ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement"), dated
October 6, 1995, is entered into by and among BEAR MOUNTAIN,
INC., a Delaware corporation ("Buyer"), FIBREBOARD CORPORATION, a
Delaware Corporation ("Fibreboard"), BEAR MOUNTAIN LTD., a
California corporation ("Seller"), and S-K-I LTD., the sole
shareholder of Seller ("S-K-I"). Seller and S-K-I are sometimes
collectively referred to in this Agreement as "Selling Parties."
Buyer and Fibreboard are sometimes collectively referred to in
this Agreement as "Purchasing Parties."
WITNESSETH:
WHEREAS, Seller is engaged in the operation of a ski resort
by the name of Bear Mountain Ski Resort and a golf course by the
name of Bear Mountain Golf Course, all located in or adjoining
the City of Big Bear Lake, California (the "Business"); and
WHEREAS, Seller owns and leases certain real property
located in the City of Big Bear Lake, California, and owns and
leases certain tangible and intangible assets used in the
Business, including without limitation buildings and
improvements, machinery and equipment, vehicles, retail
inventory, non-retail inventory, intellectual property, contract
rights, water rights, and prepaid expenses and receivables; and
WHEREAS, Seller has obtained a special-use permit from the
Department of Agriculture - Forest Service ("Forest Service")
granting the right to use certain real property adjacent to
Seller's owned real property in order to operate the Business;
and
WHEREAS, Buyer and Seller desire that Buyer purchase from
Seller, and that Seller sell to Buyer, all of the real property
and operating and intangible assets used in the Business, other
than the Excluded Assets (as hereinafter defined), and that
Seller transfer and assign to Buyer certain rights and
agreements, including without limitation the special use permit
obtained by Seller from the Forest Service, all on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises
and of the mutual covenants, representations, warranties and
agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1. PURCHASE AND SALE
1.1 Description of Assets. Subject to the terms and
conditions set forth in this Agreement, Seller (and S-K-I, with
respect to the trademarks and trade names owned by S-K-I and
described in Section 1.1.8) agrees to sell, convey, transfer,
assign, and deliver to Buyer, and Buyer agrees to purchase from
Seller (and S-K-I), all the assets, properties, and business of
Seller of every kind, character, and description whether
tangible, intangible, real, personal, or mixed, and wherever
located (but excluding the Excluded Assets, as specifically
described in Section 1.2), and the trademarks and trade names of
S-K-I described in Section 1.1.8, all of which are sometimes
collectively referred to in this Agreement as "the Assets,"
including, but without limitation to, the following:
1.1.1 Owned Real Property. Those certain parcels of land
more fully described on SCHEDULE 1.1.1, together with all
privileges and appurtenances thereto and all plants, buildings,
structures, installations, fixtures, improvements, betterments
and additions situated thereon and together with all easements
used or useful in connection therewith (such land, improvements
and easements together collectively referred to as the "Owned
Real Property");
1.1.2 Permitted Real Property. The special use permit
dated June 25, 1990 issued by the Forest Service ("USFS Permit"),
a conformed copy of which is attached hereto as SCHEDULE 1.1.2,
to the extent that it is assignable with the consent of the
Forest Service and is not replaced with a new permit to be issued
to the Buyer, together with all rights and privileges under the
USFS Permit in and to the land described in the USFS Permit in
and to the plants, buildings, structures, installations,
fixtures, improvements, betterments and additions situated
thereon (such land, plants, buildings, structures, installations,
fixtures, improvements, betterments and additions together
collectively referred to as the "USFS Permitted Property");
1.1.3 Real Property Leases. The leases of the real
property more fully described on SCHEDULE 1.1.3 together with all
rights and privileges under such leases (hereinafter referred to
as the "Real Property Leases") to the real property subject to
such leases (hereinafter referred to as the "Leased Real
Property" and, together with the Owned Real Property, USFS Permit
and USFS Permitted Property, collectively referred to as the
"Real Property");
1.1.4 Equipment and Improvements. All ski lifts, pylons,
towers, ski-lift machinery and equipment, snow-cats (excluding
the items described in Sections 1.2.10 and 1.2.11), snow-making
machinery and equipment, ski trail improvements, mountain
restaurants, signs, snow-making facilities and other facilities
and structures, buildings, installations, fixtures, improvements,
betterments and additions located on or within the Real Property,
machinery, equipment, service trucks, shuttle busses, golf carts,
vehicles (excluding the vehicle described in Section 1.2.11),
tractors, spare tires and parts (excluding the items described in
Section 1.2.10), tools, appliances, furniture, office furniture,
fixtures, office supplies and office equipment, computers (other
than the computer described in Section 1.2.11), computer
terminals and printers, telephone systems, telecopiers and
photocopiers, and other tangible personal property of every kind
and description that are located upon or within the Real
Property, which are owned or leased by Seller, or are utilized in
connection with Seller's operations upon or within the Real
Property, including without limitation the items listed on
SCHEDULE 1.1.4 attached hereto (collectively, the "Equipment and
Improvements");
1.1.5 Inventories. All of Seller's retail inventory
(including without limitation all inventories of food and
beverages and "Bear Mountain" logo inventory customarily sold by
Seller in new condition to the public, but excluding the items of
slow-moving logo inventory described in Section 1.2.9), all of
Seller's non-retail inventory (including without limitation all
inventories of ski rental equipment and employee and ski patrol
jackets, parkas, pants and other uniform items, other than those
which are customarily sold by Seller in new condition to the
public and which are included in Seller's retail inventory),
consumable supplies, spare parts and repair materials and any and
all other inventories of Seller relating to the Business, as
described in the unaudited balance sheet of Seller as of July 2,
1995, included in the Financial Statements (as hereinafter
defined) (the "Interim Balance Sheet"), an approximate summary of
which items currently on hand is attached hereto as
SCHEDULE 1.1.5, plus any replacements for or additions to such
inventories acquired on or before the Closing Date, and minus any
items of inventory sold by Seller or consumed in the ordinary
course of business on or before the Closing Date (collectively,
the "Inventories");
1.1.6 Accounts Receivable. All items contained as of the
Closing Date in Seller's General Ledger Account No. 30,000 and
identified as an account receivable, for which Seller has some
obligation for performance which extends beyond the Closing (for
example, credit card purchases of season passes for the 1995-1996
Winter Season), including without limitation those items listed
on SCHEDULE 1.1.6 (the "Accounts Receivable");
1.1.7 Transferred Agreements. All contracts and agreements
of Seller to the extent assignable by Seller, customer
agreements, vendor agreements, purchase orders, installation and
maintenance agreements, hardware lease or rental agreements,
contract claims and all other arrangements and understandings
related to the Business which are listed on SCHEDULE 1.1.7, a
final version of which will be attached hereto on the Closing
Date (collectively, the "Transferred Agreements");
1.1.8 Intangibles. All assignable trade names, trademarks,
service marks, copyrights, trade secrets, technical know-how and
other intellectual property rights or intangibles used by Seller
in (or owned by Seller and useful in) the operation of the
Business and listed on SCHEDULE 6.16 and SCHEDULE 6.18;
1.1.9 Books and Records. All books of account, forms,
records, files, assignable permits and approvals, licenses,
invoices, vendor or supplier lists, business records (excluding
corporate minute books and stock ownership records), plans and
other data which are necessary to the ownership, use, maintenance
or enjoyment of the Assets or the operation of the Business and
which are owned by Seller, including but not limited to all
blueprints and specifications, all personnel, payroll, payroll
tax and labor relations records, all environmental control
records, environmental impact reports, statements, studies and
related documents, handbooks, technical manuals and data,
engineering specifications and work papers, ski trail design
specifications and improvement records, all sales records, all
accounting and financial records, all sales and use tax returns,
reports, files and records, asset history records and files, all
data entry and accounting systems used to conduct the day-to-day
operations of the Business, all maintenance and repair records,
all correspondence, notices, citations, all assignable permits,
approvals, and licenses and all other documents received from,
sent to or in Seller's possession in connection with governmental
agencies (including without limitation, federal, state, county or
regional environmental protection, air or water quality control,
occupational health and safety, land use, planning or zoning,
Forest Service, California Department of Alcoholic Beverage
Control or fire prevention agencies or governmental bodies), all
plats and surveys of the Real Property, and all plans and designs
of buildings, structures, fixtures and equipment (collectively,
the "Records"), provided however, that Seller may retain copies
of such Records as are reasonably necessary to enable the Selling
Parties to fulfill their contractual, regulatory or statutory
obligations after the Closing;
1.1.10 Marketing Information. All sales, marketing and
resort development and expansion plans, projections, documents
and data (including without limitation, current and past lists of
customers), and all training materials and marketing brochures
related to the Business (collectively, the "Marketing
Information");
1.1.11 Prepaid Expenses and Deposits. Subject to Article 3
hereof, all prepaid expenses and deposits of Seller relating to
the Business (other than any amounts escrowed under this
Agreement, if any, Seller's bank deposits and prepaid insurance),
and all rights of Seller to receive discounts, refunds, rebates,
awards and the like (other than those referred to in Section
1.2.6);
1.1.12 Name. The name "Bear Mountain" to the extent Seller
has proprietary rights thereto in conjunction with the Assets or
Business such as "Bear Mountain Ski Resort" and subject to
Buyer's Settlement Agreement with Bear Mountain Trading Company
which shall be considered a Transferred Agreement;
1.1.13 Goodwill. All Seller's goodwill related to the
Business and to the name "Bear Mountain." Buyer acknowledges
that this Agreement confers no rights nor imposes any limitations
on Killington (an Affiliate of S-K-I) use of the name "Bear
Mountain" in connection with the operation of its ski area;
1.1.14 Warranty Rights. All of Seller's rights and
remedies on and after the Closing Date, under warranty or
otherwise, against a manufacturer, vendor or other person for any
defects in any property described in this Section 1.1; and
1.1.15 All Non-Excluded Assets. All other properties,
assets and rights of every kind, character or description which
are owned or used by Seller and used in connection with the
Business and which are not Excluded Assets.
1.2 Excluded Assets. Notwithstanding anything to the
contrary contained in this Agreement, the following rights,
properties and assets of Seller (the "Excluded Assets") shall not
be included in the Assets:
1.2.1 Non-Ski Area Property. The real property described
on SCHEDULE 1.2.1;
1.2.2 Cash and Accounts. Cash, cash equivalents and bank
accounts on hand as of the Closing Date;
1.2.3 Other Accounts Receivable. All accounts receivable
of Seller as of the Closing Date, other than the Accounts
Receivable;
1.2.4 Contracts with Affiliates. All agreements, oral or
in writing, between Seller and any person that directly or
indirectly through one or more intermediaries, controls, is
controlled by or is under common control with, the Seller (an
"Affiliate");
1.2.5 Non-assumed Contracts. All contracts, understandings
or agreements, whether oral or in writing, between Seller and any
other party to the extent not specifically included on
SCHEDULE 1.1.7;
1.2.6 Tax Returns and Refunds. Seller's tax returns and
any benefit, claim or receivable of Seller for federal, state or
local taxes, refunds described in SCHEDULE 1.2.6 and any refunds
due Seller by the Forest Service or any other tax receivables
whether accrued or not;
1.2.7 Litigation. Pending lawsuits and administrative
proceedings in which Seller is a plaintiff, defendant, claimant
or respondent;
1.2.8 Employee Benefit Plans. Any pension plan assets or
other employee benefit plans of Seller;
1.2.9 Slow Moving Logo Inventories. Any obsolete or slow
moving items (defined as either shopworn or older than twenty-
four (24) months at Closing) of inventory bearing the "Bear
Mountain" logo; and
1.2.10 Bombardier Assets. All assets sold to Bombardier
Corporation by Seller pursuant to that certain Agreement, dated
July 26, 1995, among Bombardier Corporation, Bear Mountain Ltd.,
Killington Ltd., Mount Snow Ltd., Waterville Valley Ski Area Ltd.
and Sugarloaf Mountain Corporation (the "Bombardier Contract").
1.2.11 Other Excluded Assets. All stock owned by Seller in
Arlberg, a captive insurance company, the Teachers Placement Fee,
and the following equipment and property: (a) one Caterpillar
gas generator (Model No. G399), (b) one 1993 Ford Explorer
vehicle, Seller's asset control number 879, and (c) the personal
computer and peripheral computer equipment which is described in
SCHEDULE 1.2.11.
ARTICLE 2. PURCHASE PRICE
2.1 Base Purchase Price and Adjustment.
(a) The base purchase price shall be Nineteen Million Five
Hundred Twenty-Eight Thousand Seventy Dollars ($19,528,070.00)
(the "Base Purchase Price"), adjusted as provided in Section
2.1(b).
(b) The Base Purchase Price shall be increased or
decreased, as the case may be, as specified below, by an amount
equal to the difference between the book value of the following
items reflected on the Closing Balance Sheet (as defined in
Section 2.5) and the book value of such items reflected on the
Interim Balance Sheet (the adjustment in this Section 2.1(b) is
referred to as the "Adjustment to Base Purchase Price"):
(1) Fixed Assets. The Base Purchase Price shall be
increased for increases in, or reduced for decreases in, the
aggregate original cost (not including depreciation or
amortization) of Seller's property and equipment which are
identified on SCHEDULE 2.1-1. No adjustment shall be made for
the Excluded Assets;
(2) Non-retail Inventories and Prepaid Expenses. The
Base Purchase Price shall be increased for increases in, or
reduced for decreases in, the net book value of those non-retail
inventories, prepaid expenses (excluding taxes of any nature and
insurance) and other current assets from which Buyer will receive
future benefit, other than Excluded Assets and Accounts
Receivable (for which no adjustment to Base Purchase Price will
be made), and which are identified on SCHEDULE 2.1-2; and
(3) Deferred Revenues. The Base Purchase Price shall be
reduced for increases in, or increased for decreases in, the net
book value of those deferred revenue items and other current
assets, other than Excluded Assets (including without limitation
advance ticket sales and gift certificates) which require
performance by Buyer after the Closing and which are identified
on SCHEDULE 2.1-3, provided that the deferred revenue event
occurs subsequent to the Closing Date.
2.2 Determination of Total Purchase Price. In
consideration for the transfer and assignment by Seller of the
Assets and in consideration of the representations, warranties
and covenants of Selling Parties set forth herein, Buyer shall
pay in the manner described in Section 2.3 the sum of the amounts
specified below (the "Total Purchase Price"):
(a) the Base Purchase Price, as adjusted by the Adjustment
to Base Purchase Price;
(b) an amount equal to the sum of (1) the net book value of
the food and beverage inventory reflected on the Closing Balance
Sheet, (2) the net book value (not to exceed $30,000) of retail
inventory purchased bearing the "Bear Mountain" logo reflected on
the Closing Balance Sheet and the net book value of the non-"Bear
Mountain" logo retail inventory reflected on the Closing Balance
Sheet (collectively, the "Inventory Payment"); and
(c) the additional amount of consideration, if any, as is
required to be paid in accordance with Section 2.6 (the
"Additional Consideration").
The components of the Total Purchase Price described in
subparagraphs (a) and (b) above are collectively referred to as
the "Closing Purchase Price".
2.3 Payment of the Closing Purchase Price. On the Closing Date:
(a) Buyer will pay to Bank of the West or other financial
institution mutually agreeable to the parties (the "Escrow
Agent") by wire transfer of immediately available funds an amount
to be agreed upon by the parties, with instructions to retain,
apply and dispose of these funds in accordance with the time of
the Escrow Agreement among Buyer, Seller and Escrow Agent, in the
form of Exhibit F to this Agreement in order to provide for the
payment of certain potential liabilities of the Selling Parties
to Buyer under this Agreement, including without limitation those
listed on SCHEDULE 2.3.
(b) Buyer will pay to Seller the remaining Base Purchase
Price, after deducting the amount remitted to the Escrow Agent in
accordance with subparagraph (a) above, without adjustment by the
Adjustment to Base Purchase Price, payable by wire transfer
of immediately available funds to such account as Seller shall
designate. If the Closing Purchase Price exceeds the Base
Purchase Price, Buyer shall pay such excess by delivery to Seller
of a certified or bank cashier's check or wire transfer of
immediately available funds, in the amount of such excess within
thirty (30) days after Buyer receives the Closing Balance Sheet,
in accordance with Section 2.5, or, if there is a dispute over
the amount of the Closing Purchase Price, the date upon which
such dispute is revolved pursuant to Section 2.5. If the Base
Purchase Price exceeds the Closing Purchase Price, Seller shall
pay such excess by delivery to Buyer of a certified or bank
cashier's check or wire transfer of immediately available funds,
in the amount of such excess within thirty (30) days after Buyer
receives the Closing Balance Sheet, or, if there is a dispute
over the amount of the Closing Purchase Price, the date upon
which such dispute is revolved pursuant to Section 2.5.
2.4 Allocation of Total Purchase Price. The Total Purchase
Price shall be allocated among the Assets acquired hereunder in a
manner to be agreed upon prior to Closing and described on
SCHEDULE 2.4 hereof to be attached to this Agreement prior to
Closing. Seller and Buyer each hereby covenant and agree that it
(i) will not take a position on any income tax return, before any
governmental agency charged with the collection of any income
tax, or in any judicial proceeding that is in any way
inconsistent with the allocation described in SCHEDULE 2.4, and
(ii) S-K-I and Fibreboard will each file with its federal income
tax returns IRS Form 8594-Asset Acquisition Statements under
Section 1060, including any required amendments thereto executed
by S-K-I and Fibreboard, if necessary, which shall reflect the
allocation described in SCHEDULE 2.4. Nothing in this Agreement
shall impose on Seller or S-K-I the duty or obligation to contest
any action which the Internal Revenue Service ("IRS") may take or
any adjustment or change in such allocation which the IRS may
make or propose.
2.5 Closing Balance Sheet. Seller at its expense shall
cause Price Waterhouse LLP, its independent accountants
("Seller's Accountants") to prepare a balance sheet of the
Business at the Closing Date (the "Closing Balance Sheet"), and
to issue, at Buyer's request, as soon as practicable but in any
event not later than thirty (30) days after the Closing Date, its
opinion thereon to Buyer to the effect that such balance sheet
presents fairly the financial position of Seller as of the
Closing Date, in conformity with generally accepted accounting
principles applied on a consistent basis. Such balance sheet
shall specifically identify all assets reflected thereon which
are not included in the Assets and all liabilities reflected
thereon which are not assumed by Buyer under this Agreement, and
shall identify the same items as are identified on SCHEDULE 2.1-
1, SCHEDULE 2.1-2 and SCHEDULE 2.1-3. The accountants' report
shall also include a detailed schedule setting forth the
calculation of the Adjustment to Base Purchase Price described in
Section 2.1(b) and the Inventory Payment described in
Section 2.2(b). In rendering the foregoing review and report,
Seller's Accountants shall consult with Buyer's own accounting
staff and, at Buyer's instruction, with Buyer's independent
accountants ("Buyer's Accountants"), and permit Buyer's
Accountants at the earliest practicable date to review the report
of Seller's Accountants, including all work papers, schedules and
calculations related thereto, prior to the issuance thereof.
Buyer's Accountants shall commence their review of said work
papers, schedules and calculations as soon as practicable after
Seller's Accountants have completed the field work phase of their
review.
Any dispute which may arise between Seller and Buyer as to
such Closing Balance Sheet or the proper amount of the Adjustment
to Base Purchase Price or Inventory Payment shall be resolved in
the following manner:
(a) Buyer, if it disputes the Closing Balance Sheet or the
amount of the Adjustment to Base Purchase Price or Inventory
Payment, shall notify Seller in writing within fifteen (15) days
after the issuance of the report of Seller's Accountants pursuant
hereto that Buyer disputes the Closing Balance Sheet or the
amount of the Adjustment to Base Purchase Price or Inventory
Payment and shall specify in reasonable detail the nature of the
dispute;
(b) during the fifteen (15) day period following the date
of such notice, Seller and Buyer shall attempt to resolve such
dispute and to determine the appropriateness of the Closing
Balance Sheet or the amount of the Adjustment to Base Purchase
Price or Inventory Payment; and
(c) if at the end of the fifteen (15) day period specified
in subsection (b) above, Seller and Buyer shall have failed to
reach a written agreement with respect to such dispute, the
matter shall be referred to a major international independent
public accounting firm selected by Seller and Buyer which does
not provide services for any of the parties hereto (the
"Arbitrator"), which shall act as an arbitrator and shall issue
its report as to the Closing Balance Sheet or the amount of the
Adjustment to Base Purchase Price or Inventory Payment within
thirty (30) days after such dispute is referred to the
Arbitrator. Each of the parties hereto shall bear all costs and
expenses incurred by it in connection with such arbitration,
except that the fees and expenses of the Arbitrator hereunder
shall be borne equally by Seller and Buyer. This provision for
arbitration shall be specifically enforceable by the parties and
the decision of the Arbitrator in accordance with the provisions
hereof shall be final and binding and there shall be no right of
appeal therefrom.
References in this Agreement to the Closing Balance Sheet
shall mean the balance sheet of the Business at the Closing Date,
prepared, audited and reviewed as described in this Section 2.5.
2.6 Additional Consideration.
2.6.1 Method of Computation. As additional consideration
for the Assets, Buyer shall pay to Seller an amount (the
"Additional Consideration") (not less than zero) for each of the
applicable winter ski seasons indicated below (each of such
seasons, which shall end on the date that tickets for such season
cease being sold, is hereinafter referred to as a "Winter
Season") equal to the product which results by multiplying the
number of Skier Day Visits (as hereinafter defined) during such
Winter Season in excess of Three Hundred Thousand (300,000) times
the Payment Rate specified below. The calculation of such amount
shall be on a non-cumulative basis so that a deficit in Skier Day
Visits in one year will not affect the calculation for a
succeeding year.
Winter Season Payment Rate
1995-1996 $6
1996-1997 6
1997-1998 6
1998-1999 5
1999-2000 4
2.6.2 Payment of Additional Consideration. Payments by
Buyer to Seller of Additional Consideration, if any, under this
Section 2.6 for any Winter Season shall be made within forty-five
(45) days after the end of such Winter Season, but in any event
not later than June 30th of the year in which such Winter Season
ends.
2.6.3 Skier Day Visits. For purposes of computing
Additional Consideration, "Skier Day Visits" for any Winter
Season shall be computed as follows:
(a) A single skier skiing or a single snowboarder
snowboarding at Bear Mountain Ski Resort for any portion of one
day for a fee paid to Buyer (whether full or discounted) or with
a complimentary ticket from Buyer, excluding employees and their
dependents, shall be counted as one (1) Skier Day Visit.
(b) Each Bear Mountain Ski Resort season pass sold by Buyer
(and, in addition, with respect to the 1995-1996 Winter Season,
any such passes sold by Seller prior to Closing) shall be counted
as twenty-five (25) Skier Day Visits for the applicable Winter
Season unless a more accurate measuring technique (e.g., Club
Vertical) is used by Buyer, in which case actual Skier Day Visits
shall be computed using such technique.
(c) For multiple-day Bear Mountain Ski Resort tickets sold
by Buyer, the number of Skier Day Visits for each ticket will
equal the maximum number of days a skier or snowboarder may ski
or snowboard using such ticket.
(d) Each single ride ticket sold for Bear Mountain Ski
Resort by Buyer shall be counted a one-tenth (1/10th) of a Skier
Day Visit.
(e) In the event that Buyer wishes to sell points tickets,
vertical feet tickets or the like for Bear Mountain Ski Resort,
prior to doing so the parties shall in good faith determine and
agree on the Skier Day Visit equivalencies based on Bear Mountain
Ski Resort's skiing and snowboarding historical data.
(f) In the event that Buyer is presented after the Closing
with tickets, vouchers or coupons sold or issued by Seller under
Seller's "Not Fun, Have Another One", "Frequent Ski" or
"Permanent Ticket" programs, Buyer agrees to honor the terms of
such ticket programs and Seller agrees to pay Buyer for each such
ticket, voucher or coupon honored at the price then in effect for
a full-day ski ticket, within thirty (30) days after Buyer's
submission to Seller of copies of the ticket, voucher or coupon,
as the case may be. Each such ticket, voucher or coupon so
honored by Buyer shall be deemed to be one Skier Day Visit.
2.6.4 Review of Calculation of Additional Consideration.
(a) In connection with the making of each payment by Buyer
to Seller under this Section 2.6, Buyer shall deliver to Seller a
schedule setting forth the computation of the Additional
Consideration for the applicable Winter Season and a copy of the
information used in making such computation. Seller shall be
permitted to review any relevant work papers, schedules and
calculations of the Buyer. Buyer's computation of any payment
under this Section 2.6 shall be conclusive and binding upon the
parties hereto unless, within forty-five (45) days following
receipt of the afore-described payment, if any, or all
information requested by Seller, whichever is later, Seller
notifies Buyer in writing (the "Seller's Notice") that it
disagrees with Buyer's computation of the Additional
Consideration. Such notice by Seller state with specificity the
basis for Seller's disagreement with Buyer's computation.
If Buyer notifies Seller in writing, within forty-five (45)
days following Buyer's receipt of Seller's Notice, that it
disagrees with Seller's recomputation of the Additional
Consideration, Buyer and Seller shall request Arbitrator to
determine whether Seller's or Buyer's calculation should be
considered the amount of the Additional Consideration as promptly
as possible, which determination shall be conclusive and binding
upon Buyer and Seller. The expenses of any determination by the
Arbitrator shall be borne equally by Buyer and Seller.
(b) In the event the amount of Additional Consideration to
be paid by Buyer to Seller in accordance with Section 2.6.1 for
any Winter Season is determined to be Seller's calculation in
accordance with Section 2.6.4(a), the additional amount of
Additional Consideration shall be paid by Buyer to Seller within
ten (10) days after the date of final determination of such
payment.
2.6.5 Sale of Business or Change of Control. In the event
of a proposed merger, consolidation or other transaction as a
result of which Fibreboard would cease to own, directly or
indirectly, more than fifty percent (50%) of the voting power of
Buyer, or in the event of a proposed sale of a substantial
portion of Seller's operating assets to an entity in which
Fibreboard would own, directly or indirectly, fifty percent (50%)
or less of the voting power, then Buyer, prior to effecting any
such transaction, shall seek Seller's approval, which approval
shall not be unreasonably withheld or delayed. If Seller does
not provide its approval to the proposed transaction, Buyer
shall, at or prior to the consummation of the proposed
transaction, pay to Seller the difference between One Million
Dollars ($1,000,000) and the aggregate amount of all Additional
Consideration previously paid to Seller in accordance with this
Section 2.6.
ARTICLE 3. ASSUMPTION OF LIABILITIES
3.1 Transferred Agreements. Buyer is not assuming any
debt, liability or obligation of Seller, whether known or
unknown, fixed or contingent, except for any continuing
obligations under the Transferred Agreements. Selling Parties
jointly and severally agree to indemnify and hold Buyer harmless
against all debts, claims, liabilities and obligations of Seller
not expressly assumed by Buyer hereunder, and to pay any and all
attorneys' fees and legal costs incurred by Buyer, its successors
and assigns in connection therewith and Buyer agrees to indemnify
and hold Selling Parties harmless against all debts, claims,
liabilities and obligations of Seller expressly assumed by Buyer
hereunder, and to pay any and all attorneys' fees and legal costs
incurred by Selling Parties, and their respective successors and
assigns in connection therewith. Buyer shall have the benefit of
and shall perform all contracts, commitments, permits, licenses,
registrations and authorizations, if any, specifically listed on
SCHEDULE 1.1.7, in accordance with the terms and conditions
thereof, with such modifications as are specifically disclosed on
such SCHEDULE 1.1.7. All liabilities, costs and expenses arising
from or relating to Seller's operation or ownership of the Assets
through the Closing Date shall remain the responsibility of
Seller, except as expressly provided in Article 5.
3.2 Non-Assignable Contracts. Nothing in this Agreement
shall be construed as an attempt or agreement to assign any
Transferred Agreement which is in law or by its terms either
non-assignable or non-assignable without the consent of the other
party or parties thereto, unless such consent shall be given. In
the event consent cannot be obtained for the assignment of any
such Transferred Agreement, then, in addition to Buyer's rights
under Section 9.12, Seller agrees to make reasonable arrangements
designed to provide for and to Buyer the benefits and burdens of
any such Transferred Agreement as if such Transferred Agreement
had been assigned.
ARTICLE 4. EXCISE AND PROPERTY TAXES; LEASE PRORATIONS
Buyer and Seller shall share equally the expense of all
sales, use and transfer taxes arising out of the transfer of the
Assets and Seller shall pay its unpaid portion, prorated as of
the Closing Date, of state and local real and personal property
taxes of the Business as well as dues to national, state and
local trade and community service organizations. Buyer shall not
be responsible for any business, occupation, withholding, or
other tax, or for any taxes of any kind related to the Business
for any period before the Closing Date. Buyer shall pay to
Seller, or Seller shall pay to Buyer, as the case may be, within
thirty (30) days following the Closing Date, the net amount of
the following items relating to the Real Property to be pro-rated
as of the Closing Date: rent, utilities (including without
limitation electricity, gas, water, sewer and telephone),
property taxes, security service and similar items.
ARTICLE 5. THE CLOSING
The transfer of the Assets by Seller to Buyer shall take
place at the offices of McCutchen, Doyle, Xxxxx & Xxxxxxx, 0000
Xxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx, at 10:00
a.m. local time, on October 20, 1995, or sooner, at such other
place and/or time as the parties may agree (the "Closing"). The
date on which the closing takes place is referred to herein as
the "Closing Date". In the event that the conditions specified
in this Agreement have not been fulfilled by such date, the
parties may extend the Closing for an additional period or
periods by mutual consent. The parties further agree that time
is of the essence in fulfilling the obligations to consummate the
transactions contemplated by this Agreement on or before the
specified date of Closing. If the Closing occurs during the
period from September 15, 1995 through October 6, 1995, Buyer
agrees to reimburse Seller, within seven (7) days after Seller's
written request, for fifty percent (50%) of the amount by which
Seller's direct operating expenses (as defined below) exceed its
total revenues during such period (such amounts to be determined
in accordance with generally accepted accounting principles,
consistently applied in accordance with the past practice of
Seller). If the Closing occurs during the period from October 7,
1995 through October 20, 1995, Buyer agrees to reimburse Seller,
within seven (7) days after Seller's written request, for one
hundred percent (100%) of the amount by which Seller's direct
operating expenses exceed its total revenues during such period
(such amounts to be determined in accordance with generally
accepted accounting principles, consistently applied in
accordance with the past practice of Seller). "Direct operating
expenses" shall mean the direct operating expenses of the
Business, and shall specifically refer to payroll, supplies,
licenses, fees, lease rentals payments, utilities, and sales
expenses, but shall not include non-direct operating expenses,
including without limitation depreciation, amortization, accrued
taxes, corporate allocations and overheads, inter-company
transfers and inter-company interest. If the Closing fails to
occur for any reason, other than a material breach of this
Agreement by Buyer, Seller agrees to reimburse Buyer, within
thirty (30) days after receipt by Seller of relevant copies of
invoices, for fifty percent (50%) of Buyer's out-of-pocket costs,
including without limitation, the fees and expenses of its
counsel, accountants, and consultants, incurred in connection
with the transactions contemplated by this Agreement, up to a
maximum reimbursement amount of Fifty Thousand Dollars ($50,000).
If there is any dispute between the parties as to the correct
amount of either expense reimbursement described in this
Article 5, the dispute resolution procedures specified in Section
2.5 above for determining the proper amount of the Adjustment to
Base Purchase Price shall govern.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF SELLING PARTIES.
Except as specifically noted in this Article 6, Selling
Parties, jointly and severally, hereby represent and warrant to
Buyer that the following facts and circumstances are and, except
as contemplated hereby, at all times up to and including the
Closing will be true and correct, and hereby acknowledge that
such facts and circumstances constitute the basis upon which
Buyer is induced to enter into and perform this Agreement.
Wherever the phrase "Selling Parties' knowledge" is used, it
means the actual knowledge of the officers, managers and
controller of Seller and the officers of S-K-I, after due
inquiry.
6.1 Organization, Good Standing, and Qualification. Seller
is a corporation duly organized, validly existing, and in good
standing under the laws of California and has all necessary
corporate powers to own its properties and to carry on its
business as now owned and operated by it. Neither the ownership
of its properties nor the nature of its business requires Seller
to be qualified in any jurisdiction other than California. S-K-I
is a corporation duly organized, validly existing, and in good
standing under the laws of Delaware. There are no subsidiaries
of Seller and Seller owns no equity securities or interests of
any other entity, other than Arlberg, a captive insurance
company.
6.2 Financial Statements. SCHEDULE 6.2-1 to this Agreement
sets forth the Interim Balance Sheet (the date of the Interim
Balance Sheet is hereinafter referred to as the "Stub Period
Date"), together with related unaudited statement of income and
retained earnings for the eleven-month period then ending.
Seller agrees to attach SCHEDULE 6.2-1A (the "Adjusted Stub
Period Date Balance Sheet") prior to the Closing to reflect
adjustments to the Interim Balance Sheet deemed appropriate by
Seller. Prior to the Closing, Seller shall furnish Buyer with a
certificate of the chief financial officer of S-K-I, certifying
that the Adjusted Stub Period Date Balance Sheet and related
unaudited statement of income and retained earnings, have been
prepared in accordance with generally accepted accounting
principles consistently followed by Seller and present fairly the
financial position of Seller as of the Stub Period Date and the
results of its operations for the eleven-month period then ended.
SCHEDULE 6.2-2 to this Agreement sets forth the balance sheet of
Seller as of July 31, 1995 ("Last Fiscal Year End"), and the
related statement of income and retained earnings for the year
then ending, reviewed by Price Waterhouse LLP, Seller's
independent public accountants. The financial statements in
SCHEDULES 6.2-1A and 6.2-2 are referred to as the "Financial
Statements." The Financial Statements attached hereto as of the
Closing shall have been prepared in accordance with generally
accepted accounting principles consistently followed by Seller
throughout the periods indicated, and present fairly the
financial position of Seller as of the respective dates of the
balance sheets included in the Financial Statements, and the
results of its operations for the respective periods indicated.
6.3 Debts, Obligations and Liabilities; Projections,
Estimates. SCHEDULE 6.3 to this Agreement contains a true and
complete schedule of all debts, obligations and liabilities of
Seller. Seller has no debts, obligations or liabilities of any
nature (whether known or unknown, absolute, accrued, contingent
or otherwise and whether due or to become due) that are not set
forth in SCHEDULE 6.3. Selling Parties have prepared in good
faith, but shall have no liability to Buyer or any other party by
reason of any failure of the earnings projections or estimates
contained in this Agreement, or in any schedule, exhibit, or
attachment hereto, or in any document delivered to Buyer or
Buyer's representatives in connection with this transaction or
otherwise, including marketing projections and information, to
accurately state the future sales, cost of sales, operating
expenses, net operating income or balance sheet items or
prospects of the Business. THE SELLING PARTIES DISCLAIM ANY
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, REGARDING THE
ACCURACY OF THE FOREGOING PROJECTIONS, ESTIMATES OR INFORMATION,
IF ANY, OF FUTURE FINANCIAL PERFORMANCE OF THE BUSINESS OR THE
TRUTH OR REASONABLENESS OF SUCH PROJECTIONS, ESTIMATES OR
INFORMATION OR THE ASSUMPTIONS WHICH UNDERLIE SUCH PROJECTIONS,
OR ESTIMATES OR INFORMATION, EXCEPT TO THE EXTENT SUCH
PROJECTIONS OR ESTIMATES OR INFORMATION WERE PREPARED IN GOOD
FAITH.
6.4 Absence of Specified Changes. Since the Stub Period
Date, there has not been any:
(a) transaction by Seller except in the ordinary course of
business as conducted on that date and except as described in the
Bombardier Contract;
(b) capital expenditure by Seller exceeding $10,000, except
as previously disclosed to Buyer or as set forth on SCHEDULE 6.4;
(c) adverse change in the financial condition of Seller
(other than operating losses incurred in the ordinary course of
business) the Assets or the Business;
(d) destruction, damage to, or loss of any assets of Seller
(whether or not covered by insurance) that adversely affects the
financial condition, assets, properties, business or prospects of
Seller;
(e) labor trouble or other event or condition of any
character adversely affecting the financial condition of Seller
(other than operating losses incurred in the ordinary course of
business), the Assets or the Business;
(f) change in accounting methods or practices (including,
without limitation, any change in depreciation or amortization
policies or rates) by Seller;
(g) revaluation by Seller of any of its assets (other than
the inventory valuation adjustment reflected on the balance sheet
of Seller as of the Last Fiscal Year End);
(h) increase in the salary or other compensation payable or
to become payable by Seller to any of its officers, directors, or
employees (other than merit increases not exceeding five percent
(5%) of base salary awarded to any employee in the ordinary
course of Seller's business and consistent with Seller's past
practice or such other merit increases as may have been
previously disclosed to Buyer), or the declaration, payment, or
commitment or obligation of any kind for the payment by Seller of
a bonus or other additional salary or compensation to any such
person;
(i) sale or transfer of any asset of Seller, except in the
ordinary course of business or as described in the Bombardier
Contract and except for sale of the golf maintenance trailer and
two grooming tillers;
(j) execution, creation, amendment or termination of any
contract, agreement, or license to which Seller is a party,
except in the ordinary course of business;
(k) loan by Seller to any person or entity or any guaranty
by Seller of any loan;
(l) waiver or release of any right or claim of Seller,
except in the ordinary course of business;
(m) mortgage, pledge, or other encumbrance of any Asset;
(n) other event or condition of any character that has or
might reasonably have an adverse effect on the financial
condition of Seller (other than operating losses incurred in the
ordinary course of business), the Assets or the Business; or
(o) agreement by Seller to do any of the things described
in the preceding clauses (a) through (n).
6.5 Tax Returns and Audits. Within the times and in the
manner prescribed by law, Seller and S-K-I, with respect to
Seller, has filed all federal, state and local tax returns
required by law and has paid all taxes, assessments, and
penalties shown on such returns as due and payable relating to
Seller, the Assets or the Business. To the best of Selling
Parties' knowledge, the provisions for taxes reflected in
Seller's Balance Sheet as of the Stub Period Date are adequate
for any and all federal, state, county and local taxes for the
period ending on the date of that balance sheet, whether or not
disputed. There are no present disputes as to taxes of any
nature payable by Seller, except as described on SCHEDULE 6.5.
6.6 Real Property. SCHEDULES 1.1.1 and 1.1.3 to this
Agreement contain complete and accurate legal descriptions of
each parcel of real property owned by or leased to Seller,
together with a true and correct survey of that portion of the
Golf Course to which title has accrued to the Seller via adverse
possession. To the best of Selling Parties' knowledge, all of the
Real Property Leases are valid and in full force, and there does
not exist any default or event that with notice or lapse of time,
or both, would constitute a default under any of the Real
Property Leases. All the buildings, fixtures and leasehold
improvements used by Seller in the Business are located on the
Real Property. Each parcel of real property owned by or leased
to Seller abuts on at least one side a public street or road in a
manner so as to permit reasonable, customary and adequate
vehicular and pedestrian ingress, egress and access to such
parcel, or has adequate easements across intervening property to
permit reasonable, customary and adequate vehicular and
pedestrian ingress, egress and access to such parcel from a
public street or road, except as described on SCHEDULE 6.6.
Except as described in SCHEDULE 6.6, there are no restrictions on
entrance to or exit from the Real Property to adjacent public
streets and no conditions which will result in the termination of
the present access from the Real Property to existing highways or
roads. Seller has good and marketable fee simple title to the
Owned Real Property, free and clear of all mortgages, liens,
security interests, pledges, encumbrances, restrictions on
transferability, defects of title, charges or claims of any
nature whatsoever, except those matters expressly disclosed in
the title reports described in Section 9.9 and the unrecorded
Easement Agreement, dated April 29, 1988, between City of Big
Bear Lake and Goldmine Ski Associates, Inc. Except for the Real
Property Leases, to the best of Selling Parties' knowledge, there
is no unrecorded or undisclosed legal or equitable interest in
the Real Property owned or claimed by any person, firm or
corporation. Subject to the Real Property Leases, Seller has
enjoyed the continuous and uninterrupted quiet possession, use
and operation of the Real Property without any material complaint
or objection by any person except as described in SCHEDULE 6.6.
Seller has legally acquired fee simple title to the portions of
the Real Property set forth on SCHEDULE 6.6 by adverse
possession. There exists no unfulfilled obligation on either of
Selling Parties to dedicate or grant an easement or easements
over any portion or portions of the Real Property to a
governmental entity or utility.
6.7 Improvements. Except as described on SCHEDULE 6.8, the
improvements located on the Real Property are in compliance with
all applicable laws, ordinances, rules, regulations, and codes,
and, to the best of Selling Parties' knowledge, are in reasonable
and serviceable condition and repair, normal wear and tear
excepted. Neither the Real Property nor the use, occupancy, or
transfer to Buyer thereof violates in any way any applicable
laws, ordinances, rules, regulations, codes, judgments, orders or
covenants, conditions and restrictions, whether federal, state,
local or private. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE SELLING PARTIES DISCLAIM ALL OTHER WARRANTIES
REGARDING THE PHYSICAL CONDITION OF THE REAL PROPERTY INCLUDED IN
THE ASSETS, EXPRESSED OR IMPLIED.
6.8 Zoning. Except as described in SCHEDULE 6.8, the
zoning of each parcel of property described in SCHEDULES 1.1.1,
1.1.2 and 1.1.3 permits the presently existing improvements and
the continuation of the business presently being conducted on
such parcel. There is no pending or, to the best of Selling
Parties' knowledge, contemplated rezoning. All the Real Property
is in compliance with the California Subdivision Map Act and all
applicable local subdivision ordinances, and no final subdivision
or parcel map is required in connection with the transfer of the
Real Property to Buyer.
6.9 No Commitments. Except as described in SCHEDULE 6.9,
there are no outstanding, defaulted or unsatisfied contracts,
commitments, agreements (including without limitation developer
agreements) or understandings which have been made to, with or
for the benefit of any governmental authorities, utility
companies, school districts, water districts, improvement
districts or other governmental agencies, bodies or authorities
which would impose any obligation, liability or condition on
Seller or, following the Closing, on Buyer or its successors or
assigns to grant any easements or to make any payments,
contributions or dedications of money or land or to construct,
install or maintain or to contribute to the construction,
installation or maintenance of any improvements of a public or
private nature, whether on or off the Real Property.
6.10 Continued Use of Real Property. Except as described
in SCHEDULE 6.10, there are no claims, governmental
investigations, litigation or proceedings which are pending or,
to the best of Selling Parties' knowledge, threatened against the
Real Property, Seller or the Business or which would affect the
continued use or possible development of the Real Property.
There are no presently pending or, to the best of Selling
Parties' knowledge, contemplated or threatened, proceedings to
(a) condemn, take or demolish the Real Property or any part
thereof, (b) declare the Real Property or any part of it a
nuisance or (c) exercise the power of eminent domain or a similar
power with respect to all or any part of the Real Property.
There are no presently pending or contemplated special
assessments except as described in SCHEDULE 6.9.
6.11 Big Bear Lake Pipeline. Seller is the owner of the
pipeline and related pumping plant and facilities from Big Bear
Lake to the USFS Permitted Property (the "Lake Pipeline"), the
location of which is or shall be accurately set forth in
SCHEDULE 6.11 to Buyer's satisfaction prior to the Closing Date.
To the best of Selling Parties' knowledge, the Lake Pipeline is
located in public rights of way, in easements and in the Real
Property. The contracts and agreements permitting Seller to
locate the Lake Pipeline in such public rights of way and
easements are valid, binding and enforceable in accordance with
their terms and there are currently no defaults or events that,
with notice or lapse of time, or both, would constitute a default
by any party to any of such contracts and agreements. To the
best of Selling Parties' knowledge, the Lake Pipeline is in good
operating condition and repair. Neither of the Selling Parties
has received any written notice or written indication that the
Lake Pipeline would have to be relocated. There are no claims,
governmental investigations, litigation or proceedings which are
pending or, to the best of Selling Parties' knowledge, threatened
against the Lake Pipeline, Seller, or any third party which would
affect the operation, continued use or location of the Lake
Pipeline.
6.12 Shuttle System. Seller has adequate permits, licenses
and approvals to operate its shuttle system between its parking
lots and the Owned Real Property (the "Shuttle System"). Seller
has adequate easements and rights of way to permit the Shuttle
System to be operated for the foreseeable future along the routes
and in the manner that it has historically operated.
6.13 Inventories. The Inventories consist of items of a
quality and quantity useable or saleable in the ordinary course
of business by Seller, except for obsolete or slow moving items
and items below standard quality, all of which have been written
down on the books of Seller to net realizable market value or
have been provided for by adequate reserves. All items included
in the Inventories are the property of Seller, except for sales
made in the ordinary course of business; for each of these sales
either the purchaser has made full payment or the purchaser's
liability to make payment is reflected in the books of Seller
except as described in SCHEDULE 6.13. Except as described in
SCHEDULE 6.13, no items included in the Inventories have been
pledged as collateral, or are held by Seller on consignment from
third parties. Seller's inventories shown on the balance sheets
included in the Financial Statements are based on quantities
determined by physical count or measurement, taken within the
preceding 12 months, and are valued at the lower of cost
(determined on a first-in, first-out basis) or market value and
on a basis consistent with prior years. The quantities of items
included in Seller's ski rental inventory, including without
limitation skis, ski boots, bindings, ski poles and snow boards,
(i) are not, and at the Closing shall not be, lower than the
quantities of such items (compared on an item-by-item basis) on
hand at the end of the 1994-1995 ski season, and (ii) are
sufficient to meet the normal and expected demand of the 1995-
1996 ski season.
6.14 Other Tangible Personal Property. The Equipment and
Improvements described in Section 1.1.4 and SCHEDULE 1.1.4 of
this Agreement constitutes all of the material items of tangible
personal property owned by, in the possession of, or used by
Seller in connection with its business, except Inventories. All
the Equipment and Improvements and the Inventories are or, on the
Closing Date, will be located on the Real Property. The maps,
plans and diagrams included within the Equipment and Improvements
are correct and accurate depictions of what they purport to
describe and are adequate for the prudent operation and
maintenance of the Seller's business and properties. The
Equipment and Improvements listed in SCHEDULE 1.1.4 plus the
Inventories constitute all tangible personal property necessary
for the conduct by Seller of its business as conducted by Seller
prior to the Closing Date. All motor vehicles listed on
SCHEDULE 1.1.4 have current smog certificates. Except as stated
in SCHEDULE 1.1.7, no Equipment and Improvements used by Seller
in connection with the Business is held under any lease, security
agreement, conditional sales contract, or other title retention
or security arrangement, or is in the possession of anyone other
than Seller.
6.15 Accounts Receivable. The Accounts Receivable
reflected on the Interim Balance Sheet, and the Accounts
Receivable created after the Stub Period Date, are valid and
genuine and arose from bona fide transactions in the ordinary
course of Seller's business.
6.16 Trade Names, Trademarks and Copyrights.
SCHEDULE 6.16 to this Agreement is a true, correct and complete
list of all trademarks, service marks, trade names, and
copyrights and their registrations or applications, if any, owned
by the Selling Parties and related to the Business or in which
Selling Parties have any rights or licenses related to the
Business, together with a brief description of each. To the best
of Selling Parties' knowledge, there is no infringement or
alleged infringement by others of any such trademark, service
xxxx, trade name or copyright. Seller has not infringed and is
not now infringing on any trademark, service xxxx, trade name or
copyright belonging to any other person, except as set forth on
SCHEDULE 6.16. Except as set forth in SCHEDULE 6.16, Seller is
not a party to any license, agreement or arrangement, whether as
licensor, licensee, franchisor, franchisee, or otherwise, with
respect to any trademarks, service marks, trade names, or
applications for them, or any copyrights. Seller owns or holds
adequate licenses or other rights to use all trademarks, service
marks, trade names and copyrights necessary for its business as
now conducted, including without limitation those listed on
SCHEDULE 6.16. Selling Parties have the right to sell or assign
to Buyer all of such trademarks, service marks, trade names and
copyrights, and all such registrations, applications, licenses
and other rights.
6.17 No Patent Rights. Except as described in
SCHEDULE 6.16, Seller neither owns, holds, nor has any rights,
licenses or immunities with respect to any patents, inventions,
industrial models, processes, designs, formulas and applications
for patents. Seller has not infringed and is not now infringing
on any patent or other right belonging to any person, firm, or
corporation. Except as described in SCHEDULE 6.16, Seller is not
a party to any license, agreement, or arrangement, whether as
licensee, licensor, or otherwise, with respect to any patent,
application for patent, invention, design, model, process, trade
secret, or formula.
6.18 Trade Secrets. SCHEDULE 6.18 to this Agreement is a
true and complete list of trade secrets used by Seller in (or
owned by Seller and useful in) the operation of its business,
including all customer lists. The specific location of each
trade secret's documentation, including its complete description,
specifications, charts, procedures, and other material relating
to it, is also set forth with it in such SCHEDULE 6.18. Each
trade secret's documentation is current, accurate, and sufficient
in detail and content to identify and explain it, and to allow
its full and proper use by Buyer without reliance on the special
knowledge or memory of others. Seller is the sole owner of each
of these trade secrets, free and clear of any liens,
encumbrances, restrictions, or legal or equitable claims of
others and has the right to sell or assign to Buyer all of such
trade secrets. Seller has taken all reasonable security measures
to protect the secrecy, confidentiality, and value of these trade
secrets; any of its employees and any other persons who, either
alone or in concert with others, developed, invented, discovered,
derived, programmed, or designed these secrets, or who have
knowledge of or access to information relating to them, have been
put on notice and, if appropriate, have entered into agreements
that these secrets are proprietary to Seller and not to be
divulged or misused. All these trade secrets are presently valid
and protectible, and are not part of the public knowledge or
literature, nor to the best of Selling Parties' knowledge have
they been used, divulged, or appropriated for the benefit of any
past or present employees or other persons, or to the detriment
of Seller.
6.19 Title to Assets. Seller has good and marketable title
to all the Assets and interests in the Assets, whether real,
personal, mixed, tangible, and intangible, which constitute all
the assets and interests in assets of Seller that are used in the
Business. All these assets or interests are free and clear of
mortgages, liens, pledges, charges, encumbrances, equities,
claims, easements, rights of way, covenants, conditions, or
restrictions, except for (i) those disclosed in the Interim
Balance Sheet or in the Schedules to this Agreement; (ii) the
lien of current taxes not yet due and payable; (iii) liens
contemplated by and existing pursuant to the Transferred
Agreements; and (iv) otherwise disclosed in the preliminary title
reports for the Owned Real Property delivered to Buyer prior to
Closing. All real property fixtures and tangible personal
property of Seller, including without limitation all buildings,
lifts, snow-making machinery and other Equipment is in reasonable
and serviceable operating condition and repair, ordinary wear and
tear excepted, and has been properly and adequately maintained in
accordance with the manufacturer's specifications where
applicable. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE
SELLING PARTIES DISCLAIM ALL OTHER WARRANTIES REGARDING THE
CONDITION OF THE TANGIBLE PERSONAL PROPERTY INCLUDED IN THE
ASSETS, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Seller is
in possession of all premises leased to it from others. Neither
any officer, nor any director or employee of Seller, nor any
spouse, child, or other relative of any of these persons, owns,
or has any interest, directly or indirectly, in any of the real
or personal property owned by or leased to Seller or any
copyrights, patents, trademarks, trade names, or trade secrets
licensed by Seller. Seller does not occupy any real property in
violation of any law, regulation, or decree.
6.20 Customers and Vendors. SCHEDULE 6.20-1 to this
Agreement is or at Closing will be a correct and current list of
all season pass, group sales and other mass purchase customers of
Seller during the 1994-1995 ski season. SCHEDULE 6.20-2 to this
Agreement is a correct and current list of all vendors and
suppliers of Seller during the 1994-1995 ski season.
6.21 Insurance Policies. SCHEDULE 6.21 to this Agreement
is a description of all insurance policies held by Seller
concerning the Assets. The policy limits of each of these
policies is set forth in SCHEDULE 6.21.
6.22 Other Contracts. SCHEDULE 6.22 is a complete list of
all contracts, agreements, arrangements, leases, commitments,
permits, licenses, registrations and authorizations, oral or
written, executed or executory, entered into or agreed to by
Seller in connection with the Business or by which Seller or the
Assets are currently bound which call for consideration of more
than $1,000 or require performance by Seller of any obligation
for a period of time extending beyond one year from the date
hereof (the "Contracts"), copies of which written Contracts have
been provided to Buyer or its counsel. Identified with an
asterisk on SCHEDULE 6.22 are those Contracts which are not, by
their terms assignable to Buyer. Seller is not a party to, nor
are the Assets bound by, any Contract not entered into in the
ordinary course of business, or unusual in nature, duration, or
amount (including, without limitation, any Contract requiring the
performance by Seller of any obligation for a period of time
extending beyond one year from Closing Date or calling for
consideration of more than $1,000) or that is with S-K-I or any
Affiliate of S-K-I. To the best of Selling Parties' knowledge,
all Transferred Agreements are valid and binding upon the parties
thereto except as limited by bankruptcy and insolvency laws and
by other laws affecting the rights of creditors generally. There
is no default or event that with notice or lapse of time, or
both, would constitute a default by any party to any of the
Transferred Agreements. Seller has not received notice that any
party to any of the Transferred Agreements intends to cancel or
terminate any of these agreements or to exercise or not exercise
any options under any of these agreements.
6.23 Compliance with Laws. Except for its failure to
obtain permits from the South Coast Air Quality Management
District to operate air compressors on the Real Property, and
except as described in SCHEDULE 6.23, Seller has complied with,
and is not in violation of, applicable federal, state, or local
statutes, laws, and regulations (including, without limitation,
any applicable building, zoning, environmental protection, water
use, occupational health and safety, employment, disability
rights or food service facilities law, ordinance, or regulation)
affecting its properties or the operation of the Business. To
the best of Selling Parties' knowledge, no material capital
expenditures will be required for compliance with applicable
federal, state or local laws or regulations now in force except
as described in SCHEDULE 6.23. No California Department of
Alcoholic Beverage Control accusation is pending against Selling
Parties or any of them as a holder of any alcoholic beverage
license to be transferred under this Agreement and, to the best
of Selling Parties' knowledge, no investigation is now in
progress by the California Department of Alcoholic Beverage
Control concerning any act or omission that could result in an
accusation, claim or proceeding being filed against Selling
Parties or any of them.
6.24 Litigation. SCHEDULE 6.24 sets forth a brief
description of all suits, actions, arbitrations, and legal,
administrative, and other proceedings, and governmental
investigation pending and, to the best of Selling Parties'
knowledge, threatened, against or affecting Seller, or any of its
business, assets, financial condition or prospects. None of the
matters set forth in SCHEDULE 6.24 if decided adversely to Seller
will result in a material adverse change on the Business or
Assets. Seller has furnished or made available to Buyer copies
of all relevant court papers and other documents relating to the
matters set forth in SCHEDULE 6.24. Seller is not in default
with respect to any order, writ, injunction, or decree of any
federal, state, local, or foreign court, department, agency, or
instrumentality. Except as set forth in SCHEDULE 6.24, Seller is
not presently engaged in any legal action to recover moneys due
to it or damages sustained by it.
6.25 Agreement Will Not Cause Breach or Violation. Neither
the entry into this Agreement nor the consummation of the
transactions contemplated hereby will result in or constitute any
of the following: (i) a breach of any term or provision of this
Agreement; (ii) a default or an event that, with notice or lapse
of time or both, would be a default, breach, or violation of the
articles of incorporation or bylaws of Selling Parties or any
Transferred Agreement; (iii) an event that would permit any party
to terminate any Transferred Agreement or to accelerate the
maturity of any indebtedness evidenced by a Transferred
Agreement; (iv) the creation or imposition of any lien, charge,
or encumbrance on any of the Assets; or (v) the violation of any
law, regulation, ordinance, judgment, order, or decree applicable
to or affecting Selling Parties, the Business or the Assets.
6.26 Authority and Consents. Each of the Selling Parties
has the right, power, legal capacity and authority to enter into,
and perform its obligations under this Agreement, and, except as
set forth on SCHEDULE 6.26, no approvals or consents of any
persons other than Selling Parties are necessary in connection
with it. The execution and delivery of this Agreement by each of
the Selling Parties have been duly authorized by all necessary
corporate action of Selling Parties (including all necessary
action by security holders), and this Agreement constitutes a
legal, valid and binding obligation of each of the Selling
Parties enforceable in accordance with its terms, except as
limited by bankruptcy and insolvency laws and by other laws
affecting the rights of creditors generally.
6.27 Personnel Identification and Compensation.
SCHEDULE 6.27 is a list of the names, addresses and titles of all
current officers, directors, employees, agents, and
representatives of Seller and all seasonal employees employed
during the 1994-1995 ski season. Seller has previously delivered
to Buyer a true and correct schedule stating the rates of
compensation payable (or paid, as the case may be) to each such
person.
6.28 Existing Employment Contracts. SCHEDULE 6.28 to this
Agreement is a list of all employment contracts and collective
bargaining agreements, and all pension, bonus, profit-sharing,
stock option, medical, health and welfare plans, or other
agreements or arrangements providing for employee remuneration or
benefits to which Seller is a party or by which Seller is bound.
All these contracts and arrangements are in full force and
effect, and neither Seller nor any other party is in default
under them. There have been no claims of defaults and, to the
best of Selling Parties' knowledge, there are no facts or
conditions which if continued, or on notice, will result in a
default under these contracts or arrangements. There is no
pending or, to the best of Selling Parties' knowledge, threatened
labor dispute, strike, or work stoppage affecting Seller's
business. Seller has no "employee pension benefit plans" (as
such term is defined in Section 3(2) of the Employee Retirement
Income Security Act).
6.29 Assets Used in the Conduct of Business. The Seller
has disclosed to the Buyer in this Agreement or in the schedules
hereto all assets, rights, properties and other assets, including
the Excluded Assets, owned or used by the Seller in the conduct
of its business.
6.30 Corporate Documents; Shareholders. Seller has
furnished to Buyer for its examination true, correct and complete
copies of (i) the articles of incorporation and bylaws of Seller;
and (ii) the minute books of Seller containing all records
required to be set forth of all proceedings, consents, actions,
and meetings of the shareholders and board of directors of Seller
since August, 1993. The authorized number of shares of Seller
("Shares") is One Million Two Hundred Thousand (1,200,000), all
of one class, of which Nine Hundred Eighty-Three Thousand Three
Hundred Forty-One and Six Hundred Sixty-Four One-Thousandths
(983,341.664) shares are issued and outstanding, all of which are
owned of record and beneficially by S-K-I. All the Shares are
validly issued, fully paid and unassessable. There are no
outstanding subscriptions, options, rights, warrants, convertible
securities, or other agreements or commitments obligating Seller
to issue or transfer from treasury any additional shares.
6.31 Authority. SCHEDULE 6.31 lists (i) the names and
addresses of all persons holding a power of attorney on behalf of
Seller; and (ii) the names and addresses of all banks or other
financial institutions in which Seller has an account, deposit,
or safe-deposit box, with the names of all persons authorized to
draw on these accounts or deposits or who have access to these
boxes.
6.32 Documents Delivered. Each copy or original of any
Transferred Agreement, or other instrument or document which is
delivered by Selling Parties or their counsel to Buyer (or its
counsel or representatives), whether before or after the
execution hereof, is a true, correct and complete copy and is in
fact what it is purported to be by Selling Parties and has not
been amended, canceled or otherwise modified except as has been
noted by Seller on SCHEDULE 1.1.7.
6.33 Forest Service Permit. SCHEDULE 1.1.2 to this
Agreement contains a complete and accurate description of the
real property which Seller is entitled to use to conduct its
Business pursuant to and for the term set forth in the USFS
Permit. The USFS Permit is valid and in full force, and there
does not exist any default or event that with notice or lapse of
time, or both, would constitute a default under the USFS Permit.
All fees and charges required to be paid by Seller pursuant to
the USFS Permit have been properly computed and fully paid, and
no such fees or charges have been deferred or are now due and
owing.
6.34 Environment.
6.34.1 Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) The term "Environmental Law(s)" means each and every
federal, state and local law, statute, ordinance, regulation,
rule, judicial or administrative order or decree, permit,
license, approval, authorization or similar requirement of each
and every federal, state and local governmental agency or other
governmental authority, pertaining to the protection of human
health or the environment, including without limitation, as
amended, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, the Resource Conservation and Recovery
Act, the Clean Air Act and the Clean Water Act.
(b) The term "Hazardous Substance" means any substance
which is (i) defined as a hazardous substance, hazardous
material, hazardous waste, pollutant or contaminant under any
Environmental Law, (ii) a petroleum hydrocarbon, including crude
oil or any fraction thereof, (iii) hazardous, toxic, corrosive,
flammable, explosive, infectious, radioactive, carcinogenic or a
reproductive toxicant or (iv) regulated pursuant to any
Environmental law.
(c) The term "Release" means any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing into the environment
(including without limitation the abandonment or discarding of
barrels, containers, and other receptacles containing any
Hazardous Substance).
6.34.2 Compliance with Law. Except as described on
SCHEDULE 6.34, the Real Property, and all existing uses and
conditions of the Real Property, are in compliance with all
Environmental Laws, and neither of the Selling Parties has
received any notice of violation issued pursuant to any
Environmental Law with respect to the Real Property or any use or
condition thereof.
6.34.3 Handling of Hazardous Substances. Neither Seller,
nor to the best of Selling Parties' knowledge, any other present
or former owner, tenant, occupant or user of the Real Property
has used, handled, generated, produced, manufactured, treated,
stored, transported, released, discharged or disposed of any
Hazardous Substance on, under or from the Real Property in
violation of any Environmental Law, except as described on
SCHEDULE 6.34.
6.34.4 No Release of Hazardous Substances. To the best of
the Selling Parties' knowledge, there is no Release or threatened
Release of any Hazardous Substance existing on, beneath or from
or in the surface or ground water associated with the Real
Property, nor, to the best of Selling Parties' knowledge, is
there or has there been any Release or threatened Release of
Hazardous Substances on, beneath or from the Real Property
occurring at any time in the past, except as set forth on
SCHEDULE 6.34.
6.34.5 Permits. Except as described on SCHEDULE 6.34, all
permits, licenses and authorizations required by or issued
pursuant to any Environmental Law or other law for the ownership
or operation of the Real Property or Seller's business have been
obtained and are presently maintained in full force and effect.
SCHEDULE 6.34 is a true and complete listing of all such permits,
licenses and authorizations. The Real Property and the
operations of Seller's business are in full compliance with all
terms and conditions of such permits, licenses and
authorizations. Neither of Selling Parties has received any
notice or other communication concerning any alleged violation of
any such permits, licenses or other authorizations.
6.34.6 No Proceedings. There exists no writ, injunction,
decree, order or judgment outstanding, nor, except as described
on SCHEDULE 6.34, any lawsuit, claim, proceeding, citation,
directive, summons or investigation pending or (to the best of
Selling Parties' knowledge) threatened pursuant to any
Environmental Law relating to (i) the ownership, lease,
occupation or use of the Real Property by Seller, or to the best
of Selling Parties' knowledge, any other present or former owner,
tenant, occupant or user of the Real Property, (ii) any alleged
violation of any Environmental Law by Seller, (iii) the suspected
presence, release or threatened Release of any Hazardous
Substance on, under, in or from the Real Property, nor to the
best of Selling Parties' knowledge, does there exist any valid
basis for any such lawsuit, claim, proceeding, citation,
directive, summons or investigation.
6.34.7 Storage of Hazardous Substances. Except as
described on SCHEDULE 6.34, there are no aboveground or
underground tanks located on the Real Property used or formerly
used for the purpose of storing any Hazardous Substance, to the
best of the Selling Parties' knowledge and there are no Hazardous
Substances stored on the Real Property except as needed for use
in maintenance and repair of the Assets.
6.34.8 No Asbestos or PCB's. To the best of the Selling
Parties' knowledge, there is no asbestos-containing building
material on the Property, and no asbestos abatement or
remediation work has been performed on the Property. There is no
PCB-containing equipment or PCB-containing material located on
the Real Property.
6.35 Full Disclosure. None of the representations and
warranties made by Selling Parties in this Agreement or in any
letter, certificate or memorandum furnished or to be furnished by
Selling Parties, or on their behalf, contains or will contain any
untrue statement of a material fact, or omits any material fact
the omission of which would make the statements made misleading.
There is no fact known to Selling Parties which materially
adversely affects, or in the future may (so far as Seller can now
reasonably foresee) materially adversely affect the condition,
assets, business, operations or prospects of Seller that has not
been set forth herein or heretofore communicated to Buyer in
writing pursuant hereto.
ARTICLE 7. PURCHASING PARTIES' REPRESENTATIONS AND WARRANTIES
The Purchasing Parties jointly and severally represent and
warrant that:
7.1 Organization and Good Standing. Buyer is a corporation
duly organized, existing, and in good standing under the laws of
the State of Delaware and Fibreboard is a corporation duly
organized, existing and in good standing under the laws of the
State of Delaware.
7.2 Corporate Authority. The execution and delivery of
this Agreement and the consummation of this transaction by the
Purchasing Parties have been, or prior to the Closing will have
been, duly authorized, by all necessary corporate action of the
Purchasing Parties, and this Agreement constitutes a legal, valid
and binding obligation of each of the Purchasing Parties
enforceable in accordance with its terms, except as limited by
bankruptcy and insolvency laws and by other laws affecting the
rights of creditors generally.
7.3 No Violation of Law. Neither the execution of this
Agreement by the Purchasing Parties nor their performance of any
of the transactions contemplated hereby will result in a
violation of any law, regulation, ordinance, judgment, order or
decree applicable to or affecting the Purchasing Parties.
7.4 Confidentiality Agreement. The Purchasing Parties have
complied with all terms and conditions of that certain
Confidentiality Agreement dated June 22, 1995, by and between
S-K-I Ltd. and Fibreboard Corporation.
7.5 Documents Delivered. Each copy or original of any
instrument or document which is delivered by Purchasing Parties
or their counsel to Seller (or its counsel or representatives),
whether before or after the execution hereof, is a true, correct
and complete copy and is in fact what it is purported to be by
Purchasing Parties and has not been amended, canceled or
otherwise modified.
7.6 Full Disclosure. None of the representations and
warranties made by Purchasing Parties in this Agreement or in any
letter, certificate or memorandum furnished or to be furnished by
Purchasing Parties, or on their behalf, contains or will contain
any untrue statement of a material fact, or omits any material
fact the omission of which would make the statements made
misleading.
ARTICLE 8A. SELLING PARTIES' OBLIGATIONS BEFORE
CLOSING
Selling Parties covenant that, except as otherwise agreed in
writing by Buyer, from the date of this Agreement until the
Closing or termination of this Agreement:
8A.1 Buyer's Access to Premises and Information. Subject
to the confidentiality provisions of Section 8B.4 hereof, Buyer
and its counsel, accountants, and other representatives shall be
entitled to have full access during normal business hours to all
Seller's properties, books, accounts, records, contracts, and
documents of or relating to the Assets. Selling Parties shall
furnish or cause to be furnished to Buyer and its representatives
all data and information concerning the Business, finances, and
properties of Seller that may reasonably be requested.
8A.2 Conduct of Business in Normal Course. Seller shall
carry on its business and activities diligently and in
substantially the same manner as they previously have been
carried on and in conformity with all applicable laws, rules and
regulations, and shall not make or institute any unusual or novel
methods of purchase, sale, lease, management, marketing,
accounting or operation that will vary materially from the
methods used by Seller as of the date of this Agreement. Without
limiting the foregoing, Seller shall not enter into any
agreements for the purchase of supplies, raw materials,
equipment, spare parts or the like at prices higher than
generally prevailing in the industry or enter into any agreements
for the sale of goods at prices lower than generally prevailing
in the industry, other than a Transferred Agreement or otherwise
with the approval of the Buyer. Selling Parties shall cooperate
with Buyer to facilitate the smooth and efficient transfer of
control of the Assets, the Business and the Transferred
Agreements to Buyer on the Closing Date and shall use their best
efforts to cause all of the conditions to the obligations of
Buyer and Seller under this Agreement to be satisfied on or prior
to the Closing Date.
8A.3 Preservation of Business and Relationships. Seller
shall use its best efforts, without making any commitments on
behalf of Buyer, to preserve its business organization intact, to
keep available to Buyer its present officers and employees, and
to preserve its present relationships with suppliers, customers,
and others having business relationships with it.
8A.4 Maintenance of Insurance. Seller shall continue to
carry in force its existing insurance for the Business and the
Assets, subject to variations in amounts required by the ordinary
operations of its business.
8A.5 Employees and Compensation. Seller shall not do, or
agree to do, any of the following acts: (i) grant any increase
in salaries payable or to become payable to any officer,
employee, sales agent, or representative, (ii) increase benefits
payable to any officer, employee, sales agent, or representative
under any bonus or pension plan or other contract or commitment,
or (iii) modify any collective bargaining agreement to which it
is a party or by which it may be bound. Seller shall permit
Buyer free access to communicate and meet with Seller's employees
at all reasonable times for the purpose of discussing with such
employees the possible employment of such persons by Buyer in
connection with the operation of the Business on or after the
Closing Date.
8A.6 New Transactions. Seller shall not do or agree to do
any of the following acts, without the prior written consent of
Buyer except as described on SCHEDULE 8A.6:
(a) enter into any contract, commitment, or transaction or
incur any liabilities not in the usual and ordinary course of its
business, consistent with past practice; or
(b) enter into any contract, commitment, or transaction in
the usual and ordinary course of business involving an amount
exceeding $1,000, individually, or $10,000 in the aggregate; or
(c) make any capital expenditures in excess of $5,000 for
any single item or $20,000 in the aggregate, or enter into any
leases of capital equipment or property under which the annual
lease charge is in excess of $1,000; or
(d) sell, lease or dispose of, or subject to any lien,
security interest or encumbrance, any Assets or any part of the
Business, other than in the usual and ordinary course of
business, consistent with past practice; or
(e) initiate or participate in any discussions or
negotiations or enter into any agreement to do any of the actions
described in the foregoing subparagraphs (a)-(d).
8A.7 Payment of Liabilities and Waiver of Claims. Seller
shall not do, or agree to do, any of the following acts: (i) pay
any obligation or liability, fixed or contingent, other than
current liabilities; (ii) waive or compromise any right or claim;
or (iii) cancel, without full payment, any note, loan, or other
obligation owing to Seller.
8A.8 Existing Agreements. Seller shall not modify, amend,
cancel, or terminate any of its existing contracts or agreements
to be assumed by Buyer, or agree to do any of those acts.
8A.9 Consent of Others. As soon as reasonably practical
after the execution and delivery of this Agreement, and in any
event on or before the Closing Date, Seller shall obtain the
written consent of the persons described in SCHEDULE 6.26 to this
Agreement and will furnish to Buyer executed copies of those
consents.
8A.10 Representations and Warranties True at Closing.
Selling Parties shall use their best efforts to assure that all
representations and warranties of Selling Parties set forth in
this Agreement and in any written statements delivered to Buyer
by Selling Parties under this Agreement will also be true and
correct as of the Closing Date as if made on that date and that
all conditions precedent to Purchasing Parties' obligation to
close shall have been met. Without limiting its obligations
under the preceding sentence, Seller agrees that in the event all
mortgages, liens, pledges, charges, encumbrances, equities,
claims, easements, rights of way, covenants, conditions or
restrictions (other than those referred to in Section 6.19) are
not eliminated from the preliminary title report for the parcels
of real property described in Item Numbers 2C and 2D of
SCHEDULE 1.1.1 and commonly referred to as the Xxxxxx Property,
Seller shall propose for Buyer's consideration an escrow of a
portion of the Base Purchase Price in an amount sufficient to
satisfy such exceptions. Buyer shall consider Seller's proposal
in good faith, but shall be under no obligation to accept such
proposal or waive this condition.
8A.11 Sales and Use Tax on Prior Sales. Seller agrees to
furnish to Buyer a clearance certificate from the California
Board of Equalization and any related certificates that Buyer may
reasonably request as evidence that all sales and use and other
tax liabilities of Seller (other than income tax liabilities)
accruing before the Closing Date have been fully satisfied or
provided for.
8A.12 Statutory Filings. Seller shall cooperate fully with
Buyer in preparing and filing all information and documents
deemed necessary or desirable by Buyer under any statutes or
governmental rules or regulations pertaining to the transactions
contemplated by this Agreement, including but not limited to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the
rules promulgated thereunder.
8A.13 Maintenance of Inventories. Seller shall maintain
normal quantities of consumable manufacturing supplies, spare
parts, repair materials and other inventories.
8A.14 Exclusivity of Negotiations. Selling Parties agree
that neither of the Selling Parties nor any director, officer,
employee, agent or representative of either of the Selling
Parties will, directly or indirectly, initiate contact with,
solicit or encourage any inquiries or proposals by, participate
in any discussions or negotiations with, disclose any information
concerning Seller to, or afford any access to the properties,
books or records of Seller to, any corporation, person or other
entity, other than Buyer and its authorized agents, concerning
the sale of any equity interest in Seller or any merger,
consolidation or other business combination or sale of any assets
or businesses of Seller. Selling Parties shall promptly notify
Buyer if any such proposal or offer, or any inquiry or contact
with any person, corporation or entity with respect thereto, is
made and shall furnish a copy thereof to Buyer.
8A.15 Disposal of Debris. Seller shall remove from the
Real Property to Buyer's reasonable satisfaction the items
described on SCHEDULE 8A.15.
ARTICLE 8B. PURCHASING PARTIES' OBLIGATIONS BEFORE CLOSING
Purchasing Parties covenant that, except as otherwise agreed
in writing by Seller, from the date of this Agreement until the
Closing or termination of this Agreement.
8B.1 Employees of Seller. Buyer shall use its best efforts
before the Closing Date to interview and communicate at
reasonable times with Seller's officers and employees for the
purpose of discussing with such officers and employees the
possible employment of such persons by Buyer.
8B.2 Representations and Warranties True at Closing.
Purchasing Parties shall use their best efforts to assure that
all representations and warranties of Purchasing Parties set
forth in this Agreement and in any written statements delivered
to Selling Parties under this Agreement will also be true and
correct as of the Closing Date as if made on that date and that
all conditions precedent to Seller's obligation to close shall
have been met.
8B.3 Statutory Filings. Purchasing Parties shall cooperate
fully with Seller in preparing and filing all information and
documents deemed necessary or desirable by Seller under any
statutes or governmental rules or regulations pertaining to the
transactions contemplated by this Agreement, including but not
limited to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976 and the rules promulgated thereunder.
8B.4 Confidentiality. In the event the transactions
contemplated by this Agreement are not consummated for any
reason, all copies of non-public proprietary documents and
information provided to Buyer by Selling Parties hereunder shall
be returned to Selling Parties by Buyer or destroyed by Buyer,
and Buyer shall maintain all proprietary and confidential data
and information, including without limitation customer lists that
the Buyer has obtained regarding Selling Parties' business in
confidence and shall not disclose or utilize the same except with
the consent, or for the benefit, of the Selling Parties.
ARTICLE 9. CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE
The obligations of Buyer to purchase the Assets under this
Agreement are subject to the satisfaction, at or before the
Closing, of all the conditions set out below in this Article 9.
Buyer may waive any or all of these conditions in accordance with
Section 14.2 hereof; provided, however, that no such waiver of a
condition shall constitute a waiver by Buyer of any of its other
rights or remedies, at law or in equity, if Selling Parties shall
be in default of any of its representations, warranties, or
covenants under this Agreement, unless the waiver explicitly
provides otherwise.
9.1 Premerger Notification Compliance. All requirements
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976
and the rules promulgated thereunder applicable to the
transactions contemplated hereby shall have been met, including
without limitation all necessary filing and waiting requirements,
and neither the United States Department of Justice nor the
Federal Trade Commission shall have raised objection to the
transactions contemplated hereby.
9.2 Accuracies of Selling Parties' Representations and
Warranties. All representations and warranties by Selling
Parties in this Agreement or in any written statement that shall
be delivered to Buyer by Selling Parties under this Agreement
shall be true on and as of the Closing Date as though made at
that time.
9.3 Absence of Liens. At or prior to the Closing, Buyer
shall have received a UCC search report dated as of a date not
more than five days before Closing issued by the California
Secretary of State indicating that there are no filings under the
Uniform Commercial Code on file with such Secretary of State
which name Seller as debtor or otherwise indicating any lien on
the Assets, except for those leases and liens to be assumed by
the Buyer and the liens described in Section 6.19 as to which UCC
Termination Statements have been obtained from lienholders
subject only to Seller's payment of specified dollar amounts at
Closing or as to which Seller has obtained pay-off letters and
UCC Termination Statements.
9.4 Selling Parties' Performance. Selling Parties shall
have each performed, satisfied, and complied with all covenants,
agreements, and conditions required by this Agreement to be
performed or complied with by Selling Parties on or before the
Closing Date.
9.5 Certification by Seller. Buyer shall have received a
certificate, dated the Closing Date, signed and verified by an
officer of Seller and S-K-I, respectively, certifying, in such
detail as Buyer and its counsel may reasonably request, that the
conditions specified in Sections 9.2 and 9.4 have been fulfilled.
9.6 Opinions of Selling Parties' Counsel.
9.6.1 Xxxxxxx & Xxxxxxx. Buyer shall have received from
Xxxxxxx & Xxxxxxx, counsel for Selling Parties, an opinion dated
the Closing Date, to the effect that:
(a) Each of Selling Parties is a corporation duly
organized, validly existing and in good standing under the laws
of the its respective state of incorporation and has all
necessary corporate power to own its properties as now owned and
operate its business as now operated and to perform its
obligations under this Agreement;
(b) This Agreement has been duly and validly authorized
and, when executed and delivered by each of the Selling Parties,
will be valid and binding on each of Selling Parties and
enforceable against each of the Selling Parties in accordance
with its terms, except as limited by bankruptcy and insolvency
laws and by other laws affecting the rights of creditors
generally;
(c) Except as set forth in SCHEDULE 6.24 to this Agreement,
such counsel does not know of any suit, action, arbitration, or
legal, administrative, or other proceeding or governmental
investigation pending or threatened against Seller; and
(d) Neither the execution nor delivery of this Agreement
nor the consummation of the transactions contemplated by this
Agreement will constitute (i) a default, or an event that would
with notice or lapse of time or both constitute a default under,
or violation or breach of, Seller's articles of incorporation,
bylaws, or any Contract identified in a schedule attached to the
legal opinion, or any law, regulation, ordinance, judgment,
order, or decree applicable to or affecting Seller or the Assets,
or (ii) an event that, in the absence of the consents described
in SCHEDULE 6.26, would permit any party to any agreement or
instrument to terminate it or to accelerate the maturity of any
indebtedness or other obligation of either or both of Selling
Parties.
In rendering its opinion, such counsel for Seller may rely on
certificates of governmental authorities and certificates of
officers of either of the Selling Parties.
9.6.2 Xxxxxxx. Buyer shall have received from Gresham,
Varner, Xxxxxx, Xxxxx & Xxxxxx, counsel for Selling Parties, an
opinion dated the Closing Date, to the effect that:
(a) Except as set forth in SCHEDULE 6.24 to this Agreement,
such counsel does not know of any suit, action, arbitration, or
legal, administrative, or other proceeding or governmental
investigation pending or threatened against or affecting the
Assets, Seller, the Business, or the properties or financial
condition of Seller;
(b) To the best of such counsel's knowledge, after due
inquiry, no consent, approval, authorization or order of, or
filing with, any court or any federal, state, regional or local
governmental agency or body is required and remains to be
obtained on the part of Seller in order for the transactions
anticipated by this Agreement to be consummated; and
(c) To the best of such counsel's knowledge, Seller has
good and marketable title to its assets, including those
described in the Schedules to this Agreement, free and clear of
all liens, encumbrances, equities, conditional sales contracts,
security interests, charges, and restrictions, except as set
forth in this Agreement or the Schedules hereto.
In rendering its opinion, counsel for Selling Parties may rely on
certificates of governmental authorities and certificates of
officers of either of the Selling Parties.
9.6.3 Xxxxxxx. Buyer shall have received from Hancock,
Rothert & Bunshoft, counsel for Selling Parties an opinion dated
the Closing Date, to the effect that:
(a) Except as set forth in SCHEDULE 6.24 to this Agreement,
such counsel does not know of any suit, action, arbitration, or
legal, administrative, or other proceeding or governmental
investigation pending or threatened against or affecting the
Assets, Seller, the Business, or the properties or financial
condition of Seller.
In rendering its opinion, such counsel for Selling Parties may
rely on certificates of governmental authorities and certificates
of officers of either of the Selling Parties.
9.7 Absence of Litigation. No action, suit, or proceeding
before any court or any governmental body or authority,
pertaining to the transaction contemplated by this Agreement or
to its consummation, shall have been instituted or threatened on
or before the Closing Date.
9.8 Corporate Approval. The execution and delivery by
Selling Parties of this Agreement and the other documents,
instruments and agreements referred to or provided for herein,
and the performance by Selling Parties of their respective
covenants and obligations hereunder, shall have been duly
authorized by all necessary corporate action, including without
limitation approval by Selling Parties' respective Boards of
Directors, which Buyer acknowledges will require a satisfactory
opinion from S-K-I's financial advisers, Xxxxxxxx Xxxxxxxx & Co.
Incorporated as to the fairness of the Total Purchase Price from
a financial point of view, and Buyer shall have received copies
of all resolutions pertaining to that corporate authorizations,
certified by the secretary or assistant secretary of Seller or
S-K-I, as the case may be.
9.9 Title Policies. Buyer shall have received title
insurance policies, dated as of the Closing Date, issued by First
American Title Insurance and Trust Company, insuring fee simple
title in Buyer to all the Owned Real Property subject only to
(i) the lien, if any, of current real property taxes, payment of
which is not delinquent, (ii) liens and encumbrances referred to
in the Interim Balance Sheet attached as part of SCHEDULE 6.2-1,
(iii) liens and encumbrances described in Section 6.19; and (iv)
objections and exceptions noted in these title insurance
policies, which shall have been approved in writing by Buyer.
Liability coverage under those title insurance policies shall be
at least equal to the greater of the book value of such real
property as reflected in the Interim Balance Sheet and the amount
allocated to such Real Property on SCHEDULE 2.4.
9.10 Corporation Tax Clearance. Buyer shall have received
a corporation tax clearance certificate for Seller as of a date
not more than three (3) days before the Closing Date, issued by
the appropriate California tax authorities.
9.11 Department of Employment Development Release. Buyer
shall have received a Certificate of Release from the Department
of Employment Development of the State of California stating
that, as of a date not more than thirty (30) days before the
Closing Date, no contributions, interest, or penalties are due to
the Department of Employment Development from Seller to which
Buyer would succeed upon consummation of the transactions
contemplated hereby.
9.12 Consents. The consent of the Forest Service to the
transfer of the USFS Permit to Buyer which the parties hereto
contemplate will be accomplished by the filing by Seller and
Buyer of a Request for Termination and Application for Special-
Use Permit with the Forest Service and the issuance to Buyer of a
Ski Area Term Special-Use Permit by the Forest Service containing
the same terms and conditions as set forth in the USFS Permit,
the consent of The First National Bank of Boston and Teachers
Insurance and Annuity Association of America, as lenders to
S-K-I, to the extent that their consent to the consummation of
the transactions contemplated hereby is required by their
respective debt instruments with S-K-I, and all other necessary
authorizations, agreements and consents of any parties to the
consummation of the transactions contemplated by this Agreement,
or otherwise pertaining to the matters covered by it, shall have
been obtained by Seller and delivered to Buyer, and no such
authorizations, agreements and consents shall impose any
burdensome or, in Buyer's reasonable determination,
unsatisfactory conditions or requirements on Buyer or Buyer shall
have entered into new contracts or agreements which permit the
continued use or supply of the property, products, technology or
services provided for by Seller's existing contracts or
agreements on terms no less favorable to Buyer than the prior
contract or agreement of Seller as to such products, technology
or services.
9.13 Xxxx of Sale. Seller shall have executed and
delivered to Buyer a Xxxx of Sale, in the form of Exhibit A
hereto.
9.14 Assignment and Assumption Agreement. Seller shall
have executed and delivered to Buyer an Assignment and Assumption
Agreement in the form of Exhibit B hereto.
9.15 Real Property Leases. Seller and Buyer shall have
entered into an Assignment and Assumption of Lease Agreements in
the form attached hereto as Exhibit C regarding each of the real
property leases described on SCHEDULE 1.1.3, and the respective
landlords with respect to such real property shall also have
consented in writing thereto.
9.16 Grant Deeds. Seller shall have executed and delivered
to Buyer for all the Owned Real Property grant deeds in the form
of Exhibit D hereto.
9.17 Approval of Documentation. The form and substance of
all certificates, instruments, opinions, and other documents
delivered to Buyer under this Agreement shall be satisfactory in
all reasonable respects to Buyer and its counsel.
9.18 Change of Corporate Name. Seller shall have taken and
caused to be taken all necessary action by Seller's Board of
Directors, stockholders, and any other persons in order to change
its corporate name to a name reasonably approved by Buyer on or
before the Closing Date and shall have effected such name change
by filing an Amendment to its Articles of Incorporation with the
California Secretary of State concurrently with the Closing. In
addition, Seller shall have furnished to Buyer a letter signed by
an authorized officer of Seller, undated, addressed to the
California Secretary of State, consenting to the Buyer's use of
the corporate name "Bear Mountain, Inc." in its qualification to
do business as a foreign corporation in California. The
foregoing actions and deliveries shall be conditioned upon, and
shall occur concurrently with, the Closing and shall be without
prejudice to Seller's rights under Section 12.1.
9.19 Continuity of Management. Buyer shall have made
arrangements reasonably suitable for the employment by Buyer of
sufficient of Seller's employees to continue the operation of the
Business without disruption thereto.
9.20 Condition of Assets. The Assets shall not have been
materially or adversely affected in any way as a result of any
fire, accident, storm or other casualty or labor or civil
disturbance or act of God or the public enemy.
9.21 Water Approvals. Either (a) S-K-I shall have assigned
all its right, title and interest in and to that certain
Agreement for Water Service dated January 4, 1988 by Big Bear
Municipal Water District and S-K-I (the "Water Agreement") to
Buyer pursuant to a form of assignment and assumption agreement
reasonably satisfactory to Buyer in its sole discretion and Big
Bear Municipal Water District shall have consented to such
assignment and assumption agreement without imposing any
burdensome or, in Buyer's reasonable determination,
unsatisfactory conditions on Buyer in connection with such
consent; or (b) at Buyer's election, Buyer shall have entered
into a new contract with Big Bear Municipal Water District (the
"New Water Agreement") which contains the same right to water
deliveries as under the Water Agreement and on terms and
conditions no less favorable to Buyer than under the Water
Agreement. If the Water Agreement is assigned by S-K-I, S-K-I
shall provide documentation satisfactory to Buyer of the
requisite approvals of the California State Water Resources
Control Board and the Watermaster for the Upper Santa Xxx
Watershed, and the requisite agreement of the San Bernardino
Valley Municipal Water District, with respect to the Water
Agreement, together with duly executed forms transferring S-K-I's
rights thereunder to Buyer in form and substance satisfactory to
Buyer. If a New Water Agreement is to be executed, S-K-I shall
have obtained prior to the Closing Date for the benefit of Buyer
the requisite approvals of the California State Water Resources
Control Board and the Watermaster for the Upper Santa Xxx
Watershed, and the requisite agreement of the San Bernardino
Valley Municipal Water District, with respect to the New Water
Agreement.
9.22 Completion of Due Diligence. Buyer shall have
completed, with results to its satisfaction, a financial, legal
and business due diligence investigation of Seller, the Assets
and the Business. Such investigation shall include, without
limitation, an environmental assessment of the Real Property.
9.23 No Adverse Change. There shall not have occurred, and
there shall not be threatened, any material adverse change in the
Assets, the Business or Seller's financial condition, assets or
liabilities (actual or contingent) or prospects since the Stub
Period Date.
9.24 License Agreement. Seller shall have executed and
delivered to Buyer a License Agreement in the form of Exhibit E.
9.25 Escrow Agreement. Seller and Escrow Agent shall have
executed and delivered to Buyer an Escrow Agreement in the form
of Exhibit F.
9.26 Approval of Adjusted Stub Period Date Balance Sheet.
Buyer shall have reviewed and approved in its sole discretion the
Adjusted Stub Period Date Balance Sheet set forth in
SCHEDULE 6.2-1A.
ARTICLE 10. CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE
The obligations of Seller to sell and transfer the Assets
under this Agreement are subject to the satisfaction, at or
before the Closing, of all the following conditions set out below
in this Article 10, any or all of which may be waived by Seller
in accordance with Section 14.2 hereof:
10.1 Accuracy of Purchasing Parties' Representations and
Warranties. All representations and warranties by Purchasing
Parties contained in this Agreement or in any written statement
delivered by Purchasing Parties under this Agreement shall be
true on and as of the Closing as though such representations and
warranties were made on and as of that date.
10.2 Purchasing Parties' Performance. Purchasing Parties
shall each have performed and complied with all covenants and
agreements, and satisfied all conditions that each of them is
required by this Agreement to perform, comply with, or satisfy,
before or at the Closing.
10.3 Purchasing Parties' Corporate Approval. Each of the
Purchasing Parties shall have received corporate authorization
and approval for the execution and delivery of this Agreement by
each of them and all corporate action necessary or proper to
fulfill the obligations of each of them to be performed under
this Agreement on or before the Closing Date, including without
limitation the approval by the respective Board of Directors of
each of the Purchasing Parties.
10.4 Fairness Opinion. Seller shall have received a
satisfactory opinion from Seller's financial advisers, Xxxxxxxx
Xxxxxxxx & Co. Incorporated, addressed to its Board of Directors,
as to the fairness of the Total Purchase Price from a financial
point of view.
10.5 Consents. The consent of the Forest Service to the
transfer of the USFS Permit to Buyer which the parties hereto
contemplate will be accomplished by the filing by Seller and
Buyer of a Request for Termination and Application for Special-
Use Permit with the Forest Service and the issuance to Buyer of a
Ski Area Term Special-Use Permit by the Forest Service containing
the same terms and conditions as set forth in the USFS Permit,
the consent of The First National Bank of Boston and Teachers
Insurance and Annuity Association of America, as lenders to
S-K-I, to the extent that their consent to the consummation of
the transactions contemplated hereby is required by their
respective debt instruments with S-K-I, and all other necessary
authorizations, agreements and consents of any parties to the
consummation of the transactions contemplated by this Agreement,
or otherwise pertaining to the matters covered by it, shall have
been obtained by Seller and delivered to Buyer, and no such
authorizations, agreements and consents shall impose any
burdensome or, in Buyer's reasonable determination,
unsatisfactory conditions or requirements on Buyer, or Buyer
shall have entered into new contracts or agreements which permit
the continued use or supply of the products, technology or
services provided for by Seller's existing contracts or
agreements on terms no less favorable to Buyer than the prior
contract or agreement of Seller as to such products, technology
or services.
10.6 Premerger Notification Compliance. All requirements
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976
and the rules promulgated thereunder applicable to the
transactions contemplated hereby shall have been met, including
without limitation all necessary filing and waiting requirements,
and neither the United States Department of Justice nor the
Federal Trade Commission shall have raised any objection to the
transactions contemplated hereby.
10.7 Certification by Buyer. Seller shall have received a
certificate, dated the Closing Date, signed and verified by an
officer of Buyer and Fibreboard, respectively, certifying, in
such detail as Seller and its counsel may reasonably request,
that the conditions specified in Sections 10.1 and 10.2 have been
fulfilled.
10.8 Opinion of Purchasing Parties' Counsel. Seller shall
have received from counsel for Purchasing Parties an opinion
dated the Closing Date, to the effect that:
(a) Each of Purchasing Parties is a corporation duly
organized, validly existing and in good standing under the laws
of its respective state of incorporation and has all necessary
corporate power to own its properties as now owned and operate
its business as now operated and to perform its obligations under
this Agreement; and
(b) This Agreement has been duly and validly authorized
and, when executed and delivered by each of the Purchasing
Parties, will be valid and binding on each of Purchasing Parties
and enforceable against each of the Purchasing Parties in
accordance with its terms, except as limited by bankruptcy and
insolvency laws and by other laws affecting the rights of
creditors generally.
10.9 Absence of Litigation. No action, suit, or proceeding
before any court or any governmental body or authority,
pertaining to the transaction contemplated by this Agreement or
to its consummation, shall have been instituted or threatened on
or before the Closing Date.
10.10 Corporate Approval. The execution and delivery by
Purchasing Parties of this Agreement and the other documents,
instruments and agreements referred to or provided for herein,
and the performance by Purchasing Parties of their covenants and
obligations hereunder, shall have been duly authorized by all
necessary corporate action.
10.11 Assignment and Assumption Agreement. Buyer shall
have executed and delivered to Seller an Assignment and
Assumption Agreement in the form of Exhibit B hereto.
10.12 Real Property Leases. Buyer shall have entered into
an Assignment and Assumption of Lease Agreement in the form
attached hereto as Exhibit C regarding each of the real property
leases described on SCHEDULE 1.1.3, and the respective landlords
with respect to such real property shall also have consented in
writing thereto.
10.13 Approval of Documentation. The form and substance of
all certificates, instruments, opinions, and other documents
delivered to Seller under this Agreement shall be satisfactory in
all reasonable respects to Seller and its counsel.
10.14 License Agreement. Buyer shall have executed and
delivered to Seller a License Agreement in the form of Exhibit E.
10.15 Escrow Agreement. Buyer and Escrow Agent shall have
executed and delivered to Seller an Escrow Agreement in the form
of Exhibit F.
ARTICLE 11. OBLIGATIONS AT CLOSING
11.1 Selling Parties' Obligations at the Closing. At the
Closing, Seller shall deliver or cause to be delivered to Buyer:
(a) For all the Owned Real Property and interests in the
Owned Real Property, general warranty deeds in recordable form,
properly executed and acknowledged, conforming to and conveying
the agreed state of the title;
(b) Assignments in recordable form of all the Real Property
Leases, properly executed and acknowledged by Seller, and
accompanied by all consents of lessors required by this Agreement
and the leases being assigned;
(c) Instruments of assignment and transfer of all of the
other Assets of Seller and S-K-I to be transferred hereunder with
appropriate warranties of title, in form and substance
satisfactory to Buyer's counsel;
(d) Licenses for the trademarks and trade names to be
licensed to Buyer by S-K-I, properly executed and acknowledged by
S-K-I; and
(e) Such other instruments, certificates and documents as
Buyer or its counsel may reasonably require to convey and
transfer all of the Assets, implement the terms of this Agreement
and memorialize the satisfaction of the closing conditions of
Buyer set forth in Article 9.
Simultaneously with the consummation of the transfer,
Seller, through its officers, agents, and employees, shall put
Buyer into full possession and enjoyment of all the Assets to be
conveyed and transferred by this Agreement.
Selling Parties, at any time before or after the Closing
Date, shall execute, acknowledge, and deliver any further deeds,
assignments, conveyances, and other assurances, documents, and
instruments of transfer, reasonably requested by Buyer and shall
take any other action consistent with the terms of this Agreement
that may reasonably be requested by Buyer for the purpose of
assigning, transferring, granting, conveying, and confirming to
Buyer, or reducing to possession, any or all property and assets
to be conveyed and transferred by this Agreement. If requested
by Buyer, Selling Parties further agree to prosecute or otherwise
enforce in their own names for the benefit of Buyer any claims,
rights, or benefits that are transferred to Buyer by this
Agreement and that require prosecution or enforcement in either
of the Selling Parties' name. Any prosecution or enforcement of
claims, rights, or benefits under this Section shall be solely at
Buyer's expense, unless the prosecution or enforcement is made
necessary by a breach of this Agreement by Selling Parties.
11.2 Buyer's Obligations at the Closing. At the Closing,
Buyer shall deliver to Seller against delivery of the items
specified in Section 11.1 immediately available funds, by wire
transfer, in the amount of the Base Purchase Price, and such
other instruments, certificates and documents as Seller or its
counsel may reasonably require to implement the terms of this
Agreement; and to memorialize satisfaction of the closing
conditions of Seller set forth in Article 10.
ARTICLE 12. THE PARTIES' OBLIGATIONS AFTER THE CLOSING
12.1 No Use of Name. Selling Parties agree that after the
Closing Date they shall not use or employ in any manner directly
or indirectly the name "Bear Mountain", or any variation thereof
in the State of California or in any states contiguous to the
State of California or in a manner inconsistent with the terms of
Sections 1.1.12 or 1.1.13.
12.2 Collection of Accounts Receivable. Buyer shall exert
its best commercially reasonable efforts with the full
cooperation of Seller to collect the Accounts Receivable
described in Section 1.1.6 as soon as possible after the Closing
Date. If more than one invoice is outstanding for any customer
the "first in, first out" principle shall be applied in
determining the invoice to which a payment relates, unless the
payment by its terms specifies or clearly indicates the invoice
to which it relates. Should any Accounts Receivable remain
unpaid after one year from the Closing Date, Selling Parties will
pay to Buyer the full amount of such unpaid receivables within 30
days after delivery to Selling Parties of a schedule of such
unpaid Accounts Receivable. If there is any dispute between the
parties as to the correct amount of unpaid receivables, the
dispute resolution procedures specified in Section 2.5 above for
determining the proper amount of the Adjustment to Base Purchase
Price shall govern.
12.3 Selling Parties' Indemnities.
12.3.1 Warranty Claims. From and after the Closing,
Selling Parties, jointly and severally, shall reimburse,
indemnify, defend, and hold harmless on an after-tax basis each
of the Purchasing Parties and their respective successors and
assigns (an "Indemnified Party") against and in respect of claims
and demands of third parties, and all losses, costs, expenses,
fines, judgment obligations, liabilities, damages (excluding
consequential and punitive damages), recoveries, and
deficiencies, including without limitation settlement costs,
interest, penalties, and reasonable attorneys', accountants' and
experts' fees and expenses ("Costs"), that an Indemnified Party
shall incur or suffer, which arise, result from, or relate to any
breach of a representation or warranty set forth in Article 6 of
this Agreement including any Schedule related thereto ("Warranty
Claim") only if such Warranty Claim (excluding a Warranty Claim
based upon the Selling Parties' fraud or knowing
misrepresentation or omission) meets the following criteria:
(i) it is the proximate cause of Costs to an
Indemnified Party, provided that an Indemnified Party may
not recover for the same Costs as are recovered hereunder by
another Indemnified Party;
(ii) such Costs related thereto exceed $25,000
individually or, together with all Warranty Claims, exceeds
$100,000;
(iii) such Costs related thereto exceed the proceeds
from any insurance policy in favor of an Indemnified Party
which may be paid on account of the Warranty Claim; and
(iv) it is presented by an Indemnified Party to the
Selling Parties in writing on or prior to the first
anniversary of the Closing Date.
The Purchasing Parties' exclusive remedy for Warranty Claims
(other than a Warranty Claim arising from the Selling Parties'
fraud or knowing misrepresentation or omission) shall be an
offset against the amounts, if any, owed by the Purchasing
Parties pursuant to Section 2.6 of this Agreement. Any disputes
arising among the parties regarding the right to make such an
offset shall be resolved in a manner substantially similar to
that described in Section 2.5 hereof unless the parties cannot
agree thereto in which case all judicial remedies shall be
preserved.
12.3.2 Sellers' Liabilities. Without regard to the
limitations set forth in Section 12.3.1 hereof, each of the
Selling Parties, jointly and severally, for itself, its
successors and assigns, hereby assumes and agrees to pay or cause
to be paid, to perform or cause to be performed or otherwise to
discharge or cause to be discharged, as they become due and
payable, and to indemnify and hold harmless an Indemnified Party
against any and all Costs arising out of, the Sellers'
Liabilities, as hereinafter defined. For purposes of this
section, "Sellers' Liabilities" means all Costs attributable to
the operation of the Business on or before the Closing Date and
not expressly assumed by Buyer pursuant to Article 3 hereof,
arising from, related to or otherwise concerning (A) taxes based
on income, franchise, sales, use or otherwise imposed on Seller
with respect to periods ending prior to or on the Closing Date;
(B) amounts owed to any employees of Seller for periods prior to
the Closing Date for compensation and benefits or any termination
by Seller of the employment of such employees including, without
limitation, any severance or other termination pay or benefits
required under the Consolidated Omnibus Budget Reconciliation Act
of 1985 ("COBRA"), if applicable; (C) the Excluded Assets;
(D) Warranty Claims or other claims arising from the Selling
Parties' fraud or knowing misrepresentation or knowing omission;
(E) any claim by a third party for breach of contract resulting
from Seller's failure to obtain any required consent referred to
in Sections 9.12 and 9.21; (F) any legal, governmental or
administrative action, suit or proceeding against Buyer,
including without limitation those required to be included in
SCHEDULE 6.24 hereto, which legal, governmental or administrative
action, suit or proceeding arises from the conduct of the
Business of the Seller or the ownership or condition of the
properties owned or leased by Seller prior to the Closing Date,
other than (i) any such proceeding seeking to enforce the
Seller's payment obligations imposed under Paragraph 41 of the
Conditions to Seller's Site Plan Approval relating to the
establishment of an emergency reserve fund and (ii) Seller's
failure to obtain necessary permits from the South Coast Air
Quality Management District to conduct the Business in the manner
that it has been conducted by Seller; (G) any obligation to pay
additional assessments under Sections 301 and 600 of the
Developer Agreement dated December 14, 1983 identified in
SCHEDULE 6.22 which may be imposed in the future subject to the
following limitations (i) should Fibreboard be able to postpone
such assessments by additional extensions of the construction
date, it shall do so unless it decides to make use of the
development rights accruing to its benefit therein in which case
all of Seller's Liabilities as expressed in this subsection (G)
shall terminate, or (ii) once the obligation to pay the
additional assessments referred to in Sections 301 and 600 of the
aforementioned Developer Agreement is imposed on Buyer, the
Selling Parties shall pay to the Buyer an amount equal to a
reasonable present value calculation of such future costs in an
amount not to exceed One Hundred Thousand Dollars ($150,000); (H)
the disposal or transport by Seller of any Hazardous Substances
other than on the Real Property; and (I) any breach of or failure
by Selling Parties to perform any of their covenants or
agreements in this Article 12 or in any schedule, certificate,
exhibit, or other instrument furnished or to be furnished by
Selling Parties under Article 12. With respect to any
liabilities of a continuing nature, Sellers' Liabilities shall
include only amounts attributable to Seller's operation of the
Business on or prior to the Closing Date.
12.4 Buyer's Indemnity. Buyer agrees to indemnify and hold
harmless, on an after-tax basis, Seller and S-K-I and their
respective successors and assigns against and in respect of any
Costs which arise out of or result from the failure of Buyer to
pay or perform any liabilities expressly assumed by Buyer
pursuant to this Agreement.
12.5 Notice of Claim. Upon obtaining knowledge thereof,
any party with an indemnity claim under Section 12.3 or 12.4
shall notify the indemnitor, in writing of any damage, claim,
loss, liability or expense which such party has determined has
given or could give rise to a claim under Section 12.3 or 12.4
(such written notice being hereinafter referred to as a "Notice
of Claim"). A Notice of Claim shall contain a brief description
of the nature and estimate of the amount of any such claim giving
rise to a right of indemnification.
12.6 Defense of Third Party Claims. With respect to any
claim or demand set forth in a Notice of Claim relating to a
third party claim, the indemnifying party may defend, in good
faith and at its expense, any such claim or demand, and
indemnified party, at its expense, shall have the right to
participate in the defense of any such third party claim. So
long as the indemnifying party is defending in good faith any
such third party claim, the indemnified party shall not settle or
compromise such third party claim. If the indemnifying party
does not so elect to defend any such third party claim, the
indemnified party shall have no obligation to do so.
12.7 Access to Records. From and after the Closing, the
parties shall allow each other, and the counsel, accountants and
other representatives of each other, such access to records which
after the Closing are in the custody or control of a party as is
reasonably required in order to comply with its obligations under
the law or under contracts and obligations assumed pursuant to
this Agreement.
12.8 Nonsolicitation of Employees. None of the Selling
Parties shall, prior to the one hundred and eightieth (180th) day
after the Closing, solicit any employee of Buyer or of any direct
or indirect subsidiary of Buyer to leave such employment if such
employee was at any time between the date hereof and the Closing
an employee of Seller.
12.9 Deposit of Checks. Seller shall cooperate with Buyer
in making all necessary or desirable arrangements so that checks
and other payments on accounts receivable purchased by Buyer
pursuant to this Agreement may be deposited into Buyer's bank
accounts without endorsement by Seller.
12.10 Insurance Coverage. From and after the Closing,
Selling Parties shall maintain their current insurance coverage
(including such self insurance as is currently in effect) to
protect Selling Parties against the liabilities of the Business
which relate to the period prior to the Closing.
12.11 Buyer's Post-Closing Support. For a period not to
exceed sixty (60) days after the Closing, Buyer shall provide to
Seller such clerical support and assistance as Seller may
reasonably request to enable Seller to discharge its obligations
after Closing, to make an orderly transition in the sale of the
Assets, as contemplated by this Agreement, and to retain such
records as may reasonably be required, provided however, that
Seller shall reimburse Buyer for all of its out-of-pocket costs
incurred in providing such services.
12.12 Payment of Additional Consideration. Buyer shall
pay the Additional Consideration as specified in Section 2.6.
ARTICLE 13. COSTS
13.1 Finder's or Broker's Fees. Each of the parties
represents and warrants that it has dealt with no broker or
finder in connection with any of the transactions contemplated by
this Agreement, and, insofar as it knows, no broker or other
person is entitled to any commission or finder's fee in
connection with any of these transactions except to the extent
that S-K-I may be obligated to pay a commission or fee to
Xxxxxxxx Xxxxxxxx & Co. Incorporated for which Seller is solely
responsible.
13.2 Expenses. Except as otherwise expressly provided in
this Agreement, each of the parties shall pay all costs and
expenses incurred or to be incurred by it in negotiating and
preparing this Agreement and in closing and carrying out the
transactions contemplated by this Agreement, provided however,
that Seller and Buyer shall share equally the escrow, title and
closing costs associated with the conveyance of the real property
(including the cost of the preliminary title report and title
insurance).
ARTICLE 14. FORM OF AGREEMENT
14.1 Headings. The subject headings of the Articles and
Sections of this Agreement are included for purposes of
convenience only, and shall not affect the construction or
interpretation of any of its provisions.
14.2 Entire Agreement; Modification; Waiver. This
Agreement constitutes the entire agreement between the parties
pertaining to the subject matter contained in it and supersedes
all prior and contemporaneous agreements, representations, and
understandings of the parties. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in
writing by all the parties. No waiver of any of the provisions
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. No waiver shall be
binding unless executed in writing by the party making the
waiver.
14.3 Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one and the same instrument.
ARTICLE 15. PARTIES
15.1 Parties in Interest. Nothing in this Agreement,
whether express or implied, is intended to confer any rights or
remedies under or by reason of this Agreement on any persons
other than the parties to it and their respective shareholders,
successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of
any third persons to any party to this Agreement, nor shall any
provision give any third persons any right of subrogation or
action over against any party to this Agreement.
15.2 Assignment. This Agreement shall be binding on and
shall inure to the benefit of the parties to it and their
respective heirs, legal representatives, successors, and assigns.
ARTICLE 16. REMEDIES; TERMINATION
16.1 Recovery of Litigation Costs. Except as otherwise
expressly provided in this Agreement, if any legal action or any
arbitration or other proceeding is brought for the enforcement of
this Agreement, or because of an alleged dispute, breach,
default, or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party
or parties shall be entitled to recover reasonable attorneys'
fees and other costs incurred in that action or proceeding, in
addition to any other relief to which it or they may be entitled.
16.2 Conditions Permitting Termination. Subject to the
provisions of Article 5, either party may on or prior to the
Closing Date terminate this Agreement by written notice to the
other, if any bona fide action or proceeding shall be pending
against either party on the Closing Date that could result in an
unfavorable judgment, decree, or order that would prevent or make
unlawful the carrying out of this Agreement.
16.3 Defaults Permitting Termination. If either Buyer or
Seller materially defaults in the due and timely performance of
any of its warranties, covenants, or agreements under this
Agreement, the non-defaulting party or parties may on or prior to
the Closing Date give notice of termination of this Agreement, in
the manner provided in Article 18. The notice shall specify with
particularity the default or defaults on which the notice is
based. The termination shall be effective seven days after
giving of such notice, unless the specified default or defaults
have been cured on or before the effective date for termination.
ARTICLE 17. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES
No representations and warranties set forth in Article 6 of
this Agreement shall survive beyond the first anniversary of the
Closing, except as expressly provided in Article 12. No
covenants or agreements of the parties contained in this
Agreement shall survive the Closing, other than Articles 1, 2, 3,
4, 5, 12, 13, 14, 15, 16.1, 17, 18 and 19 and other than any
instrument, certificate, or opinion provided for in this
Agreement, all of which shall survive the Closing subject to the
expiration of any applicable statute of limitations.
ARTICLE 18. NOTICES
All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally
on the party to whom notice is to be given, or on the third day
after mailing if mailed to the party to whom notice is to be
given, by first class mail registered or certified, postage
prepaid, and properly addressed as follows:
To Seller and S-K-I at: S-K-I Ltd.
x/x Xxxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
VP & Corporate Counsel
Fax No.: (000) 000-0000
with copy to: Xxxxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attn.: Xxxx Xxxxx, Esq.
Fax No.: (000) 000-0000
To Buyer and Fibreboard at:Fibreboard Corporation
0000 X. Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
with copy to: McCutchen, Doyle, Xxxxx & Xxxxxxx
Market Post Tower, Suite 1500
00 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
Any party may change its address for purposes of this Article by
giving the other parties written notice of the new address in the
manner set forth above.
ARTICLE 19. GOVERNING LAW
This Agreement shall be construed in accordance with, and
governed by, the laws of the State of California, except that
this Agreement shall be given a fair and reasonable construction
in accordance with the intention of the parties and without
regard to, or aid of, Section 1654 of the California Civil Code.
ARTICLE 20. MISCELLANEOUS
20.1 Announcements. None of the parties will make any
announcements to the public or to employees of the other parties
concerning this Agreement or the transactions contemplated hereby
without the prior approval of the other parties, which will not
be unreasonably withheld. Notwithstanding any failure of Buyer
to approve it, the parties may make an announcement of
substantially the same information as theretofore announced to
the public by the other parties, or any announcement required by
applicable law, but the parties shall in either case notify the
other parties of the contents thereof reasonably promptly in
advance of its issuance.
20.2 References. Unless otherwise specified, references to
Sections or Articles are to Sections or Articles in this
Agreement.
20.3 Currency. All dollar amounts set forth herein are
expressed in terms of United States dollars.
IN WITNESS WHEREOF, the parties to this Agreement have duly
executed it as of the day and year first above written.
BEAR MOUNTAIN, INC.
By
Its Duly Authorized Agent
BEAR MOUNTAIN LTD.
By
Its Duly Authorized Agent
S-K-I LTD.
By
Its Duly Authorized Agent
FIBREBOARD CORPORATION
By
Its Duly Authorized Agent
AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
S-K-I Ltd. and Bear Mountain Ltd. (the "Selling Parties")
and Bear Mountain Inc. and Fibreboard Corporation (the
"Purchasing Parties") pursuant to the authority reserved by them
in Section 14.2 of the Asset Purchase Agreement dated October 6,
1995 (the "Agreement") hereby agree to amend such Agreement in
the following manner:
1.Section 2.3(a) is amended by adding the following
sentence at the end thereof:
"In addition, in connection with the transfer of
Seller's liquor licenses, Buyer will pay $30,000 to ABC
Escrow by wire transfer of immediately available funds
with instructions to retain, apply and dispose of such
amount in accordance with the escrow agreement no. 0001-
1714-AK among Buyer, Seller and ABC Escrow."
2.The first sentence of Section 2.3(b) is amended in full
to read:
"Buyer will pay to Seller the remaining Base Purchase
Price, after deducting the amount of $10,000,000 which
is being remitted to the Escrow Agent by Buyer and the
amount of $30,000 which is being remitted to ABC Escrow
in accordance with subparagraph (a) above, without
adjustment by the Adjustment to Base Purchase Price,
payable by wire transfer of immediately available funds
to such account as Seller shall designate."
3.The first sentence of Section 2.4 is amended in full to
read:
"The Total Purchase Price shall be allocated among the
Assets acquired hereunder in a manner to be agreed upon
within 45 days of the Closing Date and to be described
on Schedule 2.4 subsequent to Closing."
4.The first three sentences of Section 2.5 are amended in
full to read:
"Seller at its expense shall cause Price Waterhouse
LLP, its independent accountants ("Seller's
Accountants") to prepare a balance sheet of the
Business at the Closing Date (the "Closing Balance
Sheet"), and to issue as soon as practicable but in any
event not later than forty-five (45) days after the
Closing Date, its opinion thereon to Buyer to the
effect that such balance sheet presents fairly the
Assets and the liabilities of the Business assumed by
Buyer as provided in this Agreement, as of the Closing
Date, in conformity with generally accepted accounting
principles applied on a consistent basis with Seller's
past practice. Such balance sheet shall identify the
same items as of the Closing Date, as are identified on
SCHEDULE 2.1-1, SCHEDULE 2.1-2 and SCHEDULE 2.1-3. The
Seller shall also provide a detailed schedule setting
forth the calculation of the Adjustment to Base
Purchase Price described in Section 2.1(b) and the
Inventory Payment described in Section 2.2(b)."
5.Article 4 is amended in full to read:
"Buyer and Seller shall share equally the expense of
all sales, use and transfer taxes arising out of the
transfer of the Assets and Seller shall pay its unpaid
portion, prorated as of the Closing Date, of state and
local real property taxes of the Business. Buyer shall
not be responsible for any business, occupation,
withholding, or other tax, or for any taxes of any kind
related to the Business for any period before the
Closing Date. Buyer shall pay to Seller, or Seller
shall pay to Buyer, as the case may be, within
forty-five (45) days following the Closing Date, the
net amount of the following items relating to Assets to
be prorated as of the Closing Date: rent, utilities
(including without limitation electricity, gas, water,
sewer and telephone), personal property taxes,
including the business property tax and possessory
interest tax, security service, dues to national, state
and local trade and community service organizations and
similar items."
6.Article 5 is amended to change all references therein to
"October 20, 1995" to "October 23, 1995" and to change the
reference in the sixth sentence to "within seven (7) days after
Seller's written request" to "within forty-five (45) days of the
Closing Date."
0.Xx the event that Buyer has not received a title
insurance policy from First American Title Insurance Company on
the Closing Date, insuring title to the easements for the Lake
Pipeline free and clear of all mortgages, liens, encumbrances,
deeds of trust, pledges, charges, conditions, restrictions and
rights of others, the third sentence of Section 6.11 shall be
amended to commence with the following phrase: "Except as
provided in the title insurance policy or policies covering the
Lake Pipeline,".
8.Section 6.20 is amended to delete the phrase ", group
sales and other mass purchase" from the first sentence thereof.
0.Xx Sections 8.A.11 and 9.11, Buyer waives the need for
Seller's compliance in these sections.
10. In Section 9.6, Buyer acknowledges that it has received
counsel's opinions from Xxxxxxx & Xxxxxxx; Xxxxxxx and Xxxxxxx
and waives any inconsistencies between the contents thereof and
the relevant provisions of Section 9.6.
11. In Sections 9.15, 10.12 and 11.1(b), Seller and Buyer
acknowledge that they have received consents from the City of Big
Bear Lake regarding the fire station property; from Xxxxx and Xxx
Xxxxxx and the Natural Heritage Foundation on forms acceptable to
it and waive the need for any other landlord consents.
12. In Section 9.16, Seller and Buyer acknowledge the
acceptability of the form of the Corporation Grant Deed actually
executed by the Seller.
13. In Section 9.21, Buyer waives the need for the
referenced approvals from the California State Water Resources
Control Board, the Watermaster for the Upper Santa Xxx Watershed
and the San Bernardino Valley Municipal Water District.
14. In Sections 9.24 and 10.14, Seller and Buyer
acknowledge the acceptability of the amendments to Exhibit E
contained in the Exhibit E executed at Closing.
15. In Sections 9.25 and 10.15, Seller and Buyer
acknowledge the acceptability of the amendments to Exhibit F
contained in the Escrowed Funds Disbursement Agreement
(Exhibit F) executed at Closing.
16. Section 11.2 is amended in full to read:
"At the Closing, Buyer shall deliver to Seller against
delivery of the items specified in Section 11.1
immediately available funds, by wire transfer, in the
amount of the Base Purchase Price less $10,000,000
being remitted to the Escrow Agent and the $30,000
being remitted to ABC Escrow in accordance with
Section 2.3(a), and such other instruments,
certificates and documents as Seller or its counsel may
reasonably require to implement the terms of this
Agreement; and to memorialize satisfaction of the
closing conditions of Seller set forth in Article 10."
17. In Exhibit B, Section 4 of Exhibit B shall be amended
so that Seller shall represent and warrant that it has obtained
only those consents required to be obtained to assign to Buyer
those Transferred Agreements numbered 5, 7, 8, 12, 20, 59, 63 and
64 on Schedule 1.1.7, as revised. Buyer waives the need for all
other consents. Buyer acknowledges that it has reviewed and
approved a listing of Ski Merchandising Purchase Orders
referenced in number 33 of Schedule 1.1.7.
18. New Schedules. Seller and Buyer acknowledge the
amendment of Schedules 1.1.7, 6.16, 6.22, 6.24 and 6.26 as
attached hereto.
19. Delivery of Schedules. Seller and Buyer acknowledge
the delivery of Schedules 6.11 and 6.2-1A as attached hereto.
[Signatures follow on next page]
IN WITNESS WHEREOF, the undersigned execute this Amendment
No. 1 on October 19, 1995.
BEAR MOUNTAIN INC. FIBREBOARD CORPORATION
By By
Xxxxxxx X. Xxxxxx, President Xxxxxxx X. Xxxxxx, Vice President
BEAR MOUNTAIN LTD. S-K-I LTD.
By By
Xxxxx X. Xxxx, Secretary Xxxxx X. Xxxx, Vice President and
Corporate Counsel
XXXX OF SALE
THIS XXXX OF SALE is made as of October 23, 1995 by Bear
Mountain Ltd., a California corporation ("Bear Mountain"), and S-K-I
Ltd., a Delaware corporation ("S-K-I"), to Bear Mountain,
Inc., a Delaware corporation ("Buyer"). Bear Mountain and S-K-I
are collectively referred to herein as ("Selling Parties").
A.Selling Parties, Buyer and Fibreboard Corporation, a
Delaware corporation ("Fibreboard") are parties to that certain
Asset Purchase Agreement dated as of October 6, 1995, (the
"Purchase Agreement"), pursuant to which Selling Parties have
agreed to sell, transfer and assign to Buyer and Buyer has agreed
to purchase, acquire and assume from Selling Parties
substantially all of the assets of Bear Mountain and certain
assets of S-K-I (the "Assets"), as more specifically described in
Section 1.1 of the Purchase Agreement.
X.Xx accordance with the terms of the Purchase Agreement,
Selling Parties are executing and delivering this Xxxx of Sale to
Buyer for the purpose of transferring to and vesting in Buyer,
its successors and assigns all of the Assets, except the Owned
Real Property, the Real Property Leases and the Transferred
Agreements. The transfer of the Assets described below is made
subject to the terms, provisions, representations and warranties
of the Purchase Agreement.
C.Any capitalized terms not otherwise defined in this Xxxx
of Sale shall have the meanings set forth in the Purchase
Agreement.
NOW, THEREFORE, for valuable consideration, receipt and
adequacy of which is hereby acknowledged, Selling Parties hereby
grant, sell, convey, transfer, assign, release and deliver to,
and vest in Buyer all of Selling Parties' rights, title and
interests in and to all of the following Assets:
(1) The USFS Permitted Property;
(2) The Equipment and Improvements;
(3) The Inventories;
(4) The Accounts Receivable;
(5) All assignable trade names, trademarks, service marks,
copyrights, trade secrets, technical know-how and other
intellectual property rights or intangibles used by Bear Mountain
in (or owned by Bear Mountain and useful in) the operation of the
Business and listed in the attached SCHEDULES 6.16 AND 6.18,
including without limitation those trademarks and trade names
owned by S-K-I and described therein;
(6) The Records;
(7) The Marketing Information;
(8) Subject to Article 3 of the Purchase Agreement, all
prepaid expenses and deposits of Bear Mountain relating to the
Business (other than any amounts escrowed under the Purchase
Agreement, if any, Bear Mountain's bank deposits and prepaid
insurance), and all rights of Bear Mountain to receive discounts,
refunds, rebates, awards and the like (other than those referred
to in Section 1.2.6 of the Purchase Agreement);
(9) The name "Bear Mountain" to the extent Bear Mountain
has proprietary rights thereto in conjunction with the Assets or
Business such as "Bear Mountain Ski Resort" and subject to that
certain Settlement Agreement dated December 1, 1989 by and among
Selling Parties and Bear Mountain Enterprises, Inc., d/b/a Bear
Mountain Trading Company;
(10) All of Bear Mountain's goodwill related to the Business
and to the name "Bear Mountain";
(11) All of Bear Mountain's rights and remedies on and after
the Closing Date, under warranty or otherwise, against a
manufacturer, vendor or other person for any defects in any
property described in this Xxxx of Sale; and
(12) All other properties, assets and rights of every kind,
character or description which are owned, used or held for use
(whether or not exclusively) by Bear Mountain in connection with
the Business and which are not Excluded Assets.
Selling Parties covenant and agree, upon request, to take
such action and to execute and deliver to Buyer any further
documents that Buyer may subsequently require to reduce any of
the same to its possession or to pass title to any of the same.
This Xxxx of Sale shall be governed by the laws of the State
of California.
IN WITNESS WHEREOF, this Xxxx of Sale has been executed by
Bear Mountain and S-K-I as of the day and year first above
written.
BEAR MOUNTAIN LTD., a California corporation
By:
Xxxxx X. Xxxx, Secretary
S-K-I LTD., a Delaware corporation
By:
Xxxxx X. Xxxx
Vice President and Corporate Counsel
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement ("Agreement") dated
as of October 19, 1995 is made by Bear Mountain Ltd., a
California corporation ("Seller"), and Bear Mountain, Inc., a
Delaware corporation ("Buyer").
RECITALS
A.Seller, S-K-I Ltd. (Seller's parent corporation and
hereinafter referred to collectively with Seller as "Selling
Parties"), Buyer and Fibreboard Corporation (Buyer's parent
corporation) are parties to that certain Asset Purchase Agreement
dated as of October 6, 1995, (the "Purchase Agreement"), pursuant
to which Selling Parties agreed to sell, transfer and assign to
Buyer and Buyer agreed to purchase, acquire and assume from
Selling Parties substantially all of the assets of Seller and
certain assets of S-K-I Ltd. (the "Assets"), including without
limitation, those Transferred Agreements which are referred to in
Section 1.1.7 of the Purchase Agreement (the "Transferred
Agreements").
X.Xx accordance with the terms of the Purchase Agreement,
Seller is executing and delivering this Agreement to Buyer for
the purpose of transferring to Buyer, its successors and assigns
all of the Transferred Agreements. The transfer of the
Transferred Agreements described below is made subject to the
terms, provisions, representations and warranties of the Purchase
Agreement.
C.Any capitalized terms not otherwise defined in this
Agreement shall have the meanings set forth in the Purchase
Agreement.
NOW THEREFORE, the parties hereby agree as follows:
Section 1. Assignment. For good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller hereby sells, conveys, transfers and assigns
to Buyer all of Seller's rights under all of the Transferred
Agreements, effective as of the Closing Date, and Buyer hereby
accepts the foregoing assignment.
Section 2. Assumption. Buyer hereby assumes and agrees to
perform the obligations of Seller to be performed under the
Transferred Agreements from and after the Closing Date.
Section 3. Indemnities.
(a) Seller agrees to indemnify, defend and hold Buyer
harmless from any and all claims, losses, costs, expenses or
liabilities arising prior to or on the Closing Date from Seller's
performance or nonperformance under any of the Transferred
Agreements or the breach of any representation or warranty of
Seller contained in this Agreement. Seller represents and
warrants that to its best knowledge there are no such claims,
losses, costs, expenses or liabilities arising from Seller's
performance or nonperformance under any of the Transferred
Agreements.
(b) Buyer agrees to indemnify, defend and hold Seller
harmless from any and all claims, losses, costs, expenses or
liabilities arising after the Closing Date from the failure of
Buyer to pay or perform any liabilities expressly assumed by
Buyer pursuant to this Agreement.
Section 4. Consents of Others Obtained. Seller represents
and warrants that it has obtained the consents required to be
obtained to assign to Buyer the Transferred Agreements.
Section 5. No Known Defaults. Seller represents and
warrants that to its best knowledge there is no default or breach
by Seller or any other party, and no event which, with notice
and/or the passage of time, would constitute a breach or default
by Seller or any other party, under any of the Transferred
Agreements.
Section 6. Deliveries. Promptly after the Closing Date,
Seller will deliver to Buyer the originals of the Transferred
Agreements to the extent the same are in Sellers' possession.
Section 7. Additional Representations. The
representations, warranties, covenants and indemnities of Seller
with respect to the Transferred Agreements set forth in this
Agreement are in addition to, and independent of, those set forth
in the Purchase Agreement.
Section 8. No Other Liabilities Assumed. Except for the
liabilities expressly assumed by Buyer in Section 2 of this
Agreement, Buyer shall assume none of Seller's other debts,
liabilities or obligations, whether known or unknown, fixed or
contingent, including without limitation any of Seller's debts,
liabilities or obligations with respect to pending or threatened
litigation set forth in Schedule 6.24 of the Purchase Agreement
or with respect to federal, state, or local taxes of any nature
whatsoever or with respect to any non-compliance of Seller with
law.
Section 9. Governing Law. This Agreement shall be
construed in accordance with, and governed by, the laws of the
State of California without regard to its rules regarding
conflicts of law.
Section 10. Entire Agreement. Except for the Purchase
Agreement, this Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof,
supersedes all prior and contemporaneous agreements,
representations and understandings of the parties with respect
thereto, and may not be modified, amended or otherwise changed in
any manner except by a writing executed by a duly authorized
representative of the party to be charged.
Section 11. Miscellaneous. In the event suit is brought to
enforce this Agreement, the prevailing party shall recover, as
additional costs, reasonable attorneys' fees and experts' fees
and costs as determined by the court. Any waiver by either party
of a breach of any term, provision or condition of this Agreement
shall not operate or be construed as a waiver of any subsequent
breach of the same or any other term, provision or condition of
this Agreement. No provision of this Agreement shall be
construed against any party on the ground that such party drafted
such provision. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which
shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the Closing Date.
BEAR MOUNTAIN LTD., a California corporation
By:
Xxxxx X. Xxxx, Secretary
BEAR MOUNTAIN, INC., a Delaware corporation
By:
Xxxxxxx X. Xxxxxx, President
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION
OF REAL PROPERTY LEASE
This Assignment and Assumption of Real Property Lease
("Assignment") is made on October 19, 1995, by and among
S-K-I Ltd. ("Landlord"), whose address is Killington, Vermont;
Bear Mountain Ltd., a California corporation
("Assignor"), whose address is 00000 Xxxxxxxx Xxxxx, Xxx Xxxx
Xxxx, Xxxxxxxxxx 00000; and Bear Mountain, Inc., a Delaware
corporation ("Assignee"), whose address is Walnut Creek, CA.
RECITALS
A.Landlord and Assignor, as tenant, entered into that
certain [insert name of lease], dated October 19, 1995
(the "Lease"), in which Landlord leased to Assignor and Assignor
leased from Landlord premises located at [insert property address
or description] (the "Premises").
B.Assignor and Assignee are two of the parties to that
certain Asset Purchase Agreement (the "Purchase Agreement") dated
as of October 6, 1995, pursuant to which Assignor
agreed to sell, transfer and assign to Assignee and Assignee
agreed to purchase, acquire and assume from Assignor
substantially all of the assets of Assignor, including, without
limitation, all existing real property leases in which Assignor's
assets are located (the "Transferred Assets").
X.Xx accordance to the Purchase Agreement, Assignor desires
to assign all its right, title, and interest in the Lease to
Assignee.
D.Landlord desires to consent to the proposed assignment on
the conditions set forth in this Assignment.
E.Any capitalized terms not otherwise defined in this
Assignment shall have the meanings set forth in the Purchase
Agreement.
NOW, THEREFORE, the parties agree as follows:
1.Effective Date of Assignment. This Assignment shall take
effect on the Closing Date (as defined in the Purchase
Agreement), and Assignor shall give possession of the Premises to
Assignee on that date. In the event that the Closing (as defined
in the Purchase Agreement) does not occur for any reason
whatsoever, this Assignment shall be null and void ab initio.
2.Assignment and Assumption. Assignor assigns and
transfers to Assignee all of its right, title, and interest in
the Lease, and Assignee accepts the assignment and assumes and
agrees to perform, from and after the Closing Date, as a direct
obligation to Landlord, all the provisions of the Lease.
3.Landlord's Consent and Release. Pursuant to Article
[insert no.] of the Lease, Landlord consents to this Assignment
[without waiver of the restriction concerning further
assignment]. Landlord further consents to the substitution of
Assignee as "Tenant" under the Lease, and hereby forever releases
and discharges Assignor from all obligations of Assignor, as
Tenant under the Lease.
4.Miscellaneous.
(a) Attorneys' Fees. If any party commences an action
against any of the parties arising out of or in connection with
this Assignment, the prevailing party or parties shall be
entitled to recover from the losing party or parties reasonable
attorneys' fees and costs of suit.
(b) Notice. Any notice, demand, request, consent,
approval, or communication that either party desires or is
required to give to the other party or any other person shall be
in writing and either served personally or sent by overnight
delivery, courier or prepaid, first-class mail. Any notice,
demand, request, consent, approval, or communication that either
party desires or is required to give to the other party shall be
addressed to the other party at the address set forth in the
introductory paragraph of this Assignment. Either party may
change its address by notifying the other party of the change of
address. Notice shall be deemed to have been duly given upon the
earlier of receipt, the day after dispatch by overnight delivery,
or three business days after mailing.
(c) Successors. This Assignment shall be binding on and
inure to the benefit of the parties and their successors and
assigns.
(d) Governing Law. This Assignment shall be construed and
enforced in accordance with and governed by the laws of the State
of California without giving effect to the conflict of law rules
thereof.
IN WITNESS WHEREOF, this Assignment has been executed by the
parties as of the day and year first above written.
LANDLORD: ASSIGNOR:
[INSERT NAME] BEAR MOUNTAIN LTD.
By: __________________________ By: __________________________
Its: __________________________ Its:__________________________
ASSIGNEE:
BEAR MOUNTAIN, INC.
By: __________________________
Its __________________________
Addendum to Assignment
This Addendum to Assignment ("Addendum") is made on
October 19, 1995 by and between Bear Mountain Ltd., a California
corporation ("Assignor") and Bear Mountain, Inc., a Delaware
corporation ("Assignee"), with reference to that certain
Assignment dated of even date hereof among Assignor, Assignee and
___________________________________ ("Assignment").
In connection with the foregoing Assignment and for other
good and valuable consideration, Assignor and Assignee hereby
agree as follows:
(1) Assignor agrees to indemnify, defend and hold Assignee
harmless from any and all claims, losses, costs, expenses or
liabilities arising prior to or on the Closing Date from
Assignor's performance or nonperformance under the Lease as
defined in the Assignment or the breach of any representation or
warranty of Assignor contained in this Addendum. Assignor
represents and warrants that to its best knowledge there are no
such claims, losses, costs, expenses or liabilities arising from
Assignor's performance or nonperformance under the Lease.
(2) Assignee agrees to indemnify, defend and hold Assignor
harmless from any and all claims, losses, costs, expenses or
liabilities arising after the Closing Date from the failure of
Assignee to pay or perform any liabilities expressly assumed by
Assignee pursuant to the Assignment.
(3) Any capitalized terms not otherwise defined in this
Agreement shall have the meanings set forth in that certain Asset
Purchase Agreement dated as of October 6, 1995, (the
"Purchase Agreement") by and among Assignor, S-K-I Ltd.
(Assignor's parent corporation), Assignee and Fibreboard
Corporation (Assignee's parent corporation).
(4) If any party commences an action against any of the
parties arising out of or in connection with this Addendum, the
prevailing party or parties shall be entitled to recover from the
losing party or parties reasonable attorneys' fees and costs of
suit.
(5) Any notice, demand, request, consent, approval, or
communication that either party desires or is required to give to
the other party or any other person shall be in writing and
either served personally or sent by overnight delivery, courier
or prepaid, first-class mail. Any notice, demand, request,
consent, approval, or communication that either party desires or
is required to give to the other party shall be addressed to the
other party at the address set forth in the introductory
paragraph of the Assignment. Either party may change its address
by notifying the other party of the change of address. Notice
shall be deemed to have been duly given upon the earlier of
receipt, the day after dispatch by overnight delivery, or three
business days after mailing.
(6) This Addendum shall be binding on and inure to the
benefit of the parties and their successors and assigns.
(7) This Addendum shall be construed and enforced in
accordance with and governed by the laws of the State of
California without giving effect to the conflict of law rules
thereof.
IN WITNESS WHEREOF, this Addendum has been executed by the
parties as of the day and year first above written.
ASSIGNOR:
BEAR MOUNTAIN LTD.
By: __________________________
Its:__________________________
ASSIGNEE:
BEAR MOUNTAIN, INC.
By: __________________________
Its:__________________________
LICENSE AGREEMENT
This License Agreement ("Agreement") dated as of October 19,
1995 is made by S-K-I LTD., a Delaware corporation ("S-K-I"), and
BEAR MOUNTAIN LTD., a California corporation ("Seller"), on the
one hand (collectively, "Licensors"), and BEAR MOUNTAIN, INC., a
Delaware corporation ("Licensee"), on the other hand.
RECITALS
A.Licensors, Licensee and Fibreboard Corporation are
parties to that certain Asset Purchase Agreement dated as of
October 6, 1995, (the "Purchase Agreement"), pursuant to which
Licensors agreed to sell, transfer and assign to Licensee and
Licensee agreed to purchase, acquire and assume from Seller
substantially all of the assets of Seller and certain assets of
Licensors.
B.The names, Permaticket and Permanent Ticket, refer to the
ticketing system and its supporting technology developed by
Licensors and used in connection with the sale of ski lift
tickets by Seller (collectively, the "Ticketing System").
X.Xx accordance with the terms of the Purchase Agreement,
Licensors have sold and assigned all of their rights in the trade
names and trademarks of Permaticket and Permanent Ticket to
Licensee. Licensors are executing and delivering this Agreement
to Licensee for the purpose of granting a license to Licensee and
its agents for the use of the Ticketing System under the terms
and conditions set forth below.
D.Any capitalized terms not otherwise defined in this
Agreement shall have the meanings set forth in the Purchase
Agreement.
NOW THEREFORE, for good and valuable consideration, the
parties agree as follows:
Section 1. Grant of License. Licensors grant to Licensee
and its successors and assigns, and Licensee accepts from
Licensors, a fully-paid, non-exclusive, royalty-free, perpetual,
irrevocable, transferable license to use the Ticketing System
("License") to the extent of Licensor's proprietary rights
therein.
Section 2. Indemnification. Licensors will defend,
indemnify and hold harmless Licensee, and its officers,
directors, employees and agents, from and against all liability,
demands, damages, expenses, and losses, including reasonable
attorneys' fees, incurred in connection with or arising out of
any alleged infringement of any third party's intellectual
property or other proprietary rights by the Ticketing System or
Licensee's use or operation thereof. This indemnification
obligation shall survive termination of this License Agreement.
Section 3. Improvements. In case Licensors makes or
obtains any improvements relating to the Ticketing System,
Licensors shall disclose the same to Licensee and Licensee shall
be given a license by Licensors to use these improvements under
the same arrangements and terms as contained herein.
Section 4. Privilege to Use. This Agreement does not and
shall not be deemed to constitute a conveyance of the Ticketing
System technology by Licensors to Licensee. This Agreement
grants to Licensee only a personal privilege to use the Ticketing
System technology on the terms and conditions set forth herein.
Licensors acknowledge that Licensee has acquired and owns the
Ticketing System equipment pursuant to the Purchase Agreement.
Section 5. Entire Agreement. Except for the Purchase
Agreement, this Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof,
supersedes all prior and contemporaneous agreements,
representations and understandings of the parties with respect
thereto, and may not be modified, amended or otherwise changed in
any manner except by a writing executed by a duly authorized
representative of the party to be charged.
Section 6. Severability. Should all or any portion of this
Agreement be held unenforceable or invalid for any reason, the
remaining portions or provisions shall be unaffected.
Section 7. Assignment. Each party shall have the right to
transfer or assign its rights and obligations herein to any
person or legal entity with the capacity to fulfill such party's
obligations hereunder. Notwithstanding the foregoing, no such
transfer or assignment shall release such party from liability
hereunder.
Section 8 Governing Law. This Agreement shall be construed
in accordance with, and be governed by, the laws of the State of
California without regard to its rules regarding conflicts of
law.
Section 9. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
Section 10. Miscellaneous. In the event suit is brought to
enforce this Agreement, the prevailing party shall recover, as
additional costs, reasonable attorneys' fees and experts' fees
and costs as determined by the court. Any waiver by either party
of a breach of any term, provision or condition of this Agreement
shall not operate or be construed as a waiver of any subsequent
breach of the same or any other term, provision or condition of
this Agreement. No provision of this Agreement shall be
construed against any party on the ground that such party drafted
such provision. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which
shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the Closing Date.
S-K-I LTD.,
a Delaware corporation
By:
Xxxxx X. Xxxx, Vice President and Corporate
Counsel
BEAR MOUNTAIN LTD.,
a California corporation
By:
Xxxxx X. Xxxx, Secretary
BEAR MOUNTAIN, INC.,
a Delaware corporation
By:
Xxxxxxx X. Xxxxxx, President
ESCROW AGREEMENT
October 19, 1995
[ESCROW AGENT]
Fibreboard/S-K-I
Purchase of Bear Mountain Assets
Ladies and Gentlemen:
Bear Mountain, Inc., a Delaware corporation ("Buyer"), a
wholly-owned subsidiary of Fibreboard Corporation, a Delaware
corporation ("Fibreboard"), has entered into an Asset Purchase
Agreement with Bear Mountain Ltd., a California corporation
("Seller"), a wholly-owned subsidiary of S-K-I Ltd., a Delaware
corporation ("S-K-I"), Fibreboard and S-K-I dated October 6,
1995 (the "Agreement") pursuant to which Buyer has agreed to
purchase and the Seller has agreed to sell to Buyer certain of
its assets related to the operation of a ski resort and golf
course in or adjoining the City of Big Bear Lake, California.
Buyer, Seller and you (the "Escrow Agent") are hereinafter
sometimes collectively referred to as the "Parties". Buyer and
Seller are hereinafter sometimes collectively referred to as the
"Purchasing Parties". This letter agreement shall be referred to
as the "Escrow Agreement" and the escrow account created
hereunder (Account No. ) shall be referred to as the
"Escrow Account". Capitalized terms used herein without separate
definition shall have the meanings ascribed to them in the
Agreement.
This will confirm the agreements among us as follows:
1.This Escrow Agreement shall be effective as of the date
of this Escrow Agreement, which is the Closing under the
Agreement (the "Closing").
2.(a) On the Closing, Buyer shall deposit with you, as
Escrow Agent, immediately available funds in the amount of
($ ) to be held by you in
accordance with the terms and conditions of this Escrow
Agreement. Receipt of such funds shall be confirmed by you in
writing to the Parties. Such funds shall be deposited into the
Escrow Account.
(b) The funds initially deposited in the Escrow Account
by Buyer, including all interest or income earned on such funds,
less funds distributed to the Parties from time to time pursuant
to this Escrow Agreement shall constitute the "Escrowed Funds".
The Escrowed Funds less the Claimed Funds shall constitute the
"Distributable Funds".
0.Xxx shall not sell, transfer or in any manner whatsoever
encumber the Escrowed Funds except pursuant to the terms and
conditions of this Escrow Agreement.
4.The Escrowed Funds shall be paid as follows:
(a) If at any time prior to the Termination Date Buyer
serves on you a written notice ("Notice of Default") certifying
that Buyer believes that Seller is liable to Buyer by reason of a
Loss to be indemnified by Seller pursuant to Section 12 of the
Agreement (an "Alleged Breach"), you shall retain in escrow
sufficient of the Escrowed Funds to satisfy the amount of the
claim (the "Claimed Funds") until (i) the question of default and
the amount of damages, if any, sustained by Buyer by reason of
such Alleged Breach shall have been determined by either an
agreement in writing executed by Buyer and Seller (a "Settlement
Agreement") or by a final judgment of a court of competent
jurisdiction (a "Final Judgment"), with the time for appeal from
such judgment having expired and no appeal being pending, and
(ii) the full and executed counterpart of such Settlement
Agreement, or a certified copy of such Final Judgment together
with affidavits of counsel of Buyer and Seller stating that the
time to appeal therefrom has expired and no appeal is pending, is
delivered to you. Within five (5) business days thereafter, you
shall deliver to Buyer an amount equal to such portion of the
Claimed Funds plus the Distributable Funds as shall be required
to satisfy the obligation of Seller to Buyer pursuant to the
Settlement Agreement or Final Judgment. The remainder of the
Claimed Funds, if any, relating to the particular Notice of
Default shall become Distributable Funds.
(b) If the Notice of Default states that the amount of
the claim is not then known or if the amount of the claim exceeds
the Distributable Funds, you shall treat all of the Distributable
Funds as Claimed Funds.
(c) Upon the Termination Date, or any later date
pursuant to Section 4(a), you shall deliver the Distributable
Funds, if any to Seller.
(d) If all or a portion of the Escrowed Funds shall have
been invested by you pursuant to Section 5 hereof, you shall, if
necessary, liquidate such portion of the invested Escrowed Funds
so as to enable you to deliver that portion of the Escrowed Funds
required to be delivered pursuant to this Escrow Agreement,
notwithstanding the fact that the liquidation of any portion of
the Escrowed Funds may cause the loss of accrued interest.
(e) Any Notice of Default given hereunder by Buyer shall
describe the Alleged Breach, shall reference a particular Section
of the Agreement and shall state the amount of claimed damages if
then known. A copy of each such Notice of Default shall be sent
by Buyer to Seller when sent to the Escrow Agent.
(f) The Termination Date shall be .
5.The Escrow Agent shall invest and reinvest the Escrowed
Funds with other escrow funds in a non-interest bearing general
escrow account of Escrow Agent, unless otherwise jointly
instructed in writing by Seller and Buyer.
6.The Parties agree with you as follows:
(a) You shall not be bound in any way by any agreement
or contract between the Parties other than this Escrow Agreement
(whether or not you have knowledge thereof), except as expressly
provided herein and your only duties and responsibilities shall
be to hold the Escrowed Funds and to invest and dispose of them
in accordance with the terms of this Escrow Agreement. You shall
not be required to take or be bound by notice of any default of
any person or to take any action with respect to such default
whether or not such action involves any expense or liability,
except as provided in Section 4.
(b) The Parties have satisfied themselves as to the
authority of any persons signing this Escrow Agreement in a
representative capacity. You may rely and shall be protected in
acting or refraining from acting upon any written notice,
instruction or request furnished to you hereunder by Seller, or
on behalf of Buyer by any officer, and it shall not be necessary
for you to inquire as to the authority of any such signatory.
(c) This Escrow Agreement may be altered or amended only
with the prior written consent of the Parties and you. Should
the Parties attempt to change the terms of this Escrow Agreement
in a manner which, in your sole discretion, you deem undesirable,
you may resign as Escrow Agent upon fifteen (15) days' prior
written notice to the Parties; otherwise, you may resign as
Escrow Agent for any reason at any time upon 30 days' prior
written notice to the Parties. The Parties may remove you as
Escrow Agent at any time for any reason upon 15 days' prior
written notice to you. In the case of your resignation or
removal, you shall be entitled to your costs and expenses
hereunder until the date of your termination as Escrow Agent.
Your only duty, until the earlier of (i) the appointment of a
successor escrow agent and its acceptance of such appointment or
(ii) the effective date of your resignation or removal (the
"Delivery Date") shall be to hold, invest and dispose of the
Escrowed Funds in accordance with the then-existing provisions of
this Escrow Agreement (but without regard to any notices,
requests, instructions or demands received by you from any of the
Parties after your notice of resignation shall have been given or
your notice of removal has been received, unless the same shall
be a direction by all Parties that the entire Escrowed Funds be
paid or delivered out of escrow). You agree promptly upon
request to take all steps necessary to promptly deliver the
Escrowed Funds and any earnings thereon to any duly appointed
successor escrow agent, or if none has been appointed and has
accepted such appointment by the Delivery Date, to Buyer.
(d) Any notice required to be given by you shall be in
writing and effective when delivered by messenger or by confirmed
facsimile, or three (3) Business Days after deposit in the U.S.
mail, registered or certified mail, to the respective Party at
its address specified below, namely:
To Buyer and Fibreboard at:Fibreboard Corporation
0000 X. Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
with copy to: McCutchen, Doyle, Xxxxx & Xxxxxxx
Market Post Tower, Suite 1500
00 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
To Seller and S-K-I at: S-K-I Ltd.
x/x Xxxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Usro, Esq.
VP & Corporate Counsel
Fax No.: (000) 000-0000
with copy to: Xxxxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxx, Esq.
Fax No.: (000) 000-0000
To the Escrow Agent: ___________________________
___________________________
___________________________
Attention: ____________
Fax No.: (___) ________
or to such other address as such person may have furnished to you
and to the other Parties in writing. Any notice sent or
delivered other than by registered or certified mail shall also
be sent by registered or certified mail within 48 hours. The
Purchasing Parties hereby indemnify and hold you harmless against
any loss, liability, damage, cost or expense, including
reasonable attorneys' fees, (a) related in any way to your acting
upon any notice, request, waiver, consent, receipt or other paper
or document believed by you to be signed by the Purchasing
Parties or any other proper person, and (b) incurred in
connection with any act or thing done hereunder.
(e) For any act specified by this Escrow Agreement to be
performed by you within a stated period of time, the time to
perform the act shall be counted from 8:00 a.m. on the business
day next following the business day on which you actually
receives notice authorizing the act. For purposes of this Escrow
Agreement, a business day shall be from 8:00 a.m. to 5:00 p.m. on
days excluding weekends and holidays observed by you.
(f) Your fees as Escrow Agent shall be as set forth in
Schedule 1. You shall also be reimbursed for any reasonable
expenses incurred in connection with carrying out your duties
pursuant to this Escrow Agreement, including but not limited to
the reasonable cost of legal services should you deem it
necessary to retain outside counsel. Your fees and such
reasonable expenses shall be paid one-half by Buyer and one-half
by Seller. You shall xxxx each of these parties directly for
their respective one-half of the fees and expenses chargeable to
them.
(g) You shall not be liable for any action taken or
omitted by you in good faith and in no event shall you be liable
or responsible except for your own negligence or willful
misconduct. You may consult with legal counsel in the event of
any dispute or question as to this Escrow Agreement. You shall
have duties only to Purchasing Parties, and no person shall be
deemed a third-party beneficiary of this Escrow Agreement. You
shall not be responsible for any loss to the Escrowed Funds
resulting from the investment thereof in accordance with the
terms of this Escrow Agreement.
0.Xx the event of any disagreement between the Purchasing
Parties or any of them and any other person or persons whether or
not named in this Escrow Agreement, and adverse claims or demands
are made in connection with or for any of the Escrowed Funds, you
shall be entitled at your option to refuse to comply with any
such claim or demand so long as such disagreement shall continue,
and in so doing, you shall not be or become liable for damages or
interest to the Purchasing Parties, or any of them, or to any
other person or persons for your failure or refusal to comply
with such conflicting or adverse claims or demands. You shall be
entitled to continue so to refrain and refuse so to act until:
(a) the rights of the adverse claimants have been fully
adjudicated in a court assuming and having jurisdiction of the
claimants and the Escrowed Funds; or
(b) all differences shall have been resolved by
agreement, and you shall have been notified thereof in writing by
all persons deemed by you, in your sole discretion, to have an
interest therein.
0.Xxx are hereby authorized, in your exclusive discretion,
to obey and comply with all writs, orders, judgments or decrees
issued by any court or administrative agency affecting the
Escrowed Funds. You shall not be liable to either of the
Purchasing Parties, their successors, heirs or personal
representatives by reason of your compliance with such writs,
orders, judgments or decrees, notwithstanding such writ, order,
judgment or decree is later reversed, modified, set aside or
vacated.
9.This Escrow Agreement shall be construed in accordance
with and shall be governed by the internal laws of the State of
California and shall be binding upon you and the Purchasing
Parties and your and their respective successors and assigns;
provided that any assignment or transfer by any Purchase Party of
its rights under this Escrow Agreement or with respect to the
Escrowed Funds shall be void as against you unless (i) written
notice thereof, and appropriate documentation indicating the
identity of the assignee or transferee, shall be given to you,
(ii) the assignee or transferee shall agree in writing,
satisfactory in form and substance to you, to be bound by the
provisions of this Escrow Agreement, and (iii) you and the other
Purchase Party shall have consented to such assignment or
transfer.
10. Any dispute arising under this Escrow Agreement shall
be submitted to arbitration in San Francisco, California in
accordance with the rules of the American Arbitration
Association, and judgment upon the award rendered may be entered
in any court having jurisdiction thereof, which is deemed to
include the Federal courts located in the City of San Francisco.
11. In the event of any action at law, suit in equity or
arbitration proceeding between the Purchasing Parties in relation
to this Escrow Agreement, the prevailing Purchase Party shall be
paid by the other Purchase Party a reasonable sum for attorneys'
and experts' fees and expenses for such prevailing Purchase
Party. The Purchasing Parties jointly and severally agree to pay
to you all your fees, accounting fees, special and extra service
fees and other costs related to such action, including reasonable
attorneys' fees.
12. In the event of a dispute between you and the
Purchasing Parties, or any of them, with respect to your actions
under this Escrow Agreement, the prevailing Party shall be paid
by the other Parties a reasonable sum for attorneys' and experts'
fees and expenses for such prevailing Party.
13. This Escrow Agreement may be executed in counterparts,
each of which so executed shall be deemed as original,
irrespective of the date of its execution and delivery; and said
counterparts together shall constitute one and the same
instrument.
If the foregoing Escrow Agreement is satisfactory to you,
please indicate by signing in the space provided below.
BEAR MOUNTAIN, INC. BEAR MOUNTAIN LTD.
By: By:
Its: Its:
The undersigned accepts appointment as Escrow Agent.
Dated: October 19,1995
[ESCROW AGENT]
By:
Its:
