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ESCROW AGREEMENT

Draft — September 15, 2022

among

MERIDIAN CONSUMER BRANDS LLC a Delaware limited liability company ("Buyer")

BRIARWOOD HOME ESSENTIALS, INC. an Ohio corporation ("Seller")

and

ATLANTIC FIDUCIARY TRUST COMPANY a Massachusetts trust company ("Escrow Agent")

Entered into in connection with that certain Asset Purchase Agreement by and between Meridian Consumer Brands LLC and Briarwood Home Essentials, Inc. (the "Purchase Agreement"), dated as of [●], 2022

DRAFT — For Discussion Purposes Only — Calderwood & Harkness LLP — September 15, 2022 Matter No. 1011-00005

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ESCROW AGREEMENT

This Escrow Agreement (this "Agreement") is dated as of [●], 2022 (the "Effective Date"), among:

(1) Meridian Consumer Brands LLC, a Delaware limited liability company, with its principal place of business at 440 Park Avenue South, 18th Floor, New York, NY 10016 (the "Buyer");

(2) Briarwood Home Essentials, Inc., an Ohio corporation, with its principal place of business at 1175 Creekside Drive, Suite 400, Columbus, OH 43215 (the "Seller"); and

(3) Atlantic Fiduciary Trust Company, a Massachusetts trust company, with offices at 100 Federal Street, Suite 1500, Boston, MA 02110 (the "Escrow Agent").

Buyer and Seller are sometimes referred to herein individually as a "Party" and collectively as the "Parties." Buyer, Seller, and Escrow Agent are sometimes referred to herein collectively as the "parties."

RECITALS

WHEREAS, Buyer and Seller have entered into that certain Asset Purchase Agreement dated as of [●], 2022 (the "Purchase Agreement"), pursuant to which Buyer has agreed to purchase from Seller, and Seller has agreed to sell to Buyer, certain assets comprising the "CleanLeaf" and "PureHaven" consumer product lines, including all intellectual property, inventory, assumed contracts, goodwill, and other related assets, on the terms and subject to the conditions set forth therein;

WHEREAS, the aggregate purchase price payable by Buyer to Seller under the Purchase Agreement is Ninety-Five Million Dollars ($95,000,000) (the "Purchase Price"), subject to the adjustment mechanisms set forth in the Purchase Agreement;

WHEREAS, Section [●] of the Purchase Agreement provides that, at the Closing (as defined in the Purchase Agreement), Buyer shall deposit with the Escrow Agent an amount equal to Nine Million Five Hundred Thousand Dollars ($9,500,000), representing ten percent (10%) of the Purchase Price (the "Escrow Amount"), to be held and disbursed by Escrow Agent in accordance with the terms and conditions of this Agreement;

WHEREAS, the Escrow Amount shall secure Seller's indemnification obligations under Article [●] of the Purchase Agreement for a period of twenty-four (24) months following the Closing Date (as defined herein);

WHEREAS, Escrow Agent has agreed to accept, hold, invest, and disburse the Escrow Amount in accordance with the terms and conditions set forth herein; and

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the parties agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 Definitions. Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Purchase Agreement. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below when used in this Agreement:

"Business Day" means any day other than a Saturday, Sunday, or any other day on which banking institutions in New York, New York or Boston, Massachusetts are authorized or required by applicable law, regulation, or executive order to close.

"Claim Notice" has the meaning set forth in Section 4.1 of this Agreement.

"Closing Date" means the date on which the Closing (as defined in the Purchase Agreement) occurs under the Purchase Agreement.

"Disputed Amount" has the meaning set forth in Section 4.4 of this Agreement.

"Escrow Account" means the segregated escrow account established and maintained by Escrow Agent pursuant to Section 2.1 of this Agreement.

"Escrow Amount" means Nine Million Five Hundred Thousand Dollars ($9,500,000), representing ten percent (10%) of the Purchase Price.

"Escrow Fund" means, at any time, the Escrow Amount, together with any interest, dividends, or other income earned thereon, less the aggregate amount of any disbursements and fees paid or charged therefrom in accordance with the terms of this Agreement.

"Escrow Period" means the period commencing on the Closing Date and ending at 11:59 p.m. (Eastern Time) on the date that is twenty-four (24) months after the Closing Date.

"Indemnification Basket" means Nine Hundred Fifty Thousand Dollars ($950,000), constituting one percent (1%) of the Purchase Price, structured as a "tipping basket" as provided in the Purchase Agreement such that, once the aggregate amount of indemnifiable Losses exceeds the Indemnification Basket, the indemnified party shall be entitled to recover from the first dollar of such Losses.

"Indemnification Cap" means Thirty-Three Million Two Hundred Fifty Thousand Dollars ($33,250,000), constituting thirty-five percent (35%) of the Purchase Price, representing the maximum aggregate amount of indemnification payable by Seller under the Purchase Agreement (other than with respect to Fundamental Representations, fraud, or willful breach, as set forth therein).

"Joint Written Direction" has the meaning set forth in Section 3.1 of this Agreement.

"Permitted Investments" has the meaning set forth in Section 5.1 of this Agreement.

"Response Notice" has the meaning set forth in Section 4.2 of this Agreement.

"Response Period" has the meaning set forth in Section 4.2 of this Agreement.

"Termination Date" means the last day of the Escrow Period, subject to extension pursuant to Section 6.2 of this Agreement.

ARTICLE II — ESTABLISHMENT OF ESCROW; DEPOSIT

Section 2.1 Establishment of Escrow Account. Promptly following the execution and delivery of this Agreement by all parties hereto, and in any event no later than two (2) Business Days prior to the anticipated Closing Date, Escrow Agent shall establish and maintain a separate, segregated escrow account (the "Escrow Account") at Atlantic Fiduciary Trust Company. The Escrow Account shall be titled as follows:

"Meridian Consumer Brands LLC / Briarwood Home Essentials, Inc. Escrow Account — Atlantic Fiduciary Trust Company, as Escrow Agent"

The Escrow Account shall be maintained as a separate and distinct account, segregated from the general assets of Escrow Agent, and shall at all times be identified as an escrow account held by Escrow Agent in its capacity as escrow agent under this Agreement. Escrow Agent shall not commingle the Escrow Fund with any other funds held by Escrow Agent, whether for its own account or for the account of any other person or entity.

Section 2.2 Deposit. On the Closing Date, Buyer shall deposit, or cause to be deposited, the Escrow Amount in the amount of Nine Million Five Hundred Thousand Dollars ($9,500,000) with Escrow Agent by wire transfer of immediately available funds to the Escrow Account in accordance with the wire transfer instructions set forth in Exhibit A attached hereto and incorporated herein by reference. Escrow Agent shall promptly acknowledge receipt of the Escrow Amount in writing (which may be by electronic mail) to both Buyer and Seller within one (1) Business Day following receipt thereof. In the event that Escrow Agent does not receive the Escrow Amount on the Closing Date, Escrow Agent shall promptly notify Buyer and Seller thereof. Escrow Agent shall have no obligation to accept any deposit other than the Escrow Amount as contemplated by this Section 2.2, unless otherwise agreed in writing by all parties hereto.

Section 2.3 Nature of Escrow. The Escrow Fund shall be held by Escrow Agent in trust for the benefit of Buyer and Seller, subject to and in accordance with the terms and conditions of this Agreement. The Escrow Fund shall not be subject to any lien, attachment, trustee process, garnishment, execution, or any other judicial process of any creditor of any party hereto. No party hereto shall have the right to pledge, hypothecate, assign, or otherwise encumber the Escrow Fund or any portion thereof, except as expressly provided in this Agreement (including the assignment provisions set forth in Section 9.6). The Escrow Fund shall not constitute property of the estate of any party in the event of any bankruptcy, insolvency, or similar proceeding, except to the extent required by applicable law. The parties acknowledge and agree that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, and that Escrow Agent shall not be deemed to be a trustee of an express trust or a fiduciary with respect to the Escrow Fund, except as expressly set forth herein.

ARTICLE III — DISBURSEMENTS — GENERAL

Section 3.1 Joint Written Direction. Escrow Agent shall disburse all or any portion of the Escrow Fund upon receipt of a joint written direction signed by both Buyer and Seller (a "Joint Written Direction") specifying: (a) the amount to be disbursed; (b) the identity of the payee or payees to whom such disbursement is to be made; and (c) the applicable wire transfer instructions or other delivery instructions for such disbursement. Escrow Agent shall make any such disbursement within three (3) Business Days following receipt of a Joint Written Direction that complies with the requirements of this Section 3.1. A Joint Written Direction may be delivered to Escrow Agent by email (with PDF attachment bearing original signatures or electronic signatures), provided that Escrow Agent receives telephonic confirmation of such direction from an authorized representative of each of Buyer and Seller prior to acting thereon. A form of Joint Written Direction is attached hereto as part of Exhibit A for reference.

Section 3.2 Court Order. Escrow Agent shall disburse all or any portion of the Escrow Fund upon receipt of a final, non-appealable order or judgment of a court of competent jurisdiction directing such disbursement. Upon receipt of any such order or judgment, Escrow Agent shall promptly provide a copy thereof to Buyer and Seller (to the extent not already in possession thereof) and shall effectuate the disbursement directed thereby within five (5) Business Days following receipt, unless such order or judgment specifies a different time period. Escrow Agent shall be entitled to rely on any such order or judgment without independent investigation and shall have no liability for any disbursement made in compliance therewith.

Section 3.3 No Other Disbursements. Except as provided in Sections 3.1, 3.2, Article IV (Claim Procedures), and Article VI (Termination and Final Release), Escrow Agent shall not disburse any portion of the Escrow Fund. Escrow Agent shall not honor or comply with any purported instruction, direction, or request for disbursement from any party that does not comply with the requirements of this Agreement.

ARTICLE IV — CLAIM PROCEDURES

Section 4.1 Claim Notice. If Buyer seeks indemnification under Article [●] of the Purchase Agreement and wishes to recover amounts from the Escrow Fund in respect of any indemnifiable Losses (as defined in the Purchase Agreement), Buyer shall deliver to Escrow Agent and Seller a written notice (a "Claim Notice") setting forth, with reasonable specificity:

(a) a description of the claim giving rise to the request for indemnification, including a summary of the underlying facts and circumstances in reasonable detail;

(b) the specific provisions of the Purchase Agreement upon which the claim is based, including identification of the representations, warranties, covenants, or agreements alleged to have been breached;

(c) the amount of the claimed Losses, or, if the amount of such Losses is not yet determinable at the time of the Claim Notice, a good faith estimate of the reasonably anticipated amount of such Losses (which estimate shall not limit Buyer's right to submit a supplemental or amended Claim Notice as additional information becomes available); and

(d) a statement confirming that the aggregate amount of indemnifiable Losses exceeds the Indemnification Basket of Nine Hundred Fifty Thousand Dollars ($950,000), such that Buyer is entitled to recover from the first dollar of Losses under the tipping basket mechanism set forth in the Purchase Agreement, or, if applicable, a statement that the claim relates to breaches of Fundamental Representations (as defined in the Purchase Agreement) that are not subject to the Indemnification Basket.

For the avoidance of doubt, the Indemnification Basket shall operate as a "tipping basket" such that, once the aggregate amount of indemnifiable Losses exceeds Nine Hundred Fifty Thousand Dollars ($950,000), Buyer shall be entitled to indemnification from and after the first dollar of such Losses, subject to the Indemnification Cap and other limitations set forth in the Purchase Agreement. A Claim Notice may be delivered at any time during the Escrow Period and, with respect to claims for which a Claim Notice has been timely delivered during the Escrow Period, shall remain effective following the expiration of the Escrow Period until final resolution of the applicable claim.

Section 4.2 Response Notice. Within thirty (30) calendar days following Seller's receipt of a Claim Notice (such thirty (30) calendar day period, the "Response Period"), Seller shall deliver to Escrow Agent and Buyer a written response (a "Response Notice") stating whether Seller:

(a) accepts the claim set forth in the Claim Notice in its entirety and agrees to the disbursement of the full amount claimed to Buyer from the Escrow Fund;

(b) accepts the claim set forth in the Claim Notice in part and disputes the remainder, specifying with reasonable detail the portion of the claim that Seller accepts and the portion that Seller disputes, together with a summary of the basis for such dispute; or

(c) disputes the claim set forth in the Claim Notice in its entirety, together with a reasonably detailed description of the grounds for such dispute.

If Seller fails to deliver a Response Notice to Escrow Agent and Buyer within the Response Period, Seller shall be deemed to have irrevocably accepted the claim set forth in the applicable Claim Notice in full, and Escrow Agent shall be authorized and directed to disburse the full amount set forth in such Claim Notice to Buyer in accordance with Section 4.3 below.

Section 4.3 Accepted Claims. To the extent any claim (or any portion thereof) set forth in a Claim Notice is accepted by Seller in a Response Notice (whether expressly accepted or deemed accepted by reason of Seller's failure to deliver a timely Response Notice pursuant to Section 4.2), Escrow Agent shall, within five (5) Business Days following the earlier of (i) Escrow Agent's receipt of a Response Notice reflecting such acceptance or (ii) the expiration of the Response Period without delivery of a Response Notice, disburse the accepted amount to Buyer in accordance with the wire transfer instructions provided by Buyer in the Claim Notice or, if no wire transfer instructions were included in the Claim Notice, in accordance with the Buyer wire transfer instructions set forth in Exhibit A hereto. Escrow Agent shall promptly provide written confirmation of any such disbursement to Buyer and Seller.

Section 4.4 Disputed Claims. If Seller disputes all or any portion of a claim set forth in a Claim Notice (the aggregate amount so disputed, the "Disputed Amount"), the Disputed Amount shall remain in the Escrow Fund pending resolution of such dispute by either: (a) mutual written agreement of Buyer and Seller, memorialized in and delivered to Escrow Agent as a Joint Written Direction, specifying the amounts (if any) to be disbursed to Buyer and/or Seller, respectively; or (b) a final, non-appealable order or judgment of a court of competent jurisdiction directing the disposition of the Disputed Amount. Escrow Agent shall have no duty or obligation to resolve any dispute between Buyer and Seller and shall hold the Disputed Amount in the Escrow Account without liability to any party pending resolution of such dispute in accordance with this Section 4.4. The parties acknowledge and agree that any dispute with respect to a Claim Notice or a Disputed Amount shall be resolved in accordance with the dispute resolution provisions of the Purchase Agreement and shall be subject to the governing law and jurisdiction provisions set forth in Sections 9.1 and 9.2 of this Agreement, which are consistent with those set forth in the Purchase Agreement.

Section 4.5 Multiple Claims. Multiple Claim Notices may be outstanding simultaneously, and nothing herein shall prevent Buyer from delivering additional Claim Notices while one or more prior Claim Notices remain pending or unresolved. Escrow Agent shall track each claim identified in a Claim Notice separately and shall maintain reasonable records with respect to each outstanding claim, including the date of receipt, the amount claimed, the status of any Response Notice, and the amounts (if any) disbursed in respect thereof. Disbursements from the Escrow Fund in respect of resolved claims shall be made on a first-resolved, first-paid basis; provided, however, that the aggregate of all disbursements to Buyer from the Escrow Fund shall not exceed the balance of the Escrow Fund at the time of any such disbursement. In no event shall Escrow Agent be required to disburse amounts in excess of the Escrow Fund balance then on deposit in the Escrow Account.

Section 4.6 Limitation. Nothing in this Agreement shall limit, restrict, or otherwise affect Buyer's right to seek indemnification from Seller under the Purchase Agreement in excess of the Escrow Fund, subject to the Indemnification Cap of Thirty-Three Million Two Hundred Fifty Thousand Dollars ($33,250,000) (thirty-five percent (35%) of the Purchase Price) and the other terms and limitations set forth in the Purchase Agreement. The Escrow Fund is not intended to be, and shall not be construed as, the exclusive source of recovery or the exclusive remedy for Buyer's indemnification claims under the Purchase Agreement. Rather, the Escrow Fund constitutes a source of recovery that is available to Buyer for the satisfaction of indemnification claims, without prejudice to Buyer's right to pursue any other remedies available under the Purchase Agreement or at law or in equity, subject to the terms and limitations thereof.

ARTICLE V — INVESTMENT OF ESCROW FUND

Section 5.1 Permitted Investments. Escrow Agent shall invest and reinvest the Escrow Fund, as directed jointly by Buyer and Seller (or, in the absence of joint written investment instructions, as set forth in Section 5.2 below), in one or more of the following categories of investments (each, a "Permitted Investment"):

(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (including United States Treasury bills, notes, and bonds), in each case with maturities not exceeding ninety (90) days from the date of acquisition;

(b) money market deposit accounts or money market mutual funds that are rated at least "AAAm" (or equivalent) by Standard & Poor's, a division of S&P Global Inc., Moody's Investors Service, Inc., or any other nationally recognized statistical rating organization (as defined in Section 3(a)(62) of the Securities Exchange Act of 1934, as amended);

(c) certificates of deposit, time deposits, or banker's acceptances with maturities not exceeding ninety (90) days from the date of acquisition issued by any commercial bank organized under the laws of the United States of America or any state thereof having combined capital and surplus of not less than One Billion Dollars ($1,000,000,000); and

(d) such other investments as Buyer and Seller may jointly direct Escrow Agent in writing from time to time, provided that Escrow Agent shall have no obligation to invest in any instrument that Escrow Agent, in its reasonable discretion, determines is not customarily held by escrow agents or for which Escrow Agent does not have adequate facilities.

Section 5.2 Default Investment. In the absence of timely joint written investment instructions from Buyer and Seller, or at any time when joint written investment instructions have not been received by Escrow Agent, Escrow Agent shall invest the Escrow Fund (or any uninvested portion thereof) in a money market fund described in Section 5.1(b) above, as selected by Escrow Agent in its sole discretion. The parties acknowledge that such default investment may yield a lower rate of return than other Permitted Investments and that Escrow Agent shall have no liability for any opportunity cost or lower yield resulting from the application of this Section 5.2.

Section 5.3 Income and Tax Treatment. All interest, dividends, and other income earned on the investment of the Escrow Fund shall be added to and become part of the Escrow Fund and shall be held, invested, and disbursed in accordance with the terms of this Agreement. For United States federal (and applicable state and local) income tax purposes, the Escrow Fund (including all interest, dividends, and other income earned thereon) shall be treated as owned by Seller. Seller shall report all income earned on the Escrow Fund on its applicable tax returns and shall be responsible for the payment of any and all taxes due thereon, regardless of whether or when such income is actually disbursed to Seller. Seller's taxpayer identification number for the Escrow Account is EIN 31-1684239. Escrow Agent shall file, or cause to be filed, any applicable Internal Revenue Service Forms 1099 (or successor forms) reflecting income earned by Seller on the Escrow Fund, and Seller shall provide Escrow Agent with a completed IRS Form W-9 (or appropriate substitute form) promptly upon execution of this Agreement and at any time thereafter upon Escrow Agent's reasonable request. Buyer shall provide Escrow Agent with a completed IRS Form W-9 (or appropriate substitute form) promptly upon execution of this Agreement.

Section 5.4 Investment Risk. The parties acknowledge and agree that Escrow Agent shall not be liable for any loss of principal or income, or any diminution in value, resulting from the investment or reinvestment of the Escrow Fund in Permitted Investments in accordance with this Article V, including without limitation any loss resulting from the default of any issuer of any Permitted Investment, any decline in the market value of any Permitted Investment, or any penalty imposed for the early liquidation of any Permitted Investment, except to the extent that a court of competent jurisdiction determines by final, non-appealable order that such loss resulted directly from Escrow Agent's gross negligence or willful misconduct. The parties further acknowledge that any Permitted Investment may be subject to market fluctuations and that the return on any Permitted Investment is not guaranteed.

ARTICLE VI — TERMINATION AND FINAL RELEASE

Section 6.1 Scheduled Release. On the first Business Day following the expiration of the Escrow Period (i.e., the first Business Day following the date that is twenty-four (24) months after the Closing Date), Escrow Agent shall release and disburse to Seller the entire remaining balance of the Escrow Fund (including all accrued and undisbursed income thereon) by wire transfer of immediately available funds to the account designated by Seller in Exhibit A hereto (or to such other account as Seller may designate by prior written notice to Escrow Agent); provided, however, that such release and disbursement shall be subject to the holdback provisions of Section 6.2 below. Escrow Agent shall provide Buyer and Seller with written notice of the anticipated release date not less than five (5) Business Days prior to such date.

Section 6.2 Holdback for Pending Claims. If, as of the Termination Date, any Claim Notice has been delivered by Buyer to Escrow Agent and Seller in accordance with Section 4.1 but has not been finally resolved (whether by Joint Written Direction, deemed acceptance under Section 4.2, or final, non-appealable order of a court of competent jurisdiction), the Escrow Agent shall:

(a) retain in the Escrow Account an amount equal to the aggregate of all amounts claimed in all such unresolved Claim Notices (as stated in the applicable Claim Notices, or, if such Claim Notices include only good faith estimates of anticipated Losses, the aggregate of such estimated amounts); and

(b) release and disburse to Seller only the balance of the Escrow Fund in excess of such retained amount.

The portion of the Escrow Fund retained by Escrow Agent pursuant to this Section 6.2 shall continue to be held and invested in accordance with the provisions of this Agreement (including Article V) until final resolution of each pending claim giving rise to the holdback. Upon final resolution of any such pending claim (whether by Joint Written Direction, deemed acceptance, or court order), Escrow Agent shall promptly disburse the applicable amount to the appropriate party in accordance with such resolution and, if no further claims remain outstanding, shall release any remaining balance of the retained amount to Seller. Escrow Agent shall provide written confirmation to Buyer and Seller of all disbursements and releases made pursuant to this Section 6.2.

Section 6.3 Effect of Release. The release of the Escrow Fund (or any portion thereof) to Seller pursuant to this Article VI shall not relieve Seller of any indemnification obligations under the Purchase Agreement that survive the expiration of the Escrow Period, subject to the terms, conditions, and limitations set forth in the Purchase Agreement. The parties acknowledge and agree that Seller's indemnification obligations under the Purchase Agreement are separate and distinct from the obligations set forth in this Agreement and that the release of the Escrow Fund is without prejudice to any surviving indemnification claims that Buyer may have under the Purchase Agreement.

Section 6.4 Termination of Agreement. This Agreement shall terminate upon the later of: (a) the complete disbursement of the entire Escrow Fund in accordance with the terms hereof; and (b) the final resolution of all pending claims for which Claim Notices have been timely delivered during the Escrow Period; provided, however, that the provisions of Article VII (Escrow Agent Provisions), Article VIII (Representations and Warranties), and Article IX (General Provisions) shall survive any such termination and shall continue in full force and effect with respect to any matters arising prior to or in connection with such termination.

ARTICLE VII — ESCROW AGENT PROVISIONS

Section 7.1 Duties and Responsibilities. Escrow Agent undertakes to perform only the duties and obligations expressly set forth in this Agreement, and no implied duties, covenants, or obligations shall be read into this Agreement against Escrow Agent. Escrow Agent shall act as a stakeholder only and shall have no interest in the Escrow Fund. Escrow Agent shall not be required to take any action that is, in the opinion of Escrow Agent, contrary to applicable law or regulation, or that would subject Escrow Agent to liability, unless Escrow Agent has been furnished with indemnification satisfactory to it in its reasonable discretion. Escrow Agent shall not be responsible for the validity, sufficiency, or genuineness of any document, instrument, or notice delivered to it, and shall not be required to make any determination as to the accuracy or completeness of any information or data provided by Buyer or Seller.

Section 7.2 Reliance. Escrow Agent shall be entitled to rely, and shall be fully protected in relying, upon any written notice, instruction, direction, certificate, request, consent, statement, or other document (including any such document transmitted by electronic mail in PDF or similar format) believed by Escrow Agent in good faith to be genuine and to have been signed, sent, or presented by the proper party or parties, and Escrow Agent shall have no duty or obligation to make any independent inquiry or investigation as to the authority of persons signing, sending, or delivering any such document. Escrow Agent may consult with legal counsel of its own selection (at the expense of Buyer and Seller, shared equally, unless such consultation arises from Escrow Agent's gross negligence or willful misconduct) and shall not be liable for any action taken or omitted in good faith in accordance with the advice of such counsel.

Section 7.3 Liability Standard. Escrow Agent shall not be liable for any action taken or omitted to be taken by Escrow Agent in good faith in connection with this Agreement, except to the extent that a court of competent jurisdiction determines by final, non-appealable order that Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to any party hereto. In no event shall Escrow Agent be liable for any indirect, incidental, consequential, special, punitive, or exemplary damages of any kind, including lost profits, regardless of the form of action and whether or not any such damages were foreseeable or contemplated. Escrow Agent shall not be liable for any loss arising from the acts, delays, or omissions of any third party, including any bank, wire transfer system, or postal service, unless such loss was proximately caused by Escrow Agent's gross negligence or willful misconduct.

Section 7.4 Indemnification of Escrow Agent. Buyer and Seller, jointly and severally, shall indemnify, defend, and hold harmless Escrow Agent and its directors, officers, employees, agents, and affiliates (each, an "Escrow Agent Indemnified Party") from and against any and all losses, costs, damages, expenses (including reasonable attorneys' fees and disbursements), claims, actions, suits, proceedings, or liabilities of any kind or nature whatsoever arising out of or in connection with this Agreement or the performance by Escrow Agent of its duties hereunder, except to the extent that any such loss, cost, damage, expense, claim, action, suit, proceeding, or liability is determined by a court of competent jurisdiction by final, non-appealable order to have resulted directly from the gross negligence or willful misconduct of Escrow Agent. The obligations of Buyer and Seller under this Section 7.4 shall survive the termination of this Agreement and the resignation or removal of Escrow Agent.

Section 7.5 Compensation and Expenses. Escrow Agent shall be entitled to reasonable compensation for its services hereunder as set forth in the fee schedule attached hereto as Exhibit B (the "Fee Schedule"). Escrow Agent's fees and out-of-pocket expenses (including, without limitation, reasonable attorneys' fees incurred by Escrow Agent in connection with the performance of its duties hereunder) shall be borne equally by Buyer and Seller (fifty percent (50%) by Buyer and fifty percent (50%) by Seller). Escrow Agent shall invoice Buyer and Seller quarterly for fees and expenses due hereunder. If any fees or expenses invoiced by Escrow Agent remain unpaid for more than thirty (30) days following the date of the applicable invoice, Escrow Agent may, upon not less than ten (10) Business Days' prior written notice to both Buyer and Seller, charge such unpaid fees and expenses against the Escrow Fund; provided, however, that Escrow Agent shall first seek payment directly from the Parties and exhaust reasonable collection efforts before charging any amounts against the Escrow Fund.

Section 7.6 Resignation. Escrow Agent may resign at any time by giving thirty (30) days' prior written notice of its resignation to Buyer and Seller. Such resignation shall take effect upon the earlier of (a) the appointment of a successor escrow agent in accordance with this Section 7.6 and Section 7.8, or (b) the expiration of the thirty (30) day notice period. Upon the effectiveness of its resignation, Escrow Agent shall deliver the Escrow Fund, together with all records and documents relating thereto, to a successor escrow agent jointly designated in writing by Buyer and Seller. If no successor escrow agent is so designated within thirty (30) days following the date of Escrow Agent's resignation notice, Escrow Agent may deposit the Escrow Fund with a court of competent jurisdiction in the State of New York or the Commonwealth of Massachusetts, and upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities under this Agreement.

Section 7.7 Removal. Buyer and Seller, acting jointly by written notice signed by both Buyer and Seller, may remove Escrow Agent at any time by giving thirty (30) days' prior written notice to Escrow Agent. Such removal shall take effect upon the earlier of (a) the appointment of a successor escrow agent in accordance with Section 7.8, or (b) the expiration of the thirty (30) day notice period. Upon the effectiveness of its removal, Escrow Agent shall deliver the Escrow Fund, together with all records and documents relating thereto, to a successor escrow agent designated jointly in writing by Buyer and Seller.

Section 7.8 Successor Escrow Agent. Any successor escrow agent appointed pursuant to Section 7.6 or Section 7.7 shall be a bank, trust company, or national banking association organized and existing under the laws of the United States of America or any state thereof, having combined capital and surplus of at least One Hundred Million Dollars ($100,000,000). Any such successor escrow agent shall execute and deliver to Buyer, Seller, and the predecessor Escrow Agent an instrument in writing accepting such appointment and agreeing to be bound by all of the terms and conditions of this Agreement, whereupon such successor escrow agent shall, without any further act or deed, be vested with all of the rights, powers, duties, and obligations of the predecessor Escrow Agent hereunder as fully as if originally named as Escrow Agent in this Agreement. Buyer and Seller shall cooperate in good faith to ensure the prompt and orderly transition of escrow agent functions to any successor escrow agent.

Section 7.9 Interpleader. In the event of any disagreement or dispute between Buyer and Seller (or any other person or entity) regarding the disbursement of the Escrow Fund, or in the event that Escrow Agent receives conflicting instructions or demands with respect to the Escrow Fund, Escrow Agent may, at its option and in its sole discretion: (a) refuse to comply with any such instruction or demand and continue to hold the Escrow Fund in the Escrow Account until Escrow Agent receives either (i) a Joint Written Direction executed by Buyer and Seller resolving such disagreement or dispute, or (ii) a final, non-appealable order or judgment of a court of competent jurisdiction directing the disposition of the Escrow Fund; or (b) deposit or interplead the Escrow Fund into or with a court of competent jurisdiction, together with such legal pleadings as Escrow Agent deems appropriate, in an interpleader or similar action, and upon such deposit or interpleading, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities under this Agreement. Buyer and Seller shall bear equally (fifty percent (50%) each) any costs, expenses, and reasonable attorneys' fees incurred by Escrow Agent in connection with any such interpleader action, except to the extent such action arises from Escrow Agent's gross negligence or willful misconduct.

ARTICLE VIII — REPRESENTATIONS AND WARRANTIES

Section 8.1 Representations and Warranties of Buyer. Buyer hereby represents and warrants to Seller and Escrow Agent as of the date hereof and as of the Closing Date as follows:

(a) Organization. Buyer is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has all necessary limited liability company power and authority to own, lease, and operate its properties and to carry on its business as currently conducted.

(b) Authority. Buyer has full limited liability company power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Buyer have been duly authorized by all necessary limited liability company action on the part of Buyer, and no other limited liability company proceedings on the part of Buyer are necessary to authorize the execution, delivery, or performance of this Agreement.

(c) Enforceability. This Agreement has been duly executed and delivered by Buyer and constitutes the legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

Section 8.2 Representations and Warranties of Seller. Seller hereby represents and warrants to Buyer and Escrow Agent as of the date hereof and as of the Closing Date as follows:

(a) Organization. Seller is a corporation duly organized, validly existing, and in good standing under the laws of the State of Ohio, and has all necessary corporate power and authority to own, lease, and operate its properties and to carry on its business as currently conducted.

(b) Authority. Seller has full corporate power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Seller have been duly authorized by all necessary corporate action on the part of Seller, including, to the extent required, the approval of Seller's board of directors and shareholders, and no other corporate proceedings on the part of Seller are necessary to authorize the execution, delivery, or performance of this Agreement.

(c) Enforceability. This Agreement has been duly executed and delivered by Seller and constitutes the legal, valid, and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

Section 8.3 Representations and Warranties of Escrow Agent. Escrow Agent hereby represents and warrants to Buyer and Seller as of the date hereof and as of the Closing Date as follows:

(a) Organization. Escrow Agent is a trust company duly organized, validly existing, and in good standing under the laws of the Commonwealth of Massachusetts, and has all necessary trust company power and authority to conduct its business as currently conducted and to act as escrow agent hereunder.

(b) Authority. Escrow Agent has full trust company power and authority to execute, deliver, and perform this Agreement and to act as escrow agent hereunder. The execution, delivery, and performance of this Agreement by Escrow Agent have been duly authorized by all necessary action on the part of Escrow Agent, and no other proceedings on the part of Escrow Agent are necessary to authorize the execution, delivery, or performance of this Agreement.

(c) Enforceability. This Agreement has been duly executed and delivered by Escrow Agent and constitutes the legal, valid, and binding obligation of Escrow Agent, enforceable against Escrow Agent in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

ARTICLE IX — GENERAL PROVISIONS

Section 9.1 Governing Law. This Agreement and all claims, disputes, or causes of action (whether in contract, tort, or otherwise) arising out of or relating to this Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York, without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.

Section 9.2 Jurisdiction and Venue. Each party hereto irrevocably and unconditionally submits to the exclusive jurisdiction of the state courts of the State of New York sitting in the Borough of Manhattan, City of New York, and the United States District Court for the Southern District of New York, for any action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Each party hereto irrevocably and unconditionally waives any objection that it may now or hereafter have to the laying of venue in any such court and any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum. Each party agrees that service of process in any such action, suit, or proceeding may be made by delivery in accordance with the notice provisions of Section 9.3 hereof.

Section 9.3 Notices. All notices, requests, demands, claims, consents, waivers, and other communications required or permitted hereunder (each, a "Notice") shall be in writing and shall be deemed to have been duly given or made: (a) when delivered by hand (with written confirmation of receipt); (b) one (1) Business Day after being sent by a nationally recognized overnight courier service (with written confirmation of receipt or tracking confirmation); or (c) three (3) Business Days after being sent by certified or registered mail, return receipt requested, postage prepaid, in each case to the applicable party at the following addresses (or at such other address as a party may designate from time to time by Notice given in accordance with this Section 9.3):

If to Buyer:

Meridian Consumer Brands LLC 440 Park Avenue South, 18th Floor New York, NY 10016

Attention: Diana Ressler, General Counsel

Telephone: [●]

Email: [●]

with a copy (which shall not constitute notice) to:

Calderwood & Harkness LLP 599 Lexington Avenue, 36th Floor New York, NY 10022

Attention: Sandra Tung

Telephone: [●]

Email: [●]

If to Seller:

Briarwood Home Essentials, Inc. 1175 Creekside Drive, Suite 400 Columbus, OH 43215

Attention: Malcolm Greer, President

Telephone: [●]

Email: [●]

with a copy (which shall not constitute notice) to:

Caldwell, Pruitt & Shaw LLP 41 South High Street, Suite 2800 Columbus, OH 43215

Attention: Rachel Underwood

Telephone: [●]

Email: [●]

If to Escrow Agent:

Atlantic Fiduciary Trust Company 100 Federal Street, Suite 1500 Boston, MA 02110

Attention: Gregory Fenn

Telephone: [●]

Email: [●]

Section 9.4 Entire Agreement. This Agreement, together with all Exhibits attached hereto and incorporated herein by reference, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, representations, warranties, understandings, and communications, whether written or oral, with respect to the escrow arrangement contemplated hereby. For the avoidance of doubt, this Agreement does not modify, amend, supersede, or otherwise affect the Purchase Agreement, and the Purchase Agreement shall remain in full force and effect in accordance with its terms.

Section 9.5 Amendments and Waivers. This Agreement may not be amended, modified, or supplemented except by a written instrument duly executed by all three parties hereto (i.e., Buyer, Seller, and Escrow Agent). No waiver of any provision of this Agreement, or consent to any departure therefrom, shall be effective unless such waiver or consent is in writing and signed by the party against whom enforcement of such waiver or consent is sought. No waiver of any provision of this Agreement shall be deemed to be or shall constitute a continuing waiver or a waiver of any other provision of this Agreement, whether or not similar, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.

Section 9.6 Assignment. No party hereto may assign, transfer, or delegate its rights, interests, or obligations under this Agreement, in whole or in part, without the prior written consent of each of the other parties hereto, and any purported assignment, transfer, or delegation in violation of this Section 9.6 shall be null and void and of no force or effect; provided, however, that Buyer may assign its rights (but not its obligations) under this Agreement to: (a) any affiliate of Buyer, or (b) any lender as collateral security in connection with any financing arrangements, in each case without the prior written consent of Seller or Escrow Agent, provided that no such assignment shall relieve Buyer of any of its obligations under this Agreement. Without limiting the foregoing, the parties acknowledge that Buyer's interest in the Escrow Fund may be assigned as collateral to the lender under the senior secured term loan credit facility provided by Harborview National Bank, N.A., subject to the terms and conditions of the Purchase Agreement and any applicable intercreditor arrangements. In the event of any such collateral assignment, Escrow Agent shall not be required to recognize or act upon the instructions of any such assignee unless and until Escrow Agent has received written notice of such assignment and such assignee has agreed in writing to be bound by the terms of this Agreement, in each case in form and substance reasonably satisfactory to Escrow Agent.

Section 9.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Section 9.8 Severability. If any provision of this Agreement (or any portion thereof) is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions of this Agreement shall continue in full force and effect. In such event, the parties shall negotiate in good faith to replace the invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that most closely reflects the original intent of the parties.

Section 9.9 Counterparts. This Agreement may be executed in any number of counterparts (including by electronic signature, portable document format (PDF) transmission, or other electronic means), each of which when so executed and delivered shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument. The words "execution," "signed," "signature," and words of similar import in this Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity, or enforceability as a manually executed signature, physical delivery thereof, or the use of a paper-based recordkeeping system, as applicable, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act.

Section 9.10 Headings. The headings and captions of the Articles, Sections, and subsections of this Agreement, and the table of contents (if any), are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of this Agreement.

Section 9.11 No Third-Party Beneficiaries. This Agreement is for the sole and exclusive benefit of the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, remedy, or claim of any nature whatsoever under or by reason of this Agreement; provided, however, that Calderwood & Harkness LLP (as counsel to Buyer) and Caldwell, Pruitt & Shaw LLP (as counsel to Seller) are express intended recipients of copies of Notices delivered under Section 9.3 hereof, but such designations shall not make either such law firm a third-party beneficiary of this Agreement or confer upon either such law firm any rights, benefits, or remedies under or by reason of this Agreement.

Section 9.12 Waiver of Jury Trial. EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ESCROW FUND, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO EACH OTHER PARTY'S AGREEMENT TO ENTER INTO THIS AGREEMENT AND THAT EACH PARTY HAS BEEN REPRESENTED BY COUNSEL IN CONNECTION WITH THIS WAIVER.

[Signature Pages Follow]

IN WITNESS WHEREOF, each of the parties hereto has caused this Escrow Agreement to be duly executed and delivered as of the date first written above.

BUYER:

MERIDIAN CONSUMER BRANDS LLC

By: ________

Name: Gareth Holloway

Title: CEO & Managing Member

Date: ________

SELLER:

BRIARWOOD HOME ESSENTIALS, INC.

By: ________

Name: Malcolm Greer

Title: President

Date: ________

ESCROW AGENT:

ATLANTIC FIDUCIARY TRUST COMPANY, as Escrow Agent

By: ________

Name: Gregory Fenn

Title: Vice President, Escrow Services

Date: ________

EXHIBIT A

WIRE TRANSFER INSTRUCTIONS

Escrow Agent Wire Instructions

All deposits to the Escrow Account shall be made by wire transfer of immediately available funds in accordance with the following instructions:

Buyer Wire Instructions

All disbursements to Buyer from the Escrow Account shall be made by wire transfer of immediately available funds in accordance with the following instructions (unless Buyer provides alternative instructions in a Claim Notice or Joint Written Direction):

Seller Wire Instructions

All disbursements to Seller from the Escrow Account shall be made by wire transfer of immediately available funds in accordance with the following instructions (unless Seller provides alternative instructions in writing to Escrow Agent):

Each party shall promptly notify Escrow Agent and the other parties in writing of any changes to the wire transfer instructions set forth above. Escrow Agent shall be entitled to rely on the wire transfer instructions most recently provided to it and shall have no liability for any loss arising from incorrect wire transfer instructions provided by any party.

EXHIBIT B

ESCROW AGENT FEE SCHEDULE

The following fees shall be payable to Atlantic Fiduciary Trust Company in connection with its services as Escrow Agent under this Agreement. All fees are payable fifty percent (50%) by Buyer and fifty percent (50%) by Seller, invoiced quarterly, and subject to Section 7.5 of this Agreement.

Notes:

1. The Acceptance / Setup Fee is due and payable upon execution of this Agreement.

2. The Annual Administration Fee is due and payable in advance on the date of execution of this Agreement (prorated for any partial year) and on each anniversary thereof during the term of this Agreement.

3. Transaction Fees and Wire Transfer Fees are invoiced quarterly in arrears.

4. Extraordinary Services Fees shall be invoiced monthly in arrears at the hourly rate set forth above, together with reasonable documentation of the services rendered and the time expended.

5. Escrow Agent shall be entitled to reimbursement of all reasonable out-of-pocket expenses incurred in connection with the performance of its duties under this Agreement, including, without limitation, postage, courier charges, and travel expenses (if pre-approved in writing by Buyer and Seller).

6. All fees and expense reimbursements are subject to periodic adjustment by Escrow Agent upon not less than sixty (60) days' prior written notice to Buyer and Seller.

7. In the event that fees or expenses remain unpaid for more than thirty (30) days following the date of the applicable invoice, Escrow Agent may charge such amounts against the Escrow Fund in accordance with Section 7.5 of this Agreement.

This Fee Schedule is incorporated by reference into the Escrow Agreement dated as of [●], 2022, among Meridian Consumer Brands LLC, Briarwood Home Essentials, Inc., and Atlantic Fiduciary Trust Company, as Escrow Agent.

Bank:	Atlantic Fiduciary Trust Company
Address:	100 Federal Street, Suite 1500, Boston, MA 02110
ABA Routing Number:	[●]
Account Number:	[●]
Account Name:	Meridian / Briarwood Escrow Account
Reference:	[●]
Attention:	Gregory Fenn
Bank:	[●]
Address:	[●]
ABA Routing Number:	[●]
Account Number:	[●]
Account Name:	Meridian Consumer Brands LLC
Reference:	[●]
Bank:	[●]
Address:	[●]
ABA Routing Number:	[●]
Account Number:	[●]
Account Name:	Briarwood Home Essentials, Inc.
Reference:	[●]
Fee Description	Amount
Acceptance / Setup Fee (one-time)	[●]
Annual Administration Fee	[●]
Transaction Fee (per disbursement from the Escrow Account)	[●]
Wire Transfer Fee (per outgoing wire)	[●]
Legal Review / Amendment Fee (per amendment or modification)	[●]

Extraordinary Services Fee (including, without limitation, services rendered in connection with disputes, litigation, interpleader actions, or other matters outside the ordinary scope of escrow administration)

ESCROW AGREEMENT
Draft — September 15, 2022
among
MERIDIAN CONSUMER BRANDS LLC a Delaware limited liability company ("Buyer")
BRIARWOOD HOME ESSENTIALS, INC. an Ohio corporation ("Seller")
and
ATLANTIC FIDUCIARY TRUST COMPANY a Massachusetts trust company ("Escrow Agent")
Entered into in connection with that certain Asset Purchase Agreement by and between Meridian Consumer Brands LLC and Briarwood Home Essentials, Inc. (the "Purchase Agreement"), dated as of [●], 2022
DRAFT — For Discussion Purposes Only — Calderwood & Harkness LLP — September 15, 2022 Matter No. 1011-00005
Right-click to update Table of Contents
ESCROW AGREEMENT
This Escrow Agreement (this "Agreement") is dated as of [●], 2022 (the "Effective Date"), among:
(1) Meridian Consumer Brands LLC, a Delaware limited liability company, with its principal place of business at 440 Park Avenue South, 18th Floor, New York, NY 10016 (the "Buyer");
(2) Briarwood Home Essentials, Inc., an Ohio corporation, with its principal place of business at 1175 Creekside Drive, Suite 400, Columbus, OH 43215 (the "Seller"); and
(3) Atlantic Fiduciary Trust Company, a Massachusetts trust company, with offices at 100 Federal Street, Suite 1500, Boston, MA 02110 (the "Escrow Agent").
Buyer and Seller are sometimes referred to herein individually as a "Party" and collectively as the "Parties." Buyer, Seller, and Escrow Agent are sometimes referred to herein collectively as the "parties."
RECITALS
WHEREAS, Buyer and Seller have entered into that certain Asset Purchase Agreement dated as of [●], 2022 (the "Purchase Agreement"), pursuant to which Buyer has agreed to purchase from Seller, and Seller has agreed to sell to Buyer, certain assets comprising the "CleanLeaf" and "PureHaven" consumer product lines, including all intellectual property, inventory, assumed contracts, goodwill, and other related assets, on the terms and subject to the conditions set forth therein;
WHEREAS, the aggregate purchase price payable by Buyer to Seller under the Purchase Agreement is Ninety-Five Million Dollars ($95,000,000) (the "Purchase Price"), subject to the adjustment mechanisms set forth in the Purchase Agreement;
WHEREAS, Section [●] of the Purchase Agreement provides that, at the Closing (as defined in the Purchase Agreement), Buyer shall deposit with the Escrow Agent an amount equal to Nine Million Five Hundred Thousand Dollars ($9,500,000), representing ten percent (10%) of the Purchase Price (the "Escrow Amount"), to be held and disbursed by Escrow Agent in accordance with the terms and conditions of this Agreement;
WHEREAS, the Escrow Amount shall secure Seller's indemnification obligations under Article [●] of the Purchase Agreement for a period of twenty-four (24) months following the Closing Date (as defined herein);
WHEREAS, Escrow Agent has agreed to accept, hold, invest, and disburse the Escrow Amount in accordance with the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 Definitions. Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Purchase Agreement. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below when used in this Agreement:
"Business Day" means any day other than a Saturday, Sunday, or any other day on which banking institutions in New York, New York or Boston, Massachusetts are authorized or required by applicable law, regulation, or executive order to close.
"Claim Notice" has the meaning set forth in Section 4.1 of this Agreement.
"Closing Date" means the date on which the Closing (as defined in the Purchase Agreement) occurs under the Purchase Agreement.
"Disputed Amount" has the meaning set forth in Section 4.4 of this Agreement.
"Escrow Account" means the segregated escrow account established and maintained by Escrow Agent pursuant to Section 2.1 of this Agreement.
"Escrow Amount" means Nine Million Five Hundred Thousand Dollars ($9,500,000), representing ten percent (10%) of the Purchase Price.
"Escrow Fund" means, at any time, the Escrow Amount, together with any interest, dividends, or other income earned thereon, less the aggregate amount of any disbursements and fees paid or charged therefrom in accordance with the terms of this Agreement.
"Escrow Period" means the period commencing on the Closing Date and ending at 11:59 p.m. (Eastern Time) on the date that is twenty-four (24) months after the Closing Date.
"Indemnification Basket" means Nine Hundred Fifty Thousand Dollars ($950,000), constituting one percent (1%) of the Purchase Price, structured as a "tipping basket" as provided in the Purchase Agreement such that, once the aggregate amount of indemnifiable Losses exceeds the Indemnification Basket, the indemnified party shall be entitled to recover from the first dollar of such Losses.
"Indemnification Cap" means Thirty-Three Million Two Hundred Fifty Thousand Dollars ($33,250,000), constituting thirty-five percent (35%) of the Purchase Price, representing the maximum aggregate amount of indemnification payable by Seller under the Purchase Agreement (other than with respect to Fundamental Representations, fraud, or willful breach, as set forth therein).
"Joint Written Direction" has the meaning set forth in Section 3.1 of this Agreement.
"Permitted Investments" has the meaning set forth in Section 5.1 of this Agreement.
"Response Notice" has the meaning set forth in Section 4.2 of this Agreement.
"Response Period" has the meaning set forth in Section 4.2 of this Agreement.
"Termination Date" means the last day of the Escrow Period, subject to extension pursuant to Section 6.2 of this Agreement.
ARTICLE II — ESTABLISHMENT OF ESCROW; DEPOSIT
Section 2.1 Establishment of Escrow Account. Promptly following the execution and delivery of this Agreement by all parties hereto, and in any event no later than two (2) Business Days prior to the anticipated Closing Date, Escrow Agent shall establish and maintain a separate, segregated escrow account (the "Escrow Account") at Atlantic Fiduciary Trust Company. The Escrow Account shall be titled as follows:
"Meridian Consumer Brands LLC / Briarwood Home Essentials, Inc. Escrow Account — Atlantic Fiduciary Trust Company, as Escrow Agent"
The Escrow Account shall be maintained as a separate and distinct account, segregated from the general assets of Escrow Agent, and shall at all times be identified as an escrow account held by Escrow Agent in its capacity as escrow agent under this Agreement. Escrow Agent shall not commingle the Escrow Fund with any other funds held by Escrow Agent, whether for its own account or for the account of any other person or entity.
Section 2.2 Deposit. On the Closing Date, Buyer shall deposit, or cause to be deposited, the Escrow Amount in the amount of Nine Million Five Hundred Thousand Dollars ($9,500,000) with Escrow Agent by wire transfer of immediately available funds to the Escrow Account in accordance with the wire transfer instructions set forth in Exhibit A attached hereto and incorporated herein by reference. Escrow Agent shall promptly acknowledge receipt of the Escrow Amount in writing (which may be by electronic mail) to both Buyer and Seller within one (1) Business Day following receipt thereof. In the event that Escrow Agent does not receive the Escrow Amount on the Closing Date, Escrow Agent shall promptly notify Buyer and Seller thereof. Escrow Agent shall have no obligation to accept any deposit other than the Escrow Amount as contemplated by this Section 2.2, unless otherwise agreed in writing by all parties hereto.
Section 2.3 Nature of Escrow. The Escrow Fund shall be held by Escrow Agent in trust for the benefit of Buyer and Seller, subject to and in accordance with the terms and conditions of this Agreement. The Escrow Fund shall not be subject to any lien, attachment, trustee process, garnishment, execution, or any other judicial process of any creditor of any party hereto. No party hereto shall have the right to pledge, hypothecate, assign, or otherwise encumber the Escrow Fund or any portion thereof, except as expressly provided in this Agreement (including the assignment provisions set forth in Section 9.6). The Escrow Fund shall not constitute property of the estate of any party in the event of any bankruptcy, insolvency, or similar proceeding, except to the extent required by applicable law. The parties acknowledge and agree that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, and that Escrow Agent shall not be deemed to be a trustee of an express trust or a fiduciary with respect to the Escrow Fund, except as expressly set forth herein.
ARTICLE III — DISBURSEMENTS — GENERAL
Section 3.1 Joint Written Direction. Escrow Agent shall disburse all or any portion of the Escrow Fund upon receipt of a joint written direction signed by both Buyer and Seller (a "Joint Written Direction") specifying: (a) the amount to be disbursed; (b) the identity of the payee or payees to whom such disbursement is to be made; and (c) the applicable wire transfer instructions or other delivery instructions for such disbursement. Escrow Agent shall make any such disbursement within three (3) Business Days following receipt of a Joint Written Direction that complies with the requirements of this Section 3.1. A Joint Written Direction may be delivered to Escrow Agent by email (with PDF attachment bearing original signatures or electronic signatures), provided that Escrow Agent receives telephonic confirmation of such direction from an authorized representative of each of Buyer and Seller prior to acting thereon. A form of Joint Written Direction is attached hereto as part of Exhibit A for reference.
Section 3.2 Court Order. Escrow Agent shall disburse all or any portion of the Escrow Fund upon receipt of a final, non-appealable order or judgment of a court of competent jurisdiction directing such disbursement. Upon receipt of any such order or judgment, Escrow Agent shall promptly provide a copy thereof to Buyer and Seller (to the extent not already in possession thereof) and shall effectuate the disbursement directed thereby within five (5) Business Days following receipt, unless such order or judgment specifies a different time period. Escrow Agent shall be entitled to rely on any such order or judgment without independent investigation and shall have no liability for any disbursement made in compliance therewith.
Section 3.3 No Other Disbursements. Except as provided in Sections 3.1, 3.2, Article IV (Claim Procedures), and Article VI (Termination and Final Release), Escrow Agent shall not disburse any portion of the Escrow Fund. Escrow Agent shall not honor or comply with any purported instruction, direction, or request for disbursement from any party that does not comply with the requirements of this Agreement.
ARTICLE IV — CLAIM PROCEDURES
Section 4.1 Claim Notice. If Buyer seeks indemnification under Article [●] of the Purchase Agreement and wishes to recover amounts from the Escrow Fund in respect of any indemnifiable Losses (as defined in the Purchase Agreement), Buyer shall deliver to Escrow Agent and Seller a written notice (a "Claim Notice") setting forth, with reasonable specificity:
(a) a description of the claim giving rise to the request for indemnification, including a summary of the underlying facts and circumstances in reasonable detail;
(b) the specific provisions of the Purchase Agreement upon which the claim is based, including identification of the representations, warranties, covenants, or agreements alleged to have been breached;
(c) the amount of the claimed Losses, or, if the amount of such Losses is not yet determinable at the time of the Claim Notice, a good faith estimate of the reasonably anticipated amount of such Losses (which estimate shall not limit Buyer's right to submit a supplemental or amended Claim Notice as additional information becomes available); and
(d) a statement confirming that the aggregate amount of indemnifiable Losses exceeds the Indemnification Basket of Nine Hundred Fifty Thousand Dollars ($950,000), such that Buyer is entitled to recover from the first dollar of Losses under the tipping basket mechanism set forth in the Purchase Agreement, or, if applicable, a statement that the claim relates to breaches of Fundamental Representations (as defined in the Purchase Agreement) that are not subject to the Indemnification Basket.
For the avoidance of doubt, the Indemnification Basket shall operate as a "tipping basket" such that, once the aggregate amount of indemnifiable Losses exceeds Nine Hundred Fifty Thousand Dollars ($950,000), Buyer shall be entitled to indemnification from and after the first dollar of such Losses, subject to the Indemnification Cap and other limitations set forth in the Purchase Agreement. A Claim Notice may be delivered at any time during the Escrow Period and, with respect to claims for which a Claim Notice has been timely delivered during the Escrow Period, shall remain effective following the expiration of the Escrow Period until final resolution of the applicable claim.
Section 4.2 Response Notice. Within thirty (30) calendar days following Seller's receipt of a Claim Notice (such thirty (30) calendar day period, the "Response Period"), Seller shall deliver to Escrow Agent and Buyer a written response (a "Response Notice") stating whether Seller:
(a) accepts the claim set forth in the Claim Notice in its entirety and agrees to the disbursement of the full amount claimed to Buyer from the Escrow Fund;
(b) accepts the claim set forth in the Claim Notice in part and disputes the remainder, specifying with reasonable detail the portion of the claim that Seller accepts and the portion that Seller disputes, together with a summary of the basis for such dispute; or
(c) disputes the claim set forth in the Claim Notice in its entirety, together with a reasonably detailed description of the grounds for such dispute.
If Seller fails to deliver a Response Notice to Escrow Agent and Buyer within the Response Period, Seller shall be deemed to have irrevocably accepted the claim set forth in the applicable Claim Notice in full, and Escrow Agent shall be authorized and directed to disburse the full amount set forth in such Claim Notice to Buyer in accordance with Section 4.3 below.
Section 4.3 Accepted Claims. To the extent any claim (or any portion thereof) set forth in a Claim Notice is accepted by Seller in a Response Notice (whether expressly accepted or deemed accepted by reason of Seller's failure to deliver a timely Response Notice pursuant to Section 4.2), Escrow Agent shall, within five (5) Business Days following the earlier of (i) Escrow Agent's receipt of a Response Notice reflecting such acceptance or (ii) the expiration of the Response Period without delivery of a Response Notice, disburse the accepted amount to Buyer in accordance with the wire transfer instructions provided by Buyer in the Claim Notice or, if no wire transfer instructions were included in the Claim Notice, in accordance with the Buyer wire transfer instructions set forth in Exhibit A hereto. Escrow Agent shall promptly provide written confirmation of any such disbursement to Buyer and Seller.
Section 4.4 Disputed Claims. If Seller disputes all or any portion of a claim set forth in a Claim Notice (the aggregate amount so disputed, the "Disputed Amount"), the Disputed Amount shall remain in the Escrow Fund pending resolution of such dispute by either: (a) mutual written agreement of Buyer and Seller, memorialized in and delivered to Escrow Agent as a Joint Written Direction, specifying the amounts (if any) to be disbursed to Buyer and/or Seller, respectively; or (b) a final, non-appealable order or judgment of a court of competent jurisdiction directing the disposition of the Disputed Amount. Escrow Agent shall have no duty or obligation to resolve any dispute between Buyer and Seller and shall hold the Disputed Amount in the Escrow Account without liability to any party pending resolution of such dispute in accordance with this Section 4.4. The parties acknowledge and agree that any dispute with respect to a Claim Notice or a Disputed Amount shall be resolved in accordance with the dispute resolution provisions of the Purchase Agreement and shall be subject to the governing law and jurisdiction provisions set forth in Sections 9.1 and 9.2 of this Agreement, which are consistent with those set forth in the Purchase Agreement.
Section 4.5 Multiple Claims. Multiple Claim Notices may be outstanding simultaneously, and nothing herein shall prevent Buyer from delivering additional Claim Notices while one or more prior Claim Notices remain pending or unresolved. Escrow Agent shall track each claim identified in a Claim Notice separately and shall maintain reasonable records with respect to each outstanding claim, including the date of receipt, the amount claimed, the status of any Response Notice, and the amounts (if any) disbursed in respect thereof. Disbursements from the Escrow Fund in respect of resolved claims shall be made on a first-resolved, first-paid basis; provided, however, that the aggregate of all disbursements to Buyer from the Escrow Fund shall not exceed the balance of the Escrow Fund at the time of any such disbursement. In no event shall Escrow Agent be required to disburse amounts in excess of the Escrow Fund balance then on deposit in the Escrow Account.
Section 4.6 Limitation. Nothing in this Agreement shall limit, restrict, or otherwise affect Buyer's right to seek indemnification from Seller under the Purchase Agreement in excess of the Escrow Fund, subject to the Indemnification Cap of Thirty-Three Million Two Hundred Fifty Thousand Dollars ($33,250,000) (thirty-five percent (35%) of the Purchase Price) and the other terms and limitations set forth in the Purchase Agreement. The Escrow Fund is not intended to be, and shall not be construed as, the exclusive source of recovery or the exclusive remedy for Buyer's indemnification claims under the Purchase Agreement. Rather, the Escrow Fund constitutes a source of recovery that is available to Buyer for the satisfaction of indemnification claims, without prejudice to Buyer's right to pursue any other remedies available under the Purchase Agreement or at law or in equity, subject to the terms and limitations thereof.
ARTICLE V — INVESTMENT OF ESCROW FUND
Section 5.1 Permitted Investments. Escrow Agent shall invest and reinvest the Escrow Fund, as directed jointly by Buyer and Seller (or, in the absence of joint written investment instructions, as set forth in Section 5.2 below), in one or more of the following categories of investments (each, a "Permitted Investment"):
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (including United States Treasury bills, notes, and bonds), in each case with maturities not exceeding ninety (90) days from the date of acquisition;
(b) money market deposit accounts or money market mutual funds that are rated at least "AAAm" (or equivalent) by Standard & Poor's, a division of S&P Global Inc., Moody's Investors Service, Inc., or any other nationally recognized statistical rating organization (as defined in Section 3(a)(62) of the Securities Exchange Act of 1934, as amended);
(c) certificates of deposit, time deposits, or banker's acceptances with maturities not exceeding ninety (90) days from the date of acquisition issued by any commercial bank organized under the laws of the United States of America or any state thereof having combined capital and surplus of not less than One Billion Dollars ($1,000,000,000); and
(d) such other investments as Buyer and Seller may jointly direct Escrow Agent in writing from time to time, provided that Escrow Agent shall have no obligation to invest in any instrument that Escrow Agent, in its reasonable discretion, determines is not customarily held by escrow agents or for which Escrow Agent does not have adequate facilities.
Section 5.2 Default Investment. In the absence of timely joint written investment instructions from Buyer and Seller, or at any time when joint written investment instructions have not been received by Escrow Agent, Escrow Agent shall invest the Escrow Fund (or any uninvested portion thereof) in a money market fund described in Section 5.1(b) above, as selected by Escrow Agent in its sole discretion. The parties acknowledge that such default investment may yield a lower rate of return than other Permitted Investments and that Escrow Agent shall have no liability for any opportunity cost or lower yield resulting from the application of this Section 5.2.
Section 5.3 Income and Tax Treatment. All interest, dividends, and other income earned on the investment of the Escrow Fund shall be added to and become part of the Escrow Fund and shall be held, invested, and disbursed in accordance with the terms of this Agreement. For United States federal (and applicable state and local) income tax purposes, the Escrow Fund (including all interest, dividends, and other income earned thereon) shall be treated as owned by Seller. Seller shall report all income earned on the Escrow Fund on its applicable tax returns and shall be responsible for the payment of any and all taxes due thereon, regardless of whether or when such income is actually disbursed to Seller. Seller's taxpayer identification number for the Escrow Account is EIN 31-1684239. Escrow Agent shall file, or cause to be filed, any applicable Internal Revenue Service Forms 1099 (or successor forms) reflecting income earned by Seller on the Escrow Fund, and Seller shall provide Escrow Agent with a completed IRS Form W-9 (or appropriate substitute form) promptly upon execution of this Agreement and at any time thereafter upon Escrow Agent's reasonable request. Buyer shall provide Escrow Agent with a completed IRS Form W-9 (or appropriate substitute form) promptly upon execution of this Agreement.
Section 5.4 Investment Risk. The parties acknowledge and agree that Escrow Agent shall not be liable for any loss of principal or income, or any diminution in value, resulting from the investment or reinvestment of the Escrow Fund in Permitted Investments in accordance with this Article V, including without limitation any loss resulting from the default of any issuer of any Permitted Investment, any decline in the market value of any Permitted Investment, or any penalty imposed for the early liquidation of any Permitted Investment, except to the extent that a court of competent jurisdiction determines by final, non-appealable order that such loss resulted directly from Escrow Agent's gross negligence or willful misconduct. The parties further acknowledge that any Permitted Investment may be subject to market fluctuations and that the return on any Permitted Investment is not guaranteed.
ARTICLE VI — TERMINATION AND FINAL RELEASE
Section 6.1 Scheduled Release. On the first Business Day following the expiration of the Escrow Period (i.e., the first Business Day following the date that is twenty-four (24) months after the Closing Date), Escrow Agent shall release and disburse to Seller the entire remaining balance of the Escrow Fund (including all accrued and undisbursed income thereon) by wire transfer of immediately available funds to the account designated by Seller in Exhibit A hereto (or to such other account as Seller may designate by prior written notice to Escrow Agent); provided, however, that such release and disbursement shall be subject to the holdback provisions of Section 6.2 below. Escrow Agent shall provide Buyer and Seller with written notice of the anticipated release date not less than five (5) Business Days prior to such date.
Section 6.2 Holdback for Pending Claims. If, as of the Termination Date, any Claim Notice has been delivered by Buyer to Escrow Agent and Seller in accordance with Section 4.1 but has not been finally resolved (whether by Joint Written Direction, deemed acceptance under Section 4.2, or final, non-appealable order of a court of competent jurisdiction), the Escrow Agent shall:
(a) retain in the Escrow Account an amount equal to the aggregate of all amounts claimed in all such unresolved Claim Notices (as stated in the applicable Claim Notices, or, if such Claim Notices include only good faith estimates of anticipated Losses, the aggregate of such estimated amounts); and
(b) release and disburse to Seller only the balance of the Escrow Fund in excess of such retained amount.
The portion of the Escrow Fund retained by Escrow Agent pursuant to this Section 6.2 shall continue to be held and invested in accordance with the provisions of this Agreement (including Article V) until final resolution of each pending claim giving rise to the holdback. Upon final resolution of any such pending claim (whether by Joint Written Direction, deemed acceptance, or court order), Escrow Agent shall promptly disburse the applicable amount to the appropriate party in accordance with such resolution and, if no further claims remain outstanding, shall release any remaining balance of the retained amount to Seller. Escrow Agent shall provide written confirmation to Buyer and Seller of all disbursements and releases made pursuant to this Section 6.2.
Section 6.3 Effect of Release. The release of the Escrow Fund (or any portion thereof) to Seller pursuant to this Article VI shall not relieve Seller of any indemnification obligations under the Purchase Agreement that survive the expiration of the Escrow Period, subject to the terms, conditions, and limitations set forth in the Purchase Agreement. The parties acknowledge and agree that Seller's indemnification obligations under the Purchase Agreement are separate and distinct from the obligations set forth in this Agreement and that the release of the Escrow Fund is without prejudice to any surviving indemnification claims that Buyer may have under the Purchase Agreement.
Section 6.4 Termination of Agreement. This Agreement shall terminate upon the later of: (a) the complete disbursement of the entire Escrow Fund in accordance with the terms hereof; and (b) the final resolution of all pending claims for which Claim Notices have been timely delivered during the Escrow Period; provided, however, that the provisions of Article VII (Escrow Agent Provisions), Article VIII (Representations and Warranties), and Article IX (General Provisions) shall survive any such termination and shall continue in full force and effect with respect to any matters arising prior to or in connection with such termination.
ARTICLE VII — ESCROW AGENT PROVISIONS
Section 7.1 Duties and Responsibilities. Escrow Agent undertakes to perform only the duties and obligations expressly set forth in this Agreement, and no implied duties, covenants, or obligations shall be read into this Agreement against Escrow Agent. Escrow Agent shall act as a stakeholder only and shall have no interest in the Escrow Fund. Escrow Agent shall not be required to take any action that is, in the opinion of Escrow Agent, contrary to applicable law or regulation, or that would subject Escrow Agent to liability, unless Escrow Agent has been furnished with indemnification satisfactory to it in its reasonable discretion. Escrow Agent shall not be responsible for the validity, sufficiency, or genuineness of any document, instrument, or notice delivered to it, and shall not be required to make any determination as to the accuracy or completeness of any information or data provided by Buyer or Seller.
Section 7.2 Reliance. Escrow Agent shall be entitled to rely, and shall be fully protected in relying, upon any written notice, instruction, direction, certificate, request, consent, statement, or other document (including any such document transmitted by electronic mail in PDF or similar format) believed by Escrow Agent in good faith to be genuine and to have been signed, sent, or presented by the proper party or parties, and Escrow Agent shall have no duty or obligation to make any independent inquiry or investigation as to the authority of persons signing, sending, or delivering any such document. Escrow Agent may consult with legal counsel of its own selection (at the expense of Buyer and Seller, shared equally, unless such consultation arises from Escrow Agent's gross negligence or willful misconduct) and shall not be liable for any action taken or omitted in good faith in accordance with the advice of such counsel.
Section 7.3 Liability Standard. Escrow Agent shall not be liable for any action taken or omitted to be taken by Escrow Agent in good faith in connection with this Agreement, except to the extent that a court of competent jurisdiction determines by final, non-appealable order that Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to any party hereto. In no event shall Escrow Agent be liable for any indirect, incidental, consequential, special, punitive, or exemplary damages of any kind, including lost profits, regardless of the form of action and whether or not any such damages were foreseeable or contemplated. Escrow Agent shall not be liable for any loss arising from the acts, delays, or omissions of any third party, including any bank, wire transfer system, or postal service, unless such loss was proximately caused by Escrow Agent's gross negligence or willful misconduct.
Section 7.4 Indemnification of Escrow Agent. Buyer and Seller, jointly and severally, shall indemnify, defend, and hold harmless Escrow Agent and its directors, officers, employees, agents, and affiliates (each, an "Escrow Agent Indemnified Party") from and against any and all losses, costs, damages, expenses (including reasonable attorneys' fees and disbursements), claims, actions, suits, proceedings, or liabilities of any kind or nature whatsoever arising out of or in connection with this Agreement or the performance by Escrow Agent of its duties hereunder, except to the extent that any such loss, cost, damage, expense, claim, action, suit, proceeding, or liability is determined by a court of competent jurisdiction by final, non-appealable order to have resulted directly from the gross negligence or willful misconduct of Escrow Agent. The obligations of Buyer and Seller under this Section 7.4 shall survive the termination of this Agreement and the resignation or removal of Escrow Agent.
Section 7.5 Compensation and Expenses. Escrow Agent shall be entitled to reasonable compensation for its services hereunder as set forth in the fee schedule attached hereto as Exhibit B (the "Fee Schedule"). Escrow Agent's fees and out-of-pocket expenses (including, without limitation, reasonable attorneys' fees incurred by Escrow Agent in connection with the performance of its duties hereunder) shall be borne equally by Buyer and Seller (fifty percent (50%) by Buyer and fifty percent (50%) by Seller). Escrow Agent shall invoice Buyer and Seller quarterly for fees and expenses due hereunder. If any fees or expenses invoiced by Escrow Agent remain unpaid for more than thirty (30) days following the date of the applicable invoice, Escrow Agent may, upon not less than ten (10) Business Days' prior written notice to both Buyer and Seller, charge such unpaid fees and expenses against the Escrow Fund; provided, however, that Escrow Agent shall first seek payment directly from the Parties and exhaust reasonable collection efforts before charging any amounts against the Escrow Fund.
Section 7.6 Resignation. Escrow Agent may resign at any time by giving thirty (30) days' prior written notice of its resignation to Buyer and Seller. Such resignation shall take effect upon the earlier of (a) the appointment of a successor escrow agent in accordance with this Section 7.6 and Section 7.8, or (b) the expiration of the thirty (30) day notice period. Upon the effectiveness of its resignation, Escrow Agent shall deliver the Escrow Fund, together with all records and documents relating thereto, to a successor escrow agent jointly designated in writing by Buyer and Seller. If no successor escrow agent is so designated within thirty (30) days following the date of Escrow Agent's resignation notice, Escrow Agent may deposit the Escrow Fund with a court of competent jurisdiction in the State of New York or the Commonwealth of Massachusetts, and upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities under this Agreement.
Section 7.7 Removal. Buyer and Seller, acting jointly by written notice signed by both Buyer and Seller, may remove Escrow Agent at any time by giving thirty (30) days' prior written notice to Escrow Agent. Such removal shall take effect upon the earlier of (a) the appointment of a successor escrow agent in accordance with Section 7.8, or (b) the expiration of the thirty (30) day notice period. Upon the effectiveness of its removal, Escrow Agent shall deliver the Escrow Fund, together with all records and documents relating thereto, to a successor escrow agent designated jointly in writing by Buyer and Seller.
Section 7.8 Successor Escrow Agent. Any successor escrow agent appointed pursuant to Section 7.6 or Section 7.7 shall be a bank, trust company, or national banking association organized and existing under the laws of the United States of America or any state thereof, having combined capital and surplus of at least One Hundred Million Dollars ($100,000,000). Any such successor escrow agent shall execute and deliver to Buyer, Seller, and the predecessor Escrow Agent an instrument in writing accepting such appointment and agreeing to be bound by all of the terms and conditions of this Agreement, whereupon such successor escrow agent shall, without any further act or deed, be vested with all of the rights, powers, duties, and obligations of the predecessor Escrow Agent hereunder as fully as if originally named as Escrow Agent in this Agreement. Buyer and Seller shall cooperate in good faith to ensure the prompt and orderly transition of escrow agent functions to any successor escrow agent.
Section 7.9 Interpleader. In the event of any disagreement or dispute between Buyer and Seller (or any other person or entity) regarding the disbursement of the Escrow Fund, or in the event that Escrow Agent receives conflicting instructions or demands with respect to the Escrow Fund, Escrow Agent may, at its option and in its sole discretion: (a) refuse to comply with any such instruction or demand and continue to hold the Escrow Fund in the Escrow Account until Escrow Agent receives either (i) a Joint Written Direction executed by Buyer and Seller resolving such disagreement or dispute, or (ii) a final, non-appealable order or judgment of a court of competent jurisdiction directing the disposition of the Escrow Fund; or (b) deposit or interplead the Escrow Fund into or with a court of competent jurisdiction, together with such legal pleadings as Escrow Agent deems appropriate, in an interpleader or similar action, and upon such deposit or interpleading, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities under this Agreement. Buyer and Seller shall bear equally (fifty percent (50%) each) any costs, expenses, and reasonable attorneys' fees incurred by Escrow Agent in connection with any such interpleader action, except to the extent such action arises from Escrow Agent's gross negligence or willful misconduct.
ARTICLE VIII — REPRESENTATIONS AND WARRANTIES
Section 8.1 Representations and Warranties of Buyer. Buyer hereby represents and warrants to Seller and Escrow Agent as of the date hereof and as of the Closing Date as follows:
(a) Organization. Buyer is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has all necessary limited liability company power and authority to own, lease, and operate its properties and to carry on its business as currently conducted.
(b) Authority. Buyer has full limited liability company power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Buyer have been duly authorized by all necessary limited liability company action on the part of Buyer, and no other limited liability company proceedings on the part of Buyer are necessary to authorize the execution, delivery, or performance of this Agreement.
(c) Enforceability. This Agreement has been duly executed and delivered by Buyer and constitutes the legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
Section 8.2 Representations and Warranties of Seller. Seller hereby represents and warrants to Buyer and Escrow Agent as of the date hereof and as of the Closing Date as follows:
(a) Organization. Seller is a corporation duly organized, validly existing, and in good standing under the laws of the State of Ohio, and has all necessary corporate power and authority to own, lease, and operate its properties and to carry on its business as currently conducted.
(b) Authority. Seller has full corporate power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Seller have been duly authorized by all necessary corporate action on the part of Seller, including, to the extent required, the approval of Seller's board of directors and shareholders, and no other corporate proceedings on the part of Seller are necessary to authorize the execution, delivery, or performance of this Agreement.
(c) Enforceability. This Agreement has been duly executed and delivered by Seller and constitutes the legal, valid, and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
Section 8.3 Representations and Warranties of Escrow Agent. Escrow Agent hereby represents and warrants to Buyer and Seller as of the date hereof and as of the Closing Date as follows:
(a) Organization. Escrow Agent is a trust company duly organized, validly existing, and in good standing under the laws of the Commonwealth of Massachusetts, and has all necessary trust company power and authority to conduct its business as currently conducted and to act as escrow agent hereunder.
(b) Authority. Escrow Agent has full trust company power and authority to execute, deliver, and perform this Agreement and to act as escrow agent hereunder. The execution, delivery, and performance of this Agreement by Escrow Agent have been duly authorized by all necessary action on the part of Escrow Agent, and no other proceedings on the part of Escrow Agent are necessary to authorize the execution, delivery, or performance of this Agreement.
(c) Enforceability. This Agreement has been duly executed and delivered by Escrow Agent and constitutes the legal, valid, and binding obligation of Escrow Agent, enforceable against Escrow Agent in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
ARTICLE IX — GENERAL PROVISIONS
Section 9.1 Governing Law. This Agreement and all claims, disputes, or causes of action (whether in contract, tort, or otherwise) arising out of or relating to this Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York, without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
Section 9.2 Jurisdiction and Venue. Each party hereto irrevocably and unconditionally submits to the exclusive jurisdiction of the state courts of the State of New York sitting in the Borough of Manhattan, City of New York, and the United States District Court for the Southern District of New York, for any action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Each party hereto irrevocably and unconditionally waives any objection that it may now or hereafter have to the laying of venue in any such court and any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum. Each party agrees that service of process in any such action, suit, or proceeding may be made by delivery in accordance with the notice provisions of Section 9.3 hereof.
Section 9.3 Notices. All notices, requests, demands, claims, consents, waivers, and other communications required or permitted hereunder (each, a "Notice") shall be in writing and shall be deemed to have been duly given or made: (a) when delivered by hand (with written confirmation of receipt); (b) one (1) Business Day after being sent by a nationally recognized overnight courier service (with written confirmation of receipt or tracking confirmation); or (c) three (3) Business Days after being sent by certified or registered mail, return receipt requested, postage prepaid, in each case to the applicable party at the following addresses (or at such other address as a party may designate from time to time by Notice given in accordance with this Section 9.3):
If to Buyer:
Meridian Consumer Brands LLC 440 Park Avenue South, 18th Floor New York, NY 10016
Attention: Diana Ressler, General Counsel
Telephone: [●]
Email: [●]
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 599 Lexington Avenue, 36th Floor New York, NY 10022
Attention: Sandra Tung
Telephone: [●]
Email: [●]
If to Seller:
Briarwood Home Essentials, Inc. 1175 Creekside Drive, Suite 400 Columbus, OH 43215
Attention: Malcolm Greer, President
Telephone: [●]
Email: [●]
with a copy (which shall not constitute notice) to:
Caldwell, Pruitt & Shaw LLP 41 South High Street, Suite 2800 Columbus, OH 43215
Attention: Rachel Underwood
Telephone: [●]
Email: [●]
If to Escrow Agent:
Atlantic Fiduciary Trust Company 100 Federal Street, Suite 1500 Boston, MA 02110
Attention: Gregory Fenn
Telephone: [●]
Email: [●]
Section 9.4 Entire Agreement. This Agreement, together with all Exhibits attached hereto and incorporated herein by reference, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, representations, warranties, understandings, and communications, whether written or oral, with respect to the escrow arrangement contemplated hereby. For the avoidance of doubt, this Agreement does not modify, amend, supersede, or otherwise affect the Purchase Agreement, and the Purchase Agreement shall remain in full force and effect in accordance with its terms.
Section 9.5 Amendments and Waivers. This Agreement may not be amended, modified, or supplemented except by a written instrument duly executed by all three parties hereto (i.e., Buyer, Seller, and Escrow Agent). No waiver of any provision of this Agreement, or consent to any departure therefrom, shall be effective unless such waiver or consent is in writing and signed by the party against whom enforcement of such waiver or consent is sought. No waiver of any provision of this Agreement shall be deemed to be or shall constitute a continuing waiver or a waiver of any other provision of this Agreement, whether or not similar, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.
Section 9.6 Assignment. No party hereto may assign, transfer, or delegate its rights, interests, or obligations under this Agreement, in whole or in part, without the prior written consent of each of the other parties hereto, and any purported assignment, transfer, or delegation in violation of this Section 9.6 shall be null and void and of no force or effect; provided, however, that Buyer may assign its rights (but not its obligations) under this Agreement to: (a) any affiliate of Buyer, or (b) any lender as collateral security in connection with any financing arrangements, in each case without the prior written consent of Seller or Escrow Agent, provided that no such assignment shall relieve Buyer of any of its obligations under this Agreement. Without limiting the foregoing, the parties acknowledge that Buyer's interest in the Escrow Fund may be assigned as collateral to the lender under the senior secured term loan credit facility provided by Harborview National Bank, N.A., subject to the terms and conditions of the Purchase Agreement and any applicable intercreditor arrangements. In the event of any such collateral assignment, Escrow Agent shall not be required to recognize or act upon the instructions of any such assignee unless and until Escrow Agent has received written notice of such assignment and such assignee has agreed in writing to be bound by the terms of this Agreement, in each case in form and substance reasonably satisfactory to Escrow Agent.
Section 9.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Section 9.8 Severability. If any provision of this Agreement (or any portion thereof) is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions of this Agreement shall continue in full force and effect. In such event, the parties shall negotiate in good faith to replace the invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that most closely reflects the original intent of the parties.
Section 9.9 Counterparts. This Agreement may be executed in any number of counterparts (including by electronic signature, portable document format (PDF) transmission, or other electronic means), each of which when so executed and delivered shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument. The words "execution," "signed," "signature," and words of similar import in this Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity, or enforceability as a manually executed signature, physical delivery thereof, or the use of a paper-based recordkeeping system, as applicable, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act.
Section 9.10 Headings. The headings and captions of the Articles, Sections, and subsections of this Agreement, and the table of contents (if any), are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of this Agreement.
Section 9.11 No Third-Party Beneficiaries. This Agreement is for the sole and exclusive benefit of the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, remedy, or claim of any nature whatsoever under or by reason of this Agreement; provided, however, that Calderwood & Harkness LLP (as counsel to Buyer) and Caldwell, Pruitt & Shaw LLP (as counsel to Seller) are express intended recipients of copies of Notices delivered under Section 9.3 hereof, but such designations shall not make either such law firm a third-party beneficiary of this Agreement or confer upon either such law firm any rights, benefits, or remedies under or by reason of this Agreement.
Section 9.12 Waiver of Jury Trial. EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ESCROW FUND, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO EACH OTHER PARTY'S AGREEMENT TO ENTER INTO THIS AGREEMENT AND THAT EACH PARTY HAS BEEN REPRESENTED BY COUNSEL IN CONNECTION WITH THIS WAIVER.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the parties hereto has caused this Escrow Agreement to be duly executed and delivered as of the date first written above.
BUYER:
MERIDIAN CONSUMER BRANDS LLC
By: ________
Name: Gareth Holloway
Title: CEO & Managing Member
Date: ________
SELLER:
BRIARWOOD HOME ESSENTIALS, INC.
By: ________
Name: Malcolm Greer
Title: President
Date: ________
ESCROW AGENT:
ATLANTIC FIDUCIARY TRUST COMPANY, as Escrow Agent
By: ________
Name: Gregory Fenn
Title: Vice President, Escrow Services
Date: ________
EXHIBIT A
WIRE TRANSFER INSTRUCTIONS
Escrow Agent Wire Instructions
All deposits to the Escrow Account shall be made by wire transfer of immediately available funds in accordance with the following instructions:
Buyer Wire Instructions
All disbursements to Buyer from the Escrow Account shall be made by wire transfer of immediately available funds in accordance with the following instructions (unless Buyer provides alternative instructions in a Claim Notice or Joint Written Direction):
Seller Wire Instructions
All disbursements to Seller from the Escrow Account shall be made by wire transfer of immediately available funds in accordance with the following instructions (unless Seller provides alternative instructions in writing to Escrow Agent):
Each party shall promptly notify Escrow Agent and the other parties in writing of any changes to the wire transfer instructions set forth above. Escrow Agent shall be entitled to rely on the wire transfer instructions most recently provided to it and shall have no liability for any loss arising from incorrect wire transfer instructions provided by any party.
EXHIBIT B
ESCROW AGENT FEE SCHEDULE
The following fees shall be payable to Atlantic Fiduciary Trust Company in connection with its services as Escrow Agent under this Agreement. All fees are payable fifty percent (50%) by Buyer and fifty percent (50%) by Seller, invoiced quarterly, and subject to Section 7.5 of this Agreement.
Notes:
1.  The Acceptance / Setup Fee is due and payable upon execution of this Agreement.
2.  The Annual Administration Fee is due and payable in advance on the date of execution of this Agreement (prorated for any partial year) and on each anniversary thereof during the term of this Agreement.
3.  Transaction Fees and Wire Transfer Fees are invoiced quarterly in arrears.
4.  Extraordinary Services Fees shall be invoiced monthly in arrears at the hourly rate set forth above, together with reasonable documentation of the services rendered and the time expended.
5.  Escrow Agent shall be entitled to reimbursement of all reasonable out-of-pocket expenses incurred in connection with the performance of its duties under this Agreement, including, without limitation, postage, courier charges, and travel expenses (if pre-approved in writing by Buyer and Seller).
6.  All fees and expense reimbursements are subject to periodic adjustment by Escrow Agent upon not less than sixty (60) days' prior written notice to Buyer and Seller.
7.  In the event that fees or expenses remain unpaid for more than thirty (30) days following the date of the applicable invoice, Escrow Agent may charge such amounts against the Escrow Fund in accordance with Section 7.5 of this Agreement.
This Fee Schedule is incorporated by reference into the Escrow Agreement dated as of [●], 2022, among Meridian Consumer Brands LLC, Briarwood Home Essentials, Inc., and Atlantic Fiduciary Trust Company, as Escrow Agent.
Bank: | Atlantic Fiduciary Trust Company
Address: | 100 Federal Street, Suite 1500, Boston, MA 02110
ABA Routing Number: | [●]
Account Number: | [●]
Account Name: | Meridian / Briarwood Escrow Account
Reference: | [●]
Attention: | Gregory Fenn
Bank: | [●]
Address: | [●]
ABA Routing Number: | [●]
Account Number: | [●]
Account Name: | Meridian Consumer Brands LLC
Reference: | [●]
Bank: | [●]
Address: | [●]
ABA Routing Number: | [●]
Account Number: | [●]
Account Name: | Briarwood Home Essentials, Inc.
Reference: | [●]
Fee Description | Amount
Acceptance / Setup Fee (one-time) | [●]
Annual Administration Fee | [●]
Transaction Fee (per disbursement from the Escrow Account) | [●]
Wire Transfer Fee (per outgoing wire) | [●]
Legal Review / Amendment Fee (per amendment or modification) | [●]
Extraordinary Services Fee (including, without limitation, services rendered in connection with disputes, litigation, interpleader actions, or other matters outside the ordinary scope of escrow administration) | [●] per hour

ESCROW AGREEMENT

ESCROW AGREEMENT

RECITALS

MERIDIAN CONSUMER BRANDS LLC

SELLER:

BRIARWOOD HOME ESSENTIALS, INC.

ESCROW AGENT:

EXHIBIT A

WIRE TRANSFER INSTRUCTIONS

EXHIBIT B

ESCROW AGENT FEE SCHEDULE

Record

Parties

Dates

Amounts