ASSET PURCHASE AGREEMENT
BY AND BETWEEN
BOOTH CREEK SKI HOLDINGS, INC., a Delaware corporation,
AS SELLER,
AND
GT ACQUISITION I, LLC a Delaware limited liability company,
AS BUYER
DATED AS OF
MARCH 21, 2000
Table of Contents
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Page
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RECITALS:.........................................................1
ARTICLE I Definitions...........................................2
1.01 Previously Defined Terms..................................2
1.02 General Definitions.......................................2
ARTICLE II Purchase and Sale of the Purchased Assets............7
2.01 Purchase and Sale.........................................7
2.02 Assumed Liabilities.......................................7
2.03 Deposit...................................................8
2.04 Consideration.............................................9
ARTICLE III Closing and Closing Date Deliveries.................9
3.01 Closing and Closing Date..................................9
3.02 Closing Deliveries.......................................10
3.03 Cooperation..............................................11
ARTICLE IV Representations and Warranties of Ski Holdings......11
4.01 Organization and Qualification...........................11
4.02 Authority................................................12
4.03 No Conflicts.............................................12
4.04 Investments..............................................12
4.05 Intentionally Omitted....................................12
4.06 Intentionally Omitted....................................12
4.07 Absence of Certain Changes or Events.....................13
4.08 Brokers..................................................13
4.09 Taxes....................................................13
ARTICLE V Representations and Warranties of GT Acquisition.....16
5.01 Valid Existence..........................................16
5.02 GT Acquisition Authority.................................16
5.03 No Conflict..............................................16
5.04 Brokers..................................................17
5.05 Limited Representations and Warranties...................17
ARTICLE VI Conditions of Closing Applicable to GT Acquisition..17
6.01 Termination..............................................17
6.02 Bring Down...............................................17
6.03 No Pending Matters.......................................18
6.04 Closing Proceedings......................................18
6.05 Governmental Approvals; U.S. Forest Service..............18
6.06 Absence of Certain Changes or Events.....................19
6.07 Cash Proceeds............................................19
6.08 Transition Services......................................20
6.09 Necessary Assets and Rights..............................20
6.10 Contingent Liabilities...................................20
6.11 Accounts Payable.........................................21
6.12 Releases from Credit Agreement...........................22
6.13 Opinion..................................................22
6.14 Transfer of Premises and Liquor Licenses.................22
6.15 Targhee Corp Mergers.....................................23
6.16 Consents.................................................23
ARTICLE VII Conditions to Closing Applicable to Ski Holdings...23
7.01 Termination..............................................23
7.02 Bring Down...............................................23
7.03 Pending Matters..........................................23
7.04 Closing Proceedings......................................24
7.05 Transition Services......................................24
7.06 Governmental Approvals; U.S. Forest Service..............24
7.07 Liens....................................................25
7.08 Release of Guarantees....................................25
7.09 Opinion and Release......................................25
7.10 Consents.................................................25
ARTICLE VIII Termination.......................................25
8.01 Termination Events.......................................25
ARTICLE IX Certain Agreements and Understandings...............26
9.01 Purchase Price Allocation................................26
9.02 Access to Information....................................27
9.03 Exclusivity..............................................28
9.04 Indemnification..........................................29
ARTICLE X Miscellaneous........................................32
10.01 Expenses................................................32
10.02 Survival................................................32
10.03 Entire Agreement........................................32
10.04 Counterparts............................................32
10.05 Assignment..............................................33
10.06 Headings................................................33
10.07 Governing Law...........................................33
10.08 Notices.................................................33
10.09 U.S. Dollars............................................35
10.10 Savings Clause..........................................35
10.11 Interpretation..........................................35
Schedules
Schedule 1.02-1 - Cash Receipts and Disbursements during Interim Period
Schedule 1.02-2 - Other Charges during Interim Period
Schedule 1.02-3 - Legal Description of Real Properties
Schedule 4.03 - Consents
Schedule 4.09 - Tax Matters
Schedule 6.09 - Assets
Schedule 7.08 - Release of Guarantees
Schedule 9.01 - Purchase Price Allocation
Exhibits
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Exhibit A - Option and Purchase Agreements; Agreement to Initiate
Exhibit B - Transition Services Agreement
ASSET PURCHASE AGREEMENT
------------------------
THIS ASSET PURCHASE AGREEMENT dated as of March 21, 2000 (this
"Agreement") is by and between Booth Creek Ski Holdings, Inc., a Delaware
corporation, as Seller ("Ski Holdings"), and GT Acquisition I, LLC, a Delaware
limited liability company, as Buyer ("GT Acquisition").
RECITALS:
---------
A. Ski Holdings owns all of the issued and outstanding capital stock of
Grand Targhee Incorporated, a Delaware corporation ("Targhee Corp"). Targhee
Corp owns all of the issued and outstanding capital stock of B-V Corporation, a
Wyoming corporation, Targhee Company, a Delaware corporation, and Targhee Ski
Corp., a Delaware corporation (collectively, the "Subsidiaries").
B. Targhee Corp operates the Grand Targhee Ski and Summer Resort (the
"Resort") in Alta, Wyoming (the "Resort Business") under that certain Ski Area
Term Special Use Permit approved and issued by the United States Department of
Agriculture-Forest Service (the "U.S. Forest Service") on March 18, 1997 (the
"Forest Service Permit") for the Resort.
C. Targhee Corp and each of its Subsidiaries will merge with Ski Holdings,
with Ski Holdings being the surviving corporation in each case (the "Targhee
Corp Mergers").
D. After the consummation of the Targhee Corp Mergers, Ski Holdings
desires to sell to GT Acquisition and GT Acquisition desires to purchase from
Ski Holdings all of the assets formerly held by Targhee Corp and its
Subsidiaries prior to the Targhee Corp Mergers on the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
Definitions
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1.01 Previously Defined Terms. Each term defined in the first paragraph
and the Recitals shall have the meaning set forth above whenever used herein,
unless otherwise expressly provided or unless the context clearly requires
otherwise.
1.02 General Definitions. In addition to the terms defined in the first
paragraph and Recitals, whenever used herein, the following terms shall have
the meanings set forth below unless otherwise expressly provided or unless the
context clearly requires otherwise:
"Affiliated Parties" See Section 9.03.
"Assumed Liabilities" See Section 2.02(a).
"Assumed Tax-related obligations" shall mean Tax-related obligations
(for Taxes other than income taxes) which (i) were accrued on the books of
Targhee Corp or its Subsidiaries immediately prior to the Targhee Corp Mergers
consistent with past practices and reserved in accordance with GAAP, (ii) were
incurred in the ordinary course of business and (iii) are not past due as of
the Closing Date.
"Assumption Agreement" See Section 3.02(b).
"Closing" See Section 3.01.
"Closing Date" See Section 3.01.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Credit Agreement" See Section 6.12.
"Delaware Law" shall mean the general corporation laws
applicable in the State of Delaware.
"Deposit" See Section 2.03.
"Deposit Agent" shall mean Compass Bank.
"Deposit Escrow Agreement" shall mean that certain Deposit Escrow
Agreement, dated March 21, 2000, among Ski Holdings, GT Acquisition and Deposit
Agent.
"Effective Date" shall mean the last calendar day before the
commencement of the Interim Period.
"GAAP" shall mean generally accepted accounting principles in the
United States.
"Indenture" See Section 6.13.
"Interim Period" shall mean the period beginning February 21, 2000
and ending as of the close of business on the day before the Closing Date.
"Knowledge" of Ski Holdings shall mean the actual knowledge, without
inquiry, of Xxxxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxx Xxxx, Xxxxx Xxxxxxxxx and
Xxx Xxxx.
"Net Cash Receipts" of Targhee Corp during the Interim Period shall
mean (a) the aggregate actual cash receipts of Targhee Corp and its
Subsidiaries during the Interim Period, minus (b) the actual cash disbursements
of Targhee Corp and its Subsidiaries during the Interim Period, all as (a) and
(b) above are more particularly determined pursuant to Schedule 1.02-1, minus
(c) those charges listed on Schedule 1.02-2 attached hereto (to the extent not
actually paid by Targhee Corp during the Interim Period), minus (d) any costs,
expenses and other charges of Targhee Corp and/or its Subsidiaries and any
costs, expenses and other charges of Ski Holdings allocable to Targhee Corp
and/or its Subsidiaries that are, in each case, directly related to the land
exchange process between Targhee Corp and the U.S. Forest Service that, in
accordance with the original terms thereof, are not delinquent on the Effective
Date or are incurred thereafter (to the extent not actually paid by Targhee
Corp during the Interim Period), minus (e) any charges which would have been
allocable to Targhee Corp had the Transition Services Agreement been in effect
during the Interim Period and minus (f) per diem interest on the principal
amount of $11,000,000 during the period commencing on April 30, 2000 and ending
on the day preceding the Closing Date at a rate of 12% per annum.
"Person" shall mean any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or governmental agency.
"Purchase Price" See Section 2.04.
"Purchased Assets" shall mean all of the right, title and interest
formerly held by Targhee Corp and its Subsidiaries immediately prior to the
Targhee Corp Mergers in and to the Resort Business and all assets and interests
pertaining to, or used in the operation of, the Resort Business, whether or not
carried and reflected on the books of Ski Holdings, including, without
limitation, the following:
(a) cash or cash equivalents (subject to Section 6.07);
(b) marketable securities;
(c) all present and future rights to payment for goods or services
rendered whether or not earned by performance, notes or other receivables;
(d) all contracts, leases, subleases, arrangements, commitments and
other agreements, including, without limitation, the option and purchase
agreements and any other agreements listed on Exhibit A hereto, the beneficial
interests of Targhee Corp and its Subsidiaries in and to any such agreements
listed on Exhibit A hereto to which Ski Holdings or another affiliated entity
is a party, and all of the right, title and interest of Ski Holdings under all
contracts and agreements (whether or not listed on Exhibit A hereto) to which
it is a party for the exclusive benefit of the Resort or the Resort Business,
all vendor agreements, purchase orders, installation and maintenance
agreements, computer software licenses, hardware lease or rental agreements;
(e) except for prepaid expenses relating to insurance costs allocated
to Targhee Corp for periods following the Effective Date, all deposits and
advances, prepaid expenses and other prepaid items;
(f) all buildings, structures, installations, fixtures, fittings,
improvements, betterments and additions situated on the parcels of land more
fully described on Schedule 1.02-3, together with all easements and
rights-of-way used or useful in connection therewith;
(g) all inventories, spare parts, stores, supplies, fuel, machinery,
equipment, vehicles, trucks, chassis, generators, containers, spare tires and
parts, tools, appliances, furniture, office furniture, fixtures, office
supplies and office equipment, computers, computer terminals and printers,
computer software, telephone systems, telecopiers and photocopiers, and other
tangible personal property of every kind and description;
(h) the World Wide Web site for the Resort
(xxxx://xxx.xxxxxxxxxxxx.xxx) and all content relating to the Resort thereon,
the domain name "xxx.xxxxxxxxxxxx.xxx" and any registrations with respect
thereto, all trade names, trademarks, trademark registrations, trademark
applications, service marks, service xxxx registrations, service xxxx
applications, copyrights, copyright registrations, copyright applications,
patent rights, licenses with respect to any of the foregoing, trade secrets,
proprietary information and know-how, inventions, inventors' notes, drawings
and designs, customer and vendor lists and the goodwill associated with any of
the foregoing, it being understood that the Purchased Assets do not include any
right, interest or assets related to Ski Holdings' e-commerce "virtual store"
and gift certificate transaction processing system;
(i) all qualifications, registrations, filings (other than Tax
registrations and filings except that copies of all Wyoming sales tax filings
and records related to the Purchased Assets will be transferred to GT
Acquisition), privileges, franchises, immunities, licenses, permits,
authorizations and approvals of any governmental authority which are used or
required in order to own and/or operate the Resort as presently operated,
including, without limitation, the Forest Service Permit, all certificates of
occupancy and certificates, licenses and permits relating to building, safety,
environmental laws, alcoholic beverage laws, fire and health to the extent any
of the same are transferable or assignable to GT Acquisition;
(j) choses in action, claims and causes of action or rights of
recovery or set-off of every kind and character, in each case only to the
extent related to the Purchased Assets or the Assumed Liabilities;
(k) all files, papers, documents and records relating to the
Purchased Assets, including, without limitation, credit, sales and accounting
records, price sheets, catalogues and sales literature, books, processes,
formulae, advertising material, stationery, office supplies, forms, catalogues,
manuals, correspondence, production records, employment records and any other
information reduced to writing relating to the Purchased Assets, but excluding
Tax returns, work papers and corporate minute and stock books except that
copies of all Wyoming sales tax filings and records related to the Purchased
Assets will be transferred to GT Acquisition; and
(l) the Resort as a going concern.
"Reference Balance Sheet" shall mean the consolidated balance sheet
of Targhee Corp and its Subsidiaries as at the Reference Balance Sheet Date.
"Reference Balance Sheet Date" shall mean January 28, 2000.
"Senior Notes" See Section 2.03(d)(ii).
"Tax" See Section 4.09(a).
"Tax-related obligation" See Section 9.04(c).
ARTICLE II
Purchase and Sale of the Purchased Assets
-----------------------------------------
2.01 Purchase and Sale. Upon the terms and subject to the conditions of
this Agreement, Ski Holdings shall sell, assign, convey, transfer and deliver
the Purchased Assets to GT Acquisition at the Closing on the Closing Date, and
GT Acquisition shall purchase the Purchased Assets from Ski Holdings at the
Closing on the Closing Date (and shall cause Booth Creek, Inc. to assign to GT
Acquisition its right, title and interest to the Agreement to Initiate listed
on Exhibit A hereto), subject to all liens, security interests, encumbrances,
charges and rights of others, except for the liens, security interests,
encumbrances and charges arising under the Credit Agreement and liens, security
interests, encumbrances and charges in favor of Ski Holdings.
2.02 Assumed Liabilities. GT Acquisition shall, at the Closing,
irrevocably and absolutely, assume, agree to perform, and, when due, pay and
discharge, all debts, obligations and liabilities of any nature whatsoever
(fixed, contingent, known or unknown and whenever arising) that were the debts,
obligations or liabilities of (i) Targhee Corp or its Subsidiaries immediately
prior to the consummation of the Targhee Corp Mergers and (ii) Ski Holdings
incurred with respect to the Resort or the Resort Business, including, without
limitation, all obligations arising under the contracts and agreements of Ski
Holdings listed on Exhibit A hereto (collectively, the "Assumed Liabilities");
provided, however, that the Assumed Liabilities shall not include any
Tax-related obligations other than Assumed Tax-related obligations.
2.03 Deposit. Concurrently with the execution of this Agreement, GT
Acquisition shall deposit with Deposit Agent ONE MILLION ONE HUNDRED THOUSAND
DOLLARS ($1,100,000) (the "Deposit") in the manner more particularly described
in subsection (d) below, which Deposit shall be held by the Deposit Agent in
accordance with the terms of the Deposit Escrow Agreement to be applied as
follows:
(a)If the Closing shall occur, the Deposit, plus any accrued interest,
shall be applied as a credit against the purchase price consideration as
provided in Section 2.03.
(b)If the Closing shall not occur because of a material breach of this
Agreement by GT Acquisition and Ski Holdings is not in material breach of this
Agreement, then upon the termination of this Agreement in accordance with
Article VIII, Ski Holdings shall be entitled to the Deposit, plus any accrued
interest, and such payment shall constitute liquidated damages and be in lieu
of any legal recourse for any additional damages, specific performance or any
other rights or remedies available to Ski Holdings resulting therefrom.
(c)If the Closing shall not occur for any other reason, then upon the
termination of this Agreement in accordance with Article VIII, GT Acquisition
shall retain the Deposit, plus any accrued interest, and all amounts held by
the Deposit Agent shall be immediately returned to GT Acquisition.
(d)At the election of GT Acquisition, the Deposit shall be paid on the
date hereof to the Deposit Agent in the following manner:
(i) $1,100,000 in cash to the Deposit Agent; or
(ii)$1,100,000 in aggregate principal amount of senior notes
(the "Senior Notes"), issued by Booth Creek Ski Group, Inc.
to Booth Creek Partners Limited II, L.L.L.P., (plus warrants
to purchase 74.7 shares of common stock of Booth Creek Ski
Group, Inc.) duly endorsed for transfer in blank.
2.04 Consideration. On the terms and subject to the conditions of this
Agreement and in consideration for the Purchased Assets, at the Closing on the
Closing Date, GT Acquisition shall pay to Ski Holdings the sum of $11,000,000
(the "Purchase Price") in the following manner:
(i) if the Deposit is made pursuant to Section 2.02(d)(i), the
$1,100,000 Deposit paid to the Deposit Agent, plus the
accrued interest, shall be applied to the Purchase Price and
paid to Ski Holdings by the Deposit Agent pursuant to the
Deposit Escrow Agreement; plus
(ii)$11,000,000 less the amount paid pursuant to clause (i), if
any, shall be paid by GT Acquisition to Ski Holdings by wire
transfer of immediately available federal funds for credit
to Ski Holdings to a bank account or accounts designated by
Ski Holdings in writing prior to the Closing.
If the Deposit constitutes Senior Notes, such securities shall be returned
to GT Acquisition at the Closing.
ARTICLE III
Closing and Closing Date Deliveries
-----------------------------------
3.01 Closing and Closing Date. The term "Closing" as used herein shall
refer to the actual conveyance, transfer, assignment and delivery of the
Purchased Assets to GT Acquisition in exchange for the Purchase Price pursuant
to Section 2.04 of this Agreement. The Closing shall take place at the offices
of Winston & Xxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m., New
York time, within three (3) business days after the conditions set forth in
Articles VI and VII hereof have been satisfied or waived subject to Article
VIII of this Agreement ("Closing Date"), or at such other place and time or on
such other date as is mutually agreed to in writing by GT Acquisition and Ski
Holdings. Such Closing may be accomplished by facsimile transmission of Closing
documents and facsimile signatures, provided that the original of such signed
documents are transmitted to the party or parties entitled to receive such
documents within three (3) business days following the Closing Date.
3.02 Closing Deliveries. At or prior to the Closing on the Closing Date:
(a)Ski Holdings shall deliver to GT Acquisition:
(i) all such bills of sale, deeds, assignments and other
documents and instruments of sale, assignment, conveyance
and transfer, as GT Acquisition or its counsel may deem
necessary or desirable to effect the transfer of the
Purchased Assets to GT Acquisition;
(ii)certified copies of the resolutions of the Board of
Directors of Ski Holdings, approving the execution, delivery
and performance of this Agreement and the consummation of
the transactions contemplated under this Agreement, all in
accordance with its Certificate of Incorporation and
By-laws;
(iii)certificates of the Secretaries of State of the State of
Delaware and the State of Wyoming as to the Targhee Corp
Mergers;
(iv)certificates of the Secretary of State of the State of
Delaware as to the legal existence and good standing of Ski
Holdings;
(v) a certificate of non-foreign status in the form set forth in
the U.S. Treasury Regulations;
(vi)schedules of accounts payable of Targhee Corp and its
Subsidiaries, including accounts payable of Ski Holdings
allocable to Targhee Corp, as at February 18, 2000 for
Targhee Corp and its Subsidiaries and as at February 21,
2000 for Ski Holdings, in each case reflecting the aging of
such accounts; and
(vii)such other documents to be delivered by Targhee Corp and
Ski Holdings hereunder or as GT Acquisition or its counsel
may reasonably request to carry out the purposes of this
Agreement.
(b)GT Acquisition shall deliver to Ski Holdings:
(i) the payment to be delivered by GT Acquisition pursuant to
Section 2.04 of this Agreement;
(ii)an assumption agreement pursuant to which GT Acquisition
assumes the Assumed Liabilities (the "Assumption
Agreement");
(iii)certified copies of a written consent of the sole Member of
GT Acquisition approving the execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated under this Agreement, all in
accordance with its certificate of formation and its limited
liability company agreement;
(iv)such other documents to be delivered by GT Acquisition
hereunder or as Ski Holdings or its counsel may reasonably
request to carry out the purposes of this Agreement.
3.03 Cooperation. Prior to the Closing Date, each of Ski Holdings and GT
Acquisition shall use reasonable efforts to attempt to secure all necessary
consents required for its consummation of the transactions contemplated herein
and to cause all conditions precedent for its benefit to be satisfied in a
timely manner. In addition, Ski Holdings and GT Acquisition shall, on request,
on and after the Closing Date, cooperate with one another by furnishing any
additional information, executing and delivering any additional documents
and/or instruments and doing any and all such other things as may be reasonably
required by the parties or their counsel to consummate or otherwise implement
the transactions contemplated by this Agreement.
ARTICLE IV.
Representations and Warranties of Ski Holdings
----------------------------------------------
Ski Holdings represents and warrants to and covenants with (which
representations, warranties and covenants shall survive the Closing to the
extent provided in this Agreement) GT Acquisition as follows:
4.01 Organization and Qualification. Ski Holdings is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
4.02 Authority. Ski Holdings has full right and power to enter into, and
perform its obligations under this Agreement, and has taken all requisite
action to authorize the execution, delivery and performance of this Agreement,
and the consummation of the sale of the Purchased Assets and other transactions
contemplated by this Agreement; and this Agreement has been duly authorized,
executed and delivered by Ski Holdings and is binding upon, and enforceable
against, Ski Holdings in accordance with its terms; except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting enforcement of creditors' rights generally and by
general principles of equity (whether applied in a proceeding at law or in
equity).
4.03 No Conflicts. The execution and delivery of this Agreement by Ski
Holdings and the performance of its obligations hereunder will not conflict
with or constitute a default under its certificate of incorporation or by-laws
or, to Ski Holdings' Knowledge, conflict with or constitute a default under any
bond, note, debt instrument, security agreement or mortgage, or any other
material agreement or commitment binding upon Ski Holdings, provided the
consents specified on Schedule 4.03 are obtained.
4.04 Investments. On the date hereof, except for equity interests in the
Subsidiaries, Targhee Corp does not own any securities or any other direct or
indirect interest in any Person (including any joint venture or partnership),
other than the Xxxxxxx Hole Resort Association.
4.05 Intentionally Omitted.
4.06 Intentionally Omitted.
4.07 Absence of Certain Changes or Events. To Ski Holdings' Knowledge,
since October 31, 1999, the Resort has been operated in the ordinary course and
there has not occurred any sale or transfer of a material amount of property of
the Resort, except in the ordinary course of business. Without limiting the
foregoing, to Ski Holdings' Knowledge, between the date hereof through and
including the Closing Date, Targhee Corp shall have recognized deferred revenue
in the ordinary course of business and in accordance with GAAP consistent with
the past practices of Targhee Corp. During the Interim Period, Targhee Corp
shall not have declared or paid any cash dividend or otherwise declared, paid
or distributed to Ski Holdings any property of any type or nature, whether in
cash or otherwise, except for distribution of cash permitted by Section 6.07,
or purchased, redeemed or otherwise acquired or agreed to purchase, redeem or
otherwise, acquire any of the issued and outstanding stock of Targhee Corp.
4.08 Brokers. Neither this Agreement nor the sale of the Purchased Assets
or any other transaction contemplated by this Agreement was induced or procured
through any Person acting on behalf of, or representing either Targhee Corp or
Ski Holdings or any of its partners as broker, finder, investment banker,
financial advisor or in any similar capacity.
4.09 Taxes.
(a)The term "Tax" means any net income, capital gains, gross income, gross
receipts, sales, use, transfer, ad valorem, franchise, profits, license,
capital, withholding, payroll, employment, excise, goods and services,
severance, stamp, occupation, premium, property, windfall profits, or other tax
or customs duties, or any interest, any penalties, additions to tax or
additional amounts incurred or accrued under applicable tax law or properly
assessed or charged by any Taxing authority (domestic or foreign), or any fees,
interest, or penalties due the United States under the Forest Service Permit
approved by the U.S. Forest Service for the Resort. For purposes of the
definition of Tax, any interest, penalties, additions to Tax or additional
amounts that relate to Taxes for any period, or a portion of any period, ended
on or before the Closing Date shall include any interest, penalties, additions
to Tax, or additional amounts relating to Taxes for such periods, regardless of
whether such items are incurred, accrued, assessed or similarly charged on,
before or after the Closing Date.
(b)For purposes of this Section 4.09 and Section 9.04 hereof, the term
"Targhee Corp" shall be deemed to include any Subsidiary of Targhee Corp.
(c)To Ski Holdings' Knowledge, (i) Targhee Corp has timely filed Tax
returns or reports for all years and periods (and portions thereof) and for all
jurisdictions (whether federal, state, local or foreign) in which any such
returns or reports were due and which Tax returns are true and correct in all
material respects; (ii) all Taxes shown to be due and payable on such returns,
reports and estimates have been paid; (iii) all Taxes not yet due and payable
have in all material respects been accrued on the books of Targhee Corp in
accordance with GAAP and reserves have been established therefor in accordance
with GAAP and (iv) there are no unpaid assessments for additional Taxes for any
period ending prior to the date hereof, other than those contested in good
faith, in all such cases, except to the extent any failure to do any of the
foregoing could not reasonably be expected to have a material adverse effect
upon Targhee Corp and its Subsidiaries, taken as a whole.
(d)To Ski Holdings' Knowledge, Targhee Corp is not a party to any joint
venture, partnership or other arrangement that could be treated as a
partnership for federal income Tax purposes, except to the extent any such
treatment could not reasonably be expected to have a material adverse effect
upon Targhee Corp and its Subsidiaries, taken as a whole.
(e)To Ski Holdings' Knowledge, Targhee Corp has (i) withheld all required
amounts from its employees, agents, contractors and nonresidents and remitted
such amounts to the proper agencies; (ii) paid all employer contributions and
premiums; and (iii) filed all federal, state, local and foreign returns and
reports with respect to employee income Tax withholding, social security
unemployment Taxes and premiums, all in material compliance with the
withholding Tax provisions of the Internal Revenue Code of 1986, as amended
(the "Code") as in effect for the applicable year and other applicable federal,
state, local or foreign laws, in all such cases, except to the extent any
failure to do any of the foregoing could not reasonably be expected to have a
material adverse effect upon Targhee Corp and its Subsidiaries, taken as a
whole. Targhee Corp is a United States person for U.S. federal income Tax
purposes and will provide GT Acquisition with a certificate of non-foreign
status at the Closing.
(f)Except as set forth on Schedule 4.09, to Ski Holdings' Knowledge, no
federal, state, local or foreign Tax audits or other administrative
proceedings, discussions or court proceedings are presently pending with regard
to any Taxes or tax returns of Targhee Corp which audits, proceedings or
discussions could reasonably be expected to have a material adverse effect upon
Targhee Corp and its Subsidiaries, taken as a whole.
(g)To Ski Holdings' Knowledge, Targhee Corp is not a party to any tax
sharing agreement or similar arrangement for the sharing of Tax liabilities or
benefits, the provisions of which survive the Closing and which could
reasonably be expected to have a material adverse effect upon Targhee Corp, or
its successors, and its Subsidiaries, taken as a whole, after the Closing.
(h)Ski Holdings shall pay all federal, state, local and foreign transfer
taxes applicable to, imposed upon, or arising out of the transfer of the
Purchased Assets; provided, however, that GT Acquisition shall not take any
action or permit any of its agents to take any action which causes the transfer
of the Purchased Assets to fail to qualify under the "business transfer"
exemption (Wyoming Statutes Section 39-15-101(M)) from Wyoming sales and use
tax.
ARTICLE V
Representations and Warranties of GT Acquisition
------------------------------------------------
GT Acquisition represents and warrants to and covenants with (which
representations, warranties and covenants, shall survive the Closing to the
extent provided in this Agreement) Ski Holdings as follows:
5.01 Valid Existence. GT Acquisition is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
5.02 GT Acquisition Authority. GT Acquisition has full right and power to
enter into, and perform its obligations under this Agreement, and has taken all
requisite limited liability company action to authorize the execution, delivery
and performance of this Agreement and the consummation of the purchase of the
Purchased Assets and other transactions contemplated by this Agreement. This
Agreement has been duly executed and delivered by GT Acquisition and is binding
upon, and enforceable against, GT Acquisition in accordance with its terms;
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity (whether
applied in a proceeding at law or in equity).
5.03 No Conflict. The execution and delivery of this Agreement by GT
Acquisition and the performance of its obligations hereunder and thereunder
will not conflict with or constitute a default under its certificate of
formation or limited liability company agreement or under any note, debt
instrument, security agreement or mortgage, or any other material agreement or
commitment binding upon GT Acquisition or upon any of its properties.
5.04 Brokers. Neither this Agreement nor the purchase of the Purchased
Assets or any other transaction contemplated by this Agreement was induced or
procured through any Person acting on behalf of, or representing GT Acquisition
or any of its affiliates as broker, finder, investment banker, financial
advisor or in any similar capacity.
5.05 Limited Representations and Warranties. Except as otherwise expressly
set forth in this Agreement, GT Acquisition understands and agrees that Ski
Holdings will be transferring the Purchased Assets to GT Acquisition in
exchange for the Purchase Price pursuant to Section 2.04 in an "AS IS"
transaction and that Ski Holdings is not making any representation, warranty or
assurance whatsoever to GT Acquisition with respect to the Purchased Assets or
the Assumed Liabilities. Without limiting the generality of the foregoing, to
the fullest extent permitted by applicable law, Ski Holdings disclaims any
warranty of any nature which may be implied by applicable statutory or judicial
authority.
ARTICLE VI
Conditions of Closing Applicable to GT Acquisition
--------------------------------------------------
The obligations of GT Acquisition hereunder (including the
obligation of GT Acquisition to close the transactions herein
contemplated) are subject to the following conditions precedent:
6.01 Termination. Neither GT Acquisition nor Ski Holdings shall have
terminated this Agreement pursuant to Section 8.01 hereof.
6.02 Bring Down. The representations and warranties made by Ski Holdings
herein to GT Acquisition shall be true and correct in all material respects on
and as of the Closing Date with the same effect as if such representations and
warranties had been made on and as of the Closing Date, and Ski Holdings shall
have performed and complied with all agreements, covenants and conditions on
their part required to be performed or complied in all material respects with
on or prior to the Closing Date. At the Closing, GT Acquisition shall have
received a certificate executed by Ski Holdings to the foregoing effect.
6.03 No Pending Matters. No investigation, action, suit or proceeding by
any governmental or regulatory commission, agency, body or authority, and no
action, suit or proceeding by any other Person, shall be pending on the Closing
Date which challenges, or might result in a challenge to, this Agreement or any
transactions contemplated hereby, