AGREEMENT dated as of March 8, 1999 between Ski Sports Recreation
Company, L.L.C. a Utah limited liability company (the "Buyer"), on the one hand,
and Marker, Ltd. and Marker International, each a Utah corporation (each a
"Seller" and, collectively, the "Sellers").
WHEREAS, the parties hereto have agreed to enter into a license
agreement of even date (the "License Agreement") pursuant to which the Buyer
will have the exclusive, world wide right to use the name "Marker" owned by the
Sellers for the purposes (the "Licensed Purposes") set forth in such agreement;
and
WHEREAS, such agreement is conditioned upon the Buyer purchasing
certain assets of the Sellers including but not limited to certain inventory and
realizable accounts receivable not later than March 31, 1999;
NOW, THEREFORE, in consideration of the premises and the respective
agreements the parties hereto agree as follows:
1. Agreement to Sell. (a) The Sellers, at the Closing (as defined in
Section 4 hereof, the *Closing"), will grant, sell, convey, assign, transfer and
deliver to the Buyer, upon the terms and conditions of this Agreement, certain
of their accounts receivable, inventories and supplies, fixed assets, and
prepaid expenses and other current assets, all as set forth on Exhibits A, B, C
and D, respectively, hereto to be affixed to this agreement as at the date of
Closing together with all rights under franchises, patents, licenses, permits,
leases, contracts and agreements, all purchase orders, customer orders, lists,
books and records with respect to the Licensed Purposes and such other
properties as the parties shall agree to; including customer and inventory
records and ledgers with respect thereto.
(C) The properties, assets and business which the Sellers agree to sell
and transfer to the Buyer hereunder are hereinafter sometimes called the "Assets
to be Acquired". The Assets to be Acquired shall he sold and transferred to the
Buyer at the Closing free and clear of all mortgages, liens, pledges, charges or
other encumbrances whatsoever.
2. Agreement to Purchase. The Buyer hereby agrees to purchase from the
Sellers upon the terms and conditions of this Agreement the Assets to be
Acquired, and, as consideration therefore, the Buyer will pay to the Sellers a
purchase price determined an the basis set forth an Exhibit E hereto. The Buyer
shall have no obligation whatsoever with respect to the application by the
Sellers of the proceeds of sale. Amounts payable hereunder shall be paid by
delivery to the Sellers of the Buyer Is note in the form set forth on Exhibit F
hereto which note shall be payable on July 10, 1999.
3. Investigation and option to Cancel Agreement. Pending the Closing,
the Sellers will give to the Buyer and to their counsel, accountants and other
representatives (the "Buyer's Auditors") full access during normal business
hours to all of the properties, books, contracts, commitments and records of the
sellers which relate to the Assets to be Acquired, and will furnish to the Buyer
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all such documents and copies of documents (certified if requested) and
information as the Buyer, from time to time, reasonably may request.
4. The Closing The Closing shall take place at the offices of O'Connor,
Murphy, Xxxx & Xxxxx or at such other place as the parties shall determine at
12:00 Noon on or before March 31, 1999 (the "Closing Date") provided, however,
that the Closing may be postponed for not more than 60 days if necessary to
allow the Buyer's Auditors to complete their examination of the records of the
Sellers.
5. Assumption of Liabilities. The Buyer hereby agrees to assume at the
Closing only those liabilities and obligations of the Sellers under contracts
and commitments which are open as of the Closing Date for the purchase or
production of materials or supplies which relate to the Assets to he Acquired
which contracts or commitments shall be listed on Exhibit G hereto and such
other liabilities as the Buyer shall specifically assume.
6. Specific Performance. The parties acknowledge that the Assets to be
Acquired by the Buyer hereunder are unique and that they could not be
compensated by money damages for not receiving delivery of such assets at the
Closing. Accordingly, the Sellers agree that, in addition to all other rights
and remedies available to the Buyer at law or in equity, this Agreement may be
specifically enforced against the Sellers.
7. Representations, Warranties and Covenants. The Sellers, jointly and
severally, represent, warrant and covenant as follows:
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(a) organization and Business. Each of the Sellers is duly organized,
validly existing and in good standing under the laws of the state of its
creation. Each of the Sellers is qualified to do business as a foreign
corporation in all states where the nature or conduct of its business makes such
qualification necessary, except for those in which failure to be so qualified
which will not have a material adverse effect on the sellers. The business
conducted by the Sellers is not in violation of any law or regulation applicable
to it except where failure to comply would not have a material adverse effect on
the business, financial condition, operations, results of operations or future
prospects of the Sellers, respectively, and no Seller is aware of any official
currently taking a contrary position or raising a question concerning the same.
The Sellers have delivered or will deliver to the Buyer true and complete copies
of their certificates of incorporation and by-laws with all amendments thereto.
(b) Taxes. Each of the Sellers has filed all tax returns required by
law and paid all taxes required by all governments when due including any taxes
required to be paid by it except as set forth on Exhibit H which lists those
taxes which it is, in good faith, contesting (the "Contested Taxes"). Such
returns are true and correct in all material respects. No agreements are
currently in effect as to the extension of time for the payment of any taxes by
any such entity.
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(C) Inventories. The inventories to be shown on Exhibit B as to each
Seller will consist of raw materials and currently merchantable items salable in
the ordinary course of business and will be free and clear of liens and security
interests
(d) Contracts, Leases, Obligations, etc. Except for
(i) commitments for the purchase' of merchandise in the ordinary
course; and
(ii) contracts listed on other exhibits hereto; no Seller has any
existing material contract, agreement, lease, or other obligation or commitment
(including, without limitation, contracts or other arrangements with
distributors, or customers), oral or written, as to the Assets to be Acquired,
except those listed on Exhibit 1. All of the items listed an Exhibit I are in
good standing, have been complied with fully by all parties thereto and no
default with respect to any of the same is existing or threatened. No Seller has
any material obligation of any nature as to the Assets to he Acquired except as
is disclosed in or permitted by this Agreement or the Exhibits annexed hereto.
(e) Title to Assets; State of Condition. As of the date hereof, the
Sellers have good and marketable title to all of the properties and assets, real
and personal, tangible and intangible, constituting the Assets to be Acquired,
subject to no mortgage, pledge, lien, conditional sale agreement, lease or
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rental arrangement or other encumbrance or charge except those listed an Exhibit
J. As of the date of the Closing, the Assets to be Acquired will not be subject
to any mortgage pledge, lien, conditional sale agreement, lease or rental
arrangement or other encumbrance or charge
(f) Accounts Receivable. The accounts receivable of each Seller as to
the Assets to be Acquired to be shown on Exhibit A existing on the Closing Date
(i) will have each arisen out of sales transactions in the ordinary course of
business and no payor shall have any defense to its obligation to make payment
as to such receivable or any right of set-off against such receivable and (ii)
shall be free and clear of liens, encumbrances and security interests except as
set forth on Exhibit J.
(g) Fixed Assets. The fixed assets to be described on Exhibit C will be
in good operating condition, order and repair, ordinary wear and tear excepted.
(h) Prepaid Expense. The prepaid expenses and other current assets to
be described on Exhibit D will constitute all of such classes of assets properly
allocable to the Assets to be Acquired and will not be allocable to anything
other than the Assets to be Acquired.
(i) Absence of Certain Changes. Except as set forth an Exhibit K,
no Seller has
(i) incurred any material liability or obligation (absolute,
accrued, indirect, contingent or otherwise) except current liabilities incurred,
and obligations under contracts entered into in the ordinary course of business
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as to the Assets to be Acquired;
(ii) mortgaged, pledged or subjected to lien, charge, security
interest or any other encumbrance, any of the Assets to be Acquired;
(iii) sold, assigned, transferred or encumbered any trademarks,
trade names, patents or other intangible assets as to the Assets to be Acquired;
(iv) suffered any extraordinary losses not covered by insurance,
or knowingly waived any rights of substantial value as to the Assets to be
Acquired;
(v) entered upon any transaction or into any contracts or
agreements other than in the ordinary course of business as to the Assets to be
Acquired;
(vi) experienced any event or condition of any character
materially and adversely affecting its business or tax liabilities or any change
in the condition of the Assets to he Acquired, except changes in the ordinary
course of business, none of which has been materially adverse and all of which
together are not, in the aggregate, materially adverse.
(j) Litigation. There are no actions, suits, litigation proceedings or
investigations pending or, to Sellers I knowledge, threatened against or
relating to or affecting any Seller or which question the validity of any action
taken or to be taken by the Sellers pursuant to or in connection with the
provisions of this Agreement, nor does either Seller know or have any reasonable
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grounds to know of any basis for any such actions, suits, litigation proceedings
or investigations except as set forth on Exhibit L. There are no unsatisfied
judgments against either Seller.
(k) Patents, Trademarks, Trade Names. Licenses, ,etc. The Sellers,
together, have all rights to the trademarks, trade names and copyrights known as
"Marker" to the extent it relates to the manufacture, sale and marketing of the
Licensed Products as defined in the License Agreement and possess all rights
necessary for the continued operation of its business as operated currently as
to such manufacture, sale and marketing. No default either as to existing rights
or renewal thereof is existing or threatened.
(1) Conduct of Business. No part of the business of either Seller as to
the Licensed Purposes is conducted, directly or indirectly, through the medium
of any corporation, firm organization or person other than such entity that is
not a wholly-owned subsidiary of Marker International. To the extent any part of
the business of either Seller as to the Licensed Purposes is so conducted
through any wholly owned subsidiary of Marker International, the Buyer may
terminate any relationship with such subsidiary at any time without premium or
penalty.
(m) No violation. Except as set forth on Exhibit M, neither the
consummation of the transactions contemplated hereby nor the performance of this
Agreement by the Sellers requires the consent of any other person or persons or
will violate or result in any breach of, or constitute a default under, any
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indenture, contract, agreement, or other instrument to which either Seller is a
party or by which either of them may be bound or by which the Assets to be
Acquired may he affected.
(n) Authorization. The execution, delivery and performance of this
agreement by each of the Sellers have been duly and effectively authorized and
approved by all requisite action of their boards of directors, shareholders,
partners and executors, as the case may be. This agreement constitutes the valid
and legally binding obligation of the Sellers, respectively, enforceable in
accordance with its terms and conditions.
(o) Olympic Agreement. A true and complete copy of the agreement
between the Sellers and the Salt Lake City Organizing Committee (the
"Committee,,) for the 2002 Olympics dated February 8, 1996 with all amendments
thereto and extensions thereof is attached hereto as Exhibit N and such
agreement, as so modified and amended and extended, is in full force and effect
and the Seller entered into such agreement in the ordinary course of business
and the Committee has no right whether with notice or passage of time or
otherwise to modify, amend or cancel such agreement except in accordance with
the terms provided for on Exhibit N. The Sellers will take all reasonable steps
necessary or appropriate to keep it in full force and effect and will assign
their rights with respect thereto to the Buyer to the extent they relate to or
can be fulfilled by the Assets to be Acquired provided the Buyer will agree to
(i) fulfill the requirements under such agreement as to the Assets to be
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Acquired and (ii) indemnify the Sellers against any and all claims against or
liabilities of the Sellers arising from breach by the Buyer of its obligations
hereunder as to such agreement; provided, however, any such assignment shall be
subject to the consent of the Committee.
(p) Payment of Payables. From and after the Closing, the seller will
pay or cause to be paid all its accounts payable in accordance with the terms
thereof to the extent the failure to make such payment on such terms could
adversely affect the Buyer's ability to manufacture, sell or market Licensed
Products.
8. Further Assurances. The Sellers will, upon the request of the Buyer
,execute and deliver to the Buyer all such further documents of all kinds and
descriptions (in recordable form if requested) as the Buyer may reasonably
request in order to effect the transfer of Assets to be Acquired and to
establish the rights of the Sellers to effect such transfer. All parties will
use their reasonable best efforts to take all action and do all things
necessary, proper or advisable in order to consummate and.'make effective the
transactions contemplated in this Agreement.
9. Conduct of Business Pending Closing. Except as otherwise provided
or contemplated in this agreement, or with the Buyer's prior written consent,
the Sellers, jointly and severally, covenant, warrant and agree that, pending
the Closing:
(a) The business of each Seller as to its operations with respect
to the Licensed Purposes shall be conducted only in the ordinary course
(b) No change shall be made in the certificate of incorporation or
by-laws of either Seller.
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(c) No Seller shall mortgage, pledge, or subject to lien, security
interest, charge or any other encumbrance, any of the Assets to be Acquired.
(d) No Seller shall sell, assign, transfer or encumber any of the
tangible Assets to be Acquired, except in the ordinary course of business.
(e) No Seller shall sell, assign, transfer or encumber any
franchise or contract rights, trademarks, tradenames, patents or other
intangible assets to the extent they relate to the Licensed Purposes
(f) Except as otherwise requested by the Buyer, but without making
any commitment on behalf of the Buyer, each Seller will use its reasonable best
efforts to preserve the goodwill of the suppliers and customers and others
having business relations with it as they relate to the Licensed Purposes.
10. Representations and Warranties of the Buyer. The Buyer represents,
warrants and covenants that it is a limited liability company duly organized and
validly existing under the laws of the State of Utah whose net worth is not less
than $1,000,000 and it has full power and authority to execute and deliver this
agreement and to perform the obligations hereunder. This agreement constitutes a
valid, legal and binding obligation of the Buyer and is enforceable in
accordance with its terms and conditions.
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Neither the consummation of the transactions contemplated hereby nor
the performance of this agreement by the Buyer requires the consent of any other
person or persons or will violate or result in any breach or constitute a
default under, any indenture, contract, agreement, or other instrument to which
the Buyer is a party or by which it may be bound.
11. Conditions Precedent to the Buyer's Obligations. All obligations of
the Buyer under this Agreement are subject to the fulfillment, at the option of
the Buyer, prior to or at the Closing, of each of the following conditions:
(a) The Representations and Warranties of the Sellers at Closing.
The representations and warranties by, or on behalf of the Sellers contained in
Paragraph 7 of this Agreement or in any certificate or document delivered
pursuant to the provisions hereof or in connection with the transactions
contemplated hereby after the date hereof shall be substantially true in all
material respects at and as of the time of Closing as though such
representations and warranties were made at and as of such time.
(b) Performance by the Sellers. The sellers shall have performed
and complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by them prior to or at the Closing.
The performance of this Agreement by them shall not have been in violation of
any agreement to which either of them is a party.
(c) Compliance Certificate. The Sellers shall have delivered to the
Buyer a certificate appropriately signed and dated the Closing Date, certifying
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in such detail as the Buyer may reasonably request, to the fulfillment of the
conditions specified in paragraphs (a) and (b) of this Section.
(d) Extraordinary Event. So Seller shall have suffered any
extraordinary event or casualty substantially and adversely affecting its assets
or business operation. None of the contracts, leases or other instruments listed
on the various Exhibits hereto shall have been terminated or shall be in
default.
(e) Opinion of Sellers, Counsel. The Sellers shall have delivered to
the Buyer an opinion of Stroock, Stroock & Xxxxx, L.L.P. in form and substance
reasonably acceptable to Buyer and its counsel.
(f) Consent of Lenders. All lenders to the Sellers shall have consented
to the transaction if and to the extent failure to obtain their consent shall be
an event under their respective loan agreements permitting them, or any of them,
to accelerate the debt of any Seller or to the extent any of the Assets to he
Acquired are subject to any claim of any such lender. Any other third party
consents necessary to transfer the Assets to be Acquired shall be obtained by
the Sellers.
(g) Instruments to be Delivered to Buyer. Each Seller shall have
delivered to the Buyer:
(i) Such deeds, bills of sale, endorsements, assignments and other
good and sufficient instruments of conveyance and transfer, in form reasonably
satisfactory to Buyer's counsel, as shall be effective to vest in Buyer all of
the Sellers, right, title and interest in the Assets to be Acquired;
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(ii) All of the books and records, and all other data relating to
its Assets to be Acquired, business and operations of Marker, Ltd. arid, to the
extent they relate to the Licensed Purposes of Marker International, and
simultaneously with such delivery, all steps will be taken as may be necessary
to put Buyer in actual possession and operating control of the Assets to be
Acquired;
(iii) Certificate or confirmatory, telegram in customary form of
the Secretary of State of the State of Utah dated not more than ten (10) days
prior to the Closing date to the effect that each of the Sellers is a
corporation in good standing under the laws of Utah;
(iv) A list of all inventory of the Sellers as to the Assets to be
Acquired as of the close of business on the day preceding the Closing;
(v) A list of all accounts receivable of the Sellers as to the
Assets to be Acquired as of the close of business on the day preceding the
Closing, together with an aging thereof;
(vi) A list of all fixed assets of the sellers as to the Assets to
be Acquired as of the close of business on the day preceding the Closing;
(vii) A list of all prepaid expenses and other current assets
allocable to the Licensed Products as of the close of business on the day
preceding the Closing;
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(viii) A list of all open orders of the Sellers for the production
and sale of inventory included within the Assets to be Acquired; and
(ix) Such other documents , instruments , certifications and
further assurances as counsel for Buyer may reasonably request.
12. Conditions Precedent to thesellers, obligations. All
obligations of the Sellers under this Agreement are, at their option, subject to
the fulfillment, prior to or at the Closing of each of the following conditions;
(a) The Buyer's Representations and Warranties True at closing. The
representations and warranties by the Buyer contained in this Agreement shall be
substantially true at and as of the time of Closing as though such
representations and warranties were made at and as of such time.
(b) Performance of the Buyer. The Buyer shall have substantially
performed and complied with all covenants, agreements and conditions required by
this Agreement to be performed or complied with by it prior to or at the
Closing.
(c) officers, Certificate,. The Buyer shall have delivered to the
Sellers a certificate signed by its President or any Vice President, dated the
Closing Date, certifying in such detail as they may reasonably request to the
fulfillment of the conditions specified in paragraphs (a) and (b) of this
Section.
(d) Opinion of Counsel. The Buyer shall have delivered to the Sellers
an opinion of O'Connor, Murphy, Xxxx & Xxxxx dated the Closing Date in form and
substance reasonably acceptable to Sellers and their counsel.
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(e) Instruments to be Delivered to Sellers. The Buyer shall have
delivered to the sellers such other documents, instruments, certifications and
further assurances as counsel for the Sellers may reasonably request, including
an indemnity by the Buyer to the Sellers regarding obligations assumed by the
Buyer or arising after the Closing.
13. Indemnification. A. The Sellers (the "Indemnitors"), jointly and
severally, agree to indemnify fully and hold harmless the Buyer against and in
respect of:
(a) any and all liabilities of or claims against the Sellers or the
Buyer arising out of:
(i) the conduct of the business of the Sellers from the date hereof
to the Closing otherwise than in the ordinary course or as otherwise expressly
permitted by this Agreement;
(ii) any presently existing material contract, commitment or
obligation of the Sellers as to the Assets to be Acquired of any kind not set
forth in this Agreement or listed on any Exhibit annexed;
(iii)any contract, commitment or obligation of any kind entered
into by any Seller between the date hereof and the Closing and not permitted by
the terms of this Agreement; and
(iv) The Contested Taxes.
(b) any and all lose, damage or deficiency resulting from any
misrepresentations, breach of any warranty or nonfulfillment of Any agreement or
covenant on the part of the Sellers contained in this Agreement or in any
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statement or certificate furnished or to be furnished to the Buyer pursuant
hereto or in connection with the transactions contemplated hereby, including,
without limitation, breach of its warranty under Section 7(b) hereof;
(c) any and all actions, suits, proceedings, demands, assessments,
judgments, costs and expenses (including reasonable attorneys, fees) incident to
any of the foregoing; provided, however, that no indemnitee shall be entitled to
recover under paragraphs (a) and (b) above with respect to any inaccuracy in or
breach of any representation, warranty, 'covenant or agreement, if at any time
prior to the Closing, such indemnitee (and, in the case of the Buyer, any
representative of the Buyer) had knowledge of such inaccuracy or breach.
