EXHIBIT 10.1
EXECUTION COPY
STOCK PURCHASE AND INDEMNIFICATION AGREEMENT
AMONG
BOOTH CREEK SKI HOLDINGS, INC.,
FIBREBOARD CORPORATION,
TRIMONT LAND COMPANY, SIERRA-AT-TAHOE, INC. AND BEAR MOUNTAIN, INC.
DATED AS OF NOVEMBER 26, 1996
TABLE OF CONTENTS
PAGE(S)
-------
Section 1 DEFINED TERMS. . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2 BASIC TRANSACTION. . . . . . . . . . . . . . . . . . . . . . 2
2.1 Purchase and Sale of Acquired Shares . . . . . . . . . . . . 2
2.2 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Purchase Price Adjustments . . . . . . . . . . . . . . . . . 3
Section 3 THE CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 The Closing. . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Deliveries and Actions Prior to Closing. . . . . . . . . . . 6
3.3 Deliveries and Instructions at Closing . . . . . . . . . . . 6
3.4 Timing . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4 REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . 8
4.1 Organization . . . . . . . . . . . . . . . . . . . . . . . . 8
4.2 Authorization. . . . . . . . . . . . . . . . . . . . . . . . 9
4.3 Noncontravention . . . . . . . . . . . . . . . . . . . . . . 9
4.4 Financial Statements . . . . . . . . . . . . . . . . . . . . 10
4.5 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.6 Personal Property Assets . . . . . . . . . . . . . . . . . . 11
4.7 Real Property. . . . . . . . . . . . . . . . . . . . . . . . 11
4.8 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.9 Assets Used in the Conduct of the Business . . . . . . . . . 11
4.10 Customers' Passes. . . . . . . . . . . . . . . . . . . . . . 12
4.11 Personnel Identification . . . . . . . . . . . . . . . . . . 12
4.12 Employee Benefits. . . . . . . . . . . . . . . . . . . . . . 12
4.13 Capitalization . . . . . . . . . . . . . . . . . . . . . . . 13
4.14 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . 14
4.15 Brokers' Fees. . . . . . . . . . . . . . . . . . . . . . . . 15
4.16 Non-Foreign Persons. . . . . . . . . . . . . . . . . . . . . 16
Section 5 REPRESENTATIONS AND WARRANTIES OF BUYER. . . . . . . . . . . 16
5.1 Organization of Buyer. . . . . . . . . . . . . . . . . . . . 16
5.2 Authorization of Transaction . . . . . . . . . . . . . . . . 16
5.3 Noncontravention . . . . . . . . . . . . . . . . . . . . . . 16
5.4 Brokers' Fees. . . . . . . . . . . . . . . . . . . . . . . . 17
5.5 Financing. . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.6 Investment Intent. . . . . . . . . . . . . . . . . . . . . . 17
Section 6 PRE-CLOSING COVENANTS. . . . . . . . . . . . . . . . . . . . 18
-i-
6.1 General. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.2 Notices and Consents . . . . . . . . . . . . . . . . . . . . 18
6.3 Operation of Businesses. . . . . . . . . . . . . . . . . . . 19
6.4 Preservation of Business . . . . . . . . . . . . . . . . . . 19
6.5 Notice of Developments . . . . . . . . . . . . . . . . . . . 19
6.6 Exclusivity. . . . . . . . . . . . . . . . . . . . . . . . . 20
6.7 Access to Employees and Information. . . . . . . . . . . . . 20
6.8 Employees and Compensation . . . . . . . . . . . . . . . . . 20
Section 7 CONDITIONS TO OBLIGATION TO CLOSE. . . . . . . . . . . . . . 21
7.1 Conditions to Obligation of Buyer. . . . . . . . . . . . . . 21
7.2 Conditions to Obligation of Seller . . . . . . . . . . . . . 23
Section 8 TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . 24
8.1 Termination of Purchase Agreement. . . . . . . . . . . . . . 24
8.2 Effect of Termination. . . . . . . . . . . . . . . . . . . . 25
8.3 Disposition of the Deposit . . . . . . . . . . . . . . . . . 26
Section 9 POST-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . 26
9.1 General. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.2 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.3 Litigation Support . . . . . . . . . . . . . . . . . . . . . 28
9.4 Transition . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.5 Corporate Names. . . . . . . . . . . . . . . . . . . . . . . 28
Section 10 INDEMNIFICATION AND REMEDIES. . . . . . . . . . . . . . . . 29
10.1 Survival; Exclusivity. . . . . . . . . . . . . . . . . . . . 29
10.2 Indemnification Provisions for Buyer's Benefit . . . . . . . 29
10.3 Indemnification Provisions for Seller's Benefit. . . . . . . 30
10.4 Purchase "AS IS" . . . . . . . . . . . . . . . . . . . . . . 30
10.5 Cross-indemnifications and Release . . . . . . . . . . . . . 31
(a) Indemnification of Buyer and Acquired Corporations
by Seller . . . . . . . . . . . . . . . . . . . . . . . 31
(b) Indemnification and Release of Seller by Acquired
Corporations and Buyer . . . . . . . . . . . . . . . . 31
10.6 Matters Involving Third Parties. . . . . . . . . . . . . . . 32
10.7 Determination of Loss. . . . . . . . . . . . . . . . . . . . 33
10.8 Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 33
11.1 No Third-Party Beneficiaries . . . . . . . . . . . . . . . . 33
11.2 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 33
11.3 Succession and Assignment. . . . . . . . . . . . . . . . . . 34
11.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 34
11.5 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 34
-ii-
11.6 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.7 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 35
11.8 Amendments and Waivers . . . . . . . . . . . . . . . . . . . 35
11.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . 36
11.10 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . 36
11.11 Construction. . . . . . . . . . . . . . . . . . . . . . . . 36
11.12 Incorporation of Exhibits, Schedules and Appendices . . . . 37
11.13 Employee Benefits Matters . . . . . . . . . . . . . . . . . 37
11.14 Employment. . . . . . . . . . . . . . . . . . . . . . . . . 39
11.15 Taxes and Related Matters . . . . . . . . . . . . . . . . . 39
11.16 Payment of BML Earn-Out . . . . . . . . . . . . . . . . . . 43
11.17 Promotional Programs. . . . . . . . . . . . . . . . . . . . 43
11.18 Nonsolicitation of Employees. . . . . . . . . . . . . . . . 43
11.19 Guarantee by Buyer. . . . . . . . . . . . . . . . . . . . . 43
-iii-
APPENDICES, EXHIBITS AND SCHEDULES
APPENDICES
1 . . . . . . . . . . . . . . . Defined Terms
2 . . . . . . . . . . . . . . . Disclosure Schedule
3 . . . . . . . . . . . . . . . Acquired Assets
4 . . . . . . . . . . . . . . . Excluded Assets
5 . . . . . . . . . . . . . . . Consents
6 . . . . . . . . . . . . . . . Calculation of Net Working Capital at
October 26, 1996
EXHIBITS
A . . . . . . . . . . . . . . . Allocation Schedule
B . . . . . . . . . . . . . . . Escrow Agreement
C . . . . . . . . . . . . . . . Financial Statements
D . . . . . . . . . . . . . . . Opinion of Seller's Counsel
E . . . . . . . . . . . . . . . Form of Withholding Certificate
F . . . . . . . . . . . . . . . Opinion of Buyer's Counsel
G . . . . . . . . . . . . . . . Employment Agreements
SCHEDULES
2.3 . . . . . . . . . . . . . . . Adjustments to Net Working Capital
4.10 . . . . . . . . . . . . . . . Customer Passes
4.11-A . . . . . . . . . . . . . . Personnel Identification
4.11-B . . . . . . . . . . . . . . Personnel on Leave
4.12 . . . . . . . . . . . . . . . Employee Benefits Matters
11.16 . . . . . . . . . . . . . . BML Earn-Out
-iv-
THIS STOCK PURCHASE AND INDEMNIFICATION AGREEMENT (this "Purchase
Agreement") is entered into as of November __, 1996 (the "Effective Date"),
by and among BOOTH CREEK SKI HOLDINGS, INC., a Delaware corporation
("Buyer"), FIBREBOARD CORPORATION, a Delaware corporation ("Fibreboard" or
"Seller"), TRIMONT LAND COMPANY, a California corporation doing business as
Northstar-at-Tahoe ("Northstar"), SIERRA-AT-TAHOE, INC., a Delaware
corporation ("Sierra"), and BEAR MOUNTAIN, INC., a Delaware corporation
("Bear Mountain"). Northstar, Sierra and Bear Mountain are referred to
collectively herein as the "Acquired Corporations" or the "Resort Group," and
Buyer, Fibreboard and Acquired Corporations are referred to collectively
herein as the "Parties."
WHEREAS, each of the Acquired Corporations is a wholly owned subsidiary
of Fibreboard; and
WHEREAS, Northstar is engaged in the ownership and operation of a ski
resort by the name of "Northstar-at-Tahoe," a golf course, a conference
center and other facilities and properties, all located near the City of
Truckee, California (the "Northstar Business"); and
WHEREAS, Bear Mountain is engaged in the ownership and operation of a ski
resort by the name of "Bear Mountain Ski Resort," a golf course by the name
of "Bear Mountain Golf Course" and other facilities and properties, all
located near the City of Big Bear Lake, California (the "Bear Mountain
Business"); and
WHEREAS, Sierra is engaged in the ownership and operation of a ski resort
by the name of "Sierra-at-Tahoe Ski Resort" and other facilities and
properties, all located near the City of South Lake Tahoe, California (the
"Sierra Business"; together with the Northstar Business and the Bear Mountain
Business, the "Businesses"); and
-1-
WHEREAS, each Acquired Corporation owns or leases real property and
certain tangible and intangible assets used in its Business, including
without limitation, buildings and improvements, machinery and equipment,
vehicles, retail inventory, non-retail inventory, intellectual property,
contract rights, timber and water rights and prepaid expenses and
receivables; and
WHEREAS, each of Bear Mountain and Sierra has obtained a special use
permit (or permits) from the Department of Agriculture--Forest Service
granting the right to use certain real property in order to operate its
Business; and
WHEREAS, Buyer desires to purchase all of the issued and outstanding
shares of capital stock of each of the Acquired Corporations ("Acquired
Shares") and to assume certain Liabilities associated with the Businesses,
and Fibreboard desires to sell and transfer to Buyer the Acquired Shares and
to accept responsibility for certain Liabilities associated with the
Businesses, all as more fully set forth below:
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties and
covenants herein contained, the Parties agree as follows.
SECTION 1
DEFINED TERMS
Terms in this Purchase Agreement with initial letters capitalized shall
have their respective meanings as set forth in APPENDIX 1 attached hereto.
-2-
SECTION 2
BASIC TRANSACTION
2.1 PURCHASE AND SALE OF ACQUIRED SHARES. On and subject to the terms
and conditions of this Purchase Agreement, Buyer agrees to purchase from
Fibreboard, and Fibreboard agrees to sell, transfer, convey and deliver to
Buyer all of the Acquired Shares at the Closing in exchange for the Purchase
Price, as adjusted pursuant to Section 2.3 of this Purchase Agreement.
2.2 PURCHASE PRICE. Buyer agrees to pay to Fibreboard (pursuant to the
provisions of Section 3) One Hundred Fourteen Million dollars
($114,000,000.00) (the "Purchase Price") by delivery of cash payable by wire
transfer or delivery of other funds which shall be immediately available to
Fibreboard as of the Closing. The Purchase Price reflects reimbursement to
Fibreboard for prior real estate development costs in the amount of Five
Hundred Thousand Dollars ($500,000.00). Fibreboard acknowledges receipt on
September 6, 1996 (the "Deposit Date"), in accordance with the terms of the
Letter of Intent, of the deposit on behalf of Buyer with Fibreboard of One
Million Dollars ($1,000,000.00) (the "Deposit"), which sum, together with
simple interest thereon at six and one-half percent (6 1/2%) PER ANNUM
(beginning on the Deposit Date and ending on the Closing Date) shall be
applied in partial satisfaction of Buyer's obligations hereunder. The
Purchase Price shall also be subject to adjustment as provided in Section 2.3
below.
2.3 PURCHASE PRICE ADJUSTMENTS.
(i) The Purchase Price shall be increased or decreased as the case may
be, on a dollar-for-dollar basis, to reflect a positive or negative amount for
Net Working Capital on the Closing Date. In addition if, but only to the extent
that,
-3-
the calculation of Net Working Capital does not reflect the following items
the Purchase Price shall be reduced or increased, as appropriate, by the
amount not reflected in such calculation: (A) the full remaining liability
of Sierra to Doppelmayr USA, Inc. under that certain Sales and Installation
Contract, dated May 28, 1996 (the "Doppelmayr Contract"), with respect to the
installation of three detachable quad lifts at Sierra, (B) the liability, on
a discounted basis, for certain promotional items which Buyer is obligated to
honor under Section 11.17 of this Purchase Agreement, (C) an allocation
reflecting the cost of new uniforms for Resort Group employees as born
equally by Fibreboard and Buyer, and (D) the amount established by Sierra as
a reserve for environmental liability as of June 30, 1996, less any amounts
drawn on such reserve prior to Closing. In addition, if (for reasons of
impracticality of transferring assets prior to the Closing from an Acquired
Corporation to Fibreboard or a third party designated by Fibreboard) at the
Closing any Acquired Corporations own any Excluded Assets, after the Closing,
(I) Buyer agrees to cause, at Fibreboard's expense, such Acquired
Corporations to take all actions reasonably requested by Fibreboard to convey
such Excluded Assets to Fibreboard (or its designee) without payment by
Fibreboard of any consideration therefor and (II) at all times prior to such
conveyance, to cause the Acquired Corporations to hold any such Excluded
Assets in trust for the benefit of Fibreboard (with all benefits of such
Excluded Assets being conveyed by such Acquired Corporations to Fibreboard
and all Liabilities relating thereto being assumed by Fibreboard). If after
the Closing the Parties agree that it is not possible, on commercially
reasonable terms, to convey any such Excluded Assets from the Acquired
Corporations to Fibreboard (or its designee), the Parties shall endeavor to
agree to a value to be paid by the respective Acquired Corporations to
Fibreboard for such assets. In the event the Parties are unable to agree on
a value for any such assets, they shall submit the matter to Arbitration.
-4-
(ii) The Purchase Price shall be increased by the Seasonal Adjustment.
(iii) Three (3) business days prior to the Closing Date, Fibreboard
shall deliver to Buyer (A) an estimated unaudited balance sheet of the Resort
Group as of the Closing Date (the "Estimated Closing Balance Sheet") and (B)
an estimate available at such time of the adjustments to the Purchase Price
required by clauses (i) and (ii) of this Section 2.3 (the "Price
Adjustment"), as determined on the basis of the Estimated Closing Balance
Sheet. Except as provided on SCHEDULE 2.3 with respect to the calculation of
the Net Working Capital, the Estimated Closing Balance Sheet and the
calculations of the Estimated Price Adjustment shall be prepared and computed
in a manner consistent with the application of the accounting principles
applied in the preparation of the Financial Statements (the "Accounting
Principles"). Such estimate of the Price Adjustment is hereinafter referred
to as the "Estimated Price Adjustment." The Estimated Price Adjustment shall
be added to the Purchase Price set forth in Section 2.2 and the resulting
amount shall be paid by Buyer at the Closing (the "Closing Amount").
(iv) Fibreboard will prepare and deliver to Buyer, within forty-five
(45) days following the Closing Date, a statement certified by the chief
financial officer of Fibreboard (the "Closing Statement") of (A) a balance
sheet of the Resort Group as of the Closing Date (the "Final Closing Balance
Sheet"), (B) the Price Adjustment, as determined on the basis of the Final
Closing Balance Sheet, and (C) the difference between the Price Adjustment
and the Estimated Price Adjustment (the "Final Adjustment"). The Final
Closing Balance Sheet and calculation of the Price Adjustment shall be
prepared and computed in a manner consistent with the application of the
Accounting Principles. Buyer shall, upon request, be allowed access to the
working papers of Fibreboard (or its accountants) used in
-5-
preparing the Closing Statement. If the Final Adjustment is a positive
number, then Buyer will pay the difference to Fibreboard, and if the Final
Adjustment is a negative number then Fibreboard will pay the difference to
Buyer, with payment due prior to the expiration of thirty (30) days following
Fibreboard's delivery to Buyer of the Closing Statement. Notwithstanding the
foregoing, Buyer may object to the Closing Statement by notifying Fibreboard
within such 30-day period, which notice must contain a statement of the basis
of Buyer's objection(s). Buyer's failure to so object shall be deemed
Buyer's acceptance of the Closing Statement. If Buyer gives such notice of
objection, then the issues in dispute will be submitted for resolution to
Arbitration, and any required payment will be made prior to the tenth
business day following resolution of issues in dispute by Arbitration.
(v) Any payment of the Final Adjustment will be made together with
simple interest thereon at six and one-half percent (6 1/2%) PER ANNUM
(beginning on the Closing Date and ending on the date of payment). Payment
must be made in immediately available funds and shall result in appropriate
adjustments to the Purchase Price allocation schedule provided for in Section
11.15 below and to be attached hereto as EXHIBIT A.
SECTION 3
THE CLOSING
3.1 THE CLOSING. The closing of the transactions contemplated by this
Purchase Agreement (the "Closing") shall take place at the offices of Winston
& Xxxxxx in New York, New York, commencing at 9:00 a.m. local time on (i) the
second business day following the satisfaction or waiver of all conditions to
-6-
the obligations of the Parties to consummate the transactions contemplated
hereby or (ii) such other date as the Parties may mutually agree in writing (the
"Closing Date").
3.2 DELIVERIES AND ACTIONS PRIOR TO CLOSING. Prior to the Closing:
(i) Fibreboard shall cause the Acquired Corporations to distribute or
otherwise assign to Fibreboard the Excluded Assets; provided, however, if the
Parties determine that an Excluded Asset cannot be transferred, such asset shall
remain within the Acquired Corporations in accordance with the provisions of
Section 2.3(i) above;
(ii) Fibreboard shall request that Lender deliver to Fibreboard
certificates representing the Acquired Shares in which Lender has a Security
Interest (the "Old Certificates"); and
(iii) Fibreboard shall (A) transfer to the applicable Acquired
Corporations all Acquired Assets owned by Fibreboard or to which Fibreboard is a
party, (B) cause all amounts owing to or from any Acquired Corporation by or to
Fibreboard or any Affiliate of Fibreboard (other than any other Acquired
Corporation) to be satisfied, waived or otherwise canceled and (C) repay or
cause to be repaid any and all long-term debts of the Acquired Corporations.
3.3 DELIVERIES AND INSTRUCTIONS AT CLOSING. At the Closing:
(i) Buyer shall deliver to Lender (A) the Closing Amount (less
$1,000,000) and (B) the Estimated Proration Amount, and Buyer shall deliver to
Escrow Holder $1,000,000 to be held in accordance with the Escrow Agreement;
-7-
(ii) Fibreboard shall cause the Lender to release the Old
Certificates;
(iii) Fibreboard shall deliver to Buyer certificates representing all
of the Acquired Shares (including the Old Certificates) duly endorsed to Buyer
or accompanied by stock powers duly executed;
(iv) The Acquired Corporations shall issue to Buyer new certificates
representing the Acquired Shares registered in the name of Buyer, cancel the Old
Certificates, and register the Acquired Shares in Buyer's name as appropriate in
the stock records of the Acquired Corporations;
(v) Fibreboard shall deliver to Buyer properly executed releases
(including termination statements on Form UCC-3) necessary or which Buyer and
its counsel reasonably may request in respect of the termination of any Security
Interest (other than Permitted Exceptions) on the Acquired Assets;
(vi) Fibreboard shall deliver to Buyer the certificate and opinion
referred to in Sections 7.1(v) and 7.1(viii) below, respectively;
(vii) Buyer shall deliver to Fibreboard the certificate and opinion
referred to in Sections 7.2(v) and 7.2(vii) below, respectively;
(viii) Fibreboard shall deliver to Buyer a certificate of its
Secretary or Assistant Secretary and of each Acquired Corporation's Secretary or
Assistant Secretary (A) certifying and attaching a true and complete copy of
each of the following: (x) such Person's certificate or articles of
incorporation; (y) such Person's By-Laws; and (z) resolutions duly adopted by
such Person's board of directors approving the execution, delivery and
performance of this Purchase Agreement,
-8-
(B) certifying as to the incumbency and specimen signature of the officers of
such corporation who have executed this Purchase Agreement and (C) with respect
only to each Acquired Corporation, certifying as to the incumbency of all of
the officers of such corporation;
(ix) Fibreboard and each Acquired Corporation shall deliver to Buyer
a good standing certificate from the Secretary of State of California and the
jurisdiction of its incorporation, if different;
(x) Buyer shall deliver to Fibreboard a certificate of its
Secretary or Assistant Secretary (A) certifying and attaching a true and
complete copy of each of the following: (x) certificate of incorporation;
(y) By-Laws; and (z) resolutions duly adopted by Buyer's board of directors
approving the execution, delivery and performance of this Purchase Agreement
and the consummation of the transactions contemplated by this Purchase
Agreement, and (B) certifying as to the incumbency and specimen signatures of
the officers of Buyer who have executed this Purchase Agreement;
(xi) Buyer shall deliver to Fibreboard a good standing certificate
for Buyer from the Secretary of State of Delaware;
(xii) Fibreboard shall deliver to Buyer the resignations of the
directors and officers of the Acquired Corporations, such resignations to take
effect immediately after the Closing, and
(xiii) Buyer and Seller shall enter into an escrow agreement in the
form of EXHIBIT B (the "Escrow Agreement").
3.4 TIMING. Closing shall be deemed to have occurred when all deliveries
contemplated by Section 3.3 have been made.
-9-
SECTION 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Fibreboard represents and warrants to Buyer that the statements contained
in this Section 4 are correct and complete as of the Effective Date and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the Effective Date throughout this
Section 4), except as set forth in the disclosure schedule accompanying this
Purchase Agreement as APPENDIX 2 (the "Disclosure Schedule").
4.1 ORGANIZATION. Each of Fibreboard and the Acquired Corporations is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation. Each of Fibreboard and the Acquired
Corporations is duly authorized to conduct business and is in good standing
under the laws of each jurisdiction in which the nature of its business or the
ownership or leasing of its properties requires such qualification and the
failure to so qualify would reasonably be expected to have a material adverse
effect on the Value of the Acquired Assets.
4.2 AUTHORIZATION. Each of Fibreboard and the Acquired Corporations has
full corporate power and authority to execute and deliver this Purchase
Agreement and to perform its obligations hereunder, and such execution and
delivery have been approved by all necessary corporate action. This Purchase
Agreement constitutes the valid and legally binding obligation of each of the
Acquired Corporations and Fibreboard, enforceable in accordance with its terms
and conditions, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium
-10-
and other laws of general application affecting enforcement of creditors'
rights generally.
4.3 NONCONTRAVENTION.
(i) To the Knowledge of the Officers, neither the execution and
delivery of this Purchase Agreement nor the performance of Fibreboard's or any
of the Acquired Corporations' obligations hereunder will (A) violate any law,
statute, regulation, rule, judgment, order, decree, stipulation, injunction,
charge or other restriction of any government, governmental agency or court to
which Fibreboard or any of the Acquired Corporations is subject or any provision
of the charter or bylaws of any of Fibreboard or the Acquired Corporations, or
(B) conflict with, result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel or require any consent or notice under, any contract, lease,
sublease, license, sublicense, franchise, permit, indenture, agreement or
mortgage for borrowed money, instrument of indebtedness, Security Interest or
other arrangement to which any of the Acquired Corporations is a party or by
which any of the Acquired Corporations is bound or to which any of their assets
are subject (or result in the imposition of any Security Interest upon any of
the assets of any of the Acquired Corporations).
(ii) To the Knowledge of the Officers and except as contemplated by
this Purchase Agreement with respect to USFS Permits and the Xxxx-Xxxxx-Xxxxxx
Act or as otherwise described on the Disclosure Schedule, neither Fibreboard nor
any of the Acquired Corporations need give any notice to, make any filing with
or obtain any authorization, consent or approval of any government or
governmental agency in order for Fibreboard and the Acquired Corporations to
perform their obligations under this Purchase Agreement.
-11-
4.4 FINANCIAL STATEMENTS. Attached hereto as EXHIBIT C are the following
combined financial statements for the Resort Group (collectively, the "Financial
Statements"):
(i) combined financial statements as of December 31, 1995 and
December 31, 1994 together with report of Xxxxxx Xxxxxxxx, independent public
accountants, which financial statements include balance sheets as of
December 31, 1995 and December 31, 1994 and statements of operations for each of
the years ended December 31, 1993, 1994 and 1995;
(ii) interim balance sheet at June 30, 1996 (the "Interim Balance
Sheet"); and
(iii) a statement of the combined operating results for the six-month
period ended June 30, 1996.
The Financial Statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
covered thereby, and present fairly the financial position of the Resort Group
as of the dates thereof and the results of operations for the periods indicated,
with the exceptions noted in the Disclosure Schedule.
4.5 DISCLOSURE. To the Knowledge of the Officers, Fibreboard has disclosed
or made available to representatives of Buyer all material information in any
Acquired Corporation's or Fibreboard's possession regarding all Adverse
Consequences, including Liabilities and obligations relating to or arising in
connection with Environmental Conditions, which could reasonably be expected to
have a material adverse effect on the Value of the Acquired Assets.
4.6 PERSONAL PROPERTY ASSETS. Except as discussed in the Disclosure
Schedule: The Acquired Corporations have good and marketable title to, or a
valid leasehold interest in, the
-12-
Tangible Personal Property assets which constitute a portion of the Acquired
Assets free and clear of any Security Interest.
4.7 REAL PROPERTY. APPENDIX 3 attached hereto lists and describes briefly
all parcels of real property comprising the Real Property. With respect to each
such parcel:
(i) There are no pending or, to the Knowledge of the Officers,
threatened condemnation proceedings relating thereto;
(ii) There are no leases, subleases, licenses, concessions or other
agreements, written or oral, granting to any party or parties the right of use
or occupancy of any portion thereof which could reasonably be expected to have a
material adverse effect on the Value of the Acquired Assets;
(iii) There are no outstanding options or rights of first refusal to
purchase such parcel, or any portion thereof or interest therein, exercise of
which could reasonably be expected to have a material adverse effect on the
Value of the Acquired Assets; and
(iv) There are no Security Interests except for Permitted Exceptions.
4.8 INSURANCE. Each of the Acquired Corporations has been covered during
the past five years by insurance in scope and amount customary and reasonable
for the businesses in which it has engaged during the aforementioned period.
4.9 ASSETS USED IN THE CONDUCT OF THE BUSINESS. All of the assets, real
properties, tangible personal properties and intangible properties used in the
conduct of the Businesses as presently conducted, other than the Excluded Assets
or as described on the Disclosure Schedule, are Acquired Assets and neither
Fibreboard nor any other affiliate of Fibreboard has any
-13-
ownership interest therein except through the Acquired Shares, provided that,
without qualifying any other representation by Fibreboard in this Purchase
Agreement, no representation is made hereby as to the Acquired Corporations'
title to any such asset.
4.10 CUSTOMER PASSES. SCHEDULE 4.10 contains a correct list of all persons
holding lifetime passes or other passes for skiing, golf or other recreational
activities provided by any Acquired Corporation, in any case extending beyond
the 1996-1997 ski season.
4.11 PERSONNEL IDENTIFICATION. SCHEDULE 4.11-A contains a list of the
names and titles of all current officers, directors, employees, agents and
representatives of Acquired Corporations or any of them. Fibreboard has
previously delivered to Buyer a true and correct schedule stating the rates of
compensation payable (or paid, as the case may be) to each such person.
SCHEDULE 4.11-B contains a list of all employees of the Acquired Corporations
who are on disability leave or other approved leaves of absence.
4.12 EMPLOYEE BENEFITS.
(i) SCHEDULE 4.12 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 Acquired Corporations or any other member of the
Controlled Group for the benefit of current or former employees of the
Businesses or in which the Acquired Corporations participate at any time prior
to the Closing (each a "Plan").
-14-
(ii) None of the Plans is a multi-employer plan (as defined in
Section 3(37) of ERISA), and none provides any post-retirement medical or life
insurance benefits (other than COBRA continuation coverage).
(iii) Each Plan complies, in form and in operation in all material
respects, with all applicable requirements of any laws, including, to the extent
applicable, sections 401(a), 501(a) and 4980B of the Code, and, to Fibreboard's
knowledge, no event has occurred which will or could cause any such Plan to fail
to comply in all material respects with such requirements. Seller and the
Acquired Corporations have complied, and will comply for all periods (or parts
thereof) ending or prior to the Closing, in all material respects with all
applicable requirements of ERISA and all other laws applicable to the Plans.
(iv) There are no actions (other than routine claims for benefits)
pending or to Fibreboard's knowledge threatened in writing involving any such
Plan or the assets thereof and, to Fibreboard's knowledge, no facts exist which
could give rise to any such actions (other than routine claims for benefits).
(v) Neither the Acquired Corporations nor any other member of the
Controlled Group has any liability (or material contingent liability) with
respect to a plan termination under Title IV of ERISA, a funding deficiency
under Section 412 of the Code or a withdrawal from a multi-employer plan (as
defined in Section 3(37) of ERISA) or a plan described in section 4063 of ERISA.
4.13 CAPITALIZATION. The authorized capital stock of Northstar consists of
10,000 shares of common stock, par value $100.00 per share, of which 250 shares
are issued and outstanding and constitute the "Northstar Shares." The
authorized capital stock of Sierra consists of 1,000 shares of common stock, par
value $.01 per share, of which 100 shares are
-15-
issued and outstanding and constitute the "Sierra Shares." The authorized
capital stock of Bear Mountain consists of 1,000 shares of common stock, par
value $.01 per share, of which 100 shares are issued and outstanding and
constitute the "Bear Mountain Shares." Taken together, the Northstar Shares,
Sierra Shares and Bear Mountain Shares constitute the Acquired Shares.
Fibreboard is and will be on the Closing Date the record and sole beneficial
owner and holder of the Acquired Shares, free and clear of all liens and
encumbrances (other than those security interests in favor of Lender which
are to be released upon the Closing as contemplated by this Purchase
Agreement). Upon delivery to Buyer by Seller of certificates representing
the Acquired Shares and payment by Buyer to Seller of the Purchase Price and
assuming Buyer is acquiring the Acquired Shares as a bona fide purchaser
without notice of an adverse claim, Buyer will be the owner of the Acquired
Shares free and clear of all liens and encumbrances. There are no options,
warrants, calls, subscriptions or other rights or other agreements or
commitments obligating Fibreboard or any Acquired Corporation to issue,
transfer or sell any of the Acquired Shares or any other securities
convertible into or evidencing the right to subscribe for any such shares or
any obligation of Fibreboard or any Acquired Corporation to grant, extend or
enter into any such option, warrant, call, subscription, right or agreement.
All of the issued and outstanding shares of each Acquired Corporation have
been duly authorized and validly issued and are fully paid and nonassessable.
There are no shares of any Acquired Corporation held as treasury stock. No
Acquired Corporation owns, or on the Closing Date will own, any securities or
any other direct or indirect interest in any other Person, except that Sierra
owns, and on the Closing Date will own, twenty-five (25) fully paid and
non-assessable shares of Tahoe Airline Guarantee Corp.
-16-
4.14 TAX MATTERS.
(i) For the purposes of this Section 4.14, Acquired Corporations shall
be deemed to include (a) any predecessor to any Acquired Corporation or any
Person from which an Acquired Corporation incurs a liability for Taxes as a
result of transferee liability and (b) Fibreboard and any predecessor to
Fibreboard and any Person from which Fibreboard incurs a liability for Taxes
as a result of transferee liability.
(ii) Each Acquired Corporation has duly and timely filed (and prior to
the Closing Date will duly and timely file) true, correct and complete tax
returns, reports or estimates, all prepared in accordance with applicable
federal, state or local tax 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 Closing Date. All Taxes shown as due and
payable on such returns, reports and estimates have been paid (or will be
paid), and there is no current liability for any Taxes due and payable in
connection with any such returns. All applicable sales taxes, to the extent
due, were paid by the Acquired Corporations or Fibreboard when the Acquired
Assets were acquired by the Acquired Corporations or Fibreboard.
(iii) Each Acquired Corporation has (a) withheld all required amounts
from its employees, agents, contractors and nonresidents and remitted such
amounts to the proper authorities; (b) paid all employer contributions and
premiums; and (c) 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.
-17-
(iv) None of the Acquired Assets is tax exempt use property under
Section 168(h) of the Code. None of the Acquired Assets is property that
Fibreboard is required to treat as being owned by any other Person pursuant
to the safe harbor lease provision of former Section 168(f) of the Code.
(v) No portion of the cost of any of the Acquired Assets was financed
directly or indirectly from the proceeds of any tax exempt state or local
government obligation described in Section 103(a) of the Code.
(vi) None of the Acquired Corporations (other than Fibreboard) has
entered into an agreement relating to Taxes which affects any taxable year
ending after the Closing Date other than this Purchase Agreement.
(vii) None of the Acquired Corporations (other than Fibreboard) will
have any obligations under any tax sharing agreement or similar arrangement
after the Closing Date other than THIS Purchase Agreement.
(viii) None of the Acquired Corporations has ever been part of a
consolidated, combined or unitary group for federal, state, local or foreign
tax purposes other than the group controlled by Fibreboard.
4.15 BROKERS' FEES. Neither any Acquired Corporation nor Fibreboard has
any liability or obligation to pay any fees or commissions to any broker,
finder or agent with respect to the transactions contemplated by this
Purchase Agreement.
4.16 NON-FOREIGN PERSONS. Neither any Acquired Corporation nor
Fibreboard is a "foreign person" as defined in Section 1445 of the Code.
-18-
SECTION 5
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Fibreboard that the statements contained
in this Section 5 are correct and complete as of the Effective Date and will
be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the Effective Date throughout
this Section 5). Buyer also covenants with Fibreboard as set forth in this
Section 5.
5.1 ORGANIZATION OF BUYER. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation.
5.2 AUTHORIZATION OF TRANSACTION. Buyer has full corporate power and
authority to execute and deliver this Purchase Agreement and to perform its
obligations hereunder. This Purchase Agreement constitutes the valid and
legally binding obligation of Buyer, enforceable in accordance with its terms
and conditions, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally.
5.3 NONCONTRAVENTION.
(i) To the Knowledge of Buyer, neither the execution and the
delivery of this Purchase Agreement nor the performance by Buyer of its
obligations hereunder will (A) violate any material statute, regulation,
rule, judgment, order, decree, stipulation, injunction, charge or other
restriction of any government, governmental agency or court to which Buyer is
subject or any provision of Buyer's certificate of incorporation
-19-
or bylaws or (B) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel or require any consent or notice
under any material contract, lease, sublease, license, sublicense, franchise,
permit, indenture, agreement or mortgage for borrowed money, instrument of
indebtedness, Security Interest or other material arrangement to which Buyer
is a party or by which it is bound or to which any of its material assets is
subject.
(ii) To the Knowledge of Buyer, except as contemplated by this
Purchase Agreement with respect to the USFS Permits and the Xxxx-Xxxxx-Xxxxxx
Act, Buyer does not need to give any notice to, make any filing with, or
obtain any authorization, consent or approval of any government or
governmental agency in order for the Buyer to perform its obligations under
this Purchase Agreement.
5.4 BROKERS' FEES. Buyer has no Liability or obligation to pay any fees
or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Purchase Agreement for which Fibreboard
could become liable or obligated.
5.5 FINANCING. Buyer has furnished Fibreboard with evidence of binding
commitments from Canadian Imperial Bank of Commerce ("CIBC") and Xxxx Xxxxxxx
Mutual Life Insurance Company ("Xxxx Xxxxxxx") to finance in full the
Purchase Price, as it may be increased by the maximum possible Seasonal
Adjustment. Such commitments shall remain in full force and effect through
the Closing Date. In the event Buyer, Acquired Corporations or Fibreboard is
notified as required by Section 6.5, verbally or in writing, by CIBC, Xxxx
Xxxxxxx or Buyer that (i) CIBC or Xxxx Xxxxxxx has withdrawn its financing
commitment or otherwise does not intend to provide financing for any reason,
(ii) the terms of either of the commitment letters are amended in a manner
that results in a delay of the Closing or in a manner otherwise
-20-
materially adverse to Fibreboard, or (iii) the aggregate amount committed to
under both of the commitment letters is reduced, Fibreboard or Acquired
Corporations may terminate this Purchase Agreement and retain the Deposit
pursuant to Section 8.3.
5.6 INVESTMENT INTENT. Buyer is acquiring the Acquired Shares for its
own account and not with a view to their distribution within the meaning of
Section 2(11) of the Securities Act of 1933, as amended.
SECTION 6
PRE-CLOSING COVENANTS
The Parties agree as set forth in this Section 6 with respect to the
period between the Effective Date and the Closing.
6.1 GENERAL. Each of the Parties shall use its reasonable efforts to
take all action and to do all things necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Purchase
Agreement (including satisfying the Closing conditions set forth in Section 7
below) so as to enable the Closing Date to occur at the earliest possible
time.
6.2 NOTICES AND CONSENTS.
(a) Buyer and Fibreboard shall cooperate in the giving of notice
to, and/or the seeking of the reissuance or transfer to the Acquired
Corporations on or prior to the Closing Date of the USFS Permits and all
other licenses, permits, franchises, certifications and other consents and
approvals of, any third parties, including the Forest Service and all other
-21-
governmental agencies and parties to Contracts with the Acquired
Corporations, that may be required in connection with the change in ownership
of the Acquired Shares from Fibreboard to Buyer, in order that the Acquired
Corporations may continue to conduct the Businesses without an adverse effect
on the value of the Acquired Assets.
(b) Each of Fibreboard and Buyer has prior to the date hereof filed
a Notification and Report Form and related material required to be filed with
the Federal Trade Commission and the Antitrust Division of the United States
Department of Justice under the Xxxx-Xxxxx-Xxxxxx Act. Each of the Parties
shall (i) use its reasonable efforts to obtain an early termination of the
applicable waiting period, and (ii) make any further filings pursuant thereto
that may be necessary, proper or advisable.
6.3 OPERATION OF BUSINESSES. Except as contemplated by this Purchase
Agreement (including, without limitation, Sections 2.3(i), 3.2(i) and 11.13)
or instructions delivered from Buyer to Fibreboard, Fibreboard shall not
permit the Resort Group, insofar as the Acquired Assets are concerned, to
engage in any practice, take any action, embark on any course of inaction or
enter into any transaction outside the Ordinary Course of Business.
Fibreboard shall not cause or permit any Acquired Corporation to (a) amend or
modify its articles or certificate of incorporation or bylaws, (b) issue,
sell or otherwise dispose of any of its capital stock, stock options, bond,
notes or other securities, (c) merge or consolidate with any Person or (d)
purchase or redeem any shares of its capital stock or other outstanding
securities.
6.4 PRESERVATION OF BUSINESS.
(a) Except as contemplated by this Purchase Agreement (including,
without limitation, Sections 2.3(i), 3.2(i)
-22-
and 11.13) or instructions delivered from Buyer to Fibreboard, Fibreboard
shall cause the Resort Group, insofar as the Acquired Assets are concerned,
to keep its business and properties substantially intact, including its
present organization, operations, physical facilities, working conditions and
relationships with governmental authorities, lessors, licensors, suppliers,
customers, officers and employees.
(b) Fibreboard has furnished to Buyer an unaudited combined balance
sheet for the Resort Group at October 26, 1996 and a statement of the
combined operating results for the Resort Group for the ten-month period
ended October 26, 1996, in each case prepared in a manner consistent with the
preparation of the Financial Statements (subject to normal year-end
adjustments).
6.5 NOTICE OF DEVELOPMENTS. Fibreboard shall give prompt written notice
to Buyer of any material development adversely affecting the Value of the
Acquired Assets. Each Party shall give prompt written notice to the other of
any material development affecting the ability of such Party to consummate
the transactions contemplated by this Purchase Agreement, including
notification of any changes in the financing commitment as set forth in
Sections 5.5 and 8.1(iii). Any written notice provided by any Acquired
Corporation or Fibreboard to Buyer after the Effective Date and prior to the
Closing shall be deemed to supplement, and thereby become a part of, the
Disclosure Schedule.
6.6 EXCLUSIVITY. Fibreboard covenants and agrees with Buyer that it
shall not, and shall not authorize or direct any of its Related Parties to,
solicit proposals or offers from any Person (other than Buyer or its
Affiliates) relating to any acquisition of all or a substantial part of any
Business, the Acquired Assets or any Acquired Corporation or any acquisition
of the capital stock of any Acquired Corporation, including, without
limitation, any merger, consolidation, recapitalization
-23-
or restructuring of any Acquired Corporation (an "Alternative Transaction"),
or participate in any discussions or negotiations regarding, or furnish to
any Person (other than Buyer or its Affiliates or representatives) any
information with respect to, an Alternative Transaction. Fibreboard shall
immediately notify Buyer if any proposal or offer is received, or inquiry or
contact with any Person is made, regarding an Alternative Transaction.
6.7 ACCESS TO EMPLOYEES AND INFORMATION. Upon reasonable notice,
Fibreboard shall, and shall cause each of its and each of the Acquired
Corporations' officers, directors, employees, auditors and agents employed in
connection with the Businesses to: (i) afford the officers, employees and
authorized agents and representatives of Buyer reasonable access, during
normal business hours, to the offices, properties, books and records of the
Businesses and (ii) furnish to the officers, employees and authorized agents
and representatives of Buyer such additional financial and operating data and
other information regarding the assets, properties, goodwill and business of
the Businesses as Buyer may from time to time reasonably request; PROVIDED,
HOWEVER, that such investigation shall not unreasonably interfere with any of
the businesses or operations of Fibreboard or any Acquired Corporation.
6.8 EMPLOYEES AND COMPENSATION. Fibreboard shall permit Buyer free
access to communicate and meet with Acquired Corporations' employees at all
reasonable times for the purpose of discussing with such employees the
continued employment of such persons by the Acquired Corporations in
connection with the operation of the Businesses after the Closing.
-24-
SECTION 7
CONDITIONS TO OBLIGATION TO CLOSE
7.1 CONDITIONS TO OBLIGATION OF BUYER. The obligation of Buyer to
consummate the transactions to be performed by it in connection with the
Closing is subject to satisfaction of the following conditions unless, in the
case of the conditions set forth in paragraphs (i), (ii), (iii), (v) or (ix)
of this Section 7.1, the failure of one or more of such conditions does not
result, in the aggregate, in an adverse effect on, or an adverse change in,
the Value of the Acquired Assets in an amount in excess of One Million
dollars ($1,000,000):
(i) the representations and warranties set forth in Section 4 above
shall be true and correct at and as of the Closing Date;
(ii) Fibreboard shall have performed and complied with all of its
covenants hereunder through the Closing;
(iii) all consents and approvals of third parties including the
Forest Service and all other governmental agencies required on or before the
Closing in connection with the change in ownership of the Acquired Shares
from Fibreboard to Buyer and listed on APPENDIX 5 shall have been obtained
and such consents and approvals shall not impose conditions that make it
impracticable for the Acquired Corporations to continue to conduct the
Businesses or result in an adverse effect on the Value of the Acquired Assets;
(iv) no action, suit or proceeding shall be overtly threatened or
pending before any court or quasi-judicial or administrative agency of any
federal, state, local or foreign jurisdiction wherein an unfavorable
judgment, order, decree,
-25-
stipulation, injunction or charge could reasonably be expected to (A) prevent
consummation of any of the transactions contemplated by this Purchase
Agreement, (B) cause any of the transactions contemplated by this Purchase
Agreement to be rescinded following consummation, or (C) affect materially
and adversely the right of Buyer to own the Acquired Shares and the right of
any Acquired Corporation to own, operate or control the Acquired Assets (and
no such judgment, order, decree, stipulation, injunction or charge shall be
in effect);
(v) Fibreboard shall have delivered to Buyer on and dated as of the
Closing Date a certificate to the effect that each of the conditions
specified above in Sections 7.1(i), (ii) and (iv) is satisfied in all
material respects;
(vi) all applicable waiting periods (and any extensions thereof)
under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been
terminated;
(vii) the Title Agent shall be prepared to deliver to Buyer an ALTA
owner's title insurance policy (10-17-92 Form) dated the Closing Date,
covering the Owned Real Property, issued by the Title Agent insuring the fee
simple title of the Acquired Corporations in such real estate, subject only
to Permitted Exceptions;
(viii) Buyer shall have received from counsel to Fibreboard an
opinion addressed to Buyer and dated as of the Closing Date in the form
attached as EXHIBIT D;
(ix) except as set forth in the Disclosure Schedule as of the
Effective Date, there shall have been no adverse change in the Value of the
Acquired Assets as compared to the Effective Date;
-26-
(x) Fibreboard shall have delivered to Buyer an executed withholding
certificate in the form of EXHIBIT E;
(xi) Fibreboard shall have delivered to Buyer a pay-off letter from
Lender, in a form reasonably satisfactory to Buyer;
(xii) all actions to be taken by Fibreboard in connection with the
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance to
Buyer.
Buyer may waive any condition specified in this Section 7.1 (other than
Section 7.1(vi)) if Buyer executes and delivers to Fibreboard a writing so
stating at or prior to the Closing.
7.2 CONDITIONS TO OBLIGATION OF SELLER. The obligation of Fibreboard to
consummate the transactions to be performed by it in connection with the
Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 5 above
shall be true and correct in all material respects at and as of the Closing
Date;
(ii) Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) all consents and approvals of third parties including the
Forest Service and all other governmental agencies required on or before the
Closing in connection with the change in ownership of the Acquired Shares
from Fibreboard to Buyer and listed on APPENDIX 5 shall have been obtained or
the Buyer and
-27-
the Acquired Corporations shall have waived their rights to indemnification
pursuant to Section 10.2 of this Purchase Agreement with regard to those
agreements for which such consents and approvals were not obtained;
(iv) no action, suit or proceeding shall be overtly threatened or
pending before any court or quasi-judicial or administrative agency of any
federal, state, local or foreign jurisdiction wherein an unfavorable
judgment, order, decree, stipulation, injunction or charge could reasonably
be expected to (A) prevent consummation of any of the transactions
contemplated by this Purchase Agreement or (B) cause any of the transactions
contemplated by this Purchase Agreement to be rescinded following
consummation (and no such judgment, order, decree, stipulation, injunction or
charge shall be in effect);
(v) Buyer shall have delivered to Fibreboard a certificate on and
dated as of the Closing Date to the effect that each of the conditions
specified above in Sections 7.2(i)-(iii) is satisfied in all material
respects;
(vi) all applicable waiting periods (and any extensions thereof)
under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been
terminated;
(vii) Fibreboard shall have received from counsel to Buyer an
opinion addressed to Fibreboard and dated as of the Closing Date in the form
attached as EXHIBIT F;
(viii) Buyer shall have extended offers of continued employment to
the persons identified in EXHIBIT G attached hereto in accordance with, at a
minimum, the terms set forth in such EXHIBIT G; and
(ix) all actions to be taken by Buyer in connection with the
consummation of the transactions contemplated hereby
-28-
and all certificates, opinions, instruments and other documents required to
effect the transactions contemplated hereby will be reasonably satisfactory
in form and substance to Fibreboard.
Fibreboard may waive any condition specified in this Section 7.2 (other than
Section 7.2(vi)) if Fibreboard executes and delivers to Buyer a writing so
stating at or prior to the Closing.
SECTION 8
TERMINATION
8.1 TERMINATION OF PURCHASE AGREEMENT. The Parties may terminate this
Purchase Agreement as provided below:
(i) Buyer and Fibreboard may terminate this Purchase Agreement by
mutual written consent at any time prior to the Closing;
(ii) Buyer may terminate this Purchase Agreement by giving written
notice to Fibreboard at any time prior to the Closing in the event that
Fibreboard is in breach, and Fibreboard may terminate this Purchase Agreement
by giving written notice to Buyer at any time prior to the Closing in the
event that Buyer is in breach, of any material representation, warranty or
covenant contained in this Purchase Agreement in any material respect and
such breach is not substantially cured within ten business days of the
breaching Party's receipt of such notice; PROVIDED, HOWEVER, that if a Party
is attempting to cure such breach with commercially reasonable diligence on
the tenth (10th) business day after receipt of such notice, such period shall
be extended to twenty (20) business days after receipt of such notice so long
as the breach is curable and the
-29-
Party continues to attempt to cure with commercially reasonable diligence;
(iii) As set forth in Section 5.5, Fibreboard may terminate this
Purchase Agreement and retain the Deposit pursuant to Section 8.3 if any of
the Acquired Corporations, Fibreboard or Buyer is notified, verbally or in
writing as required by Section 11.6, by CIBC, Xxxx Xxxxxxx or Buyer that (A)
CIBC or Xxxx Xxxxxxx has withdrawn its financing commitment or otherwise does
not intend to provide financing, for any reason, (B) the terms of either of
the commitment letters are amended in a manner that results in a delay of the
Closing or in a manner otherwise materially adverse to Fibreboard, or (C) the
aggregate amount committed to under both of the commitment letters is reduced;
(iv) Buyer may terminate this Purchase Agreement by giving written
notice to Fibreboard at any time prior to the Closing if the Closing shall
not have occurred on or before December 3, 1996 by reason of the failure of
any condition precedent under Section 7.1 hereof (unless the failure results
primarily from Buyer itself breaching any representation, warranty or
covenant contained in this Purchase Agreement); or
(v) Fibreboard may terminate this Purchase Agreement by giving
written notice to Buyer at any time prior to the Closing if the Closing shall
not have occurred on or before December 3, 1996 by reason of the failure of
any condition precedent under Section 7.2 hereof (unless the failure results
primarily from Fibreboard breaching any representation, warranty or covenant
contained in this Purchase Agreement).
8.2 EFFECT OF TERMINATION. If any Party terminates this Purchase
Agreement pursuant to Section 8.1 above, all obligations of the Parties
hereunder shall terminate without any Liability of any Party to any other
Party (except for any
-30-
Liability of any Party then in breach of this Purchase Agreement for such
breach of this Purchase Agreement).
8.3 DISPOSITION OF THE DEPOSIT. Notwithstanding Section 8.2 of this
Purchase Agreement, upon termination of this Purchase Agreement by either
party for any reason (except as set forth below), Fibreboard shall retain the
Deposit; PROVIDED, HOWEVER, that in the event Buyer terminates this Purchase
Agreement under Section 8.1(ii) above as a result of a breach by Fibreboard
or an Acquired Corporation of its covenants under this Purchase Agreement or
if the Closing does not occur solely because Fibreboard failed to obtain the
consent of Bank of America NT & SA with regard to that certain financing
facility described in APPENDIX 2 or the Lender fails to deliver its pay-off
letter and the Old Certificates, then, and in such event, Fibreboard shall
deliver to Buyer the Deposit, together with interest thereon at the rate
specified in Section 2.2 of this Purchase Agreement (for the period beginning
on the Deposit Date and ending on the date paid).
SECTION 9
POST-CLOSING COVENANTS
Fibreboard and Buyer agree as set forth in this Section 9 with respect to
the period following the Closing.
9.1 GENERAL.
(a) In case at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Purchase Agreement,
each Party shall take such further action (including the execution and
delivery of such further instruments and documents) as any Party reasonably
may request,
-31-
all at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under Section 10
below).
(b) If Buyer shall, at any time after the Closing, receive any
Excluded Asset or any payment with respect thereto, it shall promptly deliver
such Excluded Asset or payment to Fibreboard unless Fibreboard shall have
received value for same at Closing. If Fibreboard shall, at any time after
the Closing, receive any Acquired Asset or any payment with respect thereto,
Fibreboard shall promptly deliver such Acquired Asset or payment to Buyer.
(c) If requested by Buyer, Fibreboard agrees to prosecute or
otherwise enforce in its own name for the benefit of Buyer any claims, rights
or benefits that are intended to be transferred to Buyer by its acquisition
of the Acquired Corporations pursuant to this Purchase Agreement and that
require prosecution or enforcement in Fibreboard's name, provided Buyer or
any Acquired Corporation is legally prevented from prosecuting or otherwise
enforcing such claim. In the event Buyer or any Acquired Corporation makes
such a request of Fibreboard, Buyer will defend, indemnify and hold
Fibreboard harmless for any liabilities arising from such prosecution or
enforcement, unless the prosecution or enforcement is made necessary by a
breach of this Purchase Agreement by Fibreboard. Any prosecution or
enforcement of claims, rights or benefits under this Section shall be solely
at Buyer's expense, unless the prosecution or enforcement is made necessary
by a breach of this Purchase Agreement by Fibreboard.
9.2 ACCESS. Without limiting the provisions of Section 9.1, upon
reasonable notice, Buyer shall cause the employees or former employees of the
Acquired Corporations who were previously responsible for preparing the
financial information of the Resort Group (to the extent such individuals
-32-
continue to be employed by the Acquired Corporations, Buyer or any Affiliate
of Buyer) to assist in the preparation of (i) the Final Adjustment and (ii)
any financial reports, audited financial statements and tax returns of any
Acquired Corporation, and Buyer shall permit Fibreboard and its
representatives to have such access (during normal business hours) to the
premises, assets, records and employees of the Acquired Corporations, Buyer
and any Affiliate of Buyer as shall be reasonably necessary for the
preparation of (i) the Final Adjustment and (ii) any financial reports,
audited financial statements and tax returns for periods prior to or
including the Closing Date, all without cost to Fibreboard and without
material disruption to Buyer's or any Acquired Corporation's operations.
9.3 LITIGATION SUPPORT. In the event and for so long as any Party
actively is contesting or defending against any charge, complaint, action,
suit, proceeding, hearing, investigation, claim or demand in connection with
(i) any transaction contemplated under this Purchase Agreement or (ii) any
fact, situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act or transaction prior to
the Closing Date involving the Acquired Corporations or the Acquired Assets
(including, without limitation, any Adverse Consequences), each Party will
cooperate with the contesting or defending Party and its counsel in the
contest or defense, make available its personnel and provide such testimony
and access to its books and records as shall be requested and reasonable in
connection with the contest or defense and which shall not cause any material
disruption to such Party's operations, with all out-of-pocket costs to be
borne by the contesting or defending Party (unless the contesting or
defending Party is entitled to indemnification therefor under Section 10,
11.13, 11.14 or 11.15 below).
9.4 TRANSITION. Except upon instructions delivered from Buyer to
Fibreboard, Fibreboard will refrain from taking any
-33-
action that is designed or intended to have the effect of discouraging any
governmental authority, lessor, licensor, customer, supplier or other
business associate of any Business, insofar as the Acquired Assets are
concerned, from maintaining the same business relationships with Buyer and
the Acquired Corporations after the Closing as it maintained with such
Business prior to the Closing. Fibreboard will promptly refer all customer
inquiries relating to the businesses of the Acquired Corporations, insofar as
the Acquired Corporations and the Acquired Assets are concerned, to Buyer
from and after the Closing.
9.5 CORPORATE NAMES. Without limitation, Buyer expressly acknowledges
and agrees that the name "Fibreboard," and any derivation thereof shall not
constitute an Acquired Asset and shall remain the exclusive property of
Fibreboard. Neither Buyer nor any Affiliate of Buyer shall, in any way,
infringe upon Fibreboard's use or rights to such name (and any derivation
thereof).
SECTION 10
INDEMNIFICATION AND REMEDIES
10.1 SURVIVAL; EXCLUSIVITY. All of the representations and warranties of
the Parties contained in this Purchase Agreement shall survive the Closing
(unless Buyer, on the one hand, or Fibreboard, on the other hand, knew of any
misrepresentation or breach of warranty or covenant of Fibreboard or Buyer,
as the case may be, at the time of Closing in which event the affected
representation(s) or warranty(ies), or relevant portion(s) thereof, shall not
survive the Closing), but shall continue in force and effect solely for a
period of one year thereafter (the "Survival Period"). The Parties hereto
agree
-34-
that the sole recourse from and after the Closing for a breach of a
representation or warranty made in this Purchase Agreement shall be the
indemnities provided for in Sections 10.2 and 10.3 of this Purchase
Agreement, but nothing in such sections restricts any Party from enforcing
other covenants or agreements made in this Purchase Agreement.
10.2 INDEMNIFICATION PROVISIONS FOR BUYER'S BENEFIT. In the event that
any of the representations or warranties of Fibreboard contained in this
Purchase Agreement are not true, and provided that (A) the particular
representation or warranty (or portion thereof) survives the Closing, (B)
Buyer makes a written claim for indemnification against Fibreboard within the
Survival Period, and (C) each such discrete claim has a value of at least Ten
Thousand Dollars ($10,000), then Fibreboard agrees to indemnify Buyer (and,
as of the Closing, any relevant Acquired Corporation) from and against any
Adverse Consequences Buyer (or, as of the Closing, any relevant Acquired
Corporation) reasonably may suffer through and after the date of the claim
for indemnification resulting from or caused by the breach; PROVIDED,
HOWEVER, that Buyer shall not be entitled to indemnification under this
SECTION 10.2 for any indemnification claims until the amount of the aggregate
claims required to be indemnified by Fibreboard pursuant to this SECTION 10.2
exceeds Five Hundred Thousand Dollars ($500,000) (said amount is hereinafter
referred to as the "Threshold"), whereupon Buyer shall be entitled to
indemnification hereunder from Fibreboard only for Adverse Consequences in
excess of the Threshold. As used herein "discrete claim" means any claim
involving a discrete or single occurrence, site specific condition, act or
other event, which causes Adverse Consequences.
10.3 INDEMNIFICATION PROVISIONS FOR SELLER'S BENEFIT. In the event Buyer
breaches any of its representations or warranties contained in this Purchase
Agreement, and provided that the particular representation or warranty (or
portion thereof)
-35-
survives the Closing and Fibreboard makes a written claim for indemnification
against Buyer within the Survival Period, then Buyer agrees to indemnify
Fibreboard from and against any Adverse Consequences it reasonably may suffer
through and after the date of the claim for indemnification resulting from or
caused by the breach.
10.4 PURCHASE "AS IS".
(i) Buyer acknowledges and agrees that Buyer has had the opportunity
to thoroughly inspect and review the Businesses, including the Acquired
Assets.
(ii) Buyer acknowledges and agrees that (A) Buyer (through its
officers and Affiliates) has substantial experience with the types of
businesses conducted by the Acquired Corporations, assets such as the
Acquired Assets (including the Real Property) and issues such as the Purchase
Considerations, and (B) except as otherwise expressly provided in this
Section 10 of this Purchase Agreement, Buyer is acquiring the Acquired Shares
representing ownership of the Acquired Corporations containing the Acquired
Assets.
"AS-IS, WHERE-IS, WITH ALL FAULTS,"
in their current condition, and solely in reliance on Buyer's own due
diligence, inspections and examinations of the Acquired Assets.
(iii) Buyer acknowledges and agrees that (A) except as expressly set
forth in Section 4 of this Purchase Agreement, neither Fibreboard nor any
Acquired Corporation nor any agent, representative or employee of Fibreboard
or any Acquired Corporation has made any representations or warranties on
which Buyer shall be in any way entitled to rely with respect to the Acquired
Corporations, Acquired Assets or the Purchase
-36-
Considerations, whether direct or implied, verbal or written, including any
warranty of merchantability or fitness for a particular purpose, and (B) each
of the Acquired Corporations and Fibreboard may disclaim and has hereby
expressly disclaimed any and all representations and warranties which are not
expressly set forth in Section 4 above.
(iv) Having taken into account the possibility that its inspection
of the Businesses, including the Acquired Assets, may not have revealed
adverse or undesirable Environmental Conditions, and except as otherwise
expressly provided in Section 10 of this Purchase Agreement, Buyer hereby
waives, releases and discharges forever Fibreboard and Fibreboard's Related
Parties from all present and future Adverse Consequences arising out of or in
any way connected with any Environmental Conditions (including, without
limitation, any Environmental Conditions resulting from the use, maintenance,
ownership or operation of the businesses by any of the Acquired Corporations
or Fibreboard). Buyer hereby waives the benefits of Section 1542 of the
California Civil Code, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
10.5 CROSS-INDEMNIFICATIONS AND RELEASE. The Parties agree as follows:
(a) INDEMNIFICATION OF BUYER AND ACQUIRED CORPORATIONS BY SELLER.
Fibreboard shall defend, indemnify and hold Buyer (and as of the Closing, any
relevant Acquired Corporation) harmless from any Adverse Consequences Buyer
(or,
-37-
after the Closing, any Acquired Corporation) reasonably may suffer resulting
from or caused by Seller's Liabilities.
(b) INDEMNIFICATION AND RELEASE OF SELLER BY ACQUIRED CORPORATIONS
AND BUYER. Buyer and Acquired Corporations agree jointly and severally to
defend, indemnify and hold Fibreboard harmless from and against any Adverse
Consequences Fibreboard reasonably may suffer resulting from or caused by the
Assumed Liabilities. Furthermore, Buyer and Acquired Corporations hereby
waive, release and discharge forever Fibreboard and Fibreboard's Related
Parties from all present and future Adverse Consequences arising out of or in
any way connected with any Environmental Conditions, except to the extent
that any such Adverse Consequences are indemnifiable by Seller in accordance
with Section 10.2 hereof.
10.6 MATTERS INVOLVING THIRD PARTIES. If any third party shall notify
Fibreboard, on the one hand, or Buyer on the other hand (the notified party
is hereinafter referred to as the "Indemnified Party") with respect to any
matter which may give rise to a claim for indemnification against the other
(such other party is hereinafter referred to as the "Indemnifying Party")
under this Section 10, then the Indemnified Party shall notify the
Indemnifying Party thereof promptly; PROVIDED, HOWEVER, that no delay on the
part of the Indemnified Party in notifying the Indemnifying Party shall
relieve the Indemnifying Party from any liability or obligation hereunder
unless (and then solely to the extent) the Indemnifying Party is thereby
damaged. Seller hereby agrees that it is defending, and will continue to
defend, in accordance with the terms of this Purchase Agreement all
litigation and actions pending against Seller or any Acquired Corporation,
including, without limitation, the actions described in the Disclosure
Schedule. In the event the Indemnifying Party notifies the Indemnified Party
within fifteen (15) days after the Indemnified Party has given notice of the
matter that the Indemnifying Party is assuming the
-38-
defense thereof, (A) the Indemnifying Party will defend the Indemnified Party
against the matter with counsel of the Indemnifying Party's choice reasonably
satisfactory to the Indemnified Party, (B) the Indemnified Party may retain
separate co-counsel at the Indemnified Party's sole cost and expense (except
that the Indemnifying Party will be responsible for the reasonable fees and
expenses of the separate co-counsel to the extent the Indemnified Party
concludes reasonably that the Indemnified Party has an actual conflict of
interest with other parties represented by the counsel selected by the
Indemnifying Party, or such counsel otherwise has a conflict in its
representation of the Indemnified Party such that representation of the
Indemnified Party by such counsel would be inappropriate), and (C) neither
the Indemnified Party nor the Indemnifying Party will consent to the entry of
any judgment or enter into any settlement with respect to the matter without
the written consent of the other Party (not to be withheld unreasonably). In
the event the Indemnifying Party does not notify the Indemnified Party within
fifteen (15) days after the Indemnified Party has given notice of the matter
that the Indemnifying Party is assuming the defense thereof, then the
Indemnified Party may defend against, or enter into any settlement with
respect to, the matter in any manner it reasonably may deem appropriate (with
the Indemnifying Party bearing responsibility for all Adverse Consequences as
set forth herein).
10.7 DETERMINATION OF LOSS. The Parties shall make appropriate
adjustments for Tax benefits (and losses) and insurance proceeds (reasonably
certain of receipt and utility in each case) and for the time value of money
(using the prime lending rate of Bank of America National Trust and Savings
Association as the discount rate) in determining the amount of Adverse
Consequences for purposes of this Section 10.
10.8 PAYMENT. Except for third-party claims being defended in good faith
by the Indemnifying Party in accordance
-39-
with Section 10.6, the Indemnifying Party shall satisfy its obligations
hereunder within fifteen (15) days after its receipt of notice of a claim.
Any amount not paid to the Indemnified Party by such date shall bear interest
at a rate equal to six and one-half percent (6 1/2%) PER ANNUM from the date
due until the date paid.
SECTION 11
MISCELLANEOUS
11.1 NO THIRD-PARTY BENEFICIARIES. Except as expressly provided herein,
this Purchase Agreement shall not confer any rights or remedies upon any
Person other than the Parties and their respective successors and permitted
assigns.
11.2 ENTIRE AGREEMENT. This Purchase Agreement (including the Exhibits,
Schedules and Appendices referred to herein) constitutes the entire agreement
between the Parties and supersedes any prior understandings, agreements or
representations by or between the Parties, written or oral, that may have
related in any way to the subject matter hereof, including without
limitation, the Letter of Intent; PROVIDED, HOWEVER, that the terms and
provisions of that certain confidentiality letter dated August 16, 1996
between Buyer and Fibreboard and executed in connection with Buyer's due
diligence review of the Resort Group shall remain in full force and effect
and shall not be amended as a result of this Purchase Agreement.
11.3 SUCCESSION AND ASSIGNMENT. This Purchase Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors
and permitted assigns. No Party may assign either this Purchase Agreement or
any of its rights, interests or obligations hereunder without the prior
written
-40-
approval of the other Parties; provided, however, that, Buyer may
collaterally assign its rights under this Purchase Agreement to any Person or
Persons providing financing to Buyer with respect to the acquisition of the
Acquired Shares and such Person or Persons may, upon any foreclosure
resulting from such financing, further assign this Purchase Agreement and its
rights hereunder to any other Person.
11.4 COUNTERPARTS. This Purchase Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
11.5 HEADINGS. The section headings contained in this Purchase Agreement
are inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Purchase Agreement.
11.6 NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand,
claim or other communication hereunder shall be deemed duly given if (and
then two business days after) it is sent by registered or certified mail,
return receipt requested, postage prepaid, and addressed to the intended
recipient as set forth below:
IF TO SELLER (OR THE ACQUIRED CORPORATIONS BEFORE THE CLOSING DATE):
Fibreboard Corporation
Texas Commerce Tower
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Senior Vice
President, General Counsel and
Secretary
-41-
COPY TO:
Pillsbury Madison & Sutro LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxx
IF TO BUYER (OR THE ACQUIRED CORPORATIONS ON OR AFTER THE CLOSING
DATE):
Booth Creek Ski Holdings, Inc.
000 Xxxxx Xxxxxxxx Xxxx
Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
COPY TO:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Any Party may give any notice, request, demand, claim or other communication
hereunder using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail or electronic
mail), but no such notice, request, demand, claim or other communication
shall be deemed to have been duly given unless and until it actually is
received by the individual for whom it is intended. Any Party may change the
address to which notices, requests, demands, claims and other communications
hereunder are to be delivered by giving the other Parties notice in the
manner herein set forth.
11.7 GOVERNING LAW. This Purchase Agreement shall be governed by and
construed in accordance with the laws of the State of California.
11.8 AMENDMENTS AND WAIVERS. No amendment of any provision of this
Purchase Agreement shall be valid unless the same shall be in writing and
signed by the Parties. No waiver by any
-42-
Party of any default, misrepresentation or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior
or subsequent default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
11.9 SEVERABILITY. Any term or provision of this Purchase Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision
in any other situation or in any other jurisdiction. If the final judgment
of a court of competent jurisdiction declares that any term or provision
hereof is invalid or unenforceable, the Parties agree that the court making
the determination of invalidity or unenforceability shall have the power to
reduce the scope, duration or area of the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Purchase Agreement shall be enforceable as so
modified after the expiration of the time within which the judgment may be
appealed.
11.10 EXPENSES. Each Party shall bear its own costs and expenses
(including legal fees and expenses) incurred in connection with the
negotiation of this Purchase Agreement and the transactions contemplated
hereby; PROVIDED, HOWEVER, that the costs of any preliminary title reports
and any title insurance premiums contemplated by Section 7.1(vii) of this
Purchase Agreement will be shared equally by Fibreboard and Buyer; and
PROVIDED, FURTHER, that the filing fees associated with the Xxxx-Xxxxx-Xxxxxx
Act (as contemplated by Section 6.2 above) shall be borne by Buyer. Each
Party shall bear its own costs and expenses (including legal fees and
expenses), associated
-43-
with any further filings or requests for information with respect to the
Xxxx-Xxxxx-Xxxxxx Act.
11.11 CONSTRUCTION. The language used in this Purchase Agreement will be
deemed to be the language chosen by the Parties to express their mutual
intent, and no rule of strict construction shall be applied against any
Party. Any reference to any federal, state, local or foreign statute or law
shall be deemed also to refer to all amendments thereto and rules and
regulations promulgated thereunder, unless the context requires otherwise.
11.12 INCORPORATION OF EXHIBITS, SCHEDULES AND APPENDICES. The Exhibits,
Schedules and Appendices identified in this Purchase Agreement are
incorporated herein by reference and made a part hereof.
11.13 EMPLOYEE BENEFITS MATTERS.
(a) Effective immediately prior to the Closing, and contingent on the
Closing, Fibreboard shall terminate the participation of employees of the
Acquired Corporations in any Plan maintained by Fibreboard and fully vest
them in all profit sharing or pension plans. Effective immediately prior to
the Closing, and contingent on the Closing, Fibreboard shall cause Acquired
Corporations to terminate any Plan (and the participation of employees of the
Acquired Corporations in such Plan) maintained by the Acquired Corporations
and fully vest employees in all profit sharing or pension plans.
(b) Buyer shall ensure that (i) employees of the Acquired Corporations
who are employees of the Acquired Corporations, Buyer or any Affiliate of
Buyer from and after the Closing (collectively, "Affected Employees") shall
be entitled to participate fully in the employee benefit plans of Buyer and
(ii) such plans shall treat employment with (or within) the
-44-
Acquired Corporations (or the Controlled Group) prior to the Closing Date the
same as employment with any of Buyer or its ERISA affiliated group from and
after the Closing Date for purposes of eligibility and vesting, but not
benefit accrual.
(c) Prior to the Closing Date, Fibreboard shall cause the Acquired
Corporations to have paid (i), except to the extent such Liability or
obligation is reflected in calculation of the Net Working Capital, all
bonuses earned by Affected Employees for all periods prior to the Closing
Date; and (ii) all contributions to all profit sharing and pension Plans for
all periods prior to the Closing Date. Except to the extent such Liability
or obligation is reflected in the calculation of the Net Working Capital,
Fibreboard shall be responsible for paying the Affected Employees for any
vacation, holiday and sick pay accrued prior to the Closing.
(d) Except to the extent such Liability or obligation is reflected in
the calculation of the Net Working Capital, Fibreboard shall remain
responsible for all labor and employment obligations of Fibreboard or any
Acquired Corporation, for the period prior to the Closing, including all
Liability or obligations arising from (A) workers' compensation claims and
coverage, both medical and disability, or other government-mandated programs,
which are associated with any employees of Fibreboard or the Acquired
Corporations for periods prior to the Closing or based on injuries occurring
on or prior to the Closing regardless of when such claims are filed and (B)
amounts owed to any employees of Fibreboard or any Acquired Corporation for
compensation for any period prior to the Closing or any termination by
Fibreboard or any Acquired Corporation of the employment of such employees
prior to the Closing. Buyer and the Acquired Corporations shall be solely
responsible for claims based on injuries occurring after the Closing. In
addition, except to the extent such Liability or obligation is reflected in
calculation of the Net Working Capital, Fibreboard shall
-45-
remain responsible in accordance with all Plans for the satisfaction of all
claims for benefits, including medical, dental, life insurance, health
insurance, health, accident or disability or severance benefits brought by or
in respect of employees of the Businesses under any Plan, and shall remain
responsible for all Liability arising under the Consolidated Omnibus Budget
Reconciliation Act of 1985 with respect to any employee terminated prior to
the Closing or otherwise with respect to any Plan that is covered thereby;
provided, however, that the Buyer shall cause the Acquired Corporations to
reimburse Fibreboard for its actual costs in providing continuing coverage
for medical and dental benefits for employees of the Acquired Corporations
from and after the Closing and until the end of the year.
(e) Except to the extent such Liability or obligation is reflected in
the calculation of the Net Working Capital, Fibreboard shall indemnify and
hold Buyer (and, as of the Closing, the Acquired Corporations) harmless for
all Liabilities arising under Title I or IV of ERISA or Chapter 43 of the
Code by reason of all or any part of the Acquired Corporations having at some
date prior to the Closing been a part of Seller or the Seller's Controlled
Group.
11.14 EMPLOYMENT. The Acquired Corporations and Buyer also agree to
extend offers of continued employment as of the Closing to the persons
identified in EXHIBIT G in accordance with, at a minimum, the terms set forth
in such EXHIBIT G. Nothing in this Purchase Agreement shall affect any of
the Acquired Corporations' rights to terminate the employment of any Affected
Employee after the Closing, with or without cause, provided that Buyer and
the Acquired Corporations shall indemnify and hold Fibreboard harmless from
any Liability to the extent arising out of (a) such a termination, (b)
allegations of discrimination as a result of or arising out of Buyer's
employment of the Affected Employees, or (c) the absence of any
-46-
notice by Fibreboard, Buyer or Acquired Corporations under Section 3(a) of
the WARN Act with respect to the transactions contemplated by this Purchase
Agreement.
11.15 TAXES AND RELATED MATTERS.
(i) Seller and Buyer shall jointly make the elections provided for by
Sections 338(g) and 338(h)(10) of the Code and any corresponding elections
under state, local, or foreign tax law (collectively, "Section 338
Elections") with respect to the purchase and sale of the Acquired Shares, and
Buyer shall have the option, in its sole discretion, to make the election
provided for by Section 338(g) of the Code with respect to any Affiliate
which is an eligible target affiliate under Section 338 of the Code and
applicable treasury regulations. Buyer and Seller shall cooperate with each
other to take all actions necessary and appropriate (including executing and
filing such forms, returns, elections, schedules and other documents as may
be required) to effect and preserve timely Section 338 Elections. Seller and
Buyer shall report the purchase by Buyer of the Shares pursuant to this
Purchase Agreement consistent with the Section 338 Elections and shall take
no Income Tax position inconsistent therewith in any Income Tax return, any
proceeding before any taxing authority or otherwise.
(ii) The Purchase Price shall be allocated among the Acquired Shares by
Buyer as set forth in EXHIBIT A, which will be completed by mutual agreement
of the Parties and attached to this Purchase Agreement. Within 180 days of
the Closing Date, but in all events no later than 60 days prior to the last
date (determined without regard to extensions) on which a Section 338
Election may be filed with any applicable federal, state or local
governmental authority, Buyer shall prepare and deliver to Seller a schedule
(the "Shares Price Allocation Schedule") allocating with the consent of the
Seller (which consent shall
-47-
not be unreasonably withheld) the Modified Aggregate Deemed Sale Price (as
defined in Treasury Regulation section 1.338(h)(10)-1(e)(5)) among the assets
of the Acquired Corporations in accordance with the applicable treasury
regulations promulgated under Section 338 of the Code. At the time of
delivery of the Shares Price Allocation Schedule, Buyer shall provide Seller
with a copy of any appraisal report utilized by Buyer in the preparation of
such schedule. The costs of any appraisal shall be borne by the Buyer.
EXHIBIT A and the Shares Price Allocation Schedule shall be binding on the
Buyer and Seller and their Affiliates and all Parties agree to act in
accordance with such Exhibit and Schedule in the preparation, filing and
audit of any Income Tax return.
(iii) Whenever it is necessary for purposes of this Purchase Agreement to
determine the Tax liability (or assessments, utilities, and similar charges
and expenses with respect to the Acquired Assets), of an entity for a taxable
year or period that begins before and ends on or after the Closing Date, the
determination shall be made as follows:
(A) in the case of Income Taxes, by apportioning the total Tax
liability for such taxable year or period on the assumption that the
taxable year or period includes and ends on the Closing Date, as provided
for in Treasury Regulation 1.1502-76(b)(1) (with respect to any federal
Income Tax liability), and with income (or other applicable measure)
apportioned as provided in Treasury Regulation 1.1502-76(b)(2) (or in the
same manner, with respect to Income Taxes other than federal Income Taxes),
it being understood that Buyer is responsible for all Income Taxes of the
Resort Group attributable to the periods (or portions thereof) beginning
after the Closing Date (or deemed, pursuant to this section, to begin after
the Closing Date), and that Seller is responsible for all Income Taxes of
the Resort Group attributable to the
-48-
periods (or portions thereof) ending on or prior to the Closing Date (or
deemed, pursuant to this section, to end on or prior to the Closing Date),
including specifically, without limitation, any Income Taxes attributable
to the Section 338 Elections;
(B) in the case or real or personal property, lease or license Taxes,
and in the case of any assessments, utilities, and similar charges and
expenses with respect to the Acquired Assets, by prorating between
Fibreboard, on the one hand, and Buyer, on the other hand, by apportioning
such items on a per diem basis, with Fibreboard liable for the period prior
to and including the Closing Date, and Buyer responsible for the period
after the Closing Date (it being understood that Buyer is responsible only
for the portion of each such obligation attributable to the number of days
after the Closing in the relevant assessment period and Seller is only
responsible for the portion of each such obligation attributable to the
number of days prior to (and including) the Closing in the relevant
assessment period). Fibreboard and Buyer shall use their respective best
efforts to prepare a schedule of prorations, prior to the Closing Date,
which shall cover as many items to be prorated as practicable so that such
prorations can be made at the Closing (the resulting amount owed by Buyer
to Fibreboard is herein referred to as the "Estimated Proration Amount").
Such prorations shall be adjusted, if necessary, and completed after the
Closing as soon as final information becomes available. Fibreboard and
Buyer agree to cooperate and to use their best efforts to complete such
prorations no later than thirty (30) days after the Closing Date;
(C) in the case of any Taxes not specifically covered by subsections
(A) or (B) above, by apportioning the total Tax liability for such taxable
year or period on
-49-
the assumption that the taxable year or period includes and ends on the
Closing Date, with income (or other applicable measure) apportioned in
the same manner as provided in Treasury Regulation 1.1502-76(b)(2), it
being understood that Buyer is responsible for all such Taxes of the
Resort Group attributable to the periods (or portions thereof) beginning
after the Closing Date (or deemed, pursuant to this section, to begin
after the Closing Date), and that Seller is responsible for all such
Taxes of the Resort Group attributable to the periods (or portions
thereof) ending on or prior to the Closing Date (or deemed, pursuant to
this section, to end on or prior to the Closing Date), provided,
however, that any transfer, stamp, sales or use Taxes assessed or
imposed solely as a result of the transactions contemplated by this
Purchase Agreement shall be borne solely by Buyer.
(iv) In connection with tax returns and information reports:
(A) Seller shall be responsible for the timely filing (taking into
account any extensions received from the relevant Tax authorities) of all
Tax returns and information reports required by law to be filed in any
jurisdiction in respect of the Resort Group on or prior to the Closing, and
shall promptly deliver copies of all such returns and reports to Buyer, and
Buyer shall be responsible for the timely filing (taking into account any
extensions received from the relevant Tax authorities) of all Tax returns
and information reports required by law to be filed in such jurisdiction in
respect of the Resort Group after the Closing;
(B) Control of any legal or administrative proceedings concerning any
such Taxes, and entitlement to any refunds or awards with respect to any
such Taxes, shall
-50-
rest with the Party responsible for payment therefor under this Purchase
Agreement.
(C) In the event that any refund, rebate or similar payment is
received by Seller or Buyer in respect of the Resort Group, and which
payment pertains to the assessment period in which the Closing falls, the
Parties agree that such payment will be apportioned between Seller or Buyer
in accordance with the provisions of Section 11.15(iii); Seller shall
notify Buyer in writing within thirty (30) days as to any examination by or
disputes with taxing authorities that relate to periods of operating
through and including the Closing Date and relate to the Resort Group which
would affect the liability for Taxes of Buyer or the Acquired Corporations
for any period after the Closing Date or that could result in Buyer owing
money to Seller under any provisions in this Purchase Agreement. Buyer
shall notify Seller in writing within thirty (30) days as to any
examination by or disputes with taxing authorities that relate to the
Resort Group which would affect the liability for Taxes of Seller or the
Resort Group for any period on or prior to the Closing Date or that could
result in Seller owing money to Buyer or the Resort Group under any
provisions in this Purchase Agreement; and
(D) The Parties shall cooperate, including, without limitation, in
connection with any audits by Tax authorities and in the preparation of Tax
returns, to avoid payment of duplicate or inappropriate Taxes in respect of
the Acquired Corporations, and each party shall furnish, at the request of
the other, proof of payment of such Taxes and any other documentation that
may be a prerequisite to avoiding payment of a duplicate or inappropriate
Tax.
-51-
11.16 PAYMENT OF BML EARN-OUT. Buyer shall pay (or cause Bear Mountain
to pay) to Fibreboard the BML Earn-Out to the extent provided in the terms
set forth in SCHEDULE 11.16.
11.17 PROMOTIONAL PROGRAMS. From and after Closing Buyer will cause the
Acquired Corporations to honor all passes, discount coupons, Vertical Plus
program awards and other similar promotional items previously issued by any
of the Acquired Corporations (or their respective predecessors) prior to the
Closing Date (except to the extent indemnifiable by Seller in accordance with
Section 10.2 hereof).
11.18 NONSOLICITATION OF EMPLOYEES. None of Fibreboard or any Affiliates
thereof shall, prior to the third anniversary of the Closing Date, solicit any
employee of Buyer, any Acquired Corporation or any Affiliate thereof or of any
successor or assign of Buyer to leave such employment if such employee was at
any time between the date hereof and the Closing an employee of any Acquired
Corporation or Fibreboard.
11.19 GUARANTEE BY BUYER. Subject to Section 11.1 hereof, Buyer hereby
guarantees to Fibreboard the due and punctual payment and performance of
obligations owing to Fibreboard by Acquired Corporations after Closing under
this Purchase Agreement.
-52-
IN WITNESS WHEREOF, the Parties hereto have executed this Stock Purchase
and Indemnification Agreement as of the Effective Date.
BUYER:
BOOTH CREEK SKI HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Title: Vice President
--------------------------
SELLER:
FIBREBOARD CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------------
Title: Vice President
--------------------------
NORTHSTAR:
TRIMONT LAND COMPANY,
a California corporation
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------------
Title: Vice President
--------------------------
SIERRA:
SIERRA-AT-TAHOE, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------------
Title: Vice President
--------------------------
-53-
BEAR MOUNTAIN:
BEAR MOUNTAIN, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------------
Title: Vice President
--------------------------
-54-
APPENDIX 1
DEFINED TERMS
"ACCOUNTING PRINCIPLES" has the meaning set forth in Section 2.3(iii) of
the Purchase Agreement.
"ACQUIRED ASSETS" means all of each Acquired Corporation's right, title
and interest (and, to the extent exclusively related to any Business,
Fibreboard's right, title and interest, to the extent Fibreboard has the
right to transfer such right, title and interest) in and to the following
assets:
(a) those certain parcels of land more fully described in APPENDIX 3 to
the Purchase Agreement under the heading "Owned Real Property," 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 (such
land, rights, improvements and easements are collectively referred to herein
as the "Owned Real Property");
(b) the special use permits issued by the Forest Service, each of which
is described on APPENDIX 3 to the Purchase Agreement under the heading "USFS
Permits" (the "USFS Permits"), copies of which have been furnished to Buyer,
to the extent that any such permit is transferable with the consent of the
Forest Service and is not replaced with a new permit to be issued to the
relevant Acquired Corporations, together with all rights and privileges under
the USFS Permits and in and to the land described in the USFS Permits and in
and to the plants, buildings, structures, installations, fixtures,
improvements, betterments and additions situated thereon (such land, plants,
-1-
buildings, structures, installations, fixtures, improvements, betterments and
additions are collectively referred to herein as the "USFS Permitted
Property");
(c) the leases of the real property more fully described in APPENDIX 3
to the Purchase Agreement under the heading "Leased Real Property," together
with all rights and privileges under such leases (hereinafter referred to
collectively as the "Leased Real Property" and, together with the Owned Real
Property and the USFS Permitted Property, collectively referred to as the
"Real Property");
(d) all ski lifts, pylons, towers, ski-lift machinery and equipment,
snow-cats, snow-making facilities and other facilities and structures,
buildings, installations, fixtures, improvements, betterments and additions
located on or within the Real Property, machinery, equipment, service trucks,
shuttle busses, golf carts, vehicles, tractors, spare tires and parts, tools,
appliances, furniture, office furniture, fixtures, office supplies and office
equipment, computers, computer terminals and printers, telephone systems,
computer software, 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 any Acquired Corporation, or are
utilized exclusively in connection with any Acquired Corporation's operations
upon or within the Real Property, including, without limitation, the items
listed on APPENDIX 3 to the Purchase Agreement under the heading "Tangible
Personal Property" (collectively, the "Equipment and Improvements");
(e) all of each Acquired Corporation's retail inventory (including,
without limitation, all inventories of food and beverages and inventory
customarily sold by any Acquired Corporation 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,
-2-
parkas, pants and other uniform items, other than those which are customarily
sold by Acquired Corporations in new or used condition to the public and
which are included in Acquired Corporations' retail inventory), consumable
supplies, spare parts and repair materials and any and all other inventories
of each Acquired Corporation, an approximate summary of which retail and
non-retail inventories currently on hand is set forth on APPENDIX 3 to the
Purchase Agreement under the heading "Inventories," plus any replacements for
or additions to such inventories acquired on or before the Closing Date, and
minus any items of inventory sold by Acquired Corporation or consumed in the
Ordinary Course of Business on or before the Closing Date (collectively, the
"Inventories");
(f) all trade names, trademarks, service marks, copyrights and trade
secrets used by Fibreboard or any Acquired Corporation in (or owned by
Fibreboard or any Acquired Corporation and useful in) the operation of its
Business and listed on APPENDIX 3 to the Purchase Agreement under the heading
"Intangible Property," 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 the laws of applicable jurisdictions;
(g) to the extent transferable, all contracts, leases, subleases and
other agreements of Fibreboard or any Acquired Corporation, including all
customer agreements, vendor agreements, purchase orders, equipment leases,
installation agreements, computer software licenses and maintenance
agreements, hardware lease or rental agreements, contract claims and all
other arrangements and understanding related to the Businesses which are
listed on APPENDIX 3 to the Purchase Agreement under the heading "Agreements"
and all of each Acquired Corporation's rights and interests thereunder
(collectively, the "Agreements");
-3-
(h) all accounts receivable owned or held by any Acquired Corporation
and reflected in the calculation of the Net Working Capital, which will be
listed on APPENDIX 3 to the Purchase Agreement under the heading "Accounts
Receivable";
(i) all franchises, approvals, permits, licenses, orders, registrations,
certificates, variances and similar rights obtained from governments and
governmental agencies with respect to the ownership, use or operation of any
of the items identified in clauses (a) to (h) above (including any and all
renewals and applications for renewals thereof);
(j) all causes of action, choses in action and rights of recovery with
respect to items identified in clauses (a) to (i) above; except (1) with
respect to claims for harm to the Businesses that arose or arise prior to the
Closing Date and (2) with respect to claims for which Seller has agreed to
indemnify Buyer pursuant to Section 10.5 of the Purchase Agreement;
(k) all books, records, ledgers, files, documents, correspondence,
lists, plats, architectural plans, drawings and specifications, financial,
marketing and business data, pricing and cost information, business and
marketing plans and customer and supplier lists and information, creative
materials, advertising and promotional materials, studies, reports and other
printed or written materials with respect to the ownership, use or operation
of any of the items identified in clauses (a) to (i) above;
(l) each Acquired Corporation's goodwill related to its Business;
(m) all of each Acquired Corporation's rights and remedies under
warranty or otherwise, against a manufacturer, vendor or other Person for any
defects in any Acquired Asset except to the
-4-
extent such rights relate to Seller's Liabilities or to equipment replaced
prior to Closing (and no longer used by the Acquired Corporations) or to the
Yan lifts being replaced pursuant to the Doppelmayr Contract;
(n) prepaid expenses of Acquired Corporations (or Fibreboard where
exclusively related to the Resort Group) relating to the Resort Group;
(o) Sierra's twenty-five (25) fully paid and non-assessable shares of
the Tahoe Airline Guarantee Corp.;
(p) the corporate charter, qualifications to do business as a foreign
corporation, arrangements with registered agents relating to foreign
qualifications, taxpayer and other identification numbers, seals, minute
books, tax returns and related documents, stock transfer books, blank stock
certificates, and other documents relating to the organization, maintenance
and existence of any Acquired Corporation as a corporation; and
(q) all other properties, assets and rights of every kind, character or
description which are owned or used by any Acquired Corporation and which are
not Excluded Assets.
Notwithstanding the foregoing, the Acquired Assets shall not include the
following: (1) any insurance policies maintained by Seller or any Acquired
Corporation; (2) any of the rights of Fibreboard under the Purchase
Agreement; (3) any right to refunds of taxes, assessments or charges paid by,
on behalf of or with respect to the Acquired Corporations, for periods on and
prior to the Closing; (4) any assets which are identified under the heading
"Excluded Assets" on APPENDIX 4 to the Purchase Agreement; and (5) all
agreements between any Acquired Corporation and Fibreboard or any Affiliate
of Fibreboard (other than another Acquired Corporation).
-5-
"ACQUIRED CORPORATION(S)" has the meaning set forth in the preface of the
Purchase Agreement.
"ACQUIRED SHARES" has the meaning set forth in the Recitals of the
Purchase Agreement.
"ADJUSTMENT AMOUNT" has the meaning set forth in Section 2.3(iv) of the
Purchase Agreement.
"ADVERSE CONSEQUENCES" means all allegations, charges, complaints,
actions, suits, proceedings, hearings, investigations, claims, demands,
judgments, orders, decrees, stipulations, injunctions, damages, dues,
penalties, fines, costs, amounts paid in settlement, Liabilities,
obligations, taxes, interest, liens, losses, expenses and fees, including all
attorneys' fees and court costs, costs of expert witnesses and other expenses
of litigation.
"AFFECTED EMPLOYEES" has the meaning set forth in Section 11.13(b) of the
Purchase Agreement.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"AGREEMENTS" has the meaning set forth in part (g) of the definition of
"Acquired Assets."
"ARBITRATION" means, with respect to the Final Adjustment or a valuation
of any of the Excluded Assets for the purposes of Section 2.3(i) of the
Purchase Agreement, the submission of issues in dispute to a firm of
certified public accountants to be selected by agreement between the
independent public accountants of Fibreboard and the independent public
accountants of Buyer (the "Arbitrator"). If issues in dispute are submitted
to the Arbitrator for resolution, (A) each of Buyer and
-6-
Fibreboard will furnish to the Arbitrator such workpapers and other documents
and information relating to the disputed issues as the Arbitrator may request
and are available to that Party or its Affiliates (or its independent public
accountants), and will be afforded the opportunity to present to the
Arbitrator any material relating to the determination and to discuss the
determination with the Arbitrator, (B) the determination by the Arbitrator,
as set forth in a notice delivered to each of Buyer and Fibreboard by such
Arbitrator, will be binding and conclusive on the Parties (except for
manifest error), and (C) Buyer and Fibreboard will each bear fifty percent
(50%) of the fees of the Arbitrator for such determination.
"ASSUMED LIABILITIES" means any and all of the following Liabilities and
obligations (except for Liabilities for which Buyer is entitled to
indemnification under Section 10.2 of the Purchase Agreement):
(i) any and all Liabilities for which Buyer is or will become
responsible in accordance with the terms of Sections 11.13, 11.14, 11.15,
11.16 and 11.17 of the Purchase Agreement;
(ii) any and all Liabilities and obligations relating to or arising in
connection with Environmental Conditions;
(iii) any and all Liabilities and obligations of Seller or any of the
Acquired Corporations (or any Affiliate of Seller) under the licenses,
sublicenses, leases, subleases, contracts, agreements and other arrangements,
franchises, approvals, permits, orders, registrations, certificates,
variances and similar rights, in each case referred to in the definition of
Acquired Assets (and related portions of APPENDIX 3 to the Purchase
Agreement) and entered into or obtained or made prior to the Closing, unless
such Liabilities or obligations relate to any violation or breach thereof by
Seller or any Acquired Corporation (or any affiliate of Seller) prior to the
Closing or
-7-
the Liability or obligation relates to goods or services actually provided to
Seller or an Acquired Corporation and was due and payable or accruable under
generally accepted accounting principles prior to the Closing (but see
clauses (ii) and (iv) of this definition);
(iv) the accrued liabilities (and related obligations) used in the
calculation of the Net Working Capital or Price Adjustment;
(v) any and all Liabilities and obligations (other than Seller's
Liabilities) relating to or arising in connection with the use, ownership or
operation of the Acquired Assets or the Businesses, from and after the
Closing; and
(vi) Liabilities and obligations of Fibreboard under that certain
severance agreement by and between Fibreboard and Xxxxxxx X. Xxxxxx, dated as
of December 11, 1995.
"BIG SPRINGS DEVELOPMENT PROJECT" means the improvements located at
Northstar-at-Tahoe developed pursuant to the Big Springs Development Plan.
"BML AGREEMENT" means that certain Asset Purchase Agreement, dated
October 6, 1995, by and among S-K-I Ltd., Bear Mountain Ltd, Bear Mountain,
Inc. and Fibreboard, as amended by Amendment No. 1 thereto dated October 19,
1995.
"BML EARN-OUT" means the "Additional Consideration" as defined in and
payable by Bear Mountain in accordance with the terms of Section 2.6 of the
BML Agreement (but not including any amounts payable with respect to the
1995-1996 winter season or under Section 2.6.5 of the BML Agreement).
"BUYER" has the meaning set forth in the preface of the Purchase
Agreement.
-8-
"CASH" means cash and cash equivalents (including marketable securities
and short term investments) calculated in accordance with the Accounting
Principles.
"CLOSING" has the meaning set forth in Section 3.1 of the Purchase
Agreement.
"CLOSING AMOUNT" has the meaning set forth in Section 2.3(iii) of the
Purchase Agreement.
"CLOSING DATE" has the meaning set forth in Section 3.1 of the Purchase
Agreement.
"CLOSING STATEMENT" has the meaning set forth in Section 2.3(iv) of the
Purchase Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended, or its
successor and any regulations promulgated thereunder.
"CONTRACTS" means contracts, agreements, licenses, leases, subleases and
other arrangements with other parties; EXCEPT FOR contracts, agreements,
licenses, leases, subleases, permits and other arrangements issued by, or
entered into with, any government or governmental agency.
"CONTROLLED GROUP" means the Acquired Corporations and all Persons
(whether or not incorporated) under common control or treated as a single
employer with the Acquired Corporations pursuant to Sections 414(b), (c), (m)
or (o) of the Code.
"DEPOSIT" has the meaning set forth in Section 2.2 of the Purchase
Agreement.
"DISCLOSURE SCHEDULE" has the meaning set forth in Section 4 of the
Purchase Agreement (and is APPENDIX 2 attached to the Purchase Agreement).
-9-
"EFFECTIVE DATE" has the meaning set forth in the preface of the Purchase
Agreement.
"ENVIRONMENTAL CONDITIONS" means the following conditions affecting the
Acquired Assets (or any portion thereof):
(a) the condition of any and all Real Property soils and soils surrounding
or adjacent to any portion of the Real Property;
(b) the condition of any and all surface waters and groundwater on, about,
under, surrounding or adjacent to any portion of the Real Property;
(c) environmental conditions in the areas surrounding any portion of the
Real Property that could affect the quality of any portion of the Real
Property and its potential uses;
(d) the existence of any storage tank;
(e) Hazardous Materials in any state on, about, under, surrounding,
adjacent to or emanating or originating from any of the Acquired
Assets (including, without limitation, any portion of the Real
Property), from any source whatsoever and however they came to be
placed or located; and
(f) the pre-Closing failure to comply with Environmental Laws, including
any permits or approvals issued pursuant to such laws.
"ENVIRONMENTAL LAW(S)" means any and all federal, state and local laws,
regulations, ordinances, codes and policies, and any and all judicial or
administrative interpretations thereof by governmental authorities relating
to pollution or protection of
-10-
the environment, of natural resources or of public health and safety,
including, without limitation, those relating to emissions, discharges,
releases or threatened releases of Hazardous Materials into the environment,
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, release, transport or handling of Hazardous
Materials, and any and all orders and consent decrees pursuant thereto
relating to the Acquired Assets.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or its successor and any regulations promulgated thereunder.
"ESCROW AGREEMENT" has the meaning set forth in Section 3.3(xiii) of the
Purchase Agreement.
"ESCROW HOLDER" means First Trust of California.
"ESTIMATED PRICE ADJUSTMENT" has the meaning set forth in Section
2.3(iii).
"ESTIMATED PRORATION AMOUNT" has the meaning set forth in Section 11.15
of the Purchase Agreement; PROVIDED, HOWEVER, that such amount shall be paid
by delivery of cash payable by wire transfer or delivery of other funds which
shall be immediately available to Fibreboard as of the Closing.
"EXCLUDED ASSETS" means assets of the Acquired Corporations or Fibreboard
which are expressly excluded from the definition of Acquired Assets or are
set forth on APPENDIX 4 to the Purchase Agreement, none of which are intended
to be transferred to Buyer either directly or indirectly as a result of the
transactions contemplated by the Purchase Agreement except as may be
contemplated by Sections 2.3(i) and 3.2(i) of the Purchase Agreement.
-11-
"FIBREBOARD" has the meaning set forth in the preface of the Purchase
Agreement.
"FINAL ADJUSTMENT" has the meaning set forth in Section 2.3 of the Purchase
Agreement.
"FINANCIAL STATEMENTS" has the meaning set forth in Section 4.4 of the
Purchase Agreement.
"FOREST SERVICE" means the United States Forest Service.
"XXXX-XXXXX-XXXXXX ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
"HAZARDOUS MATERIALS" means substances which are explosive, corrosive,
radioactive or toxic and any substances defined as hazardous substances,
hazardous materials, toxic substances, toxic air contaminants or hazardous
wastes under federal, state or local laws or regulations, including without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (42 U.S.C. Section 9601 ET SEQ.), the Superfund Amendments and
Reauthorization Act of 1986 (Pub. L. 99-499, 100 Stat. 1617 (October 17, 1986)),
the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 ET SEQ.),
the Hazardous Waste Control Law (California Health & Safety Code Section 25100
ET SEQ.), the Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substance Account Act
(California Health & Safety Code Section 25300 ET SEQ.), the Hazardous
Materials Release Response Plans and Inventory Law (California Health & Safety
Code Section 25500 ET SEQ.), the Air Toxics "Hot Spots" Information and
Assessment Act of 1987 (California Health & Safety Code Section 44300 ET SEQ.)
and all amendments to these laws and regulations adopted or publications
promulgated pursuant to these laws. Hazardous Materials shall also include,
without limitation, those asbestos-containing materials defined and described in
Environmental Protection Agency Report No. 560/5-85-024 (June 1985), or any
related or successor report, or
-12-
other applicable government regulations defining or describing such materials.
"INCOME TAX" means any federal, state, local or foreign income tax or
franchise tax measured by income or gain, including any interest, penalty or
addition thereto, whether disputed or not.
"INDEMNIFIED PARTY" has the meaning set forth in Section 10.6 of the
Purchase Agreement.
"INDEMNIFYING PARTY" has the meaning set forth in Section 10.6 of the
Purchase Agreement.
"KNOWLEDGE" means actual knowledge without independent investigation.
"LENDER" means First Interstate Bank of Nevada, as agent for lenders to the
Resort Group.
"LETTER OF INTENT" means the letter agreement dated August 29, 1996 between
Booth Creek, Inc. and Fibreboard.
"LIABILITY" means any 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.
"NET WORKING CAPITAL" means, with respect to the Businesses (1) current
assets (excluding cash and cash equivalents, real estate notes receivable and
deferred income taxes), less (2) current liabilities (excluding accrued
interest, profit sharing, salaries and wages (other than amounts accrued for
vacation and personal leave, for which the Acquired Corporations will remain
liable), income taxes, other taxes, workers'
-13-
compensation and environmental reserves in excess of amounts accrued for
Sierra). A calculation of Net Working Capital as of October 26, 1996
(assuming the elimination of intercompany balances as contemplated by the
Purchase Agreement) is set forth as APPENDIX 6 to the Purchase Agreement.
"OFFICERS" means the following individuals:
- Xxxxxxx X. Xxxxxxx, Senior Vice President, General Counsel and
Secretary of Fibreboard;
- Xxxxxxx X. Xxxxxx, President-Resort Group;
- Xxxxxx X. XxXxxxxxx, Deputy General Counsel and Vice President of
Fibreboard;
- Xxxxx Xxxxxxxx, Director of Finance & Administration-Resort Group;
- Xxxx Xxxx, General Manager, Sierra;
- Xxxx X. Xxxxx, Chairman, President and Chief Executive Officer of
Fibreboard;
- Xxx Xxxxx, General Manager, Northstar;
- Xxxxxx X. Xxxx, Vice President Finance;
- Xxxxxxxxx Xxxxx, General Manager, Bear Mountain.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PARTIES" has the meaning set forth in the preface of the Purchase
Agreement.
-14-
"PERMITTED EXCEPTIONS" means such exceptions which are standard or
reasonable for title policies for real property such as the Real Property, and
include, without limitation, the following: (a) liens for taxes not yet due and
payable or for taxes that the taxpayer is contesting in good faith through
appropriate proceedings; (b) easements for utilities, drainage or access;
(c) any other encumbrance, exception to title or lien arising in the Ordinary
Course of Business and not incurred in connection with the borrowing of money
which individually or in the aggregate does not have a materially adverse effect
on the Value of the Acquired Assets taken as a whole; and (d) exceptions, in
addition to the foregoing, noted in preliminary title reports furnished to the
Buyer prior to the Effective Date and reasonably approved by Buyer such approval
to be evidenced by acceptance of the title policy referred to in
Section 7.1(vii) of the Purchase Agreement. For the purposes of this definition
the threshold for a "materially adverse effect" is One Hundred Thousand Dollars
($100,000).
"PERSON" means an individual, a partnership, a limited liability company, a
corporation, a joint stock company, a trust, a joint venture, an unincorporated
organization or a governmental entity (or any department, agency or political
subdivision thereof).
"PRICE ADJUSTMENT" has the meaning set forth in Section 2.3(iii).
"PURCHASE AGREEMENT" means the Stock Purchase and Indemnification Agreement
entered into as of the Effective Date among Buyer, Fibreboard and Acquired
Corporations to which this APPENDIX 1 of defined terms is attached.
"PURCHASE CONSIDERATIONS" means all factors and conditions relevant to the
use, ownership or possession of the Acquired
-15-
Corporations, the Acquired Assets, or any portion thereof, including, without
limitation, the following:
(a) Environmental Conditions;
(b) the present and historical operations conducted by Acquired
Corporations pertaining to the Acquired Assets;
(c) the physical condition of the Acquired Assets, all utilities which are
available to, or absent from, the Acquired Assets, all physical and
functional aspects of the Acquired Assets and compliance with all
covenants, conditions and restrictions binding upon the use of the
Acquired Assets;
(d) all factors affecting potential income which may be derived from, and
other factors affecting, the operation of the Acquired Assets and the
occupation or management of the Acquired Assets;
(e) the suitability of the Acquired Assets for any and all uses which
Buyer may conduct with respect thereto, and the habitability,
merchantability, marketability, profitability or fitness for any
particular use of any of the Acquired Assets;
(f) all matters relating to title to the Real Property; and
(g) all operative and proposed local, municipal, regional, state or
federal governmental laws, regulations and legal requirements to which
any of the Acquired Corporations has been, is or may become subject,
as well as the compliance of any Acquired Corporation (including,
without limitation, its use or operation
-16-
of the Acquired Assets) therewith (and including, without limitation,
laws, regulations and legal requirements relating to taxes,
assessments, leasing, occupancy, zoning, land use, subdivision,
planning, building, fire, alcoholic beverage regulation, safety,
health or environmental matters).
"PURCHASE PRICE" has the meaning set forth in Section 2.2 of the Purchase
Agreement.
"REAL PROPERTY" has the meaning set forth in clause (c) of the definition
of Acquired Assets.
"RELATED PARTIES" means, with respect to any Party, such Party's officers,
directors, shareholders, employees, agents, subsidiaries, affiliates and
divisions, and their respective heirs, successors, representatives and assigns.
"RESORT GROUP" has the meaning set forth in the Recitals to the Purchase
Agreement.
"SEASONAL ADJUSTMENT" means $7.5 million, less the product obtained by
multiplying (a) the number of days, if any, prior to November 30, 1996, on which
the Closing occurs, times (b) $50,000. For example, if the Closing Date is
November 27, 1996, the Seasonal Adjustment is $7,500,000 - $150,000, or
$7,350,000.
"SECURITY INTEREST" means any mortgage, pledge, security interest,
encumbrance, charge or other lien, OTHER THAN the following:
(a) liens for taxes not yet due and payable or for taxes that the
taxpayer is contesting in good faith through appropriate
proceedings;
-17-
(b) liens arising under worker's compensation, unemployment
insurance, social security, retirement and similar legislation;
(c) liens on goods in transit incurred pursuant to documentary
letters of credit; and
(d) purchase money liens and liens securing rental payments under
capital lease arrangements.
"SELLER'S LIABILITIES" means any and all of the following Liabilities
(except that such Liabilities and obligations shall not include any Liabilities
and obligations set forth in items (i) through (iv) or (vi) of the definition of
Assumed Liabilities):
(i) any and all Liabilities and obligations for which Fibreboard is
responsible in accordance with the terms of Sections 11.13 and 11.15 of the
Purchase Agreement;
(ii) any and all Liabilities and obligations arising prior to Closing with
respect to the Acquired Assets or the Acquired Corporations including, without
limitation, (A) any litigation, action or proceeding to which Fibreboard or any
Acquired Corporation is a party and which are attributable to periods prior to
Closing (including, without limitation, all litigation, actions or proceedings
referenced in the Disclosure Schedule), (B) all intercompany payables owed by
any Acquired Corporation to Fibreboard or any of its Affiliates other than
Acquired Corporations, and (C) all Liabilities and obligations relating to or
arising in connection with the use, ownership or operation of the Acquired
Assets or the Businesses prior to Closing;
(iii) any and all Liabilities, if any, of Bear Mountain for failure to
obtain consent to change in ownership under Section 2.6.5 of the BML Agreement;
and
-18-
(iv) any and all Liabilities and obligations relating to the Excluded
Assets.
"TANGIBLE PERSONAL PROPERTY" means all of the personal property assets set
forth in the definition of Acquired Assets EXCEPT the "Intangible Property"
described in subsection (f), the "Agreements" described in subsection (g) or any
other Contracts, and assets described in subsections (h) and (j).
"TAX" means any Income Tax and other taxes of any kind, levy or other like
assessment, custom, duty, impost, charge or fee (including, without limitation,
sales, use, gross receipts, ad valorem, transfer, transfer gains, value added,
real or personal property, stamp, lease, license, payroll, transaction, utility,
severance, production, environmental or other governmental taxes) other than
Income Tax, imposed or payable to the United States, or any state, county, local
or foreign government or subdivision or agency thereof, and in each instance
such term shall include any interest, penalties or additions to tax attributable
to any such tax.
"TITLE AGENT" means First American Title Company.
"VALUE OF THE ACQUIRED ASSETS" means the value, to a commercially
reasonable purchaser, of the Acquired Assets, taken as a whole, as modified by
the Assumed Liabilities, taken as a whole.
"WARN ACT" means the Worker Adjustment and Retraining Notification Act.
-19-
INDEX
PAGE
----
Accounting Principles. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Affected Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Alternative Transaction. . . . . . . . . . . . . . . . . . . . . . . . . 20
Bear Mountain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Bear Mountain Business . . . . . . . . . . . . . . . . . . . . . . . . . 1
Bear Mountain Golf Course. . . . . . . . . . . . . . . . . . . . . . . . 1
Bear Mountain Ski Resort,. . . . . . . . . . . . . . . . . . . . . . . . 1
Businesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Buyer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CIBC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Closing Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Closing Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Deposit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Deposit Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Disclosure Schedule. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Employee benefit plan. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Estimated Closing Balance Sheet. . . . . . . . . . . . . . . . . . . . . 4
Estimated Price Adjustment.. . . . . . . . . . . . . . . . . . . . . . . 4
Fibreboard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 28
Final Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Final Closing Balance Sheet. . . . . . . . . . . . . . . . . . . . . . . 5
Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Foreign person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Indemnified Party. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Indemnifying Party . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Interim Balance Sheet. . . . . . . . . . . . . . . . . . . . . . . . . . 10
Xxxx Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Material adverse effect. . . . . . . . . . . . . . . . . . . . . . . . . 21
Northstar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Northstar Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
-1-
Northstar-at-Tahoe . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Price Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Resort Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sellers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sierra . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sierra Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sierra-at-Tahoe Ski Resort . . . . . . . . . . . . . . . . . . . . . . . 1
Survival Period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Threshold. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
-2-
