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REAL PROPERTY SALE AGREEMENT
THIS REAL PROPERTY SALE AGREEMENT ("Agreement"), dated as of September
30, 1997, by and among Service Experts, Inc., a Delaware corporation ("SEI"),
Xxxxxxx Acquisition Sub, Inc., a Tennessee corporation and wholly-owned
subsidiary of SEI ("Sub") and Xxxxxx X. Xxxx and Delvona R. Rude (collectively,
the "Sellers").
W I T N E S S E T H :
WHEREAS, the Sellers own certain real property utilized for the
heating, ventilating and air conditioning ("HVAC") service and replacement
business of Xxxxxxx Mechanical, Inc., an Idaho corporation (the "Company"); and
WHEREAS, the Sellers wish to transfer to Sub, and Sub desires to
acquire, the real property as more particularly described herein.
NOW, THEREFORE, in consideration of the mutual premises and covenants
set forth herein and other good and valuable consideration, the receipt and
sufficiency of all of which are hereby acknowledged, the parties agree as
follows:
Section 1. Transfer of Property. In accordance with the terms
and conditions set forth herein, the Sellers hereby transfer, convey, assign and
deliver, and Sub hereby purchases, the real property, as more particularly
described in Exhibit 1 attached hereto together with any and all buildings,
structures and other improvements located thereon, together with all rights,
hereditaments and appurtenances pertaining to the property including any right,
title and interest of the Sellers in and to adjacent streets, alleys or
rights-of-way, for the purchase price and upon and subject to the terms,
provisions and conditions hereinafter set forth (the land, improvements and
rights appurtenant thereto are collectively referred to herein as the "Real
Property").
Section 2. Purchase Price.
(a) Purchase Price. The purchase price for the Real
Property shall be $1,800,000 payable as provided in Section 2(b) below.
(b) Payment of Purchase Price. As of the Closing Date (as
hereinafter defined) and subject to the provisions of this Section 2, in
exchange for title to the Real Property, Sub and SEI shall pay the Purchase
price by (i) deliver to the Sellers an aggregate of $704,151, consisting of
certificates representing 26,080 shares of Common Stock, par value $.01 per
share, of SEI (the "SEI Common Stock") and (ii) pay off all the liabilities
listed on Schedule 2(b) attached hereto.
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(c) Escrow Agreement. An aggregate of 10% of the Purchase
Price shall be held in escrow pursuant to the terms and conditions of the escrow
agreement attached hereto as Schedule 2(c) (the "Escrow Agreement").
Section 3. The Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place on September 30,
1997 (the "Closing Date") and at 0000 Xxxxx Xxxxxxxxxx Xxx, Xxxxx x'Xxxxx, Xxxxx
00000.
Section 4. Representations and Warranties of the Sellers. Each
of the Sellers, jointly and severally, represents and warrants to Sub and SEI as
follows as of the date hereof and also as of the Closing Date:
(a) Contracts Affecting Real Property. Except as
disclosed on Schedule 4(a) hereto, there are no sales contracts or options,
tenant leases, maintenance contracts, employment agreements or agreements of any
other nature, whether oral or written, affecting the use or possession of the
Real Property or any part thereof.
(b) Authorization and Validity. Each Seller is a natural
person and has the full authority and legal capacity to execute and deliver this
Agreement and all other documents to be executed and delivered by such Seller
and to consummate the transactions contemplated hereby or thereby (the
"Transaction Documents"). This Agreement, when executed, will constitute the
legal, valid and binding obligation of each Seller, enforceable against each
Seller in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
and subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). The Sellers
have the full right, power and authority to sell and convey the Real Property to
Buyer as provided herein and to carry out their obligations hereunder.
(c) Compliance with Laws, Regulations and Court Orders.
The Sellers represent and warrant that neither the Real Property nor any
adjoining property of Seller is subject to any existing, pending or threatened
investigation or inquiry by any governmental authority or to any remedial
obligations under any applicable laws of the State of Idaho or of the United
States pertaining to health or the environment. There is not outstanding or
threatened any order, writ, injunction or decree of any court, governmental
agency or arbitration tribunal against or affecting the Sellers. The Sellers are
in compliance with all applicable federal, state and local laws, regulations and
administrative orders, and have received no notices of alleged violations
thereof. No governmental authorities are currently conducting proceedings
against the Sellers and no such investigation or proceeding is pending or being
threatened. There are no condemnation proceedings which are currently threatened
or pending. To the best of Sellers' knowledge, the Real Property complies with
and does not violate any existing fire, health, building, life safety,
handicapped persons, environmental, zoning, subdivision or other laws,
ordinances, codes, orders, regulations or requirements affecting all or any
portion of the Real Property.
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(d) Environmental Conditions.
(i) The Sellers are currently in
compliance with all Environmental Laws (as defined below).
(ii) The Sellers have not stored any
Hazardous Substances (as defined below) on any of the Real Property,
except in compliance with applicable Environmental Laws.
(iii) The Sellers have not disposed of or
released any Hazardous Substances on any of the Real Property.
(iv) The Sellers have not arranged for
disposal or utilized any transporters or disposal facilities for the
transport or disposal of Hazardous Substances except as indicated on
Schedule 4(d)(iv).
(v) The Sellers have not received any
communication (written or oral), whether from a governmental authority,
citizen's group, employee or otherwise, that alleges that the Sellers
are not in full compliance with Environmental Laws, and there are no
circumstances that may prevent, interfere with, or make more expensive
such full compliance in the future. There is no Environmental Claim (as
defined below) pending or threatened against the Sellers.
(vi) There have been no actions,
activities, circumstances, conditions, events or incidents, including,
without limitation, the generation, handling, transportation,
treatment, storage, release, emission, discharge, presence or disposal
of any Hazardous Substances that could form the basis of any
Environmental Claim against the Sellers, and the Sellers know of any
such actions, activities, circumstances, conditions, events or
incidents.
(vii) The Real Property and, to the best
knowledge of the Sellers, adjoining properties, have never been
utilized for any industrial or commercial operation involving any
Hazardous Substance.
(viii) Without in any way limiting the
generality of the foregoing, (A) all underground storage tanks, and the
capacity, uses, date of installation, and contents of such tanks,
located on the Real Property, are identified on Schedule 4(d)(viii);
(B) there are no, nor have there ever been, collection dumps, pits, and
disposal facilities or surface impoundments located on the Real
Property, except as identified on Schedule 4(d)(viii); (C) all
underground storage tanks are in full compliance with the Environmental
Laws; (D) there is no asbestos contained in or forming part of the Real
Property; and (E) no polychlorinated biphenyls ("PCBs") have been used
or stored on the Real Property.
The following terms shall have the following
meanings:
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"Environmental Claim" means any claim,
action, cause of action, investigation or notice (written or oral) by
any person or entity alleging potential liability (including, without
limitation, potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damages, property
damages, personal injuries, or penalties) arising out of, based on or
resulting from (a) the presence, or release into the environment, of
Hazardous Substances at any location which is or has been owned,
leased, operated or utilized by the Company or the Sellers or (b)
circumstances forming the basis of any violation, or alleged violation,
of any Environmental Law.
"Environmental Laws" means the federal,
state, regional, county or local environmental, health or safety laws,
regulations, ordinances, rules and policies and common law in effect on
the date hereof and the Closing Date relating to the use, refinement,
handling, treatment, removal, storage, production, manufacture,
transportation or disposal, emissions, discharges, releases or
threatened releases of Hazardous Substances, or otherwise relating to
protection of human health or the environment (including, without
limitation, ambient air, surface water, ground water, land surface or
subsurface strata), as the same may be amended or modified to the date
hereof and the Closing Date.
"Hazardous Substances" means any toxic or
hazardous waste, pollutants or substances, including, without limitations,
asbestos containing materials ("ACMs"), polychlorinated biphenyls ("PCBs"),
petroleum products, byproducts, or other hydrocarbon substances, substances
defined or listed as a "hazardous waste", "hazardous substance", "toxic
substance", "toxic pollutant", or similarly identified substance or mixture, in
or pursuant to any Environmental Law and medical or infectious waste.