B. Any claim for idemnity under this paragraph 13 shall be made by
written notice to the Sellers, specifying in reasonable detail the basis of the
claim. The Buyer agrees to give prompt written notice (the "Notice") to the
Sellers of any claim by a third party against it or any Seller which might give
rise to a claim hereunder, stating the nature of the basis of such claim and if
ascertainable, the amount thereof. In connection with any such claim, the
Indemnitors may, at their election and expense, have the right to take over the
defense of such claim with counsel or accountants of their choice, reasonably
acceptable to the Buyer or to participate in the defense of such third party
claim by notice in writing to the Buyer within twenty (20) days of receipt of
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the Notice. If either Seller shall have acknowledged in writing the obligation
to indemnify in respect of such claim, the Buyer agrees not to settle such third
party claim without the consent of the Indemnitors which shall not be
unreasonably withheld or delayed.
If, within 20 days 'of receipt of the Notice, the Indemnitors shall not
assume the defense of the claim or acknowledge in writing their obligation to
indemnify, the Buyer may defend or settle on such terms as it chooses and
Sellers shall he liable for the damages but only if and to the extent the
Sellers or either of them would have been liable for indemnification hereunder.
If the Sellers or either of them shall elect, after receipt of the Notice, to
assume the defense of the claim or acknowledge in writing their obligation to
indemnify and there shall subsequently be either a determination that they are
so liable whether as a consequence of a decision by a court from which no appeal
shall or may be taken or as a consequence of any settlement between the Buyer
and Sellers then, in either instance, the Sellers shall pay to the Buyer, in
addition to the amount owed as such indemnification, all costs and expenses
incurred by Buyer in connection therewith including, without limitation,
reasonable counsel fees.
14. Nature and Survival of Representations, eta. All representations,
warranties and covenants made by any party in this agreement shall survive the
Closing hereunder and any investigation at any time made by or on behalf of any
party for two years. The obligations of the Indemnitors hereunder shall be joint
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and several. This agreement supersedes any and all other agreements between the
parties.
15. Brokerage. The Sellers agree to indemnify and hold harmless the
Buyer against any and all claims arising out of any activities of any party
acting an behalf of sellers in the nature of a brokerage commission or finder's
fee. The Buyer agrees to indemnify and hold harmless the Sellers against any and
all claims arising out of any activities of any. party acting on behalf of the
Buyer in the nature of a brokerage commission or finder's fee.
16. Bulk Sales Law.The Sellers shall comply with the provisions of any
applicable Bulk Sales Law
17. Sales and Transfer Taxes. The Buyer shall pay all transfer and
sales taxes, if any, due as the result of the transfer of the Assets to be
Acquired to the Buyer hereunder.
18. Access to Records. For a period of six (6) years following the
Closing, the Sellers shall have access at any reasonable time to all books of
account and records held by the Buyer relating to the Assets to be Acquired and
the operations of the Sellers with respect thereto prior to the Closing Date and
shall have the right to make copies thereof, to the extent such access or copies
may reasonably be required by the Sellers. if the Buyer shall desire to dispose
of any of such books and records prior to the expiration of such period, the
Buyer shall, before making such disposition, give the Sellers a reasonable
opportunity, at their cost and expense, to segregate and remove such books and
records as they may select.
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and several. This agreement supersedes any and all other agreements shall bind
and inure to the benefit of the executors, personal representatives, successors
and assigns of the parties and may be assigned by the Buyer to any affiliate
provided the Buyer shall guarantee all obligations of such affiliate to the
Sellers, with the consent of the Sellers which will not be unreasonably
withheld.
20. Law to Govern, Miscellaneous. Amendments. This Agreement shall be
governed. by and construed and enforced in accordance with the laws of New York.
This agreement cannot be changed or terminated orally.
21. Notices, etc. All notices, requests, demands and other
communications hereunder shall be in writing and sent by registered or certified
mail to the following addresses:
The Sellers, [ ]
with copy to: Xxxx X. Xxxxxxxxx, Esq.
Stroock, Stroock & Xxxxx, L.L.P.
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
The Buyer:
Attention: Xxxxxxx Xxxxxxxxxx
with copy to: Xxxxxx X. Xxxxx, Esq.
O'Connor, Murphy, Xxxx & Seitz
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Any party may send any notice, request, demand, claim or other
communication hereunder to be intended recipient at the address set forth above
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using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such notice
request, demand, claim or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
party may change the address to which notice is requested, demand, claims or
other communications hereunder are to be delivered by giving the other party
notice in the manner set forth herein.
22. No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the parties and the respective
successors and permitted assigns.
23. Entire Agreement. This agreement (including the documents referred
to herein) constitutes the entire agreement between the parties and supersedes
any prior understandings, agreements or representations by or between the
parties, written or oral, to the extent they related in any way to the subject
matter hereof.
24. Headings. The section headings contained in this agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this agreement.
25. Severability. Any term or provision of this agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction
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26. Incorporation of Exhibits. The exhibits identified in this
agreement are incoporated herein by reference and made part hereof.
27. Countax-parts. This Agreement may be executed simultaneously 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day first written above.
BUYER:
SKI & SPORTS RECREATION COMPANY, L.L.C.
By:
--------------------------------------------------
SELLERS:
MARKER, LTD.
By: /s/ Xxxxx Cebeava
--------------------------------------------------
MARKER INTERNATIONAL
By: /s/ Xxxxx Cebeava
--------------------------------------------------
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EXHIBIT E - PURCHASE PRICE OLYMPIC INVENTORY
PAYMENT SCHEDULE 1 & 2
Due Do* Due
Item @ Xxxx July 10 August 31
lnvenlory-Ltd. Goods, Fleece, Compomonts
(EXHIBIT B)(Excluding Olympic Product)
Accounts Receivable\Samples (EXHIBIT A)
Fixed Xxxx (PP&E) (EXHIBIT C)
TOTAL VALUE $859,000 $450,000 $204,500 $204,500
Olympic inventory will be purchased at closing and paid for according to the
following conditions,
1) Ski & Sport Recreation will pay 75% of net sale price after Olympic
Commission an sale of non-current (Bid Logo) Olympic goods to marker as
received.
2) Ski & Sport Recreation will pay 60% of net solo price after Olympic
Commission an sale of current (SLC 2002 Logo) Olympic goods to marker.
3) Olympic Inventory payable to Marker on Ski & Sports, Recreation quarterly
sales of said product beginning Juno 30, 1999 through December 31, 1999.
PROMISSORY NOTE
$409,000.00 May 1999
FOR VALUE RECEIVED, the undersigned, SKI & SPORTS RECREATION COMPANY. LLC.
a Utah limited liability company ("Maker"), hereby promises to pay to the order
of MARKER LTD. ("Payee"), at ___________, or at such other place designated in
writing by Payee at least 10 days prior to the payment date, in lawful money of
the United States and in immediately available funds the principal amount of
Four Hundred and Nine Thousand Dollars ($409,000.00) in two equal payments of
Two Hundred Four Thousand Five Hundred do11ars ($204,500.00) on July 10. 1999
and August 10. 1999,
If any amount is not paid in full when due hereunder, such unpaid amount
shall bear interest, to be paid upon demand, from the due date thereof until the
dam of actual payment (and before as well as after judgment) computed at the per
annum rate of ten percent (10%).
All interest payable hereunder shall be computed on the basis of actual
days elapsed and a of 360 days.
Upon the occurrence of any of the following:
(i) Maker shall fail to pay any of its obligations under this Note on the
daft when due;
or
(ii) Maker shall default in any payment of principal of or interest on any
indebtness or contingent obligation (other than its obligations under this Note)
or any other event shall occur, the effect of which is to permit such
indebtedness or contingent obligation to be declared or such indebtedness or
contingent obligation shall otherwise become due prior to its stated. maturity;
or
(iii) (a) Maker shall (1) commence any case, proceeding or other action
under any existing or future law of any jurisdiction, domestic or foreign
relating to bankruptcy, insolvency, reorganization, or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition, or other relief
with respect to it or its debts, or (2) commence any case, proceeding, or other
action seeking appointment of a receiver, trustee, custodian. or other similar
official for it or for all or any substantial part of its assets, or (3) make a
general assignment for the benefit of its creditors; (b) there shall be
commenced against Maker any casts, proceeding or other action of a nature
referred to in clause (a) above that (1) results in the entry of an order for
relief or any such adjudication or appointment. or (2) remains undismissed,
undischarged, or unbonded for a period of sixty (60) days; (c) there shall he
commenced against
EXHIBIT F
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