TABLE OF CONTENTS

 

i

 

Schedules and Exhibits

 

Schedule 1.1(a)(i)		Twin Cities’ Machinery and Equipment
Schedule 1.1(a)(ii)		Twin Cities’ Inventories
Schedule 1.1(a)(iii)		Twin Cities’ Tangible Assets
Schedule 1.1(a)(viii)		Twin Cities’ Contracts
Schedule 1.1(b)		Twin Cities’ Retained Assets
Schedule 1.1(f)		Allocation of Twin Cities Purchase Price
Schedule 1.2(a)(i)		UES’s Machinery and Equipment
Schedule 1.2(a)(ii)		UES’s Inventories
Schedule 1.2(a)(iii)		UES’s Tangible Assets
Schedule 1.2(a)(viii)		UES’s Contracts
Schedule 1.2(b)		UES’s Retained Assets
Schedule 1.2(f)		Allocation of UES Purchase Price
Schedule 2.2(g)		Key Employees of Seller
Schedule 3.9		Transferring Employees
Schedule 3.10		Non-Vested Balances in Defined Contribution Plans
Schedule 4.3		Legal Approvals
Schedule 4.5		Guarantees
Schedule 4.6		Undisclosed Liabilities
Schedule 4.7		Changes
Schedule 4.8(a)		Unpaid Taxes
Schedule 4.8(b)		Tax Returns
Schedule 4.9		Inventory
Schedule 4.10		Receivables
Schedule 4.11		Leases; Encumbrances; Trade Names
Schedule 4.12		Legal Proceedings
Schedule 4.13		Contracts
Schedule 4.14		Governmental Authorizations
Schedule 4.16		Real Property
Schedule 4.17		Related Party Transactions
Schedule 4.18		Labor Relations
Schedule 4.19(a)		Products Liability
Schedule 4.19(b)		Warranties
Schedule 4.19(c)		Insurance
Schedule 4.20		Intellectual Property
Schedule 4.21		Benefit Plans
Schedule 4.22		Environmental Matters
Schedule 4.25		Customer Relations
Schedule 5.3		Legal Approvals

 

2

 

Exhibit A		Twin Cities Assumption Agreement
Exhibit B		UES Assumption Agreement
Exhibit C		Transition Services Agreement
Exhibit D		General Warranty Bills of Sale and Instruments of Assignment
Exhibit E		Financial Statements
Exhibit F		Interim Balance Sheet

 

 

ASSET PURCHASE AGREEMENT

 

This Asset Purchase Agreement (this “Agreement”), dated as of December 31, 2005,  is among Automated Logic Corporation, a Georgia corporation (“ALC”), Automated Logic Contracting Services, Inc., a Delaware corporation (“Buyer”), Comfort Systems USA, Inc., a Delaware corporation (“Comfort Systems”), Comfort Systems USA (Twin Cities), Inc., a Minnesota corporation (“Twin Cities”), and United Environmental Services, L.P., a Texas limited partnership (“UES”).

 

Twin Cities is a wholly owned subsidiary of Comfort Systems.  UES’s general partner and limited partner are, respectively, Atlas-Accurate Holdings, L.L.C., a Delaware limited liability company, and California Comfort Systems USA, Inc., a California corporation, each of whom is a wholly owned subsidiary of Comfort Systems.  Buyer is a wholly owned subsidiary of ALC.  Twin Cities is in the business of HVAC building controls contracting and services in Minnesota (the “Twin Cities Business”), and UES is in the business of HVAC building controls contracting and services in Texas and Louisiana (the “UES Business”; and collectively with the Twin Cities Business, the “Business”).

 

Twin Cities desires to sell and assign to Buyer substantially all of Twin Cities’ Business and assets and certain of Twin Cities’ obligations, and Buyer desires to purchase and assume such Business, assets and obligations from Twin Cities.  UES desires to sell and assign to Buyer substantially all of UES’s Business and assets and certain of UES’s obligations, and Buyer desires to purchase and assume such Business, assets and obligations from UES.

 

As used in this Agreement, “Seller” means each and both of Twin Cities and UES, and the “Comfort Systems Group” means each and every one of Comfort Systems, Twin Cities and UES.  As used in this Agreement, the “ALC Group” means each and both of ALC and Buyer. Certain additional terms used in this Agreement are defined separately in Article VII and are integral to this Agreement.

 

The ALC Group and the Comfort Systems Group agree as follows:

 

ARTICLE I
THE SALE AND PURCHASE TRANSACTIONS

 

1.1.                            The Twin Cities Sale and Purchase Transaction.

 

(a)                                 Sale and Purchase of the Twin Cities Assets.  Subject to the conditions described in Article II, at Closing, Twin Cities shall sell and transfer to Buyer, and Buyer shall purchase from Twin Cities, free and clear of all Encumbrances other than Permitted Encumbrances, all of Twin Cities’ assets and properties of every kind, nature and description, wherever located and whether real, personal or mixed, tangible or intangible, in electronic form or otherwise, and whether or not having any value for accounting purposes or carried or reflected on or specifically referred to in its books or financial statements, except for the Twin Cities Retained Assets (collectively, the “Twin Cities Assets”).  The Twin Cities Assets shall include the following:

 

(i)                                    all of Twin Cities’ machinery, equipment, components, parts, tools, spare parts, supplies and materials, including the items identified on Schedule 1.1(a)(i);

 

 

(ii)                                all of Twin Cities’ inventories of raw materials, work-in-process, parts, subassemblies and finished goods, and all other materials and supplies to be used or consumed by Twin Cities in the production of finished goods, wherever located and whether or not obsolete or carried on Twin Cities’ books of account, including the items identified on Schedule 1.1(a)(ii);

 

(iii)                            all of Twin Cities’ other tangible personal property (other than the corporate seal), including office furniture, office equipment and supplies, leasehold improvements (other than leasehold improvements constituting leased property under leases of Real Property disclosed on Schedule 4.16), vehicles and computers, including all hardware and software, including the items identified on Schedule 1.1(a)(iii), excluding those specific assets identified on Schedule 1.1(b);

 

(iv)                              all of Twin Cities’ fixtures on the Real Property (other than fixtures constituting leased property under leases of Real Property disclosed on Schedule 4.16), and, to the extent not described above, all tangible personal property that is part of the Twin Cities Business and is located at 2611 Hamlin Avenue North, Roseville, Minnesota 55113 as of the Closing Date (other than leased property and consigned property disclosed in the Schedules hereto and goods in transit);

 

(v)                                  all of Twin Cities’ investments, securities, advance payments, rental deposits, including lease deposits for leases of Real Property disclosed on Schedule 4.16, prepaid items, claims, deferred charges, rights of offset and credits and claims for refund (other than Tax credits and claims for Tax refunds);

 

(vi)                              all of Twin Cities’ notes receivable, accounts receivable and other rights to payment from customers, including trade accounts receivable from goods shipped, products sold or services rendered (other than notes receivable, accounts receivable and other rights to payment from any Related Party), and the full benefit to all security for such notes receivable, accounts receivable or rights to payment;

 

(vii)                          all of Twin Cities’ books (other than minute books), records (other than stock records and Tax records), manuals, documents, books of account, whether inscribed on a tangible medium or stored in an electronic or other medium, including sales and credit reports, client and customer lists, literature, brochures, advertising material, maintenance records, service and warranty records, referral sources, research and development records, production records, equipment logs, operating guides and manuals, financial and accounting records (other than Tax records), creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents, wherever located, and copies of all personnel records (other than personnel records that Twin Cities is required by law to retain in its possession);

 

(viii)                      all of Twin Cities’ rights under Contracts identified on Schedule 1.1(a)(viii), including all of Twin Cities’ vehicle leases, and all outstanding offers and solicitations made to or by Twin Cities identified on Schedule 1.1(a)(viii) and all Contracts, offers and solicitations made or entered into by Twin Cities after the date hereof and on or prior to the Closing Date and not prohibited by the terms of this Agreement;

 

2

 

(ix)                             all of Twin Cities’ intangible rights and property, including goodwill and rights in and to the name “Twin Cities” and in any other tradename, trademark, fictitious name or service mark used in the Twin Cities Business (other than any such tradename, trademark, fictitious name or service mark based on, or relating to, the name “Comfort Systems”, the name “Comfort Systems USA” or the name of any of Comfort Systems’ subsidiaries (other than Seller)) or any variant of any of them, and all applications therefor or registrations thereof, and all other forms of Twin Cities’ Intellectual Property, all research related to the Twin Cities Business conducted by Twin Cities, all of Twin Cities’ development facilities and inventions and work-in-process constituting a part thereof, and all rights to Twin Cities’ Software, telephone numbers, facsimile numbers, e-mail addresses, internet sites, internet addresses and domain names thereof and other listings;

 

(x)                                 all of Twin Cities’ Governmental Authorizations and all pending applications for issuance or renewal thereof, in each case to the extent transferable;

 

(xi)                             all of Twin Cities’ other assets that (A) are used by Twin Cities in connection with the Twin Cities Business or (B) are reflected on the Closing Balance Sheet;

 

(xii)                         all of Twin Cities’ goodwill and the Twin Cities Business as a going concern in Minnesota (but in no event including Twin Cities’ Affiliates’ businesses of engaging in HVAC mechanical contracting or providing HVAC services as a core business, with incidental sales, installation and servicing of HVAC controls); and

 

(xiii)                     all of Twin Cities’ choses in action, causes of action and judgments, express and implied warranties and existing and inchoate claims, rights and remedies related to any of the foregoing.

 

If and to the extent that Comfort Systems has any interest in any of the Twin Cities Assets, then, at Closing, Comfort Systems shall sell, transfer and assign all of such interest to Buyer for no additional consideration.  At Closing, Comfort Systems shall execute and deliver to Buyer a confirmatory general warranty bill of sale to such effect.

 

(b)                                 Twin Cities Retained Assets.  Notwithstanding anything to the contrary in this Agreement, Twin Cities shall retain all of the following assets (collectively, the “Twin Cities Retained Assets”):  (i) all consideration to be delivered to Twin Cities pursuant to, and all other rights of Twin Cities under, this Agreement and the Other Agreements to which Twin Cities is a party; (ii)  Twin Cities’ corporate seal and all of Twin Cities’ minute books, stock records and Tax records; (iii) all of Twin Cities’ claims, choses in action, causes of action and judgments, express and implied warranties and existing and inchoate claims, rights and remedies related to any litigation matter identified on Schedule 4.12 or any other Twin Cities Retained Liabilities; (iv) all of Twin Cities’ cash and cash equivalents, including bank accounts and mutual fund accounts; (v) all of Twin Cities’ rights to the name “Comfort Systems”, the name “Comfort Systems USA” or the name of any of Comfort Systems’ subsidiaries (other than Seller), and all of Twin Cities’ rights to all tradenames, trademarks, fictitious names and service marks based on, or relating to, the name “Comfort Systems”, the name “Comfort Systems USA” or the name of any of Comfort Systems’ subsidiaries (other than Seller); (vi) all of Twin Cities’ tax sharing and similar agreements with Comfort Systems or any of its other subsidiaries and all of Twin

 

3

 

Cities’ other Contracts with Related Parties; (vii) all of Twin Cities’ Tax credits and claims for Tax refunds; (viii) all of Twin Cities’ notes receivable, accounts receivable and other rights to payment from any Related Party; (ix) all shares of capital stock in Twin Cities’ treasury; (x) all of Twin Cities’ Contracts and specific assets identified on Schedule 1.1(b); (xi) all personnel records that Twin Cities is required by law to retain in its possession; and (xii) all of Twin Cities’ rights to insurance proceeds in respect of Retained Liabilities.  Notwithstanding anything to the contrary in this Agreement, none of the Twin Cities Retained Assets shall be included in the Twin Cities Assets.

 

(c)                                  Assumption of Liabilities.  Subject to the conditions described in Article II, at Closing, Buyer shall, pursuant to an Assumption Agreement substantially in the form of Exhibit A (the “Twin Cities Assumption Agreement”), assume and agree to pay, perform, satisfy and discharge when due, to the extent not theretofore paid, performed, satisfied and discharged, the following known and identifiable liabilities of Twin Cities existing on the Closing Date, except for the Twin Cities Retained Liabilities (collectively, the “Twin Cities Assumed Liabilities”):

 

(i)                                    all of Twin Cities’ short-term liabilities reflected in the Interim Balance Sheet in the amounts shown thereon;

 

(ii)                                all of Twin Cities’ short-term liabilities incurred after the Interim Balance Sheet Date in the ordinary course of business in accordance with past practice that are required to be reflected in the Closing Balance Sheet in accordance with GAAP, in the amounts shown thereon, including all short-term liabilities included in Net Asset Value and all orders from Twin Cities’ customers (other than any Liability in respect of any such order arising from any breach or nonperformance thereof prior to the Closing Date);

 

(iii)                            all of Twin Cities’ liabilities set forth in the terms of the Contracts, offers and solicitations that are identified in Section 1.1(a)(viii) (other than any Liability under any such Contract, offer or solicitation arising from any breach or nonperformance thereof prior to the Closing Date);

 

(iv)                              all of Twin Cities’ liabilities under Governmental Authorizations and all pending applications for issuance or renewal thereof that (A) are transferable to Buyer hereunder and (B) are either (1) listed on Schedule 4.14 or 4.22 or (2) are obtained or submitted by Twin Cities after the date hereof and on or prior to the Closing Date (other than any Liability under any such Governmental Authorization or application arising from any breach or nonperformance thereof prior to the Closing Date); and

 

(v)                                  all liabilities of Twin Cities for all transfer, documentary, sales, use and motor vehicle taxes that result from the sale of the Twin Cities Assets pursuant to this Agreement.

 

(d)                                 Twin Cities Retained Liabilities.  Notwithstanding anything to the contrary in this Agreement, Buyer is not assuming, and shall not assume or in any way undertake to pay, perform, satisfy or discharge, any Liabilities of Twin Cities or any Predecessor existing before, on or after the Closing Date or arising out of any transactions entered into, or any state of facts existing, before, on or after the Closing Date, and whether or not related to or arising out of any

 

4

 

of the Twin Cities Assets, except for the Twin Cities Assumed Liabilities (the “Twin Cities Retained Liabilities”), and Twin Cities agrees to pay, perform, satisfy and discharge when due all Twin Cities Retained Liabilities.  Without limiting the foregoing, the term “Twin Cities Retained Liabilities” shall include any and all:

 

(i)                                    Liabilities of Twin Cities (A) to any Related Party, (B) for or in connection with any dividends, distributions, redemptions or Security Rights with respect to any security of Twin Cities, (C) to indemnify Twin Cities’ officers, directors, employees or agents or (D) arising out of any transaction affecting, or any obligations incurred by, Twin Cities or its officers, directors, employees or agents, after Closing;

 

(ii)                                Liabilities identified elsewhere in this Agreement as being the responsibility of Twin Cities;

 

(iii)                            Liabilities of Twin Cities and its Affiliates for any Taxes, whether or not by reason of, or in connection with, the Contemplated Transactions (other than Liabilities for transfer, documentary, sales, use or motor vehicle taxes that (A) result from the sale of the Twin Cities Assets pursuant to this Agreement and (B) constitute Twin Cities Assumed Liabilities), including (1) any Taxes arising as a result of Twin Cities’ operation of its business or ownership of the Twin Cities Assets prior to the Closing Date, (2) any Liability of Twin Cities for Taxes of any person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise, (3) any Taxes that result from the sale of the Twin Cities Assets pursuant to this Agreement (other than Liabilities for transfer, documentary, sales, use or motor vehicle taxes that (y) result from the sale of the Twin Cities Assets pursuant to this Agreement and (z) constitute Twin Cities Assumed Liabilities), and (4) any deferred Taxes of Twin Cities of any kind;

 

(iv)                              Liabilities under or arising out of or relating to any discontinued operations of Twin Cities, including any remaining Liabilities of Twin Cities or any Predecessor under any purchase and sale agreements effecting such dispositions or agreements ancillary or related thereto;

 

(v)                                  Liabilities attributable to Twin Cities Retained Assets, including Liabilities (A) for Twin Cities’ checks that are outstanding on the Closing Date and (B) that (1) are incurred after the Interim Balance Sheet Date and (2) are outside the ordinary course of business or not in accordance with past practice;

 

(vi)                              Liabilities to, under or with respect to any Twin Cities Plan or any Comfort Systems Plan and the administration of any Twin Cities Plan or Comfort Systems Plan;

 

(vii)                          Liabilities of Twin Cities (A) relating to payroll (to the extent not previously accrued), vacation, sick leave, paid time off, Workers’ Compensation Liabilities, unemployment benefits, disability and occupational diseases of or with respect to any employee or former employee of Twin Cities or any Predecessor, (B) under any employment, severance, retention, change of control or termination agreement with any employee of Twin Cities or any Related Party or (C) arising out of or relating to any employee grievance of any employee or

 

5

 

former employee of Twin Cities, in each case whether or not the affected employee is hired by Buyer;

 

(viii)                      Liabilities of Twin Cities under any Contract, offer or solicitation (other than Liabilities under Contracts, offers and solicitations that constitute Assumed Twin Cities Liabilities);

 

(ix)                             Liabilities of Twin Cities under any written employment agreement identified on Schedule 4.13 (other than Liabilities under the employment agreement of Don Luhman that constitute Assumed Twin Cities Liabilities);

 

(x)                                 Liabilities of Twin Cities for or arising out of any Indebtedness;

 

(xi)                             Liabilities of Twin Cities relating to Legal Proceedings that (A) exist on, or arise after, the Closing Date and (B) relate to transactions entered into, or any state of facts existing, on or before the Closing Date;

 

(xii)                         Liabilities of Twin Cities (including penalties, fines, levies and assessments) arising out of any violation or breach of, or noncompliance with, any Contracts, Governmental Authorizations or Legal Requirements by Twin Cities or any other person acting as agent for or on behalf of Twin Cities prior to the Closing Date;

 

(xiii)                     Liabilities of Twin Cities:  (A) for products liability in respect of all products (including products in work-in-process and finished goods inventory on the Closing Date) shipped, distributed, assembled or manufactured by, or any services provided by, Twin Cities prior to the Closing Date (other than any such Liabilities for products liability relating to any product assembled or manufactured by, or any service provided by, ALC or any of its subsidiaries); (B) relating to any recalls of products manufactured by Twin Cities prior to the Closing Date (other than any such Liabilities relating to any product recall and resulting from any product assembled or manufactured by ALC or any of its subsidiaries); and (C) for all express and implied product warranties for all products shipped, distributed, assembled or manufactured by, or any services provided by, Twin Cities (other than any such Liabilities relating to any express or implied product warranty for any product assembled or manufactured by, or any service provided by, ALC or any of its subsidiaries);

 

(xiv)                       Liabilities of Comfort Systems;

 

(xv)                           Liabilities of Twin Cities to the extent that Twin Cities or Comfort Systems collects insurance proceeds in respect thereof; and

 

(xvi)                       Liabilities based on acts or omissions of Twin Cities occurring after the Closing Date.

 

Notwithstanding anything to the contrary in this Agreement, none of the Twin Cities Retained Liabilities shall be included in the Twin Cities Assumed Liabilities.

 

6

 

(e)                                  Purchase Price.  The purchase price for the Twin Cities Assets shall be $460,000 plus the assumption of the Twin Cities Assumed Liabilities (the “Twin Cities Purchase Price”), as adjusted by the Purchase Price Adjustment.

 

(f)                                    Allocation of Twin Cities Purchase Price.  The Twin Cities Purchase Price shall be allocated among the Twin Cities Assets in accordance with the allocation set forth in IRS Form 8594 attached as Schedule 1.1(f).  Twin Cities shall timely and properly prepare, execute, file and deliver any and all documents, forms and authorizations (including powers of attorney) as Buyer may reasonably request in order to prepare and report such allocation (including any amendments thereto) to taxing authorities.  Buyer shall prepare and deliver a final IRS Form 8594 to Twin Cities within ninety (90) days after the Closing Date.  Buyer and Twin Cities shall report the federal, state and local income and other tax consequences of the purchase and sale of the Twin Cities Assets contemplated hereby, including those required by Section 1060 of the IRC and IRS Form 8594, in a manner consistent with such allocation and shall not take any position inconsistent therewith upon examination of any Tax Return, in any refund claim, in any litigation, or otherwise.  Any Purchase Price Adjustment allocated to the Twin Cities Purchase Price shall be allocated by Buyer among the Twin Cities Assets consistent with the allocation set forth in Schedule 1.1(f) and shall be binding upon Twin Cities and Buyer.

 

(g)                                 Passage of Title.  Title to all Twin Cities Assets shall pass from Twin Cities to Buyer at Closing, subject to the terms and conditions of this Agreement.  Buyer assumes no risk of loss to the Twin Cities Assets prior to Closing.

 

(h)                                 Certain Consents.  Nothing in this Agreement shall be construed as an attempt to assign any Contract or Governmental Authorization (i) which is included in the Twin Cities Assets and (ii) under which all the remedies for the enforcement thereof enjoyed by Twin Cities would not, as a matter of law, pass to Buyer as an incident of the assignments provided for by this Agreement without a Legal Approval or Consent.  If any such Legal Approval or Consent is not obtained prior to Closing, then Twin Cities shall, at the request and under the direction of Buyer, in the name of Twin Cities or otherwise as Buyer shall specify, take all action (including the appointment of Buyer as attorney-in-fact for Twin Cities) and do or cause to be done all such things as shall in the reasonable opinion of Buyer be reasonably necessary (i) to assure that the rights of Twin Cities under such Contracts and Governmental Authorizations shall be preserved for the benefit of Buyer, (ii) to facilitate receipt of the consideration to be received by Twin Cities in and under every such Contract and Governmental Authorization, which consideration shall be held for the exclusive benefit of, and shall be delivered to, Buyer, and (iii) continue to use its commercially reasonable efforts to obtain such Legal Approvals and Consents as soon as reasonably possible after Closing.

 

(i)                                    Interpretation.  Notwithstanding anything to the contrary in this Agreement, the provisions of this Section 1.1, together with the provisions of this Agreement giving effect to the Purchase Price Adjustment, shall not be interpreted or construed in any manner that would result in (A) any duplication of benefits or obligations or (B) any unjust enrichment, in each case for either the ALC Group or the Comfort Systems Group.

 

7

 

1.2.                            The UES Sale and Purchase Transaction.

 

(a)                                 Sale and Purchase of the UES Assets.  Subject to the conditions described in Article II, at Closing, UES shall sell and transfer to Buyer, and Buyer shall purchase from UES, free and clear of all Encumbrances other than the Permitted Encumbrances, all of UES’s assets and properties of every kind, nature and description, wherever located and whether real, personal or mixed, tangible or intangible, in electronic form or otherwise, and whether or not having any value for accounting purposes or carried or reflected on or specifically referred to in its books or financial statements, except for the UES Retained Assets (collectively, the “UES Assets”).  The UES Assets shall include the following:

 

(i)                                    all of UES’s machinery, equipment, components, parts, tools, spare parts, supplies and materials, including the items identified on Schedule 1.2(a)(i);

 

(ii)                                all of UES’s inventories of raw materials, work-in-process, parts, subassemblies and finished goods, and all other materials and supplies to be used or consumed by UES in the production of finished goods, wherever located and whether or not obsolete or carried on UES’s books of account, including the items identified on Schedule 1.2(a)(ii);

 

(iii)                            all of UES’s other tangible personal property, including office furniture, office equipment and supplies, leasehold improvements (other than leasehold improvements constituting leased property under leases of Real Property disclosed on Schedule 4.16), vehicles and computers, including all hardware and software, including the items identified on Schedule 1.2(a)(iii), excluding those specific assets identified on Schedule 1.2(b);

 

(iv)                              all of UES’s fixtures on the Real Property (other than fixtures constituting leased property under leases of Real Property disclosed on Schedule 4.16), and, to the extent not described above, all tangible personal property that is part of the UES Business and is located at 4107 New West Drive, Pasadena, Texas 77507 and 85 IH 10 North, Suite 112, Beaumont, Texas  77707 as of the Closing Date (other than leased property and consigned property disclosed in the Schedules hereto and goods in transit);

 

(v)                                  all of UES’s investments, securities, advance payments, rental deposits, including lease deposits for leases of Real Property disclosed on Schedule 4.16, prepaid items, claims, deferred charges, rights of offset and credits and claims for refund (other than Tax credits and claims for Tax refunds);

 

(vi)                              all of UES’s notes receivable, accounts receivable and other rights to payment from customers, including trade accounts receivable from goods shipped, products sold or services rendered (other than notes receivable, accounts receivable and other rights to payment from any Related Party), and the full benefit to all security for such notes receivable, accounts receivable or rights to payment;

 

(vii)                          all of UES’s books (other than minute books), records (other than partnership interest records and Tax records), manuals, documents, books of account, whether inscribed on a tangible medium or stored in an electronic or other medium, including sales and credit reports, client and customer lists, literature, brochures, advertising material, maintenance records, service and warranty records, referral sources, research and development records, production records, equipment logs, operating guides and manuals, financial and accounting

 

8

 

records (other than Tax records), creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents, wherever located, and copies of all personnel records (other than personnel records that UES is required by law to retain in its possession);

 

(viii)                      all of UES’s rights under Contracts identified on Schedule 1.2(a)(viii), including all of UES’s vehicle leases, and all outstanding offers and solicitations made to or by UES identified on Schedule 1.2(a)(viii) and all Contracts, offers and solicitations made or entered into by UES after the date hereof and on or prior to the Closing Date and not prohibited by the terms of this Agreement;

 

(ix)                             all of UES’s intangible rights and property, including goodwill and rights in and to the name “United Environmental Services” and in any other tradename, trademark, fictitious name or service mark used in the UES Business (other than any such tradename, trademark, fictitious name or service mark based on, or relating to, the name “Comfort Systems”, the name “Comfort Systems USA” or the name of any of Comfort Systems’ subsidiaries (other than Seller)) or any variant of any of them, and all applications therefor or registrations thereof, and all other forms of UES’s Intellectual Property, all research related to the UES Business conducted by UES, all of UES’s development facilities and inventions and work-in-process constituting a part thereof, and all rights to UES’s Software, telephone numbers, facsimile numbers, e-mail addresses, internet sites, internet addresses and domain names thereof and other listings;

 

(x)                                 all of UES’s Governmental Authorizations and all pending applications for issuance or renewal thereof, in each case to the extent transferable;

 

(xi)                             UES’s claim in connection with services performed by UES at Houston Intercontinental Airport (the “HIA Claim”);

 

(xii)                         all of UES’s other assets that (A) are used by UES in connection with the UES Business or (B) are reflected on the Closing Balance Sheet; and

 

(xiii)                     all of UES’s goodwill and the UES Business as a going concern in Texas and Louisiana (but in no event including UES’s Affiliates’ businesses of engaging in HVAC mechanical contracting or providing HVAC services as a core business, with incidental sales, installation and servicing of HVAC controls); and

 

(xiv)                       all of UES’s choses in action, causes of action and judgments, express and implied warranties and existing and inchoate claims, rights and remedies related to any of the foregoing.