other Party; (b) no waiver that may be given by a Party will be  applicable except in the specific instance for which it is given; and (c) no notice to or demand on one Party  will be deemed to be a waiver of any obligation of such Party or of the right of the Party giving such notice  or demand to take further action without notice or demand as provided in this Agreement or the other  documents and instruments referred to in this Agreement.     8.6 Entire Agreement; Modification.  This Agreement (together with the Schedules, Exhibits  and the other documents, agreements and instruments referenced herein) supersedes all prior agreements  between the Parties with respect to its subject matter (including that certain Term Sheet, dated December  1, 2021, by and between the Seller and Buyer), and constitutes a complete and exclusive statement of the  terms of the agreement between the Parties with respect to the subject matter contained herein.  This  Agreement may not be amended except by a written agreement executed by all Parties that will be burdened  by such amendment.  





 






72520263v19      21       8.7 Assignments, Successors, and No Third Party Rights.  No Party may assign any of its rights  under this Agreement without the prior written consent of the other Party, except that the Buyer may so  long as it remains liable for its obligations under this Agreement (a) collaterally assign this Agreement to  any of its lenders; (b) assign its rights and obligations under this Agreement to a wholly-owned subsidiary;  and (c) assign its rights and obligations under this Agreement to any successor-in-interest, whether by  merger, sale of assets or otherwise.  Subject to the preceding sentence, this Agreement will apply to, be  binding in all respects upon, and inure to the benefit of the permitted successors and assigns of the Parties.   Other than with respect to the Buyer Indemnified Persons and Seller Indemnified Persons as contemplated  by Article 7, who are expressly intended to be, and hereby are made, third party beneficiaries of the  provisions of Article 7, nothing expressed or referred to in this Agreement will be construed to give any  person or entity other than the Parties any legal or equitable right, remedy, or claim under or with respect  to this Agreement or any provision of this Agreement.     8.8 Severability.  The provisions of this Agreement are severable and shall be separately  construed.  If any provision of this Agreement is held invalid or unenforceable by any court of competent  jurisdiction, the other provisions of this Agreement will remain full force and effect.  Any provision of this  Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the  extent not held invalid or unenforceable.     8.9 Section Headings; Construction.  The headings of the Articles and Sections in this  Agreement are provided for convenience only and will not affect the construction or interpretation of this  Agreement.  All references to “Section” or “Sections” refer to the corresponding Section or Sections of this  Agreement.  All words used in this Agreement will be construed to be of such gender or number as the  circumstances require.  Unless otherwise expressly provided, the word “including” does not limit the  preceding words or terms.  If any payment is required to be made, or other action (including the giving of  notice) is required to be taken, pursuant to this Agreement on a day which is not a Business Day, then such  payment or action shall be considered to have been made or taken in compliance with this Agreement if  made or taken on the next succeeding Business Day.  In this Agreement, a period of days shall be deemed  to begin on the first day after the event that began the period and to end at 5:00 p.m. (local time, Indianapolis,  Indiana) on the last day of the period.  If any period of time is to expire hereunder on any day that is not a  Business Day, the period shall be deemed to expire at 5:00 p.m. (local time, Conshohocken, Pennsylvania)  on the next succeeding Business Day.  Each Party represents and agrees that: it has had the opportunity to  be represented by independent counsel of its own choosing, it or its authorized officers or directors (as  applicable) have carefully read and fully understand this Agreement in its entirety, it is fully aware of the  contents of this Agreement and its meaning, intent and legal effect.  This Agreement is the product of  negotiations between the Parties and any rules of construction relating to interpretation against the drafter  of an agreement shall not apply to this Agreement and are expressly waived by each Party.  The terms  “Knowledge of the Seller”, “Knowledge of the Seller Parties”, or words of similar import mean the actual  knowledge of David White, Chris Guthrie, Jon Buzan, John Krinis, and Robert Scott after reasonable due  inquiry.     8.10 Counterparts.  This Agreement may be executed in one or more counterparts, each of which  will be deemed to be an original copy of this Agreement and all of which, when taken together, will be  deemed to constitute one and the same agreement.  Facsimile or electronic transmission of a counterpart  hereto shall be deemed an original hereof.      [Signature Page Follows] 





 






 





 






 





 






      Exhibit A    Escrow Agreement     See attached.     





 






ESCROW AGREEMENT THIS ESCROW AGREEMENT (the “Agreement”) dated effective as of March 31, 2022 (the “Effective Date”), is by and among August Mack Environmental, Inc., an Indiana corporation  (“Purchaser”), Comstock Environmental Services, LLC, a Virginia limited liability company  (“Seller”), and U.S. Bank National Association, a national banking association, as escrow agent  hereunder (“Escrow Agent”). BACKGROUND A.  Purchaser and Seller have entered into that certain Asset Purchase Agreement dated as of March 30, 2022 (the “Purchase Agreement”), pursuant to which Purchaser is purchasing  substantially all of the assets and certain liabilities of Seller used in the operation of Seller’s  environmental engineering, environmental consulting, and tank construction business.  The  Purchase Agreement provides that Purchaser shall deposit on behalf of Seller the Escrow Fund  (defined below) in a segregated escrow account to be held by Escrow Agent for the purpose of post-closing working capital adjustments and indemnifications that may become due to Purchaser pursuant to the Purchase Agreement. B.  Escrow Agent has agreed to accept, hold, and disburse the funds deposited with it and  any earnings thereon in accordance with the terms of this Agreement. C.  Purchaser and Seller have appointed the Representatives (as defined below) to represent them for all purposes in connection with the funds to be deposited with Escrow Agent and this  Agreement. D.  Purchaser and Seller acknowledge that (i) Escrow Agent is not a party to and has no duties or obligations under the Purchase Agreement, (ii) all references in this Agreement to the  Purchase Agreement are solely for the convenience of Purchaser and Seller, and (iii) Escrow Agent  shall have no implied duties beyond the express duties set forth in this Agreement. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, for themselves, their successors and assigns,  hereby agree as follows: 1. Definitions.  The following terms shall have the following meanings when used herein: “Adjustment Escrow Amount” means Two Hundred Fifty Thousand and No/100 Dollars  ($250,000.00). “Business Day” means any day, other than a Saturday, Sunday or legal holiday, on which  Escrow Agent at its location identified in Section 15 is open to the public for general banking  purposes. “Claim Notice” has the meaning set forth in Section 6(a). 1 7 2602403v32602403v7  





 






“Escrow Fund” means the Adjustment Escrow Amount and the Indemnity Escrow  Amount, together with any interest and other income thereon. “Escrow Period” means the period commencing on the date hereof and ending at the close of Escrow Agent’s Business Day on the second (2nd) anniversary of the Effective Date unless earlier terminated pursuant to this Agreement. “Final Order” means a final and nonappealable order of a court of competent jurisdiction (an “Order”), which Order is delivered to Escrow Agent accompanied by a written instruction from  Purchaser or Seller given to effectuate such Order and confirming that such Order is final,  nonappealable and issued by a court of competent jurisdiction, and Escrow Agent shall be entitled  to conclusively rely upon any such confirmation and instruction and shall have no responsibility  to review the Order to which such confirmation and instruction refers. “Indemnified Party” has the meaning set forth in Section 11. “Indemnity Claim” has the meaning set forth in Section 6(a). “Indemnity Escrow Amount” means One Hundred Fifty Thousand and No/100 Dollars  ($150,000.00). “Joint Written Direction” means a written direction executed by a Purchaser Representative and a Seller Representative, delivered to Escrow Agent in accordance with Section 15 and directing Escrow Agent to disburse all or a portion of the Escrow Fund or to take or refrain from  taking any other action pursuant to this Agreement. “Purchaser Representative” means the person(s) so designated on Schedule B hereto or any other person designated in a writing signed by Purchaser and delivered to Escrow Agent and a  Seller Representative in accordance with the notice provisions of this Agreement, to act as its  representative under this Agreement. “Representatives” means a Purchaser Representative and a Seller Representative. “Seller Representative” means the person(s) so designated on Schedule B hereto or any other person designated in a writing signed by Seller and delivered to Escrow Agent and a  Purchaser Representative in accordance with the notice provisions of this Agreement, to act as its  representative under this Agreement. 2. Appointment of and Acceptance by Escrow Agent.  Purchaser and Seller hereby appoint Escrow Agent to serve as escrow agent hereunder.  Escrow Agent hereby accepts such  appointment and, upon receipt by wire transfer of the Escrow Fund in accordance with Section 3,  shall hold, invest and disburse the Escrow Fund in accordance with this Agreement. 3. Deposit of Escrow Fund.  Simultaneously with the execution and delivery of this Agreement, Purchaser will transfer the Escrow Fund, by wire transfer of immediately available 2 7 2602403v32602403v7  





 






funds, to an account designated by Escrow Agent (the “Escrow Account”).  Escrow Fund will  remain uninvested. 4. Disbursements of Escrow Fund. (a) Escrow Agent shall disburse Escrow Fund, or a portion thereof, at any time and from time to time, upon receipt of, and in accordance with, a Joint Written Direction substantially  in the form of Attachment 1 hereto and received by Escrow Agent as set forth in Section 15.  Such  Joint Written Direction must contain the amount of the Escrow Fund to be so released and complete  payment instructions, including funds transfer instructions or an address to which a check should  be sent. (b) Purchaser and Seller, as between themselves, hereby agree that if Purchaser makes a claim for any uncollected accounts receivable pursuant to Section 2.2(d)(ii) of the Purchase  Agreement, Purchaser and Seller shall execute and deliver to Escrow Agent a Joint Written  Direction, authorizing Escrow Agent to disburse the Indemnity Escrow Amount to Purchaser in  the amount of such uncollected accounts receivable. (c) Purchaser and Seller, as between themselves, hereby agree that Purchaser and Seller shall execute and deliver to Escrow Agent a Joint Written Direction, authorizing Escrow Agent to  disburse the Adjustment Escrow Amount to Seller or Purchaser, as applicable, pursuant to the  terms of Section 2.2(b) of the Purchase Agreement. (d) Upon the expiration of the Escrow Period, Escrow Agent shall distribute to Seller pursuant to the funds transfer instruction set forth in this Section 4(c), as promptly as practicable, any remaining Indemnity Escrow Amount not subject to a Claim Notice as provided in Section 6.  Purchaser and Seller each acknowledges that the Escrow Agent is authorized to use the following  funds transfer instructions to disburse any funds due to Seller: Bank Name: Eagle Bank Bank Address: 7815 Woodmont Avenue Bethesda, MD 20814 ABA No.: 055003298 Account Name: Comstock Real Estate Services, L. C. Account No.: 020-017-7905 (e) Prior to any disbursement, Escrow Agent must receive reasonable identifying information regarding the recipient so that Escrow Agent is able to comply with its regulatory  obligations and reasonable business practices, including without limitation a completed United  States Internal Revenue Service (“IRS”) Form W-9 or Form W-8, as applicable.  All disbursements  of Escrow Fund will be subject to the fees and claims of Escrow Agent and the Indemnified Parties  pursuant to Section 11 and Section 12. (f) Purchaser and Seller may each deliver written notice to Escrow Agent in accordance with Section 15 changing their respective funds transfer instructions, which notice will 3 7 2602403v32602403v7  





 






be effective only upon receipt by Escrow Agent and after Escrow Agent has had reasonable time  to act upon such notice. 5. Suspension of Performance; Disbursement into Court.  If, at any time, (a)  a dispute exists with respect to any obligation of Escrow Agent under this Agreement, (b) Escrow Agent is unable to determine, to Escrow Agent’s sole satisfaction, Escrow Agent’s proper actions with  respect to its obligations hereunder, or (c) the Representatives have not, within 10 days of receipt  of a notice of resignation, appointed a successor escrow agent to act under this Agreement, then  Escrow Agent may, in its sole discretion, take either or both of the following actions: (i) suspend the performance of any of its obligations (including without limitation any disbursement obligations) under this Agreement until such dispute or  uncertainty is resolved to the sole satisfaction of Escrow Agent or until a successor escrow  agent is appointed. (ii) petition (by means of an interpleader action or any other appropriate method) any court of competent jurisdiction, in any venue convenient to Escrow Agent,  for instructions with respect to such dispute or uncertainty and, to the extent required or  permitted by law, pay into such court, for holding and disposition by such court, the Escrow  Fund, after deduction and payment to Escrow Agent of all fees and expenses (including  court costs and attorneys’ fees) payable to, incurred by, or expected to be incurred by  Escrow Agent in connection with the performance of its duties and the exercise of its rights  hereunder. Escrow Agent will have no liability to Purchaser or Seller for any such suspension of performance  or disbursement into court, specifically including any liability or claimed liability that may arise  due to any delay in any other action required or requested of Escrow Agent. 6. Resolutions & Disbursement of Claims.  If during the Escrow Period Purchaser elects to make a claim for indemnity against Seller pursuant to Article 7 of the Purchase  Agreement, then the procedure for administering and resolving such claims is as follows: (a) If Purchaser elects to assert a claim for indemnity as contemplated by the Purchase Agreement (an “Indemnity Claim”), it must give written notice of such claim (a “Claim Notice”) to Escrow Agent and Seller prior to the expiration of the Escrow Period.  Such Claim Notice must  include a description of the claim and the basis therefor and the amount, if known, asserted by  Purchaser for such claim (including, if appropriate, an estimate of all costs and expenses  reasonably expected to be incurred by Purchaser by reason of such claim). (b) Escrow Agent shall pay an Indemnity Claim to Purchaser from the Indemnity Escrow Amount only pursuant to (i) Seller’s written direction, (ii) a Joint Written Direction, or  (iii) a Final Order. 7. Investment of Funds.  Based upon Purchaser’s and Seller’s prior review of investment alternatives, Escrow Agent is directed to leave the Escrow Fund uninvested.  To the 4 7 2602403v32602403v7  





 






extent applicable regulations grant rights to receive brokerage confirmations for certain security  transactions, Purchaser and Seller waive receipt of such confirmations. 8. Tax Reporting. (a) Escrow Agent has no responsibility for the tax consequences of this Agreement and Purchaser and Seller shall consult with independent counsel concerning any and all tax matters.  Purchaser and Seller jointly and severally agree to (i) assume all obligations imposed now or  hereafter by any applicable tax law or regulation with respect to payments or performance under  this Agreement and (ii) request and direct the Escrow Agent in writing with respect to withholding  and other taxes, assessments or other governmental charges, and advise the Escrow Agent in  writing with respect to any certifications and governmental reporting that may be required under  any applicable laws or regulations.  Except as otherwise agreed by Escrow Agent in writing,  Escrow Agent has no tax reporting or withholding obligation except to the Internal Revenue  Service with respect to Form 1099-B reporting on payments of gross proceeds under Internal  Revenue Code Section 6045 and Form 1099 and Form 1042-S reporting with respect to investment  income earned on the Escrow Fund, if any.  Escrow Agent shall have no responsibility for Form  1099-MISC reporting with respect to disbursements that Escrow Agent makes in an administrative  or ministerial function to vendors or other service providers and shall have no tax reporting or  withholding duties with respect to the Foreign Investment in Real Property Tax Act (FIRPTA). (b) To the extent that U.S. federal imputed interest regulations apply, Purchaser and Seller shall so inform the Escrow Agent, provide the Escrow Agent with all imputed interest  calculations and direct the Escrow Agent to disburse imputed interest amounts as Purchaser and  Seller deem appropriate.  The Escrow Agent will rely solely on such provided calculations and  information and will have no responsibility for the accuracy or completeness of any such  calculations or information.  Purchaser and Seller shall provide Escrow Agent a properly  completed IRS Form W-9 or Form W-8, as applicable, for each payee.  If requested tax  documentation is not so provided, Escrow Agent is authorized to withhold taxes as required by the  United States Internal Revenue Code and related regulations. (c) Except as otherwise directed by Purchaser and Seller in writing, Escrow Agent will report, on an accrual basis, all interest or income on the Escrow Fund as being owned by Seller for federal income tax purposes.  If any accrued interest income attributed to Seller is subsequently  disbursed by Escrow Agent to Purchaser, Purchaser and Seller shall jointly direct Escrow Agent  in writing with respect to the appropriate tax treatment and reporting of such disbursements. 9. Resignation or Removal of Escrow Agent.  Escrow Agent may resign and be discharged from the performance of its duties hereunder at any time by giving ten (10) days’ prior  written notice to Purchaser and Seller specifying a date when such resignation will take effect and,  after the date of such resignation notice, notwithstanding any other provision of this Agreement,  Escrow Agent’s sole obligation will be to hold the Escrow Fund pending appointment of a  successor Escrow Agent.  Similarly, Escrow Agent may be removed at any time by Purchaser and  Seller giving at least thirty (30) days’ prior written notice to Escrow Agent specifying the date  when such removal will take effect.  If Purchaser and Seller fail to jointly appoint a successor 5 7 2602403v32602403v7  





 






Escrow Agent prior to the effective date of such resignation or removal, Escrow Agent may  petition a court of competent jurisdiction to appoint a successor escrow agent, and all costs and  expenses related to such petition shall be paid jointly and severally by Purchaser and Seller.  The  retiring Escrow Agent shall transmit all records pertaining to the Escrow Fund and shall pay all  Escrow Fund to the successor Escrow Agent, after making copies of such records as the retiring  Escrow Agent deems advisable and after deduction and payment to the retiring Escrow Agent of  all fees and expenses (including court costs and attorneys’ fees) payable to, incurred by, or  expected to be incurred by the retiring Escrow Agent in connection with the performance of its  duties and the exercise of its rights hereunder.  After any retiring Escrow Agent’s resignation or  removal, the provisions of this Agreement will inure to its benefit as to any actions taken or omitted  to be taken by it while it was Escrow Agent under this Agreement. 10. Duties and Liability of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties will be implied.  Escrow Agent has no fiduciary or discretionary duties of any  kind.  Escrow Agent’s permissive rights will not be construed as duties.  Escrow Agent has no  liability under and no duty to inquire as to the provisions of any document other than this  Agreement, including without limitation any other agreement between any or all of the parties  hereto or any other persons even though reference thereto may be made herein and whether or not  a copy of such document has been provided to Escrow Agent.  Escrow Agent’s sole responsibility  is to hold the Escrow Fund in accordance with Escrow Agent’s customary practices and  disbursement thereof in accordance with the terms of this Agreement.  Escrow Agent shall not be  responsible for or have any duty to make any calculations under this Agreement, or to determine  when any calculation required under the provisions of this Agreement should be made, how it  should be made or what it should be, or to confirm or verify any such calculation.  Escrow Agent  will not be charged with knowledge or notice of any fact or circumstance not specifically set forth  herein.  This Agreement will terminate upon the distribution of all the Escrow Fund pursuant to  any applicable provision of this Agreement, and Escrow Agent will thereafter have no further  obligation or liability whatsoever with respect to this Agreement or the Escrow Fund. (b) Escrow Agent will not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines, which determination is not subject to appeal, that Escrow Agent’s gross negligence or willful misconduct in connection with  its material breach of this Agreement was the sole cause of any loss to Purchaser or Seller.  Escrow  Agent may retain and act hereunder through agents, and will not be responsible for or have any  liability with respect to the acts of any such agent retained by Escrow Agent in good faith. (c) Escrow Agent may conclusively rely upon any notice, instruction, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Escrow Agent believes to be genuine and to  have been signed or presented by the person purporting to sign it and shall have no responsibility  or duty to make inquiry as to or to determine the truth, accuracy or validity thereof (or any signature  appearing thereon).  In no event will Escrow Agent be liable for (i) acting in accordance with or  conclusively relying upon any instruction, notice, demand, certificate or document believed by 6 7 2602403v32602403v7  





 






Escrow Agent to have been created by or on behalf of Purchaser or Seller, (ii) incidental, indirect,  special, consequential or punitive damages or penalties of any kind (including, but not limited to  lost profits), even if Escrow Agent has been advised of the likelihood of such damages or penalty  and regardless of the form of action or (iii) any amount greater than the value of the Escrow Fund  as valued upon deposit with Escrow Agent. (d) Escrow Agent will not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental  regulations, fire, communication line failures, computer viruses, attacks or intrusions, power  failures, earthquakes or any other circumstance beyond its control.  Escrow Agent will not be  obligated to take any legal action in connection with the Escrow Fund, this Agreement or the  Purchase Agreement or to appear in, prosecute or defend any such legal action or to take any other  action that in Escrow Agent’s sole judgment may expose it to potential expense or liability.  Purchaser and Seller are aware that under applicable state law, property which is presumed  abandoned may under certain circumstances escheat to the applicable state.  Escrow Agent will  have no liability to Purchaser or Seller, their respective heirs, legal representatives, successors and  assigns, or any other party, should any or all of the Escrow Fund escheat by operation of law. (e) Escrow Agent may consult, at Purchaser’s and Seller’s cost, legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof  or of any other agreement or of its duties hereunder, or relating to any dispute involving this  Agreement, and will incur no liability and must be fully indemnified from any liability whatsoever  in acting in accordance with the advice of such counsel.  Purchaser and Seller agree to perform or  procure the performance of all further acts and things, and execute and deliver such further  documents, as may be required by law or as Escrow Agent may reasonably request in connection  with its duties hereunder.  When any action is provided for herein to be done on or by a specified  date that falls on a day other than a Business Day, such action may be performed on the following  Business Day. (f) If any portion of the Escrow Fund is at any time attached, garnished or levied upon, or otherwise subject to any writ, order, decree or process of any court, or in case disbursement of  Escrow Fund is stayed or enjoined by any court order, Escrow Agent is authorized, in its sole  discretion, to respond as it deems appropriate or to comply with all writs, orders, decrees or process  so entered or issued, including but not limited to those which it is advised by legal counsel of its  own choosing is binding upon it, whether with or without jurisdiction; and if Escrow Agent relies  upon or complies with any such writ, order, decree or process, it will not be liable to any of the  parties hereto or to any other person or entity by reason of such compliance even if such order is  reversed, modified, annulled, set aside or vacated. (g) Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell and deal in any of the securities of any other party hereto and contract and lend  money to any other party hereto and otherwise act as fully and freely as though it were not Escrow  Agent under this Agreement.  Nothing herein will preclude Escrow Agent from acting in any other  capacity for any other party hereto or for any other person or entity. 7 7 2602403v32602403v7  





 






(h) In the event instructions, including funds transfer instructions, address change or change in contact information are given to Escrow Agent (other than in writing at the time of  execution of this Agreement), whether in writing, by facsimile or otherwise, Escrow Agent is  authorized, but not required, to seek confirmation of such instructions by telephone call-back to  any person designated by the instructing party on Schedule B hereto, and Escrow Agent may rely  upon the confirmation of anyone purporting to be the person so designated.  The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent and will be effective only after Escrow Agent has a reasonable  opportunity to act on such changes.  If Escrow Agent is unable to contact any of the designated  representatives identified in Schedule B, Escrow Agent is hereby authorized but will be under no  duty to seek confirmation of such instructions by telephone call-back to any one or more of  Purchaser’s or Seller’s executive officers (“Executive Officers”), as the case may be, which will  include the titles of Chief Executive Officer, President and Vice President, as Escrow Agent may  select.  Such Executive Officer must deliver to Escrow Agent a fully executed incumbency  certificate, and Escrow Agent may rely upon the confirmation of anyone purporting to be any such  officer.  Purchaser and Seller agree that Escrow Agent may at its option record any telephone calls  made pursuant to this Section.  Escrow Agent in any funds transfer may rely solely upon any  account numbers or similar identifying numbers provided by Purchaser or Seller to identify (i) the  beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank, even when its use may result  in a transfer of funds to a person other than the intended beneficiary or to a bank other than the  intended beneficiary’s bank or intermediary bank.  Purchaser and Seller acknowledge that these  optional security procedures are commercially reasonable. 11. Indemnification of Escrow Agent.  Purchaser and Seller, jointly and severally, shall indemnify and hold harmless Escrow Agent and each director, officer, employee and affiliate of Escrow Agent (each, an “Indemnified Party”) upon demand against any and all claims, actions and  proceedings (whether asserted or commenced by Purchaser, Seller or any other person or entity  and whether or not valid), losses, damages, liabilities, penalties, costs and expenses of any kind or  nature (including without limitation reasonable attorneys’ fees, costs and expenses) (collectively,  “Losses”)  arising from this Agreement or Escrow Agent’s actions hereunder, except to the extent  such Losses are finally determined by a court of competent jurisdiction, which determination is  not subject to appeal, to have been directly caused solely by the gross negligence or willful  misconduct of such Indemnified Party in connection with Escrow Agent’s material breach of this  Agreement.  Purchaser and Seller further agree, jointly and severally, to indemnify each  Indemnified Party for all costs, including without limitation reasonable attorneys’ fees, incurred  by such Indemnified Party in connection with the enforcement of Purchaser’s and Seller’s  obligations to Escrow Agent under this Agreement.  Each Indemnified Party shall, in its sole  discretion, have the right to select and employ separate counsel with respect to any action or claim  brought or asserted against it, and the reasonable fees of such counsel shall be paid upon demand  by Purchaser and Seller jointly and severally.  The obligations of Purchaser and Seller under this  Section shall survive any termination of this Agreement and the resignation or removal of Escrow  Agent. 12. Compensation of Escrow Agent. 8 7 2602403v32602403v7  





 






(a) Fees and Expenses.  Purchaser and Seller agree, jointly and severally, to compensate Escrow Agent upon demand for its services hereunder in accordance with Schedule  A attached hereto.  Without limiting the joint and several nature of their obligations to Escrow  Agent, Purchaser and Seller agree between themselves that each will be responsible to the other  for one-half of Escrow Agent’s compensation.  The obligations of Purchaser and Seller under this  Section shall survive any termination of this Agreement and the resignation or removal of Escrow  Agent. (b) Disbursements from Escrow Fund to Pay Escrow Agent.  Escrow Agent is authorized to, and may disburse to itself from the Escrow Fund, from time to time, the amount of any compensation and reimbursement of expenses due and payable hereunder (including any  amount to which Escrow Agent or any other Indemnified Party is entitled to seek indemnification  hereunder).  Escrow Agent shall notify Purchaser and Seller of any such disbursement from the  Escrow Fund to itself or any other Indemnified Party and shall furnish Purchaser and Seller copies  of related invoices and other statements. (c) Security and Offset.  Purchaser and Seller hereby grant to Escrow Agent and the other Indemnified Parties a first priority security interest in, lien upon and right of sale and offset  against the Escrow Fund with respect to any compensation or reimbursement due any of them  hereunder (including any claim for indemnification hereunder).  If for any reason the Escrow Fund  are insufficient to cover such compensation and reimbursement, Purchaser and Seller shall  promptly pay such amounts upon receipt of an itemized invoice. 13. Representations and Warranties.  Purchaser and Seller each respectively make the following representations and warranties to Escrow Agent: (a) it has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and this Agreement has been duly approved by all necessary action and  constitutes its valid and binding agreement enforceable in accordance with its terms. (b) each of the applicable persons designated on Schedule B attached hereto has been duly appointed to act as its authorized representative hereunder and individually has full power  and authority on its behalf to execute and deliver any instruction or direction, to amend, modify or  waive any provision of this Agreement and to take any and all other actions as its authorized  representative under this Agreement and no change in designation of such authorized  representatives will be effective until written notice of such change is delivered to each other party  to this Agreement pursuant to Section 15 and Escrow Agent has had reasonable time to act upon  it. (c) the execution, delivery and performance of this Agreement by Escrow Agent does not and will not violate any applicable law or regulation and no printed or other material in any  language, including any prospectus, notice, report, and promotional material that mentions “U.S.  Bank” or any of its affiliates by name or the rights, powers, or duties of Escrow Agent under this  Agreement will be issued by any other parties hereto, or on such party’s behalf, without the prior  written consent of Escrow Agent. 9 7 2602403v32602403v7  





 






(d) it will not claim any immunity from jurisdiction of any court, suit or legal process, whether from service of notice, injunction, attachment, execution or enforcement of any judgment  or otherwise. (e) there is no security interest in the Escrow Fund or any part thereof and no financing statement under the Uniform Commercial Code is on file in any jurisdiction claiming a security  interest in or describing (whether specifically or generally) the Escrow Fund or any part thereof. 14. Identifying Information.  To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account.  For a non-individual person  such as a business entity, a charity, a trust or other legal entity, Escrow Agent requires  documentation to verify its formation and existence as a legal entity.  Escrow Agent may require  financial statements, licenses or identification and authorization documents from individuals  claiming authority to represent the entity or other relevant documentation.  Purchaser and Seller  agree to provide all information requested by Escrow Agent in connection with any legislation or  regulation to which Escrow Agent is subject, in a timely manner.  Escrow Agent’s appointment  and acceptance of its duties under this Agreement is contingent upon verification of all regulatory  requirements applicable to Purchaser, Seller and any of their permitted assigns, including  successful completion of a final background check.  These conditions include, without limitation,  requirements under the USA PATRIOT Act, the USA FREEDOM Act, the Bank Secrecy Act, and  the U.S. Department of the Treasury Office of Foreign Assets Control.  If these conditions are not  met, Escrow Agent may at its option promptly terminate this Agreement in whole or in part and  refuse any otherwise permitted assignment by Purchaser or Seller, without any liability or  incurring any additional costs. 15. Notices.  All notices, approvals, consents, requests and other communications hereunder (each, a “Notice”) must be in writing, in English, and may only be delivered (a) by  personal delivery, or (b) by national overnight courier service, or (c) by certified or registered mail,  return receipt requested, or (d) by email.  Notice will be effective upon receipt except for notice  via email, which will be effective on the date and time it is sent only if a copy is issued on the  same day by any other method provided for in this Section.  Notices may only be sent to the  applicable party or parties at the address specified below: If to Purchaser or Purchaser Representative, at: August Mack Environmental, Inc. 1302 North Meridian Street, Suite 300  Indianapolis, Indiana 46202 Attn: Geoffrey A. Glanders Telephone: (317) 916-8000 E-mail: gglanders@augustmack.com If to Seller or Seller Representative, at: Comstock Environmental Services, LLC 10 7 2602403v32602403v7  





 






Attn: Christopher Clemente  Reston Station 1900 Reston Metro Plaza, 10th Floor Reston VA 20190  Telephone: (703)230-1985 E-mail: cclemente@comstockcompanies.com With a copy to: Comstock Companies Attn: Jubal Thompson, General Counsel Reston Station 1900 Reston Metro Plaza, 10th Floor Reston VA 20190  Telephone: (703)230-1985 E-mail: jthompson@comstockcompanies.com If to Escrow Agent, at: U.S. Bank National Association ATTN: Laura Stabley and Brian J. Kabbes One U.S. Bank Plaza, 3rd Floor St. Louis, Missouri 63101 Telephone: 314-418-3935 & 314-418-3943 E-mail: laura.stabley@usbank.com & brian.j.kabbes@usbank.com and to: U.S. Bank National Association  ATTN: Russel Otzenberger  Trust Finance Management 60 Livingston Avenue, EP-MN-WS3T St. Paul MN 55107  Telephone:651-466-6101 E-mail:russel.otzenberger@usbank.com or to such other address as each party may designate for itself by like notice and unless otherwise  provided herein will be deemed to have been given on the date received.  Escrow Agent shall not  have any duty to confirm that the person sending any Notice by electronic transmission (including  by e-mail, web portal or other electronic methods) is, in fact, a person authorized to do so.  Electronic signatures believed by Escrow Agent to comply with the ESIGN Act of 2000 or other  applicable law (including electronic images of handwritten signatures and digital signatures  provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider acceptable to  Escrow Agent) shall be deemed original signatures for all purposes. Notwithstanding the  foregoing, Escrow Agent may in any instance and in its sole discretion require that an original  document bearing a manual signature be delivered to Escrow Agent in lieu of, or in addition to,  any such electronic Notice. Purchaser and Seller agree to assume all risks arising out of the use of  electronic signatures and electronic methods to submit instructions and directions to Escrow 11 7 2602403v32602403v7  





 






Agent, including without limitation the risk of Escrow Agent acting on unauthorized instructions,  and the risk of interception and misuse by third parties. 16. Amendment and Assignment.  None of the terms or conditions of this Agreement may be changed, waived, modified, terminated or varied in any manner whatsoever unless in  writing duly signed by each party to this Agreement. No course of conduct will constitute a waiver  of any of the terms and conditions of this Agreement, unless such waiver is specified in writing,  and then only to the extent so specified.  No party may assign this Agreement or any of its rights  or obligations hereunder without the written consent of the other parties, provided that if Escrow  Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate  trust business (including the escrow contemplated by this Agreement) to another entity, the  successor or transferee entity without any further act will be the successor Escrow Agent. 17. Governing Law, Jurisdiction and Venue.  This Agreement must be construed and interpreted in accordance with the internal laws of the Commonwealth of Pennsylvania without  giving effect to the conflict of laws principles thereof that would require the application of any  other laws.  Each of the parties hereto irrevocably (a) consents to the exclusive jurisdiction and  venue of the state and federal courts in the Commonwealth of Pennsylvania in connection with  any matter arising out of this Agreement, (b) waives any objection to such jurisdiction or venue,  (c) agrees not to commence any legal proceedings related hereto except in such courts, (d) consents  to and agrees to accept service of process to vest personal jurisdiction over it in any such courts  made as set forth in Section 15, and (e)  waives any right to trial by jury in any action in connection  with this Agreement. 18. Entire Agreement, No Third-Party Beneficiaries.  This Agreement constitutes the entire agreement between the signatory parties hereto relating to the holding, investment and  disbursement of Escrow Fund and sets forth in their entirety the obligations and duties of Escrow  Agent with respect to Escrow Fund.  This Agreement and any Joint Written Direction may be  executed in two or more counterparts, which when so executed will constitute one and the same  agreement or direction.  To the extent any provision of this Agreement is prohibited by or invalid  under applicable law, such provision will be ineffective to the extent of such prohibition or  invalidity, without invalidating the remainder of such provision or the remaining provisions of this  Agreement.  The Section headings have been inserted for convenience only and will be given no  substantive meaning or significance whatsoever in construing the terms and conditions of this  Agreement.  Nothing in this Agreement, express or implied, is intended to or will confer upon any  person other than the signatory parties hereto and the Indemnified Parties any right, benefit or  remedy of any nature whatsoever under or by reason of this Agreement. [signature page follows] 12 7 2602403v32602403v7  





 






 





 






 





 






 





 






SCHEDULE A U.S. BANK NATIONAL ASSOCIATION Schedule of Fees for Services as Escrow Agent A.    Administration Fee, One-Time:                  $2,500 The one-time administration fee covers the routine duties of Escrow Agent associated with the administration of the account. Administration fees are payable in advance. In the event that the  Agreement is not terminated within three years, then an additional administrative fee of $1,000  shall be due for each year or part thereof. This assumes that Escrow Agent will be directed to  leave the funds uninvested. B.    Disbursement Processing Fees (if any):             $100 per disbursement in excess of ten disbursements per year The first ten disbursements per year are included within the administration fee. Disbursement processing fees after ten disbursements per year (if any) will billed in arrears. This includes  payment by check or wire. C.    Out-of-Pocket Expenses (if any):                  At Cost Reimbursement of expenses associated with Escrow Agent’s acceptance, administration of, or performance under the Agreement, including without limitation fees and expenses of legal  counsel, accountants and other agents, tax preparation, reporting and filing, publications, and  filing and recording fees, will be billed at cost. Extraordinary services are responses to requests, inquiries or developments, or the carrying out of  duties or responsibilities of an unusual nature, including termination, which may or may not be  provided for in the governing documents, or are not routine or undertaken in the ordinary course of  business. Payment of fees for extraordinary services is appropriate where particular requests,  inquiries or developments are unexpected, even if the possibility of such things could have been  foreseen at the inception of the transaction. A reasonable charge will be assessed and collected based  on the nature of the extraordinary service. At our option, these charges will be billed at a flat fee or at  Escrow Agent’s hourly rate then in effect. Extraordinary services might include, without limitation,  amendments or supplements, specialized reporting, non-routine calculations, foreign wire transfers,  processing of IRS Form W-8IMY, use investments not automated with Escrow Agent’s trust  accounting system, and actual or threatened litigation or arbitration proceedings. IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify and record information that identifies each person  who opens an account. For a non-individual person such as a business entity, a charity, a trust or  other legal entity we will ask for documentation to verify its formation and existence as a legal entity.  Escrow Agent may also ask to see financial statements, licenses, identification and authorization  documents from individuals claiming authority to represent the entity or other relevant  documentation. 7 2602403v32602403v7  





 






 





 






 





 






ATTACHMENT 1 FORM OF JOINT WRITTEN DIRECTION [To be completed on closing] U.S. Bank National Association, as Escrow Agent ATTN:  Global Corporate Trust Services Address: _______________ RE:  ESCROW AGREEMENT made and entered into as of ___________, 2022 by and among  August Mack Environmental, Inc. (“Purchaser”), Comstock Environmental Services, LLC  (“Seller”) and U.S. Bank National Association, in its capacity as escrow agent (the “Escrow  Agent”). Pursuant to Section 4 of the above-referenced Escrow Agreement, Purchaser and Seller hereby  instruct Escrow Agent to disburse the amount of [$_____] from the Escrow Account to  [Purchaser][Seller], as provided below: Purchaser    Seller Bank Name:   Bank Name: Bank Address:   Bank Address: ABA No.:   ABA No. Account Name:   Account Name: Account No.:   Account No.: [Purchaser] By: ______________________________ Name: Date: ___________________ [Seller] By: ______________________________ Name: Date: ___________________ 7 2602403v32602403v7  





 






    Exhibit B    Allocation of the Purchase Price    Actual Net Working Capital:  $1,128,976.00   Fixed Assets:    $106,000.00   Goodwill:     $182,341.00     Total Purchase Price   $1,417,317.00    





 






      Exhibit C    Bill of Sale and Assignment     See attached.     





 






72577742v7        BILL OF SALE THIS BILL OF SALE is entered into as of March 31, 2022, by Comstock Environmental  Services, LLC, a Virginia limited liability company (“Seller”), in favor of August Mack  Environmental, Inc., an Indiana corporation (“Buyer”), in accordance with that certain Asset  Purchase Agreement, made effective as of March 31, 2022 (the “Purchase Agreement”), by and  among Seller, Buyer, and Comstock Holding Companies, Inc., a Delaware corporation.  Capitalized terms used herein but not otherwise defined shall have the meanings given them in the  Purchase Agreement.  1. Seller hereby grants, sells, assigns, transfers, conveys, and delivers unto Buyer, all  right, title and interest in and to all of the Acquired Assets, free and clear of all Liens.  2. Seller hereby further covenants that it will, at any time and from time to time at the  reasonable request of Buyer, perform, execute, acknowledge and deliver, or cause to be done,  executed, acknowledged or delivered, all such further acts and documents as Buyer may  reasonably request to vest in Buyer full right, title and interest in and to any of the Acquired Assets.  3. This instrument is subject to all of the terms and conditions of the Purchase  Agreement.  If any provision of this instrument is construed to conflict with a provision of the  Purchase Agreement, then the provision of the Purchase Agreement shall be deemed to be  controlling.  This instrument shall be binding upon and inure to the benefit of Seller, Buyer, and  their respective successors and permitted assigns. This instrument shall be governed by, and  construed in accordance with, the internal laws, and not the law of conflicts, of the Commonwealth  of Pennsylvania.   4. A signed copy of this instrument delivered by facsimile, e-mail, or other means of  electronic transmission shall be deemed to have the same legal effect as delivery of an original  signed copy of this instrument.     [Signature Page Follows]     





 






 





 






    Exhibit D    Assignment and Assumption Agreement     See attached.     





 






72577709v7             ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is entered  into as of March 31, 2022 (the “Effective Date”), by and between Comstock Environmental  Services, LLC, a Virginia limited liability company (the “Seller”), and August Mack  Environmental, Inc., an Indiana corporation (the “Buyer”), in accordance with that certain Asset  Purchase Agreement, made effective as of March 31, 2022 (the “Purchase Agreement”), by and  among Seller, Buyer, and Comstock Holding Companies, Inc., a Delaware corporation.   Capitalized terms used herein but not otherwise defined shall have the meanings given them in the  Purchase Agreement.    RECITALS:  A. Pursuant to the terms of the Purchase Agreement, Buyer is purchasing the Acquired  Assets from Seller.  B. In connection with the purchase of the Acquired Assets contemplated by the  Purchase Agreement, Seller wishes to transfer and assign to Buyer certain specified liabilities of  Seller and all of Seller’s rights and obligations under certain contractual undertakings, and Buyer  wishes to accept and assume the same, subject to the terms and conditions of this Agreement and  the Purchase Agreement.  NOW, THEREFORE, in light of the foregoing, the parties hereby agree as follows:  1. Assignment.  Subject in all cases to the terms of the Purchase Agreement, Seller  hereby grants, conveys, transfers, and assigns to Buyer and its successors and assigns, all of the  right, title and interest of Seller in and to the Assumed Contracts, free and clear of all Liens.  2. Assumption.  In consideration of the foregoing and the obligations of Seller under  the Purchase Agreement, Buyer hereby assumes and agrees to discharge all of the Assumed  Liabilities in accordance with their respective terms.  3. Excluded Liabilities.  It is understood and agreed that notwithstanding anything  contained herein to the contrary, Buyer is not assuming and shall not assume, or become liable for,  at any time, any Excluded Liabilities.  4. Further Assurances.  Each of the parties hereto covenants and agrees, at its own  expense, to execute and deliver, at the request of the other party hereto, such further instruments  of transfer and assignment and to take such other action as such party nay reasonably request to  more effectively consummate the assignments and assumptions contemplated by this Agreement.  5. Terms of the Purchase Agreement.  In the event of a conflict between the terms and  provisions of this Agreement and the Purchase Agreement, the terms and provisions of the  Purchase Agreement shall govern and control.  6. Binding Effect.  This Agreement shall be binding upon and inure to the benefit of  the parties and their respective successors and permitted assigns.  





 






72577709v7             7. Governing Law.  This Agreement shall be governed by, and construed in  accordance with, the internal laws, and not the law of conflicts, of the Commonwealth of  Pennsylvania.  8. Waivers.  No waiver of any of the provisions of this Agreement shall be valid and  enforceable unless such waiver is in writing and signed by the party to be charged, and, unless  otherwise stated therein, no such waiver shall constitute a waiver of any other provisions hereof  (whether or not similar) or a continuing waiver.  9. No Third Party Rights.  Nothing express or implied in this Agreement is intended  or shall be construed to confer on any person other than Seller and Buyer any rights under this  Agreement.  10. Severability.  In the event that any part of this Agreement is declared by any court  or other judicial or administrative body to be null, void or unenforceable, said provision shall  survive to the extent it is not so declared, and all of the other provisions hereof shall remain in full  force and effect.  11. Counterparts.  This Agreement may be executed in multiple counterparts, and each  counterpart hereof shall be deemed to be an original agreement, but all such counterparts shall  constitute but one agreement.  A signed copy of this Agreement delivered by facsimile, e-mail, or  other means of electronic transmission shall be deemed to have the same legal effect as delivery  of an original signed copy of this Agreement.   [Signature Page Follows]      #5180180v5     





 






 





 






 





 






    Exhibit E    Restricted Territory     Any geographic area located within a radius of two hundred (200) miles from the Real Estate.                   





 






    Schedule 1.1     Acquired Assets     The Acquired Assets shall include the following assets of the Seller used or held for use  by the Seller in or for the operation of the Business:     (a)  the following contracts to which the Seller is a party (collectively, the  “Assumed Contracts”);     i. all agreements or contracts with clients, whether written or verbal;     ii. all agreements set forth on Schedule 4.12(i);    (b) all accounts receivable held by the Seller as of the Closing Date, and any  security, claim, remedy or other right related to the foregoing;    (c) all furniture, fixtures, equipment, machinery, tools, vehicles, office  equipment, supplies, computers, telephones and other tangible personal property;    (d) to the extent assignable, all Permits;    (e)  other than the Former Employee Judgment (as defined in Schedule 1.2),  all claims, deposits (other than security deposits under the real estate lease, if any),  prepayments, refunds (excluding any Tax refunds), causes of action, choses in action,  rights of recovery, rights of set off, insurance benefits, and rights of recoupment (excluding  any such item relating to the payment of taxes);    (f) all files (electronic or otherwise), books, records, ledgers, data,  documents, correspondence, project and proposal information, customer lists, creative  materials, advertising and promotional materials, studies, reports and other printed or  written materials related to the Acquired Assets;     (g)  other than Excluded Intellectual Property, all Intellectual Property,  whether registered or unregistered, including, but not limited to, copyrights, trademarks,  trade names, trade secrets and know-how, patents and all applications therefor or relating  thereto, the goodwill associated therewith, all licenses and sublicenses granted and  obtained with respect thereto, all rights thereunder, all remedies against infringement  thereof, and all rights to protection of interests therein under the laws of all jurisdictions;  and    (h)  other than Excluded Intellectual Property, all other intangible property  (such as going concern value, goodwill, and telephone numbers and listings).            





 






      Schedule 1.2     Excluded Assets     The Excluded Assets shall include the following assets of the Seller:    (a)  cash and cash equivalents and checks, or other payments received by the  Seller prior to the Closing;     (b)  rights to any Impaired Accounts Receivable;    (c) rights to Tax refunds, or credits and current and deferred Tax assets, which  relate to time periods prior to the Closing;     (d)  rights under this Agreement or under any Ancillary Document;     (e)  corporate records, minute book and seal;     (f) any Contracts that are not Assumed Contracts, including, but not limited  to:   i. the Contract between the Seller and Comstock Herndon Ventures LC  related to an environmental services project at 770 Herndon, VA and  related accounts receivable (which had a balance of $14,900 as of January  31, 2022); and    ii. the Contract between the Seller and Spartan or its affiliate related to a tank  construction project at the James E. Van Zandt Medical Hospital Center  and related accounts receivable (which had a balance of $98,000 as of  January 31, 2022);    (g)  any property (whether real, personal, tangible, intangible or mixed) not  used by Seller in or for the operation of the Business;     (h) any rights in connection with and assets of any Benefit Plans;     (i) any rights to any security deposit under the real estate lease;    (j) any rights to any and all Intellectual Property of the Seller containing the  trade name “Comstock” or any derivation thereof, including, without limitation, email  addresses, domain names, marketing materials, trademarks or tradenames (collectively, the  “Excluded Intellectual Property”);     (k) the Seller’s insurance policies and any rights arising thereunder, including  the right to any prepaid insurance premiums; and    (l) any rights under that certain judgment against React Environmental  Services Group, Inc. and Jerry F. Naples, Jr, (the “Former Employee Judgment”).        





 






    Schedule 1.4     Excluded Liabilities     The Excluded Liabilities shall include without limitation the following obligations and  liabilities of the Seller:    (a) for any liability or obligation for Taxes of the Seller or any of its Affiliates;    (b) for costs, fees and expenses incurred in connection with this Agreement  and the transactions contemplated hereby;    (c) resulting from, arising out of, relating to, in the nature of, or caused by any  (i) breach of contract, (ii) tort, (iii) infringement or violation of Law or of any order or  judgment, or (iv) environmental matter;     (d) which relate to any Excluded Assets or to the operation of the Business  prior to the Closing (unless expressly an Assumed Liability);    (e) for unpaid remuneration or compensation due to or in connection with the  Seller’s employees through the Closing, including accrued but unpaid salaries, bonuses,  commissions, union fees, benefits or dues;     (f) under any employment, severance, retention, bonus or termination  agreement with any employee or contractor of the Seller;    (g) arising out of or relating to any employee grievance, the facts or  circumstances of which occurred prior to the Closing, whether or not the affected  employees are hired by the Buyer at or after the Closing;    (h) arising out of any Actions or dispute or workers’ compensation claim  pending or settled as of the Closing;    (i) arising out of any Actions, dispute or workers’ compensation claim  commenced after the Closing relating to any occurrence or event happening prior to or on  the Closing;    (j) for any capital leases, borrowed money, credit cards or other indebtedness  or incurred in connection with any credit facilities;    (k) based on the Seller or its employees’, agents’ and contractors’ acts or  omissions occurring after the Closing;    (l) under this Agreement or under any Ancillary Document;     (m) resulting from, arising out of, or relating to any Benefit Plan;     (n) arising out of change of control agreements and employment agreements  with change of control provisions between the Seller and the Seller’s employees, including,  but not limited to: John Krinis, Brian Donoghue, Jon Buzan, and Robert Scott; and     





 






    (o) any obligations and liabilities of the Seller related to claims or disputes by  Spartan under the Contract between the Seller and Spartan or its affiliate related to a tank  construction project at the James E. Van Zandt Medical Hospital.   





 






    Schedule 2.2(c)(x)    Current Assets         Seller and Buyer agree that subsequent to closing, Buyer will continue to pursue full  collection of all outstanding trade and retainage receivables, related to the Additional  Receivable Reserve (note (3)) and Retainage Receivable Reserve (note (4)). Seller is  entitled to receive the full gross amount of these receivables that are ultimately collected.  To the extent that these receivables are not collected, and Buyer elects to assign them  pursuant to the Asset Purchase Agreement, Seller retains the right at that time to pursue  collection of any uncollected amounts related to those account balances.    Prior to closing, Seller has provided goods and services for 2 customers stated below that  have not been invoiced. There are no amounts recorded in current assets in the books and  records reflected in the table above as Seller is awaiting an executed change order from the  customer. Seller and Buyer agree that subsequent to closing the Buyer will seek to obtain  the executed change order and that subsequent billings for goods and services provided in  periods prior to closing will be remitted to Seller if collected. To the extent that the Buyer  does not receive the executed change orders within 120 days following close, these  contingent assets will be considered to be Excluded Assets pursuant to the Asset Purchase  Agreement.      The 2 specific customers and related amounts are –  Tracey Mechanical (general contractor related to Temple University project) – estimated  change order $40,000 to $45,000  Philadelphia Water Authority – estimated change-order $5,000 to $15,000.  Per Quickbooks  (2/28/2022) Adjustments Estimate of Acquired  Assets For Closing Assets Accounts Receivable 1,839,206$                         (98,000)$                (1) 1,741,206$                      Retainage Receivables 164,442$                            -$                       164,442$                          Bad Debt Reserve (2,323)$                               -$                       (2,323)$                             Accrued Revenue 187,226$                            -$                       187,226$                          Prepaid Expenses 15,904$                              (5,904)$                  (2) 10,000$                            Additional Receivable Reserve -$                                    (143,363)$             (3) (143,363)$                        Retainage Receivable Reserve -$                                    (42,188)$                (4) (42,188)$                           Current Assets Purchased 2,204,455$                         (289,454)$             1,915,000$                      Notes (2) Certain prepaid expenses are either not transferring, have been cleaned up, or are WIP.  These items are: Assets Amounts Nov - Sales Force subscription 11/1/21 - 10/31/22 1,696$                    July - 1410 Doron Dr 1,941$                    Aug - 1410 Doron Dr. 2,267$                    (3) Five Specific receivables are reserved at closing. They are: Projects Amounts    7001 Horrocks Street, Philadelphia, PA 40,806$                     130 East Lancaster Avenue, Shillington, PA 45,051$                     716 Belvoir Road, Plymouth Meeting, PA 33,750$                     Christopher Columbus HOPE, Paterson, NJ 9,380$                       Paterson HOPE, Paterson, NJ 14,375$                  (4) Retainage receivables incurred prior to August 2021 are reserved at 50%. (1) Remove accounts receivable due from James E Van Zandt Medical Center (Spartan) Which Is An Excluded Asset. 





 






      Schedule 2.2(c)(y)    Current Liabilities           Per Quickbooks  (2/28/2022) Adjustments Estimate of Acquired  Assets For Closing Liabilities Accounts Payable 5,383,834$                         (4,646,356)$          (5) 737,479$                          401k Payable 13,286$                              (13,286)$                (6) -$                                  Accrued Expenses 34,680$                              (29,180)$                (7) 5,500$                              Customer Overpayment/Deposit Liability 15,242$                              15,242$                            Accrued Vacaction/PTO -$                                    27,803$                 (8) 27,803$                            -$                                   Loan - Bancorp Bank - ST 5,772$                                (5,772)$                  (9) -$                                  5,452,814$                         (4,666,791)$          786,023$                          Notes (5) Remove accounts payable due to Parent (Comstock) which is not being assumed by Buyer under Article 1.3(b) of the Asset Purchase Agreement. (6) Remove amounts related to benefit plan which is an Excluded Liability per Schedule 1.4 (item (m)) (7) Eliminate accrued Conshohocken Gross Receipts Tax. Buyer is not assuming Taxes per Schedule 1.4 (item (a)) (9) Eliminate liability for Bancorp loan related to 2018 Dodge Ram truck that will be paid off prior to Closing. (8) Represents accrued vacation balance being assumed by AM as of March 30, 2022. Comstock will pay transitioning employees directly for accrued vacation hours  (in excess of 40) not assumed by AM. In addition, Comstock's policy is that upon termination unused sick leave, personal days and volunteer hours are forfeited so  this liability is neither assumed by AM or paid to transitioning employees. 





 






    Schedule 3.2(l)    Cooperation Employees    Tyler Auker  Brandon Bullett  Jon Buzan  Bill Chaykin  Brian Donoghue  Steven Hartman  Chelsea Johnston  Tim Kincaid  John Krinis  Brandon Lawyer  Navjot Mangat  Siena Myrsiades  Andrea Radtke  Stephanie Scott  Robert Scott  Brian Sheaffer  Dan Sheehan  Noah Shreiner  Steve Treschow  Chris Williams