1
EXHIBIT 10.8
STOCK PURCHASE AGREEMENT
DATED AS OF FEBRUARY 21, 1997
BY AND BETWEEN
THE PERSONS IDENTIFIED HEREIN AS SELLERS,
THE REPRESENTATIVE AS IDENTIFIED HEREIN
AND
BOOTH CREEK SKI HOLDINGS, INC.
2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 2
1.1 General. . . . . . . . . . . . . . . . . . . 2
1.2 Definitions. . . . . . . . . . . . . . . . . 2
1.3 Interpretation . . . . . . . . . . . . . . . 8
ARTICLE II
SALE AND PURCHASE OF SHARES . . . . . . . . . . . . . 8
2.1 Sale and Purchase of Shares. . . . . . . . . 8
2.2 Payment of the Purchase Price. . . . . . . . 8
2.3 Purchase Price Adjustments . . . . . . . . . 9
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS. . . . . . . 10
3.1 Corporate Status; Authority of Sellers;
Enforceability . . . . . . . . . . . . . . . 10
3.2 Accounts Receivable. . . . . . . . . . . . . 11
3.3 Trade Names, Trademarks and Copyrights . . . 11
3.4 No Patent Rights . . . . . . . . . . . . . . 11
3.5 Passes . . . . . . . . . . . . . . . . . . . 11
3.6 Contracts. . . . . . . . . . . . . . . . . . 11
3.7 Compliance with Laws . . . . . . . . . . . . 12
3.8 Litigation . . . . . . . . . . . . . . . . . 12
3.9 Personnel Identification and Compensation. . 12
3.10 Existing Employment Contracts. . . . . . . . 12
3.11 Capitalization; Subsidiaries . . . . . . . . 12
3.12 Title to Purchased Shares. . . . . . . . . . 13
3.13 Forest Service Permits . . . . . . . . . . . 13
3.14 Environmental. . . . . . . . . . . . . . . . 13
3.14.1 Definitions . . . . . . . . . . . . . . . . . 13
3.14.2 Compliance with Environmental Laws. . . . . . 14
3.14.3 Handling of Hazardous Substances. . . . . . . 14
3.14.4 No Release of Hazardous Substances. . . . . . 14
3.14.5 Permits . . . . . . . . . . . . . . . . . . . 15
3.14.6 No Proceedings. . . . . . . . . . . . . . . . 15
3.14.7 No Tanks, Asbestos or PCB's . . . . . . . . . 15
3.14.8 Lists and Liens . . . . . . . . . . . . . . . 15
3.14.9 Documents . . . . . . . . . . . . . . . . . . 16
3.15 Certain Transactions. . . . . . . . . . . . . 16
3.16 Employee Benefit Matters. . . . . . . . . . . 16
3.17 Tax Matters . . . . . . . . . . . . . . . . . 17
3.18 Inventories . . . . . . . . . . . . . . . . . 19
3.19 Title to Assets . . . . . . . . . . . . . . . 19
-i-
3
3.20 Real Property. . . . . . . . . . . . . . . . . . . 20
3.21 Condition of Assets. . . . . . . . . . . . . . . . 21
3.22 Zoning . . . . . . . . . . . . . . . . . . . . . . 21
3.23 No Commitments . . . . . . . . . . . . . . . . . . 21
3.24 Continued Use of Real Property . . . . . . . . . . 21
3.25 Water Rights . . . . . . . . . . . . . . . . . . . 21
3.26 [INTENTIONALLY BLANK]. . . . . . . . . . . . . . . 21
3.27 Consents . . . . . . . . . . . . . . . . . . . . . 21
3.28 Licenses and Permits . . . . . . . . . . . . . . . 22
3.29 No Alternative Transactions. . . . . . . . . . . . 22
3.30 Occupational Safety and Health . . . . . . . . . . 22
3.31 Insurance. . . . . . . . . . . . . . . . . . . . . 22
3.32 Financial Statements . . . . . . . . . . . . . . . 22
3.33 Undisclosed Liabilities. . . . . . . . . . . . . . 23
3.34 Conduct of Business Since Reference Balance Sheet
Date . . . . . . . . . . . . . . . . . . . . . . . 23
3.35 Broker's or Consultant's Fees. . . . . . . . . . . 23
3.36 Banking Arrangements . . . . . . . . . . . . . . . 24
3.37 Powers of Attorney . . . . . . . . . . . . . . . . 24
3.38 Disclosure . . . . . . . . . . . . . . . . . . . . 24
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER . . . . . . 24
4.1 Corporate Status . . . . . . . . . . . . . . . . . 24
4.2 Due Authorization. . . . . . . . . . . . . . . . . 24
4.3 Authority of Purchaser . . . . . . . . . . . . . . 24
4.4 Enforceability . . . . . . . . . . . . . . . . . . 25
4.5 Consents . . . . . . . . . . . . . . . . . . . . . 25
4.6 Broker's or Consultant's Fees. . . . . . . . . . . 25
4.7 Investment . . . . . . . . . . . . . . . . . . . . 25
ARTICLE V
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 25
5.1 Title Expenses . . . . . . . . . . . . . . . . . . 25
5.2 Code Section 1445 Withholding. . . . . . . . . . . 25
5.3 Pre-Closing Taxes. . . . . . . . . . . . . . . . . 26
5.4 Tax Reports; Returns . . . . . . . . . . . . . . . 26
5.5 Transfer Taxes . . . . . . . . . . . . . . . . . . 26
5.6 Limitation on Liens. . . . . . . . . . . . . . . . 26
5.7 Restricted Payments. . . . . . . . . . . . . . . . 26
5.8 UCC Releases . . . . . . . . . . . . . . . . . . . 27
5.9 Ordinary Course of Business. . . . . . . . . . . . 27
5.10 Affiliate Transactions . . . . . . . . . . . . . . 27
5.11 Required Signatures. . . . . . . . . . . . . . . . 27
5.12 Developmental Real Estate. . . . . . . . . . . . . 27
5.13 Xxxxxxx Indebtedness . . . . . . . . . . . . . . . 27
-ii-
4
ARTICLE VI
CLOSING . . . . . . . . . . . . . . . . . . . . . . . . 27
6.1 Closing Transactions . . . . . . . . . . . . . . . 27
6.2 Deliveries by Sellers to Purchaser . . . . . . . . 28
6.3 Deliveries by Purchaser to Sellers . . . . . . . . 30
ARTICLE VII
OTHER AGREEMENTS. . . . . . . . . . . . . . . . . . . . 32
7.1 Further Assurance. . . . . . . . . . . . . . . . . 32
7.2 Confidentiality. . . . . . . . . . . . . . . . . . 32
7.3 Employment Matters . . . . . . . . . . . . . . . . 32
7.4 Employee Benefits. . . . . . . . . . . . . . . . . 33
7.5 Indemnification for Employment Matters . . . . . . 33
7.6 Non-Competition Agreement. . . . . . . . . . . . . 33
7.7 Accounts Receivable. . . . . . . . . . . . . . . . 34
ARTICLE VIII
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 35
8.1 Indemnification by Sellers . . . . . . . . . . . . 35
8.2 Indemnification by Purchaser . . . . . . . . . . . 36
8.3 Procedure for Indemnification. . . . . . . . . . . 37
8.4 Limitations on Sellers' Liability . . . . . . . . 38
8.5 Payment. . . . . . . . . . . . . . . . . . . . . . 38
8.6 Set-Off. . . . . . . . . . . . . . . . . . . . . . 38
8.7 Escrow Account . . . . . . . . . . . . . . . . . . 38
ARTICLE IX
SELLERS' REPRESENTATIVE . . . . . . . . . . . . . . . . 39
9.1 Appointment. . . . . . . . . . . . . . . . . . . . 39
9.2 Authorization. . . . . . . . . . . . . . . . . . . 39
9.3 Irrevocable Appointment. . . . . . . . . . . . . . 40
9.4 Resignation. . . . . . . . . . . . . . . . . . . . 40
9.5 Purchaser's Reliance . . . . . . . . . . . . . . . 40
9.6 Exculpation and Indemnification. . . . . . . . . . 40
ARTICLE X
DISPUTE RESOLUTION. . . . . . . . . . . . . . . . . . . 41
10.1 Dispute Resolution . . . . . . . . . . . . . . . . 41
10.2 Arbitration Award. . . . . . . . . . . . . . . . . 41
10.3 Procedures . . . . . . . . . . . . . . . . . . . . 41
10.4 Attorneys' Fees. . . . . . . . . . . . . . . . . . 41
ARTICLE XI
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . 42
11.1 Post-Closing Deliveries. . . . . . . . . . . . . . 42
11.2 Notices. . . . . . . . . . . . . . . . . . . . . . 42
11.3 Assignment . . . . . . . . . . . . . . . . . . . . 43
-iii-
5
11.4 Benefit of the Agreement . . . . . . . . . . 43
11.5 Exhibits and Schedules . . . . . . . . . . . 43
11.6 Headings . . . . . . . . . . . . . . . . . . 43
11.7 Entire Agreement . . . . . . . . . . . . . . 43
11.8 Modifications and Waivers . . . . . . . . . . 43
11.9 Counterparts . . . . . . . . . . . . . . . . 44
11.10 Severability. . . . . . . . . . . . . . . . . 44
11.11 GOVERNING LAW . . . . . . . . . . . . . . . . 44
11.12 Expenses. . . . . . . . . . . . . . . . . . . 44
11.13 Closing Date. . . . . . . . . . . . . . . . . 44
EXHIBITS
Exhibit A Form of Promissory Note
Exhibit B Form of Opinion of Sellers' Counsel
Exhibit C Form of Opinion of Purchaser's Counsel
Exhibit D Form of Consulting and Non-Compete Agreement
Exhibit E Form of Withholding Certificate
Exhibit F Form of Escrow Agreement
SCHEDULES
Schedule 1.1 Outstanding Preferred Stock Balance
Schedule 1.2 Description of Assets
Schedule 3.2 Accounts Receivable
Schedule 3.5 Customers and Vendors
Schedule 3.7 Compliance with Laws
Schedule 3.8 Litigation
Schedule 3.9 Personnel Identification and Compensation
Schedule 3.10 Existing Employment Contracts
Schedule 3.12 Title to Purchased Shares
Schedule 3.14 Environmental
Schedule 3.16 Employee Benefit Matters
Schedule 3.17 Consolidated Groups
Schedule 3.19 Title to Assets
Schedule 3.20 Real Property Exceptions
Schedule 3.22 Zoning
Schedule 3.23 Commitments
Schedule 3.25 Water Rights
Schedule 3.27 Consents
Schedule 3.28 Licenses and Permits
Schedule 3.31 Insurance
Schedule 3.32 Financial Statements
-iv-
6
Schedule 3.34 Conduct of Business
Schedule 3.36 Banking Arrangements
Schedule 8.1 ENVIRON Report
-v-
7
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is entered into as of this 21st day of
February, 1997 by and between BOOTH CREEK SKI HOLDINGS, INC., a Delaware
corporation (together with its successors and permitted assigns, "Purchaser"),
the individuals identified on the signature page hereto as "Sellers" (each, a
"Seller", and collectively, the "Sellers") and the Representative (as hereafter
defined).
RECITALS
WHEREAS, Sellers, collectively, own all of the issued and outstanding
shares of capital stock of Ski Lifts, Inc., a Washington corporation (the
"Company"), consisting of (i) 1,000 shares of common stock, no par value (the
"Shares"), and (ii) 28,000 shares of preferred stock, no par value;
WHEREAS, the Company is engaged in the ownership and operation of a ski
resort by the name of "Alpental Ski Resort", and other facilities and
properties, all located in the Cascade Mountains outside of Seattle, Washington
(the "Alpental Business");
WHEREAS, the Company also is engaged in the ownership and operation of
a ski resort by the name of "Snoqualmie Ski Resort" and other facilities and
properties, all located in the Cascade Mountains outside of Seattle, Washington
(the "Snoqualmie Business");
WHEREAS, the Company also is engaged in the ownership and operation of
a ski resort by the name of "Hyak Ski Resort" and other facilities and
properties, all located in the Cascade Mountains outside of Seattle, Washington
(the "Hyak Business");
WHEREAS, the Company also is engaged in the ownership and operation of
a ski resort by the name of "Ski Acres Ski Resort" and other facilities and
properties, all located in the Cascade Mountains outside of Seattle, Washington
(the "Ski Acres Business", and together with the Alpental Business, the
Snoqualmie Business and the Hyak Business, the "Business");
WHEREAS, on or prior to the date hereof, and in connection with the
transactions contemplated hereby, Sellers have caused the Company to contribute
substantially all of the Developmental Real Estate (as hereinafter defined) to
DRE, L.L.C., a newly-formed, Delaware limited liability company ("DRE,
L.L.C."), in consideration for 99% of the membership interest therein;
WHEREAS, Purchaser holds the other 1% membership interest in DRE,
L.L.C.;
WHEREAS, concurrently with the execution and delivery of this
Agreement, DRE, L.L.C. is entering into the Preferred Stock Purchase Agreement
(as hereafter defined) with Sellers, pursuant to which DRE, L.L.C. has agreed
to purchase from Sellers all of the issued and outstanding Preferred Stock (as
hereafter defined);
8
WHEREAS, Purchaser desires to purchase the Shares from Sellers and
Sellers desire to sell and transfer to Purchaser the Shares, all subject to the
terms and conditions set forth below;
NOW, THEREFORE, in consideration of the foregoing Recitals and the
mutual agreements and covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Sellers hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 General. Each term defined in the first paragraph of this
Agreement and in the Recitals shall have the meaning set forth above whenever
used herein, unless otherwise expressly provided or unless the context clearly
requires otherwise.
1.2 Definitions. As used herein, the following terms shall have the
meanings ascribed to them in this Section 1.2:
Accounts Receivable. All present and future rights to payment for
goods sold or services rendered whether or not earned by performance,
including, without limitation, all accounts or notes receivable owned or held
by the Company.
Adverse Consequences. All actions, suits, proceedings, hearings,
investigations, claims, judgments, orders, decrees, stipulations, injunctions,
damages, dues, penalties, fines, costs, amounts paid in settlement,
Liabilities, Taxes, interest, Liens, losses, expenses and fees, including all
accounting, consultant and attorneys' fees and court costs, costs of expert
witnesses and other expenses of litigation.
Affiliate. As set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
Agreement. This Stock Purchase Agreement, together with all
Exhibits and Schedules referred to herein, as amended, modified or supplemented
from time to time in accordance with the terms hereof.
Alpental Business. As defined in the Recitals hereto.
Amended Articles. The Amended and Restated Articles of
Incorporation of the Company filed on the date hereof with the Secretary of
State of the State of Washington.
Assignment Agreement. As defined in Section 6.2(q).
Authority. Any governmental, regulatory or administrative body,
agency or authority, any court of judicial authority, any arbitrator or any
public, private or industry regulatory authority, whether foreign, federal,
state or local.
Business. As defined in the Recitals hereto.
9
CERCLA. Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601, et seq.
Claim Notice. As defined in Section 8.3.
Closing. The actual conveyance, transfer, assignment and delivery
of the certificates representing the Shares to Purchaser in exchange for the
consideration payable to Sellers pursuant to this Agreement.
Closing Receivables. As defined in Section 7.7(e).
Code. Internal Revenue Code of 1986.
Company. As defined in the Recitals hereto.
Confidential Information. As defined in Section 7.2.
Contracts. All contracts, leases, subleases, arrangements,
commitments and other agreements of the Company, including all customer
agreements, vendor agreements, purchase orders, installation and maintenance
agreements, computer software licenses, hardware lease or rental agreements,
contract claims and all other arrangements and understandings related to the
Business, including, without limitation, those items which are listed on
Schedule 1.2 to this Agreement under the heading "Contracts".
Developmental Real Estate. The parcels of land identified by
asterisk in Schedule 3.20 of this Agreement under the heading "Owned Real
Property" including the unplatted land described therein.
DRE Deed. As defined in Section 6.2(v).
DRE, L.L.C. As defined in the Recitals hereto.
Employment Agreement. As defined in Section 6.2(h).
ENVIRON Report. The Environmental Site Assessment Report dated
January 20, 1997, prepared by ENVIRON Corporation with respect to the Real
Property.
Environmental Claims. As defined in Section 3.14.6.
Environmental Laws. As defined in Section 3.14.1(a).
Equipment and Improvements. All ski lifts, pylons, towers,
ski-lift machinery and equipment, snow-cats, snow-making machinery and
equipment, lighting 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, snowmobiles, vehicles, tractors, spare tires and parts, tools,
appliances, furniture, office furniture,
-3-
10
fixtures, office supplies and office equipment, computers, computer terminals
and printers, computer software, 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 the Company, or are utilized in connection with the Company's
operations upon or within the Real Property, including, without limitation, the
items listed on Schedule 1.2 to this Agreement under the heading "Equipment and
Improvements".
ERISA. Employee Retirement Income Security Act of 1974.
Escrow Account. As defined in Section 8.7.
Escrow Agreement. As defined in Section 8.7.
Financial Statements. The Reference Balance Sheet and the audited
balance sheets and income statements of the Company for the three (3) year
period ended September 30, 1996, copies of which are attached hereto as
Schedule 3.32.
Forest Service. The United States Forest Service.
Hazardous Substances. As defined in Section 3.14.1(b).
Hyak Business. As defined in the Recitals hereto.
Indemnified Party. As defined in Section 8.3.
Indemnifying Party. As defined in Section 8.3.
Intangibles. All trade names, trademarks, service marks, copyrights,
trade secrets, registrations and applications for any thereof, and all
technical know-how and other intellectual property rights or intangibles used
by the Company in the operation of the Business, including, without limitation,
those listed on Schedule 1.2 to this Agreement under the heading "Intangibles",
and all goodwill associated therewith, licenses and sublicenses granted and
obtained with respect thereto and rights thereunder, remedies against
infringement thereof and rights to protection of interests therein under all
applicable Laws.
Inventories. All of the Company's retail inventory (including, without
limitation, all inventories of food and beverages and inventory customarily
sold by the Company in new or used condition to the public) and 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 the Company in new or
used condition to the public and which are included in the Company's retail
inventory), consumable supplies, spare parts and repair materials and any and
all other inventories of the Company, an approximate summary of which retail
and non-retail inventories currently on hand is set forth on Schedule 1.2 to
this Agreement under the heading "Inventories".
IRS. Internal Revenue Service.
11
Key Bank Credit Documents. (i) That certain Revolving Line of Credit
Agreement dated September 1, 1993, between the Company and Key Bank N.A., as
amended, (ii) that certain Reducing Revolving Term Loan Agreement dated
September 30, 1994, between the Company and Key Bank N.A., as amended, (iii)
that certain Promissory Note from the Company to KeyCorp Leasing, Ltd. dated
May 19, 1993, in the original principal amount of $129,000 and (iv) that
certain Lease Agreement between the Company and KeyCorp Leasing, Ltd. dated
July 26, 1991, together with all other documents, instruments and certificates
delivered in connection therewith.
Law. Any law, statute, regulation, rule, ordinance, requirement,
announcement or other binding action or requirement of an Authority.
Leased Real Property. Those certain parcels of land more fully
described on Schedule 1.2 to this Agreement under the heading "Leased Real
Property".
Letter of Intent. The letter of intent dated November 7, 1996 between
Booth Creek, Inc. and the Company relating to the transactions contemplated by
this Agreement, as amended by the Addendum thereto dated December 6, 1996.
Liabilities. Any obligation or liability (whether known or unknown,
whether asserted or unasserted, whether absolute or contingent, whether accrued
or unaccrued, whether liquidated or unliquidated and whether due or to become
due), including, without limitation, any liability for Taxes.
Lien. Any lien (statutory or other), mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance or preference, priority or
security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or lessor under any
conditional sale, capitalized lease or other title retention agreement).
Xxxxxxx Indebtedness. The aggregate amount of principal and interest
due and owing as of the date hereof by the Company to X.X. Xxxxxxx, Inc.
pursuant to that certain Promissory Note dated January 1, 1997.
ODCX. ODC X, a Washington general partnership.
Operating Agreement. As defined in Section 6.2(p).
Order. Any decree, order, judgment, writ, award, injunction,
stipulation or consent of or by an Authority.
Ordinary Course of Business. The ordinary course of business of the
Company in accordance with past custom and practice (including with respect to
quantity and frequency).
Outstanding Preferred Stock Balance. On the date of determination, the
amount set forth on Schedule 1.1 with respect to such date; provided, however,
that if any indemnification obligation hereunder is limited in amount by
reference to the Outstanding Preferred Stock Balance and such indemnification
obligation survives beyond the last date indicated on Schedule 1.1, the
Outstanding Preferred Stock Balance shall be deemed to equal $125,00043
-5-
12
Owned Real Property. Those certain parcels of land more fully
described on Schedule 1.2 to this Agreement under the heading "Owned Real
Property" (including, without limitation, the Developmental Real Estate
identified thereunder by asterisk), together with all timber and water rights
and other privileges and appurtenances thereto and all plants, buildings,
structures, installations, fixtures, fittings, improvements, betterments and
additions situated thereon and together with all easements and rights-of-way
used or useful in connection therewith.
Permits. As defined in Section 3.28.
Person. Any natural person, corporation, limited liability company,
partnership, firm, joint venture, joint-stock company, trust, association,
Authority, unincorporated entity or organization of any kind.
Plan. As defined in Section 3.16(a).
Preferred Stock. The preferred stock, no par value of the Company.
Preferred Stock Purchase Agreement. As defined in Section 6.2(j).
Purchase Price. As defined in Section 2.2.
Purchaser Warranty Claim. As defined in Section 8.1(a).
RCRA. Resource Conservation and Recovery Act, 42 U.S.C. Section 9201,
et seq.
Real Property. Collectively, the USFS Permitted Property, the Owned
Real Property and the Leased Real Property.
Real Property Leases. All leases to the Leased Real Property.
Recapitalization Plan. As defined in Section 6.2(r).
Receivable Reserve. As defined in Section 7.7(e).
Records. All books of account, ledgers, forms, records, documents,
files, invoices, vendor or supplier lists, plans and other data which are
necessary to or desirable for the ownership, use, maintenance or operation of
the Business and which are owned or used by the Company, including, without
limitation, all blueprints and specifications, all Tax, 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 pricing
and cost information, 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 and all other documents received from, sent
to or in
-6-
13
the Company's possession in connection with any Authorities (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, and any alcohol, beverage or fire prevention
Authorities), all plans, maps and surveys of the Real Property, and all plans
and designs of buildings, structures, fixtures and equipment.
Reference Balance Sheet. The audited balance sheet for the Business
dated the Reference Balance Sheet Date.
Reference Balance Sheet Date. September 30, 1996.
Release. As defined in Section 3.14.1(c).
Representative. Xxxxx X. Xxxxxxx, or any successor thereto in
accordance with Section 9.1.
Section 1445 Withholding. As defined in Section 5.2.
Seller Warranty Claim. As defined in Section 8.2(a).
Sellers' Knowledge. Xxxxx X. Xxxxxxx'x actual knowledge after review
of the books and records of the Company and after interviewing the principal
managers and officers of the Company.
Shares. As defined in the Recitals hereto.
Ski Acres Business. As defined in the Recitals hereto.
Ski Lifts Promissory Note. As defined in Section 2.2(a).
Snoqualmie Business. As defined in the Recitals hereto.
Taxes. As defined in Section 3.17(a).
Territory. As defined in Section 7.6(a)(i).
$300,000 Company Note. As defined in Section 6.2(k).
$650,000 Company Note. As defined in Section 6.2(k).
Title Company. As defined in Section 6.2(l).
Title Policies. As defined in Section 6.2(l).
USFS Permits. The special use permits issued by the Forest Service,
each of which is described on Schedule 1.2 to this Agreement under the heading
"USFS Permits".
-7-
14
USFS Permitted Property. The land described in the USFS Permits and the
plants, buildings, structures, installations, fixtures, improvements,
betterments and additions situated thereon.
1.3 Interpretation. Unless otherwise expressly provided or unless the
context requires otherwise, (a) all references in this Agreement to Articles,
Sections, Schedules and Exhibits shall mean and refer to Articles, Sections,
Schedules and Exhibits of this Agreement; (b) all references to statutes and
related regulations shall include all amendments of the same and any successor
or replacement statutes and regulations; (c) words using the singular or plural
number also shall include the plural and singular number, respectively; (d)
references to "hereof", "herein", "hereby" and similar terms shall refer to
this entire Agreement (including the Schedules and Exhibits hereto); and (e)
references to any Person shall be deemed to mean and include the successors and
permitted assigns of such Person (or, in the case of an Authority, Persons
succeeding to the relevant functions of such Person).
ARTICLE II
SALE AND PURCHASE OF SHARES
2.1 Sale and Purchase of Shares. Subject to the terms and conditions
of this Agreement, and in reliance upon the representations, warranties,
covenants and agreements made in this Agreement by Sellers and Purchaser,
Purchaser hereby purchases and accepts from Sellers, and Sellers hereby sell,
transfer, convey, assign and deliver to Purchaser, the Shares. At the Closing,
each Seller shall deliver to Purchaser the certificates evidencing the Shares
owned by such Seller.
2.2 Payment of the Purchase Price. (a) The aggregate purchase price
(as adjusted pursuant to Section 2.3, the "Purchase Price") payable by
Purchaser to Sellers in consideration for the Shares shall be TEN MILLION
EIGHTEEN THOUSAND DOLLARS ($10,018,000) payable on the date hereof in the
following manner:
(i) $9,818,000 by issuance of a promissory note (the "Ski
Lifts Promissory Note") substantially in the form of the
promissory note attached hereto as Exhibit A from the Company
to the Representative on behalf of Sellers; and
(ii) $200,000 in cash to the Representative on behalf of
Sellers representing, among other things, amounts due and owing
by Sellers (A) to the State of Washington Department of
Revenue for payment of real estate excise taxes and (B) to the
Title Company pursuant to Section 55.1.
(b) The Representative shall distribute all cash received by him from
Purchaser pursuant to the terms hereof or from the Company pursuant to the
terms of the Ski Lifts Promissory Note to Sellers based on each Seller's
pro rata share of the Purchase Price.
(c) The amounts paid in cash at Closing or pursuant to the terms of
the Ski Lifts Promissory Note shall be by wire transfer of immediately
available federal funds to an account designated in writing to Purchaser
by the Representative in writing prior to the Closing.
-8-
15
2.3 Purchase Price Adjustments.
(a) Accruals. For the period ending September 30, 1996, Company has
accrued $112,204 with respect to USFS Permit fees potentially owed for
such period, $49,502 with respect to workers' compensation claims
potentially owed for such period, and $142,124 with respect to third-party
liability claims potentially owed for such period. If the amounts accrued
exceed the amounts actually owed for such period, then the Purchase Price
shall be increased by the excess amount. If the amounts accrued for such
period are less than the amounts actually owed during such period, then
the Purchase Price shall be decreased by the deficiency. Accordingly, the
parties agree that such Purchase Price adjustments shall be made (i) with
respect to USFS Permit fees owed for such period, upon a final
determination of USFS Permit fees owed for such period; and (ii) with
respect to workers compensation and third-party liability claims owed for
such period, no earlier than three (3) years after the date of this
Agreement. Purchaser shall deliver a Purchase Price adjustment
calculation to the Representative no later than forty-five (45) days after
the end of the relevant periods set forth in clauses (i) and (ii) above.
If the Representative does not deliver written acceptance of such
calculation to Purchaser within seven (7) days after receipt thereof, the
parties agree that a mutually acceptable independent accounting firm of
national standing shall determine the appropriate adjustment no later than
thirty (30) days after demand by either Purchaser or the Representative.
Each Purchase Price adjustment hereunder shall be paid to the party
entitled thereto by the party responsible hereunder no later than five (5)
days after final determination thereof by such independent accounting firm
or acceptance by the Representative, as the case may be.
(b) Tax Adjustment. In the event Sellers are obligated to pay any
income taxes imposed on or attributable to the income of the Company for
any period from and after October 1, 1996 (the "Tax Period"), then
Purchaser shall indemnify and reimburse Sellers for such obligation
(including all related interest and penalties) by increasing the Purchase
Price hereunder by an amount equal to (i) the aggregate amount of such
income multiplied by (ii) .63, which amount shall be paid promptly;
provided, such amount owed by Purchaser shall take into account any tax
benefit of Sellers attributable to the increase in the basis of the Shares
as a result of payment of such amount. Representative shall notify
Purchaser no later than five (5) days after Sellers receive notice from
any Authority assessing income taxes for the Tax Period. Purchaser shall
have the right, but not the obligation, at its own expense, to compromise
or defend any such assessment. In the event Purchaser undertakes to
compromise or defend such assessment, it shall promptly notify
Representative of its intention to do so. The Sellers shall fully
cooperate with Purchaser and its counsel in the defense or compromise of
such assessment, and no settlement of such assessment shall be made by
Purchaser or Sellers without the prior written consent of the
Representative and Purchaser, respectively, which consents shall not be
unreasonably withheld. Such reimbursement obligation of Purchaser shall
survive until all tax returns of the Company for the fiscal year beginning
October 1, 1996 have been closed by the applicable statute of limitations.
(c) ODCX Adjustment. In the event the aggregate amount of capital
gains taxes due and owing by the Company from the sale of the Company's
partnership interest in ODCX is (i) greater than $27,000, then Sellers
shall reimburse the Company for such amount
-9-
16
greater; or (ii) less than $27,000, then Purchaser shall reimburse Sellers
for such amount lesser based on each Seller's pro rata share of the
Purchase Price.
(d) Any payment required pursuant to this Section 2.3 shall be deemed
an adjustment to the Purchase Price and shall be by certified or cashier's
check, or at the option of the recipients, by the transfer of immediately
available federal funds for credit to the recipient at a bank account
designated by such recipient in writing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
As an inducement to Purchaser to enter into and perform its obligations
under this Agreement, and in consideration of the covenants of Purchaser
contained herein, Sellers, jointly and severally (subject to the limitations
set forth in Sections 8.1 and 8.4), hereby make representations and warranties
to Purchaser as set forth below. Such representations and warranties shall
survive the date hereof (subject to Sections 8.1 and 8.4) regardless of what
examinations, inspections, audits and other investigations Purchaser has
heretofore made, or may hereafter make, with respect to such representations
and warranties; provided, Sellers shall have no liability for matters expressly
disclosed to Purchaser in this Agreement or in the Schedules hereto unless
expressly provided for in this Agreement. Subject to the foregoing, Sellers,
jointly and severally, represent and warrant as follows:
3.1 Corporate Status; Authority of Sellers; Enforceability.
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Washington and in each
other jurisdiction where the failure to so qualify could have a material
adverse effect on the business, operations or condition of the Company or
the Business. The Company has the corporate power and authority necessary
to own, lease, operate or otherwise hold its properties and assets and to
carry on its business as presently conducted.
(b) Each Seller has the capacity to execute and deliver this Agreement
and to perform his or her obligations hereunder. This Agreement is
binding upon, and enforceable against, each Seller in accordance with its
terms, subject to bankruptcy, insolvency, reorganization and other laws
affecting creditors' rights generally and by general principles of equity
(whether in a proceeding at law or in equity).
(c) Neither the execution or delivery of this Agreement by any Seller
nor the performance by any Seller of its obligations under this Agreement
will (assuming the receipt of all consents referred to in Section 3.27),
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any contract, lease, license, franchise,
permit, indenture, mortgage, deed of trust, note agreement or other
agreement or instrument to which such Seller or the Company is a party or
is bound, the articles of incorporation or by-laws of the Company or any
applicable Law or Order to which such Seller or the Company is a party or
by which such Seller or the Company is bound.
-10-
17
3.2 Accounts Receivable. Except as reserved against on the Reference
Balance Sheet, the Accounts Receivable reflected thereon: (a) were acquired by
the Company in the Ordinary Course of Business and represent fully completed
bona fide transactions that require no further act on the part of the Company
to make such Accounts Receivable payable by the account debtors; (b) are not
subject to any material claim, counterclaim, set-off or deduction; (c)
represent valid obligations owing to the Company by account debtors that are
not Affiliates of the Company, which are enforceable in accordance with their
respective terms; and (d) are owned by the Company free and clear of all Liens.
3.3 Trade Names, Trademarks and Copyrights. Schedule 1.2 to this
Agreement, under the heading "Intangibles", contains a true and complete list
of all trademarks, service marks, trade names and copyrights and their
registrations or applications, if any, owned by the Company or in which the
Company has any rights or licenses, together with a brief description of each.
To the Sellers' Knowledge, there is no infringement or alleged infringement by
any Person of any such trademark, service xxxx, trade name or copyright. To
the Sellers' Knowledge, the Company has not infringed, nor is now infringing on
any trademark, service xxxx, trade name or copyright belonging to any other
Person. The Company 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 any copyrights or any
applications therefor. The Company owns or holds adequate licenses or other
rights to use all trademarks, service marks, trade names and copyrights
necessary for the Business as now conducted, including, without limitation,
those listed on Schedule 1.2 to this Agreement under the heading "Intangibles."
3.4 No Patent Rights. The Company does not own, hold, or have any
right, license or immunity with respect to any patents, inventions, industrial
models, processes, designs, formulas or applications for patents. To the
Sellers' Knowledge, the Company has not infringed, nor is the Company now
infringing, on any patent or other right belonging to any Person. The Company
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.
3.5 Passes. Schedule 3.5 contains a true and complete list of all
persons holding pass privileges beyond the 1996-1997 ski season or other passes
for activities of the Business extending beyond the 1996-1997 ski season.
3.6 Contracts. Schedule 1.2 to this Agreement, under the heading
"Contracts", contains a complete list of all Contracts for amounts exceeding
$5,000 to which the Company is party or by which the Company is currently bound
and copies of such written Contracts have been provided to Purchaser or its
counsel. The Company is not a party to any Contract not entered into in the
Ordinary Course of Business. To the Sellers' Knowledge, all Contracts 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.
To the Sellers' Knowledge, 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
Contracts. The Company has not received notice that any party to any of the
Contracts intends to cancel or terminate any of such agreements or to exercise
or not exercise any options under any of such agreements.
-11-
18
3.7 Compliance with Laws. Except as set forth on Schedule 3.7, neither
the Company nor the Sellers have received any notice to the contrary, and to
the Sellers' Knowledge (i) the Company has complied with all, and is not in
violation of any, applicable Laws or Orders (including, without limitation, any
applicable building, zoning, wetlands, 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 and (ii) no material capital expenditures will be
required for compliance with applicable Laws now in force. No accusation of
any state or local alcohol or beverage commission is pending against the
Company as a holder of any alcoholic beverage license and, to the Sellers'
Knowledge, no investigation is now in progress by any state or local alcohol or
beverage commission concerning any act or omission that could result in an
accusation, claim or proceeding being filed against the Company.
3.8 Litigation. Schedule 3.8 sets forth a brief description of all
suits, actions, arbitrations, and legal, administrative and other proceedings
and governmental investigations pending or, to the Sellers' Knowledge,
threatened against or affecting the Company or the Business. To the Sellers'
Knowledge, none of the matters set forth in Schedule 3.8, if decided adversely
to the Company, could reasonably be expected to have a material adverse effect
on the Business. The Company is not presently engaged in any legal action to
recover moneys due to it or damages sustained by it.
3.9 Personnel Identification and Compensation. Schedule 3.9 contains
a true and complete list of the names, addresses and titles of all current
officers, directors, employees, agents and representatives of the Company and
all seasonal employees employed during the 1995-1996 ski season. The Sellers
have previously delivered to Purchaser a true and correct schedule stating the
rates of compensation payable (or paid, as the case may be) to each such
person.
3.10 Existing Employment Contracts. There are no employment contracts
or collective bargaining agreements to which the Company is a party or by which
the Company is bound. There is no pending or, to the Sellers' Knowledge,
threatened labor dispute, strike or work stoppage affecting the Business.
3.11 Capitalization; Subsidiaries. (a) The total number of shares of
capital stock and the par value thereof which the Company is authorized to
issue and the number of such shares which are issued and outstanding are as
follows:
-----------------------------------------------------------------------------
Issued and
Class Authorized Shares Outstanding Shares
-----------------------------------------------------------------------------
Common Stock, no par value 1,000 1,000
-----------------------------------------------------------------------------
Preferred Stock, no par value 28,000 28,000
-----------------------------------------------------------------------------
No shares of the Company's capital stock are held as treasury stock.
(b) There are no outstanding options, conversion rights, warrants or
other rights in existence to acquire from the Company any of its shares of
capital stock.
-12-
19
(c) The Shares have been duly and validly issued and are fully paid
and nonassessable and are not subject to any preemptive rights; and there
are no voting trust agreements or other contracts, agreements or
arrangements restricting voting or dividend rights or transferability with
respect to the Shares.
(d) The Company has not violated in any material respect any federal,
state or local Law in connection with the offer for sale or sale and
issuance of its outstanding shares of capital stock or any other
securities.
(e) The Company does not own any securities or any other direct or
indirect interest in any other Person except for (i) the securities
described in notes 4 and 5 to the Reference Balance Sheet and (ii) its
interest in DRE, L.L.C.
3.12 Title to Purchased Shares. Each Seller owns the number of shares
of capital stock of the Company set forth in Schedule 3.12, free and clear of
any Liens. The persons listed as "Sellers" on the signature pages of this
Agreement are all of the record and beneficial owners of the Common Stock of
the Company. The Shares constitute all of the issued and outstanding shares of
Common Stock of the Company and upon delivery of and payment by the Purchaser
to each Seller of his or her proportionate share of the Purchase Price in
respect of the Shares owned by such Seller, the Purchaser will acquire good and
marketable title to the Shares free and clear of all Liens.
3.13 Forest Service Permits. Schedule 1.2 to this Agreement, under the
heading "USFS Permits", contains a complete and accurate description of the
real property which the Company is entitled to use to conduct its business
pursuant to and for the terms set forth in the USFS Permits. The USFS Permits
are valid and in full force. Neither the Company nor the Sellers have received
any notice to the contrary, and to the Sellers' Knowledge there does not exist
any default or event that with notice or lapse of time, or both, would
constitute a default under the USFS Permits. Subject to possible adjustments
set forth in Section 2.3, all fees and charges which the Company has received
notice of as being due and owing by the Company pursuant to the USFS Permits
have been properly computed and fully paid, or have been reserved for on the
Reference Balance Sheet, and no such fees or charges have been deferred or are
due and owing which have not been reserved for on the Reference Balance Sheet.
3.14 Environmental.
3.14.1 Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
(a) The term "Environmental Law(s)" means each and every Law, Order,
Permit, or similar requirement of each and every Authority, pertaining to
(i) the protection of human health, safety, the environment, natural
resources and wildlife, (ii) the protection or use of surface water,
groundwater, rivers and other bodies of water, (iii) the management,
manufacture, possession, presence, use, generation, transportation,
treatment, storage, disposal, release, threatened release, abatement,
removal, remediation or handling of, or exposure to, any Hazardous
Substance or (iv) pollution, including without limitation, as amended,
CERCLA, the Solid Waste Disposal Act, 42 U.S.C. Section 6901 et seq., the
-13-
20
Clean Air \Act, 42 U.S.C. Section 7401 et seq., and the Federal Water
Pollution Control Act, 33 U.S.C. Section 1251, et seq.
(b) The term "Hazardous Substance(s)" 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 or
carcinogenic, 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).
(d) For purposes of this Section 3.14, the Company shall be deemed to
include any predecessor to the Company and any Persons from which the
Company has assumed liabilities by operation of Law.
3.14.2 Compliance with Environmental Laws. Except as disclosed in
Schedule 3.14 or in the ENVIRON Report, neither Sellers nor the Company have
received any notice to the contrary, nor to the Sellers' Knowledge (i) has any
violation or liability arising under any Environmental Law, with respect to the
Real Property or Business, or any use or condition thereof, been alleged; (ii)
has any violation or liability arising under any Environmental Law, with
respect to formerly owned or operated real property, or any use or condition
thereof, been alleged; or (iii) in the case of clauses (i) or (ii), are there
any facts or circumstances upon which such allegations could be based. Except
as disclosed in Schedule 3.14 or in the ENVIRON Report, to the Sellers'
Knowledge, the Real Property, and all uses and conditions of the Real Property
and the Business, have been and are in compliance with all Environmental Laws.
3.14.3 Handling of Hazardous Substances. Except as set forth in
Schedule 3.14 or in the ENVIRON Report, neither the Company nor the Sellers
have received any notice to the contrary and, to the Sellers' Knowledge,
neither the Company nor any other present or former owner, tenant, occupant or
user of the Real Property has used, handled, generated, produced, manufactured,
treated, stored, transported or Released any Hazardous Substance on, under,
about, to or from the Real Property or any real property formerly owned or
operated by the Company or otherwise related to the Business in violation of or
in a manner that may form the basis of liability under any Environmental Law,
including, without limitation, the offsite disposal of any Hazardous Substance.
3.14.4 No Release of Hazardous Substances. Except as set forth in
Schedule 3.14 or in the ENVIRON Report, neither the Company nor the Sellers
have received any notice to the contrary and, to the Sellers' Knowledge, there
is no Release or threatened Release of any Hazardous Substance existing on,
beneath or from the surface, subsurface or ground water associated with the
Real Property, nor is there or has there been any Release or threatened Release
of Hazardous Substances adjacent to, from or in the vicinity of the Real
Property currently occurring or occurring at any time in the past.
-14-
21
3.14.5 Permits. Except as set forth in Schedule 3.14 or in the
ENVIRON Report, neither the Company nor the Sellers have received any notice to
the contrary and, to the Sellers' Knowledge, (i) all Permits required by or
issued pursuant to any Environmental Law for the ownership, use or operation of
the Real Property or the Business have been obtained in a timely manner and are
presently maintained in full force and effect and (ii) the Real Property and
the operations of the Company are in full compliance with all terms and
conditions of the Permits described in clause (i). To Sellers' Knowledge,
Schedule 3.14 contains a true and complete listing of the Permits described in
clause (i).
3.14.6 No Proceedings. Except as set forth in Schedule 3.14 or in
the ENVIRON Report, neither the Company nor the Sellers have received any
notice of the existence of any written Order or any demand, allegation, suit,
claim, proceeding, citation, directive, summons, investigation, information
request, notice of violation or other notice pending or, to the Sellers'
Knowledge, threatened pursuant to any Environmental Law relating to (i) the
ownership, lease, occupation or use of the Real Property or any formerly owned,
leased, occupied or used real property by the Company or any other present or
former owner, tenant, occupant or user of the Real Property, (ii) any alleged
violation of or liability under any Environmental Law by the Company, (iii) the
suspected presence, Release or threatened Release of any Hazardous Substance
on, under, in or from the surface, subsurface, or groundwater associated with
the Real Property, or any formerly owned, leased, occupied or used real
property, (iv) any actual or alleged damage, injury, threat or harm to health,
safety, natural resources or the environment (collectively referred to herein
as "Environmental Claims") nor, to the Sellers' Knowledge, does there exist any
valid basis for any such Environmental Claims.
3.14.7 No Tanks, Asbestos or PCB's. Except as set forth in Schedule
3.14 or in the ENVIRON Report, neither the Company nor the Sellers have
received any notice to the contrary, and to the Sellers' Knowledge there (i)
are and were no aboveground or underground storage tanks currently or formerly
located on the Real Property used or formerly used for the purpose of storing
any Hazardous Substance except in compliance with Environmental Laws; (ii) is
no asbestos-containing building material on the Real Property, and no asbestos
abatement or remediation work has been performed on the Real Property; and
(iii) is no PCB-containing equipment or PCB-containing material located on the
Real Property.
3.14.8 Lists and Liens. Except as disclosed in Schedule 3.14 or in
the ENVIRON Report, neither the Company nor the Sellers have received any
notice to the contrary and, to the Sellers' Knowledge, the Real Property and
any real property formerly owned, operated, leased, or used by the Company (i)
is not listed on any or nominated for listing on the National Priority List
promulgated by the United States Environmental Protection Agency pursuant to
CERCLA or any analogous state remedial priority list promulgated or published
pursuant to any comparable state law, (ii) is not subject to any restriction on
the ownership, occupancy, use or transferability of the Real Property,
including, without limitation, any Liens, and (iii) is not subject to any such
imminent restrictions or Liens that are reasonably likely to be imposed upon
the Real Property.
3.14.9 Documents. Sellers have provided to Purchaser any and all
documents, correspondence, pleadings, reports, assessments, analytical results,
Permits or other records concerning Environmental Laws or Hazardous Substances
as are in the Company's or any Seller's possession.
-15-
22
3.15 Certain Transactions. All purchases and sales or other
transactions, if any, between the Company, on the one hand, and any officer,
director, shareholder or key employee or Affiliate thereof, on the other hand,
within the three (3) years immediately preceding the date hereof have been made
on the basis of prevailing market rates and terms such that from the
prospective of the Company, all such transactions have been made on terms no
less favorable than those which would have been available from unrelated third
parties. Except with respect to the real property owned by, and leased from,
ODCX, neither any officer, nor any director or employee of the Company, nor any
spouse, child or other relative of any of such persons, owns, or has any
interest, directly or indirectly, in any of the real or personal property owned
by or leased to the Company or any copyrights, patents, trademarks, trade names
or trade secrets owned or licensed by the Company.
3.16 Employee Benefit Matters.
(a) Schedule 3.16 contains a true, complete and correct list of each
pension, retirement, profit sharing, savings, stock option, restricted stock,
severance, termination, bonus, fringe benefit, insurance, supplemental benefit,
medical, education reimbursement or other employee benefit plan, program,
agreement or arrangement, including each "employee benefit plan" as defined in
Section 3(3) of ERISA, sponsored, maintained or contributed to or required to
be contributed to by the Company for the benefit of current or former employees
of the Business (each a "Plan").
(b) True, complete and correct copies of the following items relating
to each Plan, where applicable, have been delivered to Purchaser:
(i) the most recent determination letter received from the IRS
with respect to each such Plan that is intended to be qualified under
Section 401 of the Code; and
(ii) the most recent summary plan description, summary of
material modifications and all material communications to
participants.
(c) Each of the Plans has been operated and administered in
accordance with the applicable provisions of ERISA and the Code, including
COBRA, and all other applicable Laws.
(d) Each of the Plans that is intended to be "qualified" within the
meaning of Section 401(a) of the Code is so qualified.
(e) The Company does not have any liability with respect to a plan
termination under Title IV of ERISA, a funding deficiency under Section 412 of
the Code or Section 302 of ERISA or a withdrawal from a "multiemployer plan" as
defined in (f) below or under Section 4063 of ERISA.
(f) None of the Plans is a multiemployer plan within the meaning of
Section 4001(a)(3) of ERISA.
(g) The Company is not, and has never been, a member of a "controlled
group of corporations" within the meaning of Section 414(b) of the Code or a
member of a group under "common control" within the meaning of Section 414(c)
of the Code.
-16-
23
3.17 Tax Matters.
(a) The term "Taxes" means all net income, capital gains, gross
income, gross receipts, sales, use, transfer, ad valorem, franchise, profits,
license, capital, withholding, payroll, employment, excise, goods and services,
severance, stamp, occupation, premium, property, assessments or other
governmental charges of any kind whatsoever, together with any interest, fines
and any penalties, additions to tax or additional amounts incurred or accrued
under applicable federal, state, local or foreign tax law or assessed, charged
or imposed by any Authority, domestic or foreign, provided that any interest,
penalties, additions to tax or additional amounts that relate to Taxes for any
taxable period (including any portion of any taxable period ending on or before
the date hereof) shall be deemed to be Taxes for such period, regardless of
when such items are incurred, accrued, assessed or charged. For the purposes
of this Section 3.17, the Company shall be deemed to include any predecessor to
the Company and any Person from which the Company incurs a liability for Taxes
as a result of transferee liability.
(b) The Company has duly and timely filed true, correct and complete
Tax returns, reports or estimates, all prepared in accordance with applicable
Laws, for all years and periods (and portions thereof), for all jurisdictions
(whether federal, state, local or foreign) in which any such returns, reports
or estimates were due, and for all such returns, reports and estimates which
are required to be filed by any applicable Law on or prior to the date hereof.
All Taxes shown as due and payable on such returns, reports and estimates have
been paid, and there is no current liability for any Taxes due and payable in
connection with any such returns. Any charges, accruals and reserves for Taxes
provided for on the Financial Statements are adequate. There are no existing
liens for Taxes upon any of the Company's assets. The Sellers have provided to
Purchaser copies of all federal, state and foreign tax returns filed by the
Company for the past five (5) years. All applicable sales Taxes, to the extent
due, were paid by the Company when its assets were acquired by the Company.
(c) The Company has (i) based upon W-4's and similar available
information, withheld all required amounts from its employees, agents,
contractors and nonresidents and remitted such amounts to the proper
Authorities; (ii) paid all employer contributions and premiums; and (iii) filed
all federal, state, local and foreign returns and reports with respect to
employee income Tax withholding, and social security and unemployment Taxes and
premiums, all in compliance with the withholding provisions of the Code, or any
prior provision of the Code and other applicable Laws.
(d) None of the Company's assets is tax exempt use property under Code
Section 168(h). None of the Company's assets is property that the Company is
required to treat as being owned by any other Person pursuant to the safe
harbor lease provision of former Code Section 168(f)(8).
(e) No portion of the cost of any of the Company's assets was financed
directly or indirectly from the proceeds of any tax exempt state or local
government obligation described in Code Section 103(a).
(f) The Company has no (and has not previously had any) permanent
establishment in any foreign country and the Company does not engage (and has
not previously
-17-
24
engaged) in a trade or business within the meaning of the Code relating to the
creation of a permanent establishment in any foreign country.
(g) The Company is not a foreign person within the meaning of Code
Section 1445.
(h) Neither the Code nor any other provision of Law requires Purchaser
to withhold any portion of the Purchase Price.
(i) Immediately prior to the Closing, the Company was taxable as an S
Corporation for federal income tax purposes and the corresponding provisions
under the Laws of the State of Washington and has been so since October 1,
1994. All income tax returns have been filed in a manner consistent with the
Company's status as an S Corporation. Except in connection with the
transactions contemplated hereunder, this election has never been revoked and
no event has occurred that would terminate the Company's S Corporation status.
No taxing authority has challenged the effectiveness of this election.
(j) The Company has never been a member of any consolidated, combined
or unitary group for federal, state, local or foreign Tax purposes except as
described on Schedule 3.17.
(k) The Company is not a party to any joint venture, partnership or
other arrangement that could be treated as a partnership for federal income Tax
purposes except for the Company's partnership interest in ODCX.
(l) The federal income Tax returns of the Company have been examined
by the IRS, or have been closed by the applicable statute of limitations, for
all periods through 1992; the state Tax returns of the Company have been
examined by the relevant agencies or such returns have been closed by the
applicable statute of limitations for all periods through June 30, 1992; no
deficiencies or reassessments for any Taxes have been proposed, asserted or
assessed against the Company by any federal, state, local or foreign taxing
authority.
(m) The Company has not executed or filed with any taxing authority
(whether federal, state, local or foreign) any agreement or other document
extending or having the effect of extending the period for assessment,
reassessment or collection of any Taxes, and no power of attorney granted by
the Company with respect to any Taxes is currently in force other than as
disclosed in Section 3.37.
(n) No federal, state, local or foreign Tax audits or other
administrative proceedings, discussions or court proceedings are presently
pending with regard to any Taxes or Tax returns of the Company and no, to the
Sellers' Knowledge, additional issues are being asserted against the Company in
connection with any existing audits of the Company.
(o) The Company has not entered into any agreement relating to Taxes
which affects any taxable year ending after the date hereof.
(p) The Company has not agreed to and it is not required to make any
adjustment by reason of a change in accounting methods that affects any taxable
year ending after the date
-18-
25
hereof. Neither the IRS nor any other agency has proposed any such adjustment
or change in accounting methods that affects any taxable year ending
after the date hereof. The Company has no application pending with any taxing
authority requesting permission for any changes in accounting methods that
relate to its business or operations and that affects any taxable year ending
after the date hereof.
(q) The Company is not and never has been a party to any Tax sharing
agreement or similar arrangement for the sharing of Tax liabilities or
benefits.
(r) The Company has not consented to the application of Code section
341(f).
(s) There is no contract, agreement, plan or arrangement covering any
employee or former employee of the Company that, individually or collectively,
could give rise to the payment by the Company of any amount that would not be
deductible by reason of Code section 280G.
3.18 Inventories. The Inventories consist of items of a quality and
quantity useable or saleable in the Ordinary Course of Business, except for
obsolete or slow moving items and items below standard quality, all of which
have been written down on the books of the Company to net realizable market
value or have been provided for by adequate reserves. All items included in
the Inventories are the property of the Company, 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 the Company. No items included in the Inventories have been
pledged as collateral (other than pursuant to the Key Bank Credit Documents),
or are held by the Company on consignment from third parties. The Company'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 twelve (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 the Company's
ski rental inventory, including, without limitation, skis, ski boots, bindings,
ski poles and snow boards, (i) are not lower than the quantities of such items
(compared on an item-by-item basis) on hand at the end of the 1995-1996 ski
season, and (ii) are sufficient to meet the normal and expected demand of the
1996-1997 ski season.
3.19 Title to Assets. The Company has good and marketable title to all
of its assets (other than the Real Property), free and clear of all Liens
(other than as described in Schedule 3.19 or pursuant to the Key Bank Credit
Documents). To the Sellers' Knowledge, the Company owns or otherwise has the
right to use all of the assets and rights used or necessary in the operation of
the Business.
3.20 Real Property.
(a) To the Sellers' Knowledge, (i) Schedule 1.2 to this Agreement,
under the heading "Real Property", contains complete and accurate legal
descriptions of each parcel of Real Property owned, leased or occupied under
permit;and (ii) the Real Property constitutes all of the real property owned,
leased or occupied pursuant to permit by the Company. Except as set forth in
Schedule 3.20, neither the Company nor the Sellers have received any notice to
the contrary and, to the Sellers' Knowledge, all of the Real Property Leases
are valid and in full force, and there does
-19-
26
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.
(b) Except as set forth in Schedule 3.20, neither the Company nor the
Sellers have received any notice to the contrary and, to the Sellers'
Knowledge, (i) all of the buildings, fixtures and leasehold improvements used
by the Company in the Business are located on the Real Property; (ii) each
parcel of Real Property 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; and (iii) 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.
(c) Except as disclosed in Schedule 3.20, neither the Company nor the
Sellers have received any notice to the contrary and, to the Sellers'
Knowledge, (i) the Company has good and marketable fee simple title to the
Owned Real Property, and good and marketable leasehold interests to the Leased
Real Property, in each case, free and clear of all Liens; (ii) except for the
Real Property Leases, there is no unrecorded or undisclosed legal or equitable
interest in any Real Property owned or claimed by any Person; (iii) subject to
the Real Property Leases, the Company has enjoyed the continuous and
uninterrupted quiet possession, use and operation of its Real Property without
any material complaint or objection by any Person and (iv) there exists no
unfulfilled obligation on the part of the Company to dedicate or grant an
easement or easements over any portion or portions of any of the Real Property
to any Authority.
(d) Except as set forth in Schedule 3.20, all real estate taxes and
assessments with respect to the Real Property which the Company has received
notice of as due and payable have been paid.
(e) Neither the Company nor the Sellers have received any notice of
any special tax assessment affecting any property owned or leased in connection
with the Business, and to the Sellers' Knowledge, no such assessments are
pending or threatened except for that certain Road Improvement District
assessment in the preliminary amount of $65,096, which amount shall be paid by
the Company.
(f) Sellers make no representations or warranties regarding, and shall
not be liable for, the impact of wetlands (or laws relating to wetlands) on
future development of the Real Property.
3.21 Condition of Assets. The Equipment and Improvements are agreed to
be "as is, where is and with all faults," and Sellers make no representation or
warranty as to their physical condition or fitness. Neither the Company nor
the Sellers have received any notice to the contrary, and to the Sellers'
Knowledge neither the Real Property nor the use, occupancy, or transfer to
Purchaser thereof violates in any way any applicable Laws, Orders or covenants,
conditions and restrictions, whether federal, state, local or private.
-20-
27
3.22 Zoning. Except as disclosed in Schedule 3.22, neither the Company
nor the Sellers have received any notice to the contrary and, to the Sellers'
Knowledge, (i) the zoning of each parcel of Real Property permits the presently
existing improvements and the continuation of the business presently being
conducted on such parcel; (ii) there is no pending or contemplated rezoning of
any Real Property; (iii) all the Real Property is in compliance with applicable
state law and local subdivision ordinances; and (iv) no final subdivision or
parcel map is required in connection with the transfer of the Real Property to
Purchaser other than certain steps necessary to segregate portions of the
Developmental Real Estate.
3.23 No Commitments. Except as disclosed in Schedule 3.23, neither the
Company nor the Sellers have received any notice to the contrary, and to the
Sellers' Knowledge, there are no outstanding, defaulted or unsatisfied
contracts, commitments, agreements (including, without limitation, developer
agreements) or understandings which have been made by the Company to, with or
for the benefit of any utility companies, school districts, water districts,
improvement districts or other Authorities which could reasonably be expected
to impose any obligation, liability or condition on the Company, 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.
3.24 Continued Use of Real Property. Neither the Company nor the
Sellers have received any notice to the contrary and, to the Sellers'
Knowledge, there are no presently pending or threatened, proceedings to (i)
condemn, take or demolish the Real Property or any part thereof, (ii) declare
the Real Property or any part of it a nuisance or (iii) exercise the power of
eminent domain or a similar power with respect to all or any part of the Real
Property.
3.25 Water Rights. Except as disclosed in Schedule 3.14 or in the
ENVIRON Report, neither the Company nor the Sellers have received any notice to
the contrary, and to the Sellers' Knowledge, (i) the Company has all necessary
Permits, property rights and other necessary approvals to use the water it has
historically used in the operation of the Business, and its water use has
otherwise been in compliance with all applicable Laws and Orders; and (ii) no
event has occurred or failed to occur which presently, or upon the giving of
notice or lapse of time, or both, could reasonably be expected to materially
adversely affect or decrease the current supply of water to the Company's
premises. Schedule 3.25 sets forth a description of the Company's water rights
at each of the Businesses.
3.26 [INTENTIONALLY BLANK]
3.27 Consents. Except as contemplated by this Agreement with respect
to the USFS Permits or as otherwise disclosed on Schedule 3.27, to the Sellers'
Knowledge, no consent, approval, order or authorization of, or registration,
declaration or filing with, any Authority or any other Person is required to be
obtained or made by the Sellers or the Company in connection with the execution
and delivery of this Agreement or the performance by the Sellers of their
respective obligations hereunder.
3.28 Licenses and Permits. Except as disclosed in Schedule 3.14 or in
the ENVIRON Report, neither the Company nor the Sellers have received any
notice to the contrary, and to the Sellers' Knowledge, (i) Schedule 3.28 lists
and describes all qualifications, registrations, filings,
-21-
28
privileges, franchises, immunities, licenses, permits, authorizations and
approvals of Authorities which are used or required in order for the Company to
own and operate the Business, including, without limitation, all certificates
of occupancy and certificates, licenses and permits relating to zoning,
building, housing, safety, Environmental Laws, fire and health (collectively,
the "Permits"); and (ii) each Permit is in good standing, valid and subsisting,
and in full force and effect in accordance with its terms.
3.29 No Alternative Transactions. Neither the Company nor any Seller
is a party to or otherwise bound by any agreement contemplating or providing
for any merger, acquisition, purchase or sale of all or substantially all of
the assets or any business combination or change in control of the Business.
3.30 Occupational Safety and Health. Neither the Company nor the
Sellers have received any notice, citation, claim, assessment or proposed
assessment as to or alleging any violation of any federal, state or local
occupational safety and health laws. Neither the Company nor the Sellers have
received any notice to the contrary and, to the Sellers' Knowledge, the Company
has not been subject to any investigation by any federal, state or local
occupational safety and health agency within the three (3) years preceding the
date hereof and, to the Sellers' Knowledge, no such violation exists. The
Company is not a party to any dispute with respect to compliance with any
federal, state or local occupational safety and health law.
3.31 Insurance.
(a) Schedule 3.31 sets forth a list and brief description of all
insurance policies maintained by the Company.
(b) Neither the Company nor the Sellers have received any notice to
the contrary, and to the Sellers' Knowledge, (i) the Company is not in default
with respect to any provision contained in any such insurance policy, nor has
it failed to give any notice or present any claim thereunder in a due and
timely fashion; and (ii) no material alterations to the Real Property, the
facilities located thereon or the Business are required by any such insurance
carrier.
3.32 Financial Statements. The Financial Statements attached hereto as
Schedule 3.32 were prepared by the Company from the books and records of the
Business and in accordance with generally accepted accounting principles
consistently applied and present fairly the financial position and results of
operations of the Company at the dates and for the periods indicated therein.
3.33 Undisclosed Liabilities. To the Sellers' Knowledge, (i) on the
Reference Balance Sheet Date, the Company had no liability with respect to the
Business of any nature (whether accrued, absolute, contingent or otherwise) of
the type which should be reflected in balance sheets (including the notes
thereto) prepared in accordance with generally accepted accounting principles
which was not fully disclosed, reflected or reserved against in the Reference
Balance Sheet; and (ii) except for liabilities which have been incurred since
the Reference Balance Sheet Date in the Ordinary Course of Business, since the
Reference Balance Sheet Date, the Company has not incurred any liability of any
nature (whether accrued, absolute, contingent or otherwise).
-22-
29
3.34 Conduct of Business Since Reference Balance Sheet Date. Except as
disclosed in Schedule 3.34, since the Reference Balance Sheet Date:
(a) the Business has been conducted only in the Ordinary Course of
Business;
(b) except for equipment, inventory and supplies purchased, sold or
otherwise disposed of in the Ordinary Course of the Business, the Company has
not purchased, sold, leased, mortgaged, pledged or otherwise acquired or
disposed of any properties or assets;
(c) the Company has not sustained or incurred any physical loss or
damage with respect to the Business (whether or not insured against) on account
of fire, flood, accident or other calamity which has interfered with or
affected, or may interfere with or affect, the operation of the Business;
(d) the Company has not increased the rate of compensation of any
officer or other employee of the Business, except in the Ordinary Course of
Business and has not declared any dividends on its capital stock or made any
distributions to its stockholders (other than distributions to Sellers for
Sellers' payment of income taxes on income earned by the Company after
September 30, 1996);
(e) to the Sellers' Knowledge, there has been no material adverse
change in or with respect to the condition (financial or otherwise),
operations, business, prospects, rights, properties, assets or liabilities of
the Business or the Company's relations with Authorities or its employees,
creditors, advertisers, suppliers, distributors, customers or others having
business relationships with the Company;
(f) the Company has not canceled any of its debts or claims owned to
it;
(g) the Company has not changed any accounting methods or practices
(including, without limitation, any change in depreciation or amortization
policies or rates); or
(h) the Company has not agreed to take any of the actions described in
paragraphs (b), (d), (f) or (g) above.
3.35 Broker's or Consultant's Fees. Each Seller represents and
warrants that it has dealt with no broker, finder or consultant in connection
with any of the transactions contemplated by this Agreement, and, to the
Sellers' Knowledge, no Person is entitled to any commission or finder's fee in
connection with the sale of the Shares to Purchaser other than a fee in the
aggregate amount of $75,000 to Xxxxxxx X. Xxxxx, L.L.C., which shall be paid by
Sellers.
3.36 Banking Arrangements. Except as set forth in Schedule 3.36, the
Company has no banking, borrowing or depository relationship, or accounts or
deposits of funds, and all persons authorized as signatories on each such
account are listed in Schedule 3.36.
3.37 Powers of Attorney. Except for Coopers & Xxxxxxx, LLP, no Person
holds any power of attorney from the Company.
-23-
30
3.38 Disclosure. To the Sellers' Knowledge, (i) none of the
representations and warranties made by Sellers in this Agreement or in any
letter, certificate or memorandum furnished or to be furnished by Sellers, 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 therein misleading; and (ii) except for facts or circumstances
affecting the ski resort industry generally, there is no fact which materially
adversely affects, or is reasonably likely to materially adversely affect, the
condition (financial or otherwise), assets, liabilities, business, operations
or prospects of the Business, the value or utility of the Company's assets or
the ability of each Seller to consummate the transactions contemplated hereby
that has not been set forth herein or heretofore communicated to Purchaser in
writing pursuant hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Sellers to enter into and perform their obligations
under this Agreement, and in consideration of the covenants of Sellers
contained herein, Purchaser (subject to the limitations set forth in Section
8.2) hereby makes representations and warranties to Sellers as set forth below.
Such representations and warranties shall survive the date hereof (subject to
Section 8.2) regardless of what examinations, inspections, audits and other
investigations Sellers have heretofore made, or may hereafter make, with
respect to such representations and warranties; provided, Purchaser shall have
no liability for matters expressly disclosed to Sellers in this Agreement
unless expressly provided for in this Agreement. Subject to the foregoing,
Purchaser represents and warrants as follows:
4.1 Corporate Status. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
4.2 Due Authorization. The execution and delivery by Purchaser of
this Agreement, and the performance by Purchaser of its obligations hereunder,
have been duly and validly authorized and approved by all necessary corporate
action on the part of Purchaser.
4.3 Authority of Purchaser. Purchaser has the corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. Neither the execution or delivery of this Agreement by Purchaser
nor the performance by Purchaser of its obligations under this Agreement will
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any contract, lease, license, franchise, permit,
indenture, mortgage, deed of trust, note agreement or other agreement or
instrument to which Purchaser is a party or is bound, its certificate of
incorporation, by-laws or any applicable Law or Order to which Purchaser is a
party or by which Purchaser is bound.
4.4 Enforceability. This Agreement is binding upon, and enforceable
against, Purchaser in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws affecting creditors' rights generally
and by principles of equity (whether in a proceeding at law or in equity).
-24-
31
4.5 Consents. Except as contemplated by this Agreement with respect
to the USFS Permits or as otherwise contemplated by this Agreement, to
Purchaser's knowledge, no consent, approval, Order or authorization of, or
registration, declaration or filing with, any Authority or any other Person is
required to be obtained or made by Purchaser in connection with its execution
and delivery of this Agreement or the performance by it of its obligations
hereunder.
4.6 Broker's or Consultant's Fees. Purchaser represents and warrants
that it has dealt with no broker, finder or consultant in connection with any
of the transactions contemplated by this Agreement, and, to its knowledge, no
Person is entitled to any commission or finder's fee in connection with the
sale of the Shares to Purchaser.
4.7 Investment. The Shares are being acquired by Purchaser for its
own account, for investment and not with a view to resale or distribution.
ARTICLE V
COVENANTS
5.1 Title Expenses. The costs and expenses of the Title Policies and
any related searches, filings and recordings hereunder shall be paid by Sellers
in an amount not to exceed that which would have been incurred in connection
with the delivery of Title Policies containing "standard" coverage. The amount
of the costs and expenses of the Title Policies directly attributable to the
delivery of "extended" coverage shall be paid by Purchaser. In addition,
Sellers agree to pay for any transfer or similar taxes, and any additional
title fees and costs arising in connection with the proper recordation of, and
issuance of a final title policy with respect to, real estate parcels bearing
tax account numbers H092211-9001-02 and 00-00-0000-0000. Any determination of
such fees and expenses shall be calculated by the Title Company in its sole
discretion.
5.2 Code Section 1445 Withholding. Sellers shall take all actions as
may be necessary to comply with Sections 897 and 1445 of the Code and any
rules, regulations and orders which may be promulgated thereunder. In the
event that Sellers fail to provide to Purchaser, at or prior to the Closing,
either (i) an affidavit in form acceptable to Purchaser, or (ii) evidence
satisfactory to Purchaser's counsel that the transaction contemplated by this
Agreement is exempt from any Taxes which may apply by reason of Section 897 of
the Code, Purchaser shall have the right to withhold ten percent (10%) of the
Purchase Price (the "Section 1445 Withholding"), and Purchaser shall hold and
dispose of the Section 1445 Withholding in accordance with the requirements of
such Section. The amount of the Section 1445 Withholding shall be credited
against the Purchase Price otherwise due and payable hereunder by Purchaser to
Sellers at the Closing and Sellers shall have no recourse against Purchaser
therefor.
5.3 Pre-Closing Taxes. Sellers shall be jointly and severally liable,
based on their pro rata percentage of ownership of the Shares, for all income
and capital gains taxes attributable to income or capital gains of the Company
for any taxable period ending before October 1, 1996.
5.4 Tax Reports; Returns. Sellers and Purchaser shall provide each
other with such assistance as may reasonably be requested by the others in
connection with the preparation of any return or report of Taxes, any audit or
other examination by any taxing authority, or any judicial or
-25-
32
administrative proceedings relating to liabilities for Taxes. Sellers and
Purchaser will retain for the full period of any statute of limitations and
provide the others with any records or information which may be relevant to
such preparation, audit, examination, proceeding or determination. Sellers
shall be responsible for causing the Company, at the Company's expense, to file
all Tax returns and reports of the Company due on or prior to the date hereof,
which such returns and reports shall be prepared and filed timely and on a
basis consistent with existing procedures for preparing such returns or reports
and consistent with prior practice with respect to the treatment of specific
items on the returns or reports.
5.5 Transfer Taxes. Sellers shall pay the cost of any transfer,
stamp, excise or similar tax imposed under the laws of the United States, or
any state or political subdivision thereof, which arises out of the transfer of
any of the Shares.
5.6 Limitation on Liens. From the date hereof until all obligations
under the Ski Lifts Promissory Note are paid in full, Purchaser will not permit
or cause the Company to create or incur, or suffer to be incurred or to exist,
(a) any Lien on its property or assets, whether now owned or hereafter
acquired, with respect to indebtedness for borrowed money; or (b) any other
Lien on its property or assets, whether now owned or hereafter acquired, except
only with respect to this clause (b):
(i) Liens for taxes, assessments or governmental charges being
contested in good faith;
(ii) Liens arising in the Ordinary Course of Business;
(iii) Liens disclosed on the Title Policies or similar
encumbrances or charges which do not interfere with the market value
or use of the Business; and
(iv) Liens existing on the date hereof or incurred in favor of
the Representative for the benefit of Sellers in connection with the
obligations under the Ski Lifts Promissory Note.
5.7 Restricted Payments. From the date hereof until all obligations
under the Ski Lifts Promissory Note are paid in full, Purchaser will not cause
or permit the Company to declare or pay dividends on or make any distributions
with respect to any shares of its capital stock.
5.8 UCC Releases. Concurrently with the payment in full of all
obligations under the Ski Lifts Promissory Note, the Representative shall
release to Purchaser any and all UCC releases, financing statements,
certificates and other assurances or instruments necessary to release and
discharge any and all Liens on the assets or real property of the Company held
by the Representative on behalf of Sellers.
5.9 Ordinary Course of Business. From the date hereof until all
obligations under the Ski Lifts Promissory Note are paid in full, Purchaser
shall cause the Company to (i) operate and maintain the Business in the
Ordinary Course of Business and (ii) use all commercially reasonable efforts
to preserve and protect
-26-
33
the Business' goodwill, rights, properties and assets, and to protect the
Business' relationships with its employees, officers, suppliers, customers,
creditors and others having business relationships with it.
5.10 Affiliate Transactions. From the date hereof until all
obligations under the Ski Lifts Promissory Note are paid in full, Purchaser
shall not cause or permit the Company to enter into any transaction with, or
make any payment or transfer to, any Affiliate except (i) in the Ordinary
Course of Business and (ii) pursuant to terms no less favorable to the Company
than it would obtain in a comparable arms-length transaction.
5.11 Required Signatures. It is the intent of the parties hereto that
all cash received by the Company in connection with the operation of the
Business following the date hereof (until all of the obligations under the Ski
Lifts Promissory Note are paid in full) be retained by the Company unless
disbursed in the Ordinary Course of Business. From the date hereof until all
obligations under the Ski Lifts Promissory Note are paid in full, Purchaser
shall not cause or permit the Company to transfer any funds (or issue or
execute a check or money order) in excess of $5,000 without the approval of the
Representative.
5.12 Developmental Real Estate. Purchaser hereby covenants and agrees
to use all commercially reasonable efforts to effectuate the transfer by the
Company to DRE, L.L.C. of the Developmental Real Estate owned by the Company on
the date hereof including, without limitation, the platting of such
Developmental Real Estate and delivery and filing of all necessary deeds of
transfer. All costs and expenses associated with such platting and transfer
shall be paid by Purchaser.
5.13 Xxxxxxx Indebtedness. Concurrent with the payment in full of the
obligations outstanding under the Ski Lifts Promissory Note, Purchaser hereby
covenants and agrees to cause the Company to repay the Xxxxxxx Indebtedness in
full.
ARTICLE VI
CLOSING
6.1 Closing Transactions. The actual sale, transfer, conveyance,
assignment and delivery of the Shares to Purchaser in exchange for the Purchase
Price shall not be considered to have been taken or made unless and until all
actions and deliveries set forth in this Article VI have been completed or
waived in writing. All documents and other instruments required to be
delivered hereunder shall be regarded as having been delivered simultaneously,
and no document or other instrument shall be regarded as having been delivered
until all have been delivered.
6.2 Deliveries by Sellers to Purchaser. Prior to and as a condition
precedent to the effectiveness of the transactions contemplated hereunder,
Purchaser shall have received and/or Sellers shall deliver or cause to be
delivered to Purchaser:
(a) certificates representing all of the purchased Shares which
certificates shall be either duly endorsed or accompanied by stock powers
duly endorsed, executed together with evidence satisfactory to the
Purchaser that any Lien on such purchased Shares has been released or
terminated;
-27-
34
(b) the by-laws of the Company certified by the Secretary or Assistant
Secretary of the Company;
(c) certificates of existence for the Company from the State of
Washington and any state where the Company's failure to be qualified to
transact business as a foreign corporation would have a material adverse
effect on the Company or its business or financial condition;
(d) the legal opinion of Carney, Badley, Xxxxx & Xxxxxxxx, counsel for
Sellers and the Company, substantially in the form attached hereto as
Exhibit B;
(e) an executed original of each consent, approval, order,
authorization, registration, declaration and filing described on Schedule
3.27 in form reasonably satisfactory to Purchaser including, without
limitation, any (i) consent of the Forest Service or reissuance of each
USFS Permit to the Company required upon consummation of sale and purchase
of the Shares and (ii) necessary authorizations, agreements and consents
of any Persons or Authorities to the consummation of the transactions
contemplated by this Agreement, or otherwise pertaining to the matters
covered by it, shall be in full force and effect as of the date hereof,
and no such authorizations, agreements and consents shall impose any
burdensome or, in Purchaser's reasonable determination, unsatisfactory
conditions or requirements on Purchaser or Purchaser 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 the
Company's existing contracts or agreements on terms no less favorable to
the Company than the prior contract or agreement of the Company as to such
property, products, technology or services;
(f) the letter dated February 7, 1997 from the Forest Service
regarding the USFS Permits and all other Permits issued or reissued in the
name of the Company;
(g) an affidavit of the President or a Vice President of the Company
stating, under penalty of perjury, the Company's United States taxpayer
identification number and that the Company is not a foreign person,
pursuant to Section 1442(b)(2) of the Code;
(h) the Employment and Non-Compete Agreement substantially in the form
of Exhibit D attached hereto executed by Xxxxx X. Xxxxxxx and the Company
(the "Employment Agreement");
(i) all releases necessary to terminate and discharge any Liens on the
Shares and the Company's assets;
(j) an executed copy of the Preferred Stock Purchase Agreement dated
the date hereof between DRE, L.L.C., the Representative and Sellers (the
"Preferred Stock Purchase Agreement");
(k) (i) a promissory note in the aggregate principal amount of
$300,000 (the "$300,000 Company Note") and (ii) a promissory note in the
aggregate principal amount of $650,000 (the "$650,000 Company Note"),
each dated the date hereof from the Company
-28-
35
to Purchaser due one year from the date hereof, evidencing Purchaser's
advance to the Company on the date hereof of $950,000 in cash to satisfy
certain obligations of the Company under the Key Bank Credit Documents and
under other currently existing third-party obligations;
(l) with respect to each parcel of Owned Real Property, an owner's
title insurance policy on ALTA 1992 Owner's Form B (the "Title Policies")
issued by First American Title Insurance Company or another title
insurance company reasonably acceptable to Purchaser (the "Title
Company"), insuring the fee simple title of the Company in such real
estate, subject only to exceptions which are reasonably satisfactory to
Purchaser, and including extended coverage (other than to survey matters),
a zoning 3.1 with parking endorsement, a non-imputation endorsement, an
owner's comprehensive endorsement and such other endorsements or coverages
deemed necessary or advisable in the reasonable judgment of Purchaser;
(m) a GAP undertaking and all other documents deemed reasonably
necessary by the Title Company for purposes of delivering the Title
Policies;
(n) a withholding certificate, in the form of Exhibit E executed by
each Seller;
(o) a certified copy of the Amended Articles from the Secretary of
State of the State of Washington;
(p) an executed copy of the Operating Agreement of DRE, L.L.C., dated
the date hereof (the "Operating Agreement");
(q) an executed copy of the two Purchase Agreements between the
Company and certain Sellers relating to the sale of the Company's
partnership interest in ODCX (the "Assignment Agreement");
(r) an executed copy of the Agreement and Plan of Recapitalization
between the Company and Sellers (the "Recapitalization Plan");
(s) evidence that Sellers have (i) caused the Company to contribute
$162,911 to the Company's current employees either through a bonus or a
contribution to the employees' 401(k) Plan and (ii) advised such employees
that such contribution is made on an equal basis by Purchaser, on the one
hand, and Sellers, on the other hand;
(t) evidence that Sellers have designated Xxxxx X. Xxxxxxx as
Representative in accordance with Section 9.1 of the Agreement;
(u) a report, in form and substance satisfactory to Purchaser, as to
the results of an examination of financing statements filed under the
Uniform Commercial Code, and tax lien and judgment records, in each office
in each such jurisdiction as Purchaser shall reasonably request, and such
report shall indicate no material security interests, tax liens, judgments
or other Liens not previously disclosed in writing to Purchaser;
-29-
36
(v) an executed deed evidencing the transfer of the Developmental Real
Estate from the Company to DRE, L.L.C. (the "DRE Deed");
(w) a copy of the final appraisal of the Developmental Real Estate as
of January 31, 1997, from Xxxxx X. Xxxxx & Associates dated February 18,
1997, in form and substance satisfactory to Purchaser;
(x) evidence of resignations of all directors and officers of the
Company; and
(y) such other instruments and documents as are: (i) required by any
other provisions of this Agreement to be delivered by Sellers to
Purchaser; or (ii) reasonably necessary, in the opinion of Purchaser, to
effect the performance of this Agreement by Sellers.
6.3 Deliveries by Purchaser to Sellers. Prior to and as a condition
precedent to the effectiveness of the transactions contemplated hereunder,
Sellers shall have received and/or Purchaser shall deliver or cause to be
delivered to Sellers:
(a) the Ski Lifts Promissory Note issued by Purchaser in favor of the
Representative for the benefit of Sellers in accordance with Section
2.2(i) and the cash payment required by Section 2.2(a)(ii);
(b) the legal opinion of Winston & Xxxxxx, special counsel for
Purchaser, substantially in the form attached hereto as Exhibit C;
(c) a certificate of the Secretary or an Assistant Secretary of
Purchaser, of the date hereof, certifying to (i) the by-laws of Purchaser;
(ii) resolutions of the Board of Directors of Purchaser approving the
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby; and (iii) incumbency and
signatures of the officers of Purchaser executing this Agreement and any
other certificate or document delivered in connection herewith;
(d) certificate of incorporation of Purchaser certified by the
Secretary of State of the State of Delaware;
(e) an executed copy of the pledge agreement dated the date hereof
from Purchaser to the Representative for the benefit of Sellers, securing
the obligations of the Company under the Ski Lifts Promissory Note by
pledge of the Shares;
(f) the Employment Agreement executed by the Company;
(g) an executed copy of the Preferred Stock Purchase Agreement;
(h) an executed copy of the security agreement, UCC-1 financing
statement, and deed of trust from DRE, L.L.C. in favor of the
Representative for the benefit of Sellers securing the obligations of DRE,
L.L.C. under the Preferred Stock Purchase Agreement;
-30-
37
(i) a certified copy of the Amended Articles from the Secretary of
State of the State of Washington;
(j) a certified copy of the Certificate of Formation from the
Secretary of State of the State of Delaware evidencing the creation of
DRE, L.L.C.;
(k) an executed copy of the Operating Agreement;
(l) an executed copy of the Assignment Agreement;
(m) evidence of repayment in full of obligations under Key Bank Credit
Documents and release of personal guaranty of Xxxxx X. Xxxxxxx;
(n) an executed copy of the Recapitalization Plan;
(o) an executed copy of a security agreement, UCC-1 financing
statement, and deed of trust between the Company and the Representative
for the benefit of Sellers, securing the obligations of the Company under
the Ski Lifts Promissory Note;
(p) an executed copy of the DRE Deed;
(q) evidence of Purchaser's funding of the loans evidenced by the
$300,000 Company Note and the $650,000 Company Note; and
(r) such other instruments and documents as are: (i) required by any
other provisions of this Agreement to be delivered by Purchaser to
Sellers; or (ii) reasonably necessary, in the opinion of Sellers, to
effect the performance of this Agreement by Purchaser.
ARTICLE VII
OTHER AGREEMENTS
7.1 Further Assurance. At any time and from time to time from and
after the Closing, Sellers and Purchaser will, at the request of the other
parties hereto, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such instruments and other documents and perform or
cause to be performed such acts and provide such information, as may reasonably
be required to evidence or effectuate the sale, conveyance, transfer,
assignment and delivery to Purchaser of the Shares or for the performance by
Sellers or Purchaser of any of their other respective obligations under this
Agreement. Each party hereto shall be liable for its own expenses incurred
pursuant to this Section 7.1.
7.2 Confidentiality.
(a) The parties hereto agree with respect to the terms and conditions
of this Agreement, including, without limitation, the Purchase Price, and all
information that is furnished or disclosed by the other party (collectively,
"Confidential Information"), that (i) such Confidential
-31-
38
Information is confidential and/or proprietary to the furnishing/disclosing
party and entitled to and shall receive treatment as such by the receiving
party; (ii) the receiving party will hold in confidence and not disclose nor
use (except in respect of the transactions contemplated by this Agreement) any
such Confidential Information, treating such Confidential Information with the
same degree of care and confidentiality as it accords its own confidential and
proprietary information; provided, however, that the receiving party shall not
have any restrictive obligation with respect to any Confidential Information
which (A) is contained in a printed publication available to the general
public, (B) is or becomes publicly known through no wrongful act or omission of
the receiving party, or (C) is known by the receiving party without any
proprietary restrictions by the furnishing/disclosing party at the time of
receipt of such Confidential Information; and (iii) all such Confidential
Information furnished to either party by the other, unless otherwise specified
in writing, shall remain the property of the furnishing/disclosing party, and
in the event this Agreement is terminated, shall be returned to it, together
with any and all copies made thereof, upon request for such return by it
(except for documents submitted to an Authority with the consent of the
furnishing/disclosing party or upon subpoena and which cannot be retrieved with
reasonable effort).
(b) Each party hereto acknowledges that the remedy at law for any
breach by either party of its obligations under Section 7?(a) is inadequate and
that the other party shall be entitled to equitable remedies, including an
injunction, in the event of breach of any other party.
7.3 Employment Matters.
(a) At the Closing, Purchaser may, but shall not be obligated to,
cause the Company to retain the employees of the Company engaged full-time or
part-time in the conduct of the Business as Purchaser may determine, in its
sole discretion. Sellers shall be responsible for the payment of all
compensation and other benefits payable to, or accrued in respect of, all such
employees for all times prior October 1, 1996. Sellers shall retain all
Liabilities arising prior to October 1, 1996, with respect to all of its
employees and former employees (including any and all beneficiaries thereof)
who are not retained by the Company as employees of the Company, except to the
extent Purchaser has wrongfully terminated any such employee.
(b) Sellers shall be solely responsible for any severance claims or
any other claims or causes of action that relate to or arise out of employment
with the Company prior to October 1, 1996.
7.4 Employee Benefits.
(a) Subject to Section 2.3(a), Sellers shall remain solely responsible
for Liability arising from workers' compensation claims, both medical and
disability, or other government-mandated programs which are based on injuries
occurring prior to October 1, 1996, regardless of when such claims are filed.
The Company and not the Sellers shall be solely responsible for such claims
based on injuries occurring after October 1, 1996.
(b) Sellers shall remain solely responsible for the satisfaction of
all claims for medical, dental, life insurance, health, accident, disability or
other benefits brought by or in respect of employees under any of the Company's
welfare benefit plans where the claims were incurred prior to October 1, 1996,
regardless of when such claims are filed.
-32-
39
(c) Sellers shall be solely responsible for all Liabilities arising
prior to October 1, 1996 in connection with claims for benefits brought by or
in respect of all employees and former employees of the Company not retained by
the Company under any of the Company's welfare benefit plans with respect to
medical, dental, life insurance, health, accident or disability or other
benefits, including without limitation continuation coverage pursuant to
Section 4980B of the Code and Part 6 of Title I of ERISA.
7.5 Indemnification for Employment Matters. Sellers (severally and
jointly) and Purchaser each agree to indemnify, defend and hold the other
harmless from and against any and all loss, damage and expense, including
without limitation attorneys' fees, arising out of any claims, causes of
action, liabilities, benefits or other obligations for which it is responsible
under Sections 7.3 and 7.4, without regard to the limitations set forth in
Sections 88.1 and 8.2.
7.6 Non-Competition Agreement.
(a) From the date hereof until April 30, 2000, each Seller shall not,
directly or indirectly, or as the agent of another Person or through other
Persons as an agent:
(i) engage, directly or indirectly, within a geographical area
covering a one hundred (100) mile radius from any of the Businesses
(the "Territory"), in a business the same as, or substantially
similar to, the Business;
(ii) own, manage or operate any other business directly or
indirectly engaged in the promotion, sale or distribution, within the
Territory, of products or services competitive with those of the
Business, except that an interest of less than five percent (5%) of a
publicly-held corporation that is engaged in a business competitive
with the Business within the Territory shall be permitted; or
(iii) solicit for employment or employ any employee of the
Business within the Territory, or request, induce or advise any
employee to leave the employ of the Business, unless Purchaser
consents to said employee leaving the employ of the Business.
(b) The necessity of protection against the competition of Sellers
against Purchaser and the nature and scope of such protection has been
carefully considered by the parties hereto. The parties hereto agree and
acknowledge that the duration, scope and geographic areas applicable to the
covenant not-to-compete described in this Section 7.6 are fair, reasonable and
necessary and that adequate compensation has been received by Sellers for such
obligations. If, however, for any reason any court determines that the
restrictions in this Section 7.6 are not reasonable or that consideration is
inadequate, such restrictions shall be interpreted, modified or rewritten to
include as much of the duration, scope and geographic area identified in this
Section 7.6 as will render such restrictions valid and enforceable.
(c) In the event of a breach or threatened breach of this Section
7.6, Purchaser shall be entitled, without the posting of a bond, to an
injunction restraining such breach. Nothing herein contained shall be
construed as prohibiting any party from pursuing any other remedy available to
it for such breach or threatened breach.
-33-
40
7.7 Accounts Receivable.
(a) Purchaser may elect to convey to Sellers any of the Closing
Receivables which remain uncollected for a period of one hundred twenty (120)
days after the date any such Closing Receivables becomes due and payable.
Subject to paragraph (b) below, Sellers shall pay to Purchaser the aggregate
amount of all uncollected Closing Receivables (in excess of the Receivable
Reserve) returned to Sellers within ten (10) days after the date of return.
(b) Unless the aggregate of the uncollected Closing Receivables
returned to Sellers pursuant to clause (a) above exceeds the Receivable
Reserve, Sellers shall not have any payment obligations to Purchaser pursuant
hereto.
(c) Purchaser agrees to execute such bills of sale or other
assignment documents reasonably requested by Sellers to effect a sale to
Sellers, without recourse, of the uncollected Closing Receivables returned to
Sellers pursuant to this Section 7.7.
(d) Purchaser agrees to use all commercially reasonable efforts
to collect the Closing Receivables. To the extent Purchaser receives a payment
from an account debtor of a Closing Receivable who also has an account
receivable owing to Purchaser resulting from post-Closing transactions,
Purchaser agrees to apply such payment to the oldest invoice first unless such
customer specifically otherwise designates the application of such payment.
(e) For purposes of this Section 7.7, the following terms shall
have the meanings ascribed to them below:
(i) "Closing Receivables" shall mean all accounts and notes
receivable reflected on the Reference Balance Sheet.
(ii) "Receivable Reserve" shall mean an amount equal to the
reserve for Accounts Receivable reflected on the
Reference Balance Sheet.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification by Sellers. Sellers, jointly and severally, agree
to indemnify, defend, hold harmless and waive any claim for contribution
against Purchaser, the Company and all of their officers, directors,
shareholders, Affiliates, employees and agents (the "Purchaser Indemnified
Persons") after the Closing from and against any Adverse Consequence arising
out of or resulting from:
(a) any misrepresentation or breach as of the date hereof of any
representation or warranty of Sellers contained in this Agreement or Schedules
hereto (each a "Purchaser Warranty Claim"); provided, however, that the
Purchaser Indemnified Persons' rights to indemnification for Purchaser Warranty
Claims shall be subject to the limitations set forth in Section 8.4 and the
following:
-34-
41
(b) such Purchaser Warranty Claims shall expire fifteen (15)
months following the date hereof, except with respect to claims (A)
under Sections 3.7, 3.16, 3.17 and 3.28 as to which the
indemnification obligation shall survive until thirty (30) days after
the expiration of any applicable statute of limitations; (B) under
Section 3.14 as to which the indemnification obligation shall survive
until seven (7) years after the date hereof; and (C) under Sections
3.1, 3.11, 3.12, 3.19 and clauses (i) and (ii) of Section 3.20(c) as
to which there shall be no expiration date; provided, that if at the
stated expiration of any indemnification obligation there shall then
be pending any indemnification claim by a Person, such Person shall
continue to have the right to such indemnification with respect to
such claim notwithstanding such expiration;
(c) no Purchaser Indemnified Person shall be entitled to
indemnification for Purchaser Warranty Claims unless and until the
aggregate Adverse Consequences suffered by all Purchaser Indemnified
Persons collectively exceeds $50,000, whereupon the Purchaser
Indemnified Persons shall be entitled to indemnification hereunder
from Sellers for all Adverse Consequences suffered by Purchaser
Indemnified Persons in excess of such threshold amount.
(d) the failure by any Seller to perform any of its covenants or
obligations under Sections 2.3, 5.1, 5.2, 5.4, 5.5, 5.8, 7.1, 7.2, 7.6,
7.7 and 11.1; provided the indemnification obligations of Sellers under
this Section 8.1(b) with respect to Sections 2.3, 5.1, 5.2, 5.5, 5.8, 7.1,
7.2, 7.6, 7.7 and 11.1 shall expire on the thirty-ninth (39th) month
anniversary of the date hereof (and, with respect to Section 5.4 shall
expire on the fifth year anniversary of the date hereof), except for any
pending indemnification claim by a Purchaser Indemnified Person which
shall continue notwithstanding such expiration;
(e) any brokers' commissions, finders' fees or other like payments
incurred or alleged to have been incurred by Sellers in connection with
the sale of the Shares or the consummation of the transactions
contemplated by this Agreement;
(f) any and all third-party claims and any and all assessments of
fines and penalties by any Authority relating to Liabilities arising prior
to October 1, 1996 with respect to the Company, the Shares or the
Business; provided, the indemnification obligations of Sellers under this
Section 8.1(d) shall expire on the third year anniversary of the date
hereof, except for any pending indemnification claim by a Purchaser
Indemnified Person which shall continue notwithstanding such expiration;
(g) all Taxes attributable to the Company for the period ending on or
before October 1, 1996 (provided that such indemnification shall take into
account any tax benefits received by the Company on account thereof); and
(h) the matters disclosed in Schedule 8.1; provided, the
indemnification obligations of Sellers under this Section 8.1(f) shall
expire on the seventh year anniversary
-35-
42
of the date hereof, except for any pending indemnification claim by a
Purchaser Indemnified Person which shall continue notwithstanding such
expiration.
Notwithstanding anything else in this Agreement to the contrary,
Sellers shall not be obligated to indemnify, defend or hold Purchaser harmless
from and against any Adverse Consequence arising out of matters disclosed in
Schedule 3.14 or the ENVIRON Report (other than those items contained therein
set forth in Schedule 8.1).
8.2 Indemnification by Purchaser. Purchaser agrees to indemnify,
defend and hold harmless Sellers after the Closing from and against any Adverse
Consequences arising out of or resulting from:
(a) any misrepresentation or breach as of the date hereof of any
representation or warranty of Purchaser contained in this Agreement (each
a "Seller Warranty Claim"); provided, however, that the Sellers' rights to
indemnification for Seller Warranty Claims shall be subject to the
following limitations:
(i) such Seller Warranty Claims shall expire fifteen (15)
months following the date hereof; provided, that if at the stated
expiration of any indemnification obligation there shall then be
pending any indemnification claim by a Seller, said Seller shall then
continue to have the right to such indemnification with respect to
such claim notwithstanding such expiration;
(ii) Purchaser's maximum aggregate liability to Sellers for
indemnification shall not exceed the Outstanding Preferred Stock
Balance; and
(iii) Sellers shall not be entitled to indemnification for
Seller Warranty Claims unless and until the aggregate Adverse
Consequences suffered by Sellers exceeds $50,000, whereupon Sellers
shall be entitled to indemnification hereunder from Purchaser for all
Adverse Consequences suffered by Sellers in excess of such threshold
amount.
(b) the failure by Purchaser to perform any of its covenants or
obligations under Sections 2.3, 5.1, 5.2, 5.4, 5.6, 5.7, 5.9, 5.10, 5.11,
5.12, 5.13, 7.1, 7.2 and 7.7;
(c) the operation of the Business after October 1, 1996 (except for or
with respect to any Adverse Consequences for which any Purchaser
Indemnified Person is entitled to indemnification hereunder or under the
Preferred Stock Purchase Agreement, without regard to any of the
limitations set forth in Sections 8.1 or 8.4); or
(d) any brokers' commissions, finders' fees or other like payments
incurred or alleged to have been incurred by Purchaser in connection with
the sale of the Shares or the consummation of the transactions
contemplated by this Agreement.
8.3 Procedure for Indemnification. If any Person shall claim
indemnification (the "Indemnified Party") hereunder for any claim, the
Indemnified Party shall promptly give written
-36-
43
notice to the other party from whom indemnification is sought (the
"Indemnifying Party") of the nature and amount of the claim. If an Indemnified
Party shall claim indemnification hereunder arising from any claim or
demand, the Indemnified Party shall promptly give written notice (a "Claim
Notice") to the Indemnifying Party of the basis for such claim or demand,
setting forth the nature of the claim or demand in detail. If the claim is by
a third-party, the Indemnifying Party shall have the right to compromise or, if
appropriate, defend at its own cost and through counsel of its own choosing,
any claim or demand set forth in a Claim Notice giving rise to such claim for
indemnification. In the event the Indemnifying Party undertakes to compromise
or defend any such claim or demand, it shall promptly (and in any event, no
later than fifteen (15) days after receipt of the Claim Notice) notify the
Indemnified Party in writing of its intention to do so and shall give the
Indemnified Party such security in that regard as the Indemnified Party
reasonably may request. The Indemnified Party shall fully cooperate with the
Indemnifying Party and its counsel in the defense or compromise of such claim
or demand. After the assumption of the defense by the Indemnifying Party, the
Indemnified Party shall not be liable for any legal or other expenses
subsequently incurred by the Indemnifying Party, in connection with such
defense, but the Indemnified Party may participate in such defense at its own
expense. No settlement of a third party claim or demand defended by the
Indemnifying Party shall be made without the written consent of the Indemnified
Party, such consent not to be unreasonably withheld. The Indemnifying Party
shall not, except with written consent of the Indemnified Party, consent to the
entry of a judgment or settlement which does not include as an unconditional
term thereof, the giving by the claimant or plaintiff to the Indemnified Party
of an unconditional release from all liability in respect of such third party
claim or demand.
8.4 Limitations on Sellers' Liability. (a) Notwithstanding anything
else in this Agreement to the contrary, the relative liability of each Seller
with respect to any claim for indemnification pursuant to this Agreement and
the Preferred Stock Purchase Agremeent shall be limited to such Seller's pro
rata share of the sum of (i) the Purchase Price plus (ii) the "Purchase Price"
under the Preferred Stock Purchase Agreement.
(b) Sellers' maximum aggregate liability to Purchaser Indemnified
Persons for indemnification of (i) Purchaser Warranty Claims pursuant to
Sections 3.1, 3.11, 3.12, 3.19 and clauses (i) and (ii) of Section 3.20(c)
shall not exceed the sum of (A) the Purchase Price plus (B) the "Purchase
Price" under the Preferred Stock Purchase Agreement; and (ii) claims pursuant
to Sections 8.1(b), (d) and (f) and for Purchaser Warranty Claims (other than
those set forth in clause (i)) shall not exceed the Outstanding Preferred Stock
Balance.
8.5 Payment. Except for third-party claims being defended in good
faith by the Indemnifying Party in accordance with Section 8.3 or claims being
disputed by either Sellers or Purchaser in accordance with Article X, the
Indemnifying Party shall satisfy its obligations hereunder within fifteen (15)
days after receipt of a claim notice. Any amount not paid to the Indemnified
Party by such date shall bear interest at a rate equal to nine percent (9%) per
annum from the date due until the date paid.
8.6 Set-Off. If any Seller fails to make any payment with respect to
any indemnification claim in accordance with this Article VIII, Purchaser may,
in addition to any other rights hereunder, set-off the amount of such claim
against any amounts payable by Purchaser, the Company or their Affiliates to
any Seller under the Preferred Stock Purchase Agreement. Any amounts Purchaser
-37-
44
determines it is entitled to set-off pursuant to this Section 8.6 shall be paid
into the Escrow Account (as defined herein) on the date otherwise due to
Sellers.
8.7 Escrow Account. In the event Purchaser is entitled to set-off the
amount of any claim for indemnification pursuant to Section 8.6, Purchaser
shall be obligated to deposit all amounts to be set-off into an escrow account
(the "Escrow Account") with a banking institution of national standing
reasonably acceptable to Representative and Purchaser pursuant to the terms and
conditions of an escrow agreement in substantially the form of Exhibit F
attached hereto (the "Escrow Agreement"). Such Escrow Agreement will provide,
without limitation, for the release of such amount only upon (i) the mutual
consent of the Representative and Purchaser or (ii) the order of an arbitrator
issued in accordance with Article X hereof. Representative and Purchaser agree
to act in good faith to promptly take any actions reasonably required to enter
into the Escrow Agreement and to establish the Escrow Account should the Escrow
Agreement be called for by terms of this Agreement. Upon deposit of any such
amount into the Escrow Account, the Representative shall deliver written notice
to Purchaser acknowledging that the payment into the Escrow Account satisfies
DRE, L.L.C's payment obligation under the Preferred Stock Purchase Agreement to
the extent of such amount, as the case may be.
ARTICLE IX
SELLERS' REPRESENTATIVE
9.1 Appointment. Sellers hereby irrevocably make, constitute and
appoint Xxxxx X. Xxxxxxx as their agent and representative (the
"Representative") for all purposes under this Agreement. In the event of the
death, resignation or incapacity of the Representative, Sellers shall promptly
designate another individual to act as their representative under this
Agreement so that at all times there will be a Representative with the
authority provided in this Article IX. Such successor Representative shall be
designated by Sellers by an instrument in writing signed by Sellers (or their
successors in interest) holding a majority of the Shares, and such appointment
shall become effective as to the successor Representative when such instrument
shall have been delivered to him or her and a copy thereof delivered to
Purchaser.
9.2 Authorization. Sellers hereby authorize the Representative, on
their behalf and in their name, to:
(a) Receive all notices or documents given or to be given to Sellers
by the Purchaser pursuant hereto or in connection herewith and to receive
and accept service of legal process in connection with any suit or
proceeding arising under this Agreement. The Representative shall
promptly forward a copy of such notice of process to each Seller;
(b) Deliver at the Closing the certificates for the Shares of the
Sellers in exchange for their respective portion of the consideration
payable with respect to such securities;
(c) Upon confirmation of the receipt of the Ski Lifts Promissory
Note, sign and deliver to Purchaser at the Closing a receipt for Sellers'
portion of the consideration and forward such amount to Sellers;
-38-
45
(d) Deliver to Purchaser at the Closing all certificates and documents
to be delivered to Purchaser by Sellers pursuant to this Agreement,
together with any other certificates and documents executed by Sellers and
deposited with the Representative for such purpose;
(e) Engage counsel, and such accountants and other advisors for
Sellers and incur such other expenses on behalf of Sellers in connection
with this Agreement and the transactions contemplated hereby as the
Representative may deem appropriate; and
(f) Take such action on behalf of Sellers as the Representative may
deem appropriate in respect of:
(i) waiving any inaccuracies in the representations or
warranties of Purchaser contained in this Agreement or in any
document delivered by Purchaser pursuant hereto;
(ii) waiving the fulfillment of any of the conditions
precedent to Sellers' obligations hereunder, except with respect to
Purchaser's payment of the Purchase Price to be paid to
Representative for the benefit of Sellers pursuant to Section 2?;
(iii) taking such other action as the Representative is
authorized to take under this Agreement;
(iv) receiving all documents or certificates and making all
determinations, on behalf of Sellers, required under this Agreement;
(v) all such other matters as the Representative may deem
necessary or appropriate to consummate this Agreement and the
transactions contemplated hereby; and
(vi) taking all such action as may be necessary after the date
hereof to carry out any of the transactions contemplated by this
Agreement.
9.3 Irrevocable Appointment. The appointment of the Representative
hereunder is irrevocable and any action taken by the Representative pursuant to
the authority granted in this Article IX shall be effective and absolutely
binding on each Seller notwithstanding any contrary action of, or direction
from, a Seller, except for actions taken by the Representative which are in bad
faith or grossly negligent. The death or incapacity of a Seller shall not
terminate the prior authority and agency of the Representative.
9.4 Resignation. The Representative may resign at any time by giving
notice to Sellers, and such resignation shall be effective upon the appointment
and qualification of a successor. The Representative may be discharged, and
replaced by another person to act as his or her successor, by an instrument in
writing signed by Sellers (or their successors in interest) holding a majority
of the Shares.
-39-
46
9.5 Purchaser's Reliance. Purchaser shall not be obliged to inquire
into the authority of the Representative, and Purchaser shall be fully
protected in dealing with the Representative in good faith.
9.6 Exculpation and Indemnification.
(a) In performing any of his or her duties as Representative under
this Agreement, the Representative shall not incur any Liability to any Person,
except for Liability caused by the Representative's willful misconduct or gross
negligence. Accordingly, the Representative shall not incur any such Liability
for (i) any action that is taken or omitted in good faith regarding any
questions relating to the duties and responsibilities of the Representative
under this Agreement, or (ii) any action taken or omitted to be taken in
reliance upon any instrument that the Representative shall in good faith
believe to be genuine, to have been signed or delivered by a proper person or
persons and to conform with the provisions of this Agreement.
(b) Sellers, jointly and severally, shall indemnify, defend and hold
harmless the Representative against, from and in respect of any Adverse
Consequence arising out of or resulting from the performance of his or her
duties hereunder or in connection with this Agreement (except for Liabilities
arising from the gross negligence or willful misconduct of the Representative).
ARTICLE X
DISPUTE RESOLUTION
10.1 Dispute Resolution. Any controversy, claim or dispute arising out
of or relating to this Agreement, or the alleged breach hereof shall be
resolved by binding arbitration by one arbitrator subject to the sole
jurisdiction of the Judicial Arbitration and Mediation Service of King County,
Washington (J.A.M.S.). Either Purchaser or Representative may submit any such
controversy, claim or dispute to such arbitration by notifying the other, in
writing, of such election. Within ten (10) days after receipt of such notice,
Purchaser and Representative shall designate in writing one (1) arbitrator
mutually agreeable to each; provided, that if Purchaser and Representative are
unable to agree on one (1) arbitrator within such ten-day period, an arbitrator
shall be selected by the American Arbitration Association, subject to the last
two (2) sentences of this Section 10.1. The arbitrator shall permit a period
of open and free discovery, including the taking of depositions, and will
promptly conduct an arbitration hearing. It is the intent of the parties
hereto that an arbitration hearing be concluded within ninety (90) days of the
appointment of the arbitrator. The arbitrator shall have broad authority to
fashion any legal or equitable remedy including the authority to award specific
performance. The arbitrator will render a final and binding decision within
ten (10) days of the conclusion of the arbitration hearing. Such arbitrator
shall, at the sole election of Purchaser, be a resident of, or maintain a
principal place of business in, the City of San Francisco, State of California.
In no event shall such arbitrator be a resident of, or maintain a principal
place of business in, the State of Washington unless Purchaser otherwise
agrees.
10.2 Arbitration Award. After the arbitration award being rendered, it
may be entered in any court of competent jurisdiction and shall constitute a
final adjudication of all matters submitted to arbitration.
-40-
47
10.3 Procedures. If any party at any time subsequent to execution of
this Agreement refuses to comply with the arbitration provisions of this
Article X, any party may make specific application to the Superior Court of
King County, Washington to compel the party to submit to arbitration in
accordance with the terms of this Article. Nothing in this Article X, however,
shall deprive a court of competent jurisdiction of the authority to apply a
temporary restraining order or preliminary injunction prohibiting a violation
of this Agreement prior to any arbitration proceeding.
10.4 Attorneys' Fees. It if shall be necessary for any party to this
Agreement to employ an attorney to enforce their rights pursuant to this
Agreement because of the default of another party(s), the defaulting party(s)
shall reimburse the prevailing party(s) for reasonable attorneys' fees and
expenses.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Post-Closing Deliveries. After the Closing, any monies, checks,
instruments, invoices, bills, receipts, notices, mail and other communications
received by one party but directed toward or due to another shall be promptly
delivered to the other party. Sellers shall cooperate with Purchaser after the
Closing to ensure the orderly transition of the operation of the Business from
Sellers to Purchaser and to minimize any disruption in the business of
Purchaser that might result from the transactions contemplated hereby.
11.2 Notices. All notices or other communications required or
permitted by this Agreement shall be in writing and shall be deemed to have
been duly received (a) if given by telecopier, when transmitted and the
appropriate telephonic confirmation received if transmitted on a business day
and during normal business hours of the recipient, and otherwise on the next
business day following transmission, (b) if given by certified or registered
mail, return receipt requested, postage prepaid, three (3) business days after
being deposited in the U.S. mails and (c) if given by courier or other means,
when received or personally delivered, and, in any such case, addressed as
follows:
(i) if to Purchaser:
c/o Booth Creek, Inc.
0000 Xxxxx Xxxxxxxx Xxxx
Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
Facsimile: (000) 000-0000
with a copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
-41-
48
(ii) if to Sellers or Representative:
c/o Xxxxx X. Xxxxxxx
0000 X. Xxxxxx Xxx
Xxxxxx Xxxxxx, XX 00000
with a copy to:
Carney, Badley, Xxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
or to such other addresses as may be specified by any such Person to the other
Person pursuant to notice given by such Person in accordance with the
provisions of this Section 11.2.
11.3 Assignment. No party may assign or transfer any or all of its
rights or obligations under this Agreement without the prior written approval
of all the other parties; provided, however, that Purchaser may assign or
transfer all (but not less than all) of its rights and obligations under this
Agreement (a) to any Person that is wholly-owned, directly or indirectly, by
Purchaser or (b) after the Closing, to any Person to whom Purchaser sells the
Business and substantially all of the Company's assets; and, provided further,
that Purchaser may collaterally assign its rights hereunder to any Person or
Persons providing financing to Purchaser in connection with the transactions
contemplated hereby.
11.4 Benefit of the Agreement. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. This Agreement shall not be construed so as to confer
any right or benefit upon any Person, other than the parties hereto and their
respective successors and permitted assigns.
11.5 Exhibits and Schedules. The Exhibits and Schedules hereto shall
be construed with and as an integral part of this Agreement to the same effect
as if the contents thereof had been set forth verbatim herein.
11.6 Headings. The headings used in this Agreement are for convenience
of reference only and shall not be deemed to limit, characterize or in any way
affect the interpretation of any provision of this Agreement.
11.7 Entire Agreement. This Agreement contains the entire agreement
and understanding of the parties with respect to the subject matter hereof, and
no other representations, promises, agreements or understandings regarding the
subject matter hereof (including, without limitation, the Letter of Intent)
shall be of any force or effect unless in writing, executed by the party to be
bound thereby and dated on or after the date hereof.
-42-
49
11.8 Modifications and Waivers. No change, modification or waiver of
any provision of this Agreement shall be valid or binding unless it is in
writing, dated subsequent to the date hereof and signed by Purchaser and each
Seller. No waiver of any breach, term or condition of this Agreement by any
party shall constitute a subsequent waiver of the same or any other breach,
term or condition.
11.9 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
11.10 Severability. In case any one or more of the provisions
contained herein for any reason shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained herein.
11.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF WASHINGTON.
11.12 Expenses. Except as otherwise expressly provided herein,
each party hereto shall pay all of its own costs and expenses incurred or to be
incurred in negotiating and preparing this Agreement and in closing and
carrying out the transactions contemplated by this Agreement; provided, Sellers
shall be liable to pay all costs and expenses incurred in connection with the
preparation and delivery of the ENVIRON Report.
11.13 Closing Date. The parties hereto acknowledge and agree that
all benefits and burdens of ownership of the Business were conveyed by Sellers
to Purchaser as of January 15, 1997, and, therefore, upon consummation of the
transactions contemplated hereunder including, without limitation, all actions
and deliveries set forth in Article VI, the Closing shall be deemed to have
taken effect at the close of business on January 15, 1997; provided, however,
all representations and warranties delivered in connection herewith are given
as of the date hereof.
[signature page follows]
-43-
50
IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement as of the date first written above.
PURCHASER: BOOTH CREEK SKI HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
Title: Chairman
--------------------------
SELLERS:
/s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx, as custodian
for Xxxxxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx, as custodian
for Xxxxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx, as custodian
for Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. XxXxxxxx
--------------------------------
Xxxxxxx X. XxXxxxxx, individually
and as representative of the
Estate of Xxxx X. XxXxxxxx, Xx.,
deceased
/s/ Xxxxx Xxxxxxxxxx
--------------------------------
Xxxxx Xxxxxxxxxx
REPRESENTATIVE
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