(e) Title. Except as disclosed on Schedule 4(e),
the Seller represents and warrants that the Sellers are the owners of good and
marketable title to the Property, free and clear of all liens, encumbrances and
restrictions of any kind.
(f) Consents and Approvals. Except as set forth
on Schedule 4(f), no consents, approvals, authorizations or orders of third
parties, including governmental authorities, are necessary for the
authorization, execution and performance by each Seller of this Agreement and
the Transaction Documents.
(g) Disclosure.
(i) No representation or warranty made
herein by any Seller, nor in any statement, certificate or instrument
to be furnished to Sub by any Seller pursuant to any Transaction
Document, contains or will contain any untrue statement of material
fact or omits or will omit to state a material fact necessary to make
these statements contained herein and therein not misleading.
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(ii) There is no fact known to the
Sellers that has specific application to the Real Property (other than
general economic or industry conditions) and that materially adversely
affects the Real Property.
(h) Reliance on Representations. Each Seller
understands and intends that Sub, SEI and their management will rely upon the
representations of each Seller made in this Agreement, and they are entitled to
rely upon each and all of the same without further inquiry.
(i) Investment Intent. Each Seller understands
that the SEI Common Stock will be transferred without registration under the
Securities Act of 1933, as amended (the "Act"), and applicable state securities
laws, in reliance upon applicable exemptions from the registration provisions of
the Act and state securities laws, and that such reliance is based in part on
representations set forth below.
(i) Each Seller recognizes the
speculative nature of an investment in the Company and that it involves
a high degree of loss;
(ii) Each Seller can bear the economic
risk of the investment in the SEI Common Stock;
(iii) Each Seller has such knowledge and
experience in financial or business matters that he or she is capable
of evaluating the merits and risks of the prospective investment, or
such Seller is relying on such Seller's own tax advisor and/or a
purchaser representative ("Purchaser Representative") in making the
investment decision to purchase the SEI Common Stock;
(iv) Each Seller has received and read
and is familiar with the Confidential Private Placement Memorandum,
dated September 26, 1997, including the documents and exhibits annexed
thereto and any amendments thereof (the "Memorandum"), and confirms
that all documents, records and books pertaining to such Seller's
proposed investment in the Company has been made available to such
Seller and (if applicable) my Purchaser Representative;
(v) Each Seller and (if applicable) his
or her Purchaser Representative, have had, if requested, an opportunity
to ask questions of and receive satisfactory answers from a person or
persons acting on behalf of the Company, concerning the terms and
conditions of this investment, and all such questions have been
answered to such Seller's full satisfaction;
(vi) Each Seller is acquiring the SEI
Common Stock for such Seller's own account for investment and not with
a view to, or for resale in connection with, any distribution thereof
within the meaning of the Act and applicable state securities laws;
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(vii) Each Seller has received no
representations or warranties from SEI or its affiliates, agents or
representatives other than those contained herein or in the Memorandum
and, in making his or her investment decision, such Seller is relying
solely on the information contained herein or in the Memorandum and
such Seller's own personal knowledge, and investigations made by such
Seller or (if applicable) his or her Purchaser Representative; and
(viii) Each Seller understands that no
securities commissioner of any state has made any finding or
determination relating to the fairness for public investment in the SEI
Common Stock and that no securities commissioner of any state has or
will recommend or endorse an investment in the SEI Common Stock.
(ix) The SEI Common Stock was offered to
each Seller by SEI through direct communication and not through any
advertisement of any kind.
(j) Litigation. There are no pending, nor to the
knowledge of the Sellers, any threatened actions, suits or proceedings against
or affecting the Real Property or any portion thereof, or relating to or arising
out of the ownership, leasing, operation, management, use or maintenance of the
Real Property.
Section 5. Representations and Warranties of Sub and SEI. Sub
and SEI hereby, jointly and severally, represent and warrant to each Seller as
follows as of the date hereof and as of the Closing Date:
(a) Corporate Organization. Sub is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Tennessee, and has all requisite corporate power and authority to
execute and deliver this Agreement.
(b) Authorization and Validity. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized and approved by all
necessary corporate action. This Agreement, when executed, will constitute the
legal, valid and binding obligation of Sub and SEI, enforceable against it in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws and subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(c) Absence of Conflicting Agreements or
Required Consents. The execution, delivery and performance by Sub and SEI of
this Agreement (i) does not require the consent of or notice to any governmental
or regulatory authority or any other third party; (ii) will not conflict with
any provision of Sub's Charter or Bylaws; (iii) will not conflict with or result
in a violation of any law, ordinance regulation, ruling, judgement, order or
injunction of any court or governmental instrumentality to which Sub or SEI is a
party or by which Sub or SEI or any of their properties are bound; (iv) will not
conflict with, constitute
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grounds for termination of, result in a breach of, constitute a default under,
require any notice under, or accelerate or permit the acceleration of any
performance required by the terms of any agreement, instrument, license or
permit to which Sub or SEI is a party or by which any of their properties are
bound; and (v) will not create any lien, encumbrance or restriction upon any of
the assets or properties of Sub or SEI.
(d) Statements True and Correct. No
representation or warranty made herein by Sub and SEI, nor in any statement,
certificate or instrument to be furnished to the Sellers by Sub and SEI pursuant
to any Transaction Document, contains or will contain any untrue statement of
material fact or omits or will omit to state a material fact necessary to make
these statements contained herein and therein not misleading.
Section 6. Additional Covenants and Agreements.
(a) Best Efforts. Each Seller will use its
best efforts to take all action and to do all things necessary, proper or
advisable to consummate the transactions contemplated by this Agreement. Each
Seller will use its best efforts to secure all consents and approvals required
to carry out the transactions contemplated by this Agreement and to satisfy all
other conditions to the obligations of the parties hereunder.
(b) Confidentiality and Public Announcements.
Each Seller shall cause the Company to, and each Seller shall, keep confidential
all information concerning this Agreement or provided to it by SEI and Sub. The
Sellers shall cause the Company to, and each Seller shall, refrain from making,
any public announcement with respect to this Agreement without the prior written
consent of SEI.
(c) Restrictions on Transfer. Each Seller
acknowledges and agrees that the SEI Common Stock to be issued in the Transfer
has not been registered under the Act. The SEI Common Stock to be issued in the
Transfer may not be offered for sale, sold, transferred, pledged or otherwise
disposed of without registration under the federal and state securities laws or
an exemption therefrom. SEI will file with the Securities and Exchange
Commission (the "Commission"), on or before November 15, 1997, a Registration
Statement on Form S-3 (the "Registration Statement") registering the resale by
the Sellers of the shares of SEI Common Stock issued in the transfer. SEI will
promptly respond to any review comments by the Commission and will diligently
pursue the registration of the SEI Common Stock. The Registration Statement
shall be kept current by SEI until such time as each Seller has sold all the SEI
Common Stock or until resales can be made under Rule 144. Certificates
representing the SEI Common Stock will bear legends with respect to restrictions
on subsequent transfers of the securities. Because the shares of SEI Common
Stock will be subject to restrictions on transfers, such shares will not be
transferable except in accordance with the Act. In addition, SEI will publish,
within 30 days of receipt of the Company's financial results for the period
commencing October 1, 1997 and ending October 30, 1997, combined results of the
Company and SEI covering at least 30 days from the Closing Date.
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(d) Termination of Leases. As of the Closing
Date, the Sellers shall cause the Company to terminate the leases of the
buildings and land in and upon which the Company operates as of the date hereof
and neither the Company nor Sub shall have any obligation or liability, directly
or indirectly, arising in connection with or on account of such termination.
(e) Title Commitments. Sub and SEI have reviewed
a preliminary title commitment from Chicago Title Company (the "Title Company")
for an Owner's Title Policy/ALTA Form 1987 (Revised 10-17-92) title insurance
policy for the Real Property owned by the Sellers (the "Title Commitment"),
along with copies of all recorded documents affecting or relating to the Real
Property and have approved the form of Warranty Deed attached hereto as Exhibit
6(e).
Sub shall have been issued a Title Commitment in the amount of
$1,800,000 insuring as of the date and time of the recording of the Warranty
Deed Sub's good, indefeasible and marketable title to the Owned Property which
shall contain no liens or other title exceptions or encumbrances except for
those liens or other title exceptions or encumbrances approved in writing by
Sub. Such Title Commitment shall be acceptable to Sub and shall provide full
coverage against mechanic's or materialman's liens arising out of any work,
labor, materials or services furnished or claimed to have been furnished to the
Owned Property or any portion thereof prior to the Closing Date, and shall
contain such endorsements as specified herein or as may be reasonably required
by Sub.
(f) Sellers' Cooperation. The Sellers covenant
to cooperate fully with Sub at all times including, but not limited to,
supplying such affidavits or other information or assurances that Sub's title
insuror may require to delete any exceptions appearing upon any commitment for
title insurance which Sub may obtain or otherwise.
(g) Lock-up Agreements. Each Seller shall have
entered into an agreement with SEI restricting the resale of shares of SEI
Common Stock substantially in the form attached hereto as Schedule 6(g).
(h) Escrow Agreement. SEI and each of the
Sellers shall have entered into the Escrow Agreement.
Section 7. Post-Closing Obligations.
(a) Warranty Deeds. At, or as soon as possible
following, Closing, the Sellers shall deliver to Sub a general warranty deed for
each parcel of Real Property in form satisfactory to Sub for recording, duly
executed and acknowledged so as to convey good and marketable fee simple title
to the Real Property free of all encumbrances and subject only to buidling and
use restrictions, and such exceptions as may be shown upon Sub's commitment for
title insurance.
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(b) Owners' Affidavit. The Sellers shall also
deliver to Sub an affidavit of the Sellers in form satisfactory to Sub and the
title insuror certifying that as of the date of closing, there are no rights
which could give rise to laborers, mechanics, or materialmen's liens or other
unrecorded liens against any portion of the Real Property. The Sellers also
agree to execute such other instruments as Sub or Sub's title insuror may
request to carry out insure clear and marketable title in fee simple to the Real
Property.
(c) Easements, Rights of Way. The Sellers' agree
to grant such easements, rights of way or privileges, across any of the Sellers'
property adjacent to the Real Property to Sub if required by Sub for the
provisions of ingress, egress and utilities to the Real Property.
(d) Other Actions. The Sellers agree to take
such actions and to execute such documents as may be reasonably required to
memorialize the transfer.
Section 8. Expenses. Each of the parties hereto shall bear and
pay all costs and expenses incurred by it or on its behalf in connection with
the transfer, including its own legal, accounting and audit fees.
Section 9. Indemnification.
(a) Indemnification of SEI and Sub. The Sellers,
jointly and severally, agree to indemnify and hold harmless SEI and Sub, each
officer, director, employee or agent thereof, their respective controlling
persons, and their respective estates, successors, and assigns (each an
"Indemnified Party"), from and against any and all claims, losses, damages,
liabilities and expenses (including, without limitation, settlement costs and
any legal or other expenses for investigating or defending any actions or
threatened actions) (the "Losses") reasonably incurred by such Indemnified Party
as a result of:
(i) the untruth, inaccuracy or breach
of any representation or warranty made by the Sellers pursuant to
Section 4 of this Agreement or any other Transaction Document;
(ii) the nonfulfillment or breach of any
covenant, agreement or obligation of the Sellers contained in this
Agreement or any other Transaction Document;
(iii) any matter on any Schedule hereto
or any other Transaction Document; and
(b) Limitations on the Sellers' Indemnity. The
Sellers shall be obligated to indemnify and hold harmless SEI and Sub pursuant
to Section 9(a) only to the extent that the aggregate of all indemnifiable
Losses exceeds $7,042; provided however that each Seller's indemnity obligation
shall not exceed such Seller's pro rata share of the Purchase Price.
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(c) Indemnification of the Sellers. SEI and Sub
shall indemnify and hold harmless the Sellers (each an "Indemnified Party") from
and against any and all Losses reasonably incurred by such Indemnified Party as
a result of:
(i) the untruth, inaccuracy or breach
of any representation or warranty made by SEI in this Agreement or in
any other Transaction Document; or
(ii) the nonfulfillment or breach of any
covenant, agreement or obligation of SEI contained in this Agreement or
in any other Transaction Document.
(d) Notification. Whenever any claim shall arise
for indemnification hereunder, the Indemnified Party shall notify the
indemnifying party promptly after such Indemnified Party has actual knowledge of
the facts constituting the basis for such claim, except that, in the event of
any claim for indemnification hereunder resulting from or in connection with any
claim or legal proceedings by a third party, such Indemnified Party shall give
prompt notice to the indemnifying party of such claim or the commencement of
legal proceedings in respect of which recovery may be sought against the
indemnifying party pursuant to the provisions of this Section 9. The notice to
the indemnifying party shall specify, if known, the amount or an estimate of the
amount of the liability arising therefrom. The Indemnified Party shall not
settle or compromise any such claim without the prior written consent of the
indemnifying party unless suit shall have been instituted against the
Indemnified Party and the indemnifying party shall have failed, within fifteen
(15) days after notice of institution of the suit, to take control of such suit
as provided in Section 9(e) below.
(e) Defense of Actions. In connection with any
claim giving rise to indemnity hereunder resulting from or arising out of any
claim or legal proceeding by a person who is not a party to this Agreement, the
indemnifying party, at its sole cost and expense, may, upon written notice to
the Indemnified Party, assume the defense of such claim or legal proceeding, to
the extent that the indemnifying party admits in writing its liability to the
Indemnified Party with respect to all material elements thereof. If the
indemnifying party assumes the defense of any such claim or legal proceeding,
the obligations of the indemnifying party hereunder as to such claim or legal
proceeding shall be limited to taking all steps necessary in the defense or
settlement thereof and to holding the Indemnified Party harmless from and
against any losses, damages, expenses, or liability caused by or arising out of
any settlement approved by the indemnifying party or any judgment in connection
with such claim or legal proceeding. Each Indemnified Party agrees that it will
cooperate with the indemnifying party in the defense of any such action, the
defense of which is assumed by the indemnifying party. Except with the consent
of the Indemnified Party, the indemnifying party shall not consent to the entry
of any judgment arising from any such claim or legal proceeding which, in each
case, does not include as an unconditional term thereof the delivering by the
claimant or the plaintiff to the Indemnified Party of a release from all
liability in respect thereof, unless the indemnifying party has actually paid to
the Indemnified Party the full amount of such judgment or settlement. If the
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indemnifying party does not assume the defense of any claim or litigation, any
Indemnified Party may defend against such claim or litigation in such manner as
it may deem appropriate, including, but not limited to, settling such claim or
litigation, after giving notice of the same to the indemnifying party, on such
terms as the Indemnified Party may deem appropriate. The indemnifying party will
promptly reimburse the Indemnified Party in accordance with the provisions
hereof.
(f) Payment. All indemnification hereunder shall
be effected by payment of cash or delivery of a certified or official bank check
in the amount of the indemnification liability or by set-off against (i) any
amounts otherwise owed by SEI or Sub to the Sellers or by the Sellers to SEI or
Sub, as the case may be, or (ii) the funds held pursuant to the Escrow
Agreement.
Section 10. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be personally delivered,
mailed by first-class registered or certified mail, postage prepaid, return
receipt requested or delivered by an overnight courier service, delivery charge
prepaid:
(a) If to the Sellers, to:
Xxxxxx X. Xxxx
Delvona R. Rude
0000 Xxxxx Xxxxxxxxxx Xxx
Xxxxx x'Xxxxx, Xxxxx 00000
with a copy to:
Xxxxxx & Xxxxx, X.X.
1600 Washington Trust Financial Center
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxx, Esq.
or at such other address as may be furnished to SEI by the Sellers in
writing.
(b) If to Sub, to:
Service Experts, Inc.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
with a copy to:
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Xxxxxx Xxxxxxx Xxxxxx & Xxxxx,
A Professional Limited Liability Company
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: X. Xxxxx Xxxx, Esq.
or at such other address as may have been furnished to the Sellers by
Sub in writing.
Section 11. Miscellaneous.
(a) Entire Agreement. This Agreement and the
Schedules, certificates and other documents delivered pursuant hereto contain
and constitute the entire agreement and understanding between the Sellers and
Sub and supersede and cancel all prior agreements and understandings relating to
the subject matter hereof, whether written or oral, which shall remain in
effect. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except in writing signed by the parties hereto.
(b) Severability. Should any one or more of the
provisions of this Agreement or any agreement entered into pursuant hereto be
determined to be illegal or unenforceable, all other provisions of this
Agreement and such other agreements shall be given effect separately from the
provision or provisions determined to be illegal or unenforceable and shall not
be affected thereby.
(c) Governing Law. This Agreement shall be
construed and enforced in accordance with the laws of the State of Tennessee
without regard to its principles of conflicts of laws.
(d) Further Assurances. Each party covenants
that at any time, and from time to time, after the Closing, it will execute such
additional instruments and take such actions as may be reasonably requested by
the other parties to confirm or perfect or otherwise to carry out the intent and
purposes of this Agreement.
(e) Waiver. Any failure on the part of any party
to comply with any of its obligations, agreements or conditions hereunder may be
waived by any other party to whom such compliance is owed. No waiver of any
provision of this Agreement shall be deemed, or shall constitute, a waiver of
any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver.
(f) Assignment. Sub may assign its rights under
this Agreement to any affiliated entity, but otherwise this Agreement shall not
be assignable by any of the parties hereto, by operation of law or otherwise,
without the written consent of all other parties.
(g) Binding Effect. All of the terms of this
Agreement, whether so expressed or not, shall be binding upon the respective
personal representatives, successors
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and assigns of the parties hereto and shall inure to the benefit of and be
enforceable by the respective personal representatives, successors and assigns
of the parties hereto. This Agreement shall survive the Closing and not be
merged therein.
(h) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(j) Survival. Except as otherwise set forth
herein, all of the representations, warranties and covenants of the parties
contained in this Agreement or in any other Transaction Document shall survive
the Closing for a period of three (3) years and shall not be extinguished
thereby notwithstanding any investigation or other examination by any party.
(k) Construction of Terms. The language used in
the Agreement shall be construed, in all cases, according to its fair meaning,
and not for or against any party hereto. The parties acknowledge that each party
has reviewed this Agreement and that normal rules of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement. Whenever the masculine gender
is used herein, it shall be deemed to include the feminine and the neuter.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and date first above written.
SERVICE EXPERTS, INC.
By:
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Title:
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XXXXXXX ACQUISITION SUB, INC.
By:
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Title:
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SELLERS
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XXXXXX X. XXXX
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DELVONA R. RUDE
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LIST OF SCHEDULES TO BE PROVIDED BY THE SELLERS
Exhibit 1 Real Property
Schedule 2(b) Assumed Liabilities
Schedule 4(a) Contracts Affecting Real Property
Schedule 4(d)(iv) Environmental Disposal
Schedule 4(d)(viii) Underground Storage Tanks
Schedule 4(e) Title
Schedule 4(f) Consents and Approvals
Exhibit 6(e) Form of Warranty Deed
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LIST OF SCHEDULES TO BE PROVIDED BY SEI
Schedule 2(c) Form of Escrow Agreement
Schedule 6(g) Form of Lock-up Agreement
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