AMENDMENT TO PURCHASE AGREEMENT
Exhibit 10.1
AMENDMENT TO PURCHASE AGREEMENT
This Amendment to Purchase Agreement, dated as of July 31, 2007, is by and among American
Skiing Company, a Delaware corporation (“ASC”), S-K-I Ltd., a Delaware corporation (“SKI”), Sunday
River Skiway Corporation, a Maine corporation (“SRSC”), Sugarloaf Mountain Corporation, a Maine
corporation (“SMC”), and Boyne USA, Inc., a Michigan corporation (“Buyer”).
WITNESSETH:
WHEREAS, the parties are the parties to the Purchase Agreement, dated June 4, 2007 (the
“Agreement”); and
WHEREAS, the parties wish to provide for the deferral of the Closing Date (as defined in the
Agreement) and for certain related additions to the Purchase Price payable to the Sellers and the
acknowledgment of certain matters;
NOW, THEREFORE, in consideration of the mutual promises of the parties contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. The reference in Section 12.1(c) of the Agreement to “July 31, 2007” is hereby deleted and
replaced with “August 10, 2007,” although it is the parties’ objective that the Closing occur on or
prior to August 3, 2007.
2. Sections 2.1 and 2.2 of the Agreement are hereby amended to read in their entirety as
follows:
2.1 Sale and Purchase of Stock.
(a) At the Closing, upon the terms and subject to the conditions of this
Agreement, ASC and SKI shall sell to the Buyer, and the Buyer shall purchase from ASC and SKI, the Stock. The aggregate purchase price for the Stock shall be
(i) $76,500,000 (the “Initial Purchase Price”), plus (ii) the Adjustment Amount (the
“Purchase Price”). In addition, at the Closing, Buyer shall reimburse Seller (a)
the amount actually expended prior to the Closing Date by ASC or its Affiliates with
respect to the items described on the 2007-08 Capital Expenditure Plan for the
Resorts pursuant to Section 3.7(b) of the Seller Disclosure Letter, plus (b)
any amounts paid by ASC or its Affiliates subsequent to the Base Balance Sheet Date
and prior to the Closing Date as prepayments under the equipment leases for the
snow-grooming equipment located at the Resorts and listed on Section 2.1 of
the Seller Disclosure Letter.
(b) The “Adjustment Amount” shall mean the sum of (i) (A) $37,000
multiplied by (B) the number of days from and including July 31, 2007 through and
including the day preceding the Closing Date, plus (ii) the product of 12%
multiplied by the Initial Purchase Price, divided by 360, multiplied by the number
of days from and including July 31, 2007 through and including the day preceding the
Closing Date.
2.2 Payment at the Closing. At the Closing, the Buyer shall (subject to
Section 10.6 hereof) pay the Purchase Price and the reimbursement contemplated by Section
2.1 hereof by wire transfer of immediately available funds to ASC.
3. The Buyer agrees and acknowledges that, as of the date hereof, no fact, circumstance, event
or condition known to the Buyer, and no inaccuracy in any of Sellers’ representations and
warranties contained in the Agreement known to Buyer, constitutes a Material Adverse Effect as to
either Resort for purposes of Sections 7.1 and 7.2 of the Agreement and that, subject to the
foregoing, to Buyer’s knowledge, there is no breach by Sellers of any of the terms of the
Agreement; provided, however, that nothing contained herein shall be deemed a waiver of any rights
Buyer may have pre-closing or post-closing under such Sections with respect to (a) the Lease
described in item 2 of Section 9.5(k) of the Sellers’ Disclosure Schedule, (b) the Lien placed on
assets of SRSC, in connection with the litigation between SRSC and the Summit Condominium Owners’
Association, or (c) damage to certain SRSC assets from a storm on July 11, 2007, or an
acknowledgment by Sellers that Buyer may have any such rights; provided, further, that noting
contained herein shall be deemed to modify any party’s rights or obligations under the Agreement
following the Closing.
2
4. Except as expressly amended hereby, the Agreement shall remain in full force and effect in
accordance with its terms.
AMERICAN SKIING COMPANY |
||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
Name: | Xxxxxx X. Xxxxxxx, Xx. | |||
Title: | Senior Vice President | |||
S-K-I LTD. |
||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
Name: | Xxxxxx X. Xxxxxxx, Xx. | |||
Title: | Senior Vice President | |||
SUNDAY RIVER SKIWAY CORPORATION |
||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
Name: | Xxxxxx X. Xxxxxxx, Xx. | |||
Title: | Senior Vice President | |||
SUGARLOAF MOUNTAIN CORPORATION |
||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
Name: | Xxxxxx X. Xxxxxxx, Xx. | |||
Title: | Senior Vice President | |||
BOYNE USA, INC. |
||||
By: | /s/ Xxxxxx Xxxxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxxxx | |||
Title: | CFO | |||
3