EXHIBIT 10.37.1
AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
S-K-I Ltd. and Bear Mountain Ltd. (the "SELLING PARTIES") and Bear
Mountain Inc. and Fibreboard Corporation (the "PURCHASING PARTIES") pursuant to
the authority reserved by them in Section 14.2 of the Asset Purchase Agreement
dated October 6, 1995 (the "AGREEMENT") hereby agree to amend such Agreement in
the following manner:
1. Section 2.3(a) is amended by adding the following sentence at the
end thereof:
"In addition, in connection with the transfer of Seller's
liquor licenses, Buyer will pay $30,000 to ABC Escrow by
wire transfer of immediately available funds with
instructions to retain, apply and dispose of such amount in
accordance with the escrow agreement no. 0001-1714-AK among
Buyer, Seller and ABC Escrow."
2. The first sentence of Section 2.3(b) is amended in full to read:
"Buyer will pay to Seller the remaining Base Purchase Price,
after deducting the amount of $10,000,000 which is being
remitted to the Escrow Agent by Buyer and the amount of
$30,000 which is being remitted to ABC Escrow in accordance
with subparagraph (a) above, without adjustment by the
Adjustment to Base Purchase Price, payable by wire transfer
of immediately available funds to such account as Seller
shall designate."
3. The first sentence of Section 2.4 is amended in full to read:
"The Total Purchase Price shall be allocated among the
Assets acquired hereunder in a manner to be agreed upon
within 45 days of the Closing Date and to be described on
Schedule 2.4 subsequent to Closing."
4. The first three sentences of Section 2.5 are amended in full to
read:
"Seller at its expense shall cause Price Waterhouse LLP, its
independent accountants ("SELLER'S ACCOUNTANTS") to prepare
a balance sheet of the Business at the Closing Date (the
"CLOSING BALANCE SHEET"), and to issue as soon as
practicable but in any event not later than forty-five (45)
days after the Closing Date, its opinion thereon to Buyer to
the effect that such balance sheet presents fairly the
Assets and the liabilities of the Business assumed by Buyer
as provided in this Agreement, as of the Closing Date, in
conformity with generally accepted accounting principles
applied on a consistent basis with Seller's past practice.
Such balance sheet shall identify the same items as of the
Closing Date, as are identified on SCHEDULE 2.1-1, SCHEDULE
2.1-2 and SCHEDULE 2.1-3. The Seller shall also provide a
detailed schedule setting forth the calculation of the
Adjustment to Base Purchase Price described in Section
2.1(b) and the Inventory Payment described in Section
2.2(b)."
5. Article 4 is amended in full to read:
"Buyer and Seller shall share equally the expense of all
sales, use and transfer taxes arising out of the transfer of
the Assets and Seller shall pay its unpaid portion, prorated
as of the Closing Date, of state and local real property
taxes of the Business. Buyer shall not be responsible for
any business, occupation, withholding, or other tax, or for
any taxes of any kind related to the Business for any period
before the Closing Date. Buyer shall pay to Seller, or
Seller shall pay to Buyer, as the case may be, within
forty-five (45) days following the Closing Date, the net
amount of the following items relating to Assets to be
prorated as of the Closing Date: rent, utilities (including
without limitation electricity, gas, water, sewer and
telephone), personal property taxes, including the business
property tax and possessory interest tax, security service,
dues to national, state and local trade and community
service organizations and similar items."
6. Article 5 is amended to change all references therein to
"October 20, 1995" to "October 23, 1995" and to change the reference in the
sixth sentence to "within seven (7) days after Seller's written request" to
"within forty-five (45) days of the Closing Date."
7. In the event that Buyer has not received a title insurance policy
from First American Title Insurance Company on the Closing Date, insuring title
to the easements for the Lake
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Pipeline free and clear of all mortgages, liens, encumbrances, deeds of trust,
pledges, charges, conditions, restrictions and rights of others, the third
sentence of Section 6.11 shall be amended to commence with the following phrase:
"Except as provided in the title insurance policy or policies covering the Lake
Pipeline,".
8. Section 6.20 is amended to delete the phrase ", group sales and
other mass purchase" from the first sentence thereof.
9. In Sections 8.A.11 and 9.11, Buyer waives the need for Seller's
compliance in these sections.
10. In Section 9.6, Buyer acknowledges that it has received counsel's
opinions from Xxxxxxx & Xxxxxxx; Xxxxxxx and Xxxxxxx and waives any
inconsistencies between the contents thereof and the relevant provisions of
Section 9.6.
11. In Sections 9.15, 10.12 and 11.1(b), Seller and Buyer acknowledge
that they have received consents from the City of Big Bear Lake regarding the
fire station property; from Xxxxx and Xxx Xxxxxx and the Natural Heritage
Foundation on forms acceptable to it and waive the need for any other landlord
consents.
12. In Section 9.16, Seller and Buyer acknowledge the acceptability
of the form of the Corporation Grant Deed actually executed by the Seller.
13. In Section 9.21, Buyer waives the need for the referenced
approvals from the California State Water Resources Control Board, the
Watermaster for the Upper Santa Xxx Watershed and the San Bernardino Valley
Municipal Water District.
14. In Sections 9.24 and 10.14, Seller and Buyer acknowledge the
acceptability of the amendments to Exhibit E contained in the Exhibit E executed
at Closing.
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15. In Sections 9.25 and 10.15, Seller and Buyer acknowledge the
acceptability of the amendments to Exhibit F contained in the Escrowed Funds
Disbursement Agreement (Exhibit F) executed at Closing.
16. Section 11.2 is amended in full to read:
"At the Closing, Buyer shall deliver to Seller against
delivery of the items specified in Section 11.1 immediately
available funds, by wire transfer, in the amount of the Base
Purchase Price less $10,000,000 being remitted to the Escrow
Agent and the $30,000 being remitted to ABC Escrow in
accordance with Section 2.3(a), and such other instruments,
certificates and documents as Seller or its counsel may
reasonably require to implement the terms of this Agreement;
and to memorialize satisfaction of the closing conditions of
Seller set forth in Article 10."
17. In Exhibit B, Section 4 of Exhibit B shall be amended so that
Seller shall represent and warrant that it has obtained only those consents
required to be obtained to assign to Buyer those Transferred Agreements
numbered 5, 7, 8, 12, 20, 59, 63 and 64 on Schedule 1.1.7, as revised. Buyer
waives the need for all other consents. Buyer acknowledges that it has reviewed
and approved a listing of Ski Merchandising Purchase Orders referenced in
number 33 of Schedule 1.1.7.
18. New Schedules. Seller and Buyer acknowledge the amendment of
Schedules 1.1.7, 6.16, 6.22, 6.24 and 6.26 as attached hereto.
19. Delivery of Schedules. Seller and Buyer acknowledge the delivery
of Schedules 6.11 and 6.2-1A as attached hereto.
[Signatures follow on next page]
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IN WITNESS WHEREOF, the undersigned execute this Amendment No. 1 on
October 19, 1995.
BEAR MOUNTAIN INC. FIBREBOARD CORPORATION
By /s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxxx X. Xxxxxx
---------------------------- ---------------------------------
Xxxxxxx X. Xxxxxx, President Xxxxxxx X. Xxxxxx, Vice President
BEAR MOUNTAIN LTD. S-K-I LTD.
By /s/ Xxxxx X. Xxxx By /s/ Xxxxx X. Xxxx
------------------------- -----------------------------------
Xxxxx X. Xxxx, Secretary Xxxxx X. Xxxx, Vice President and
Corporate Counsel
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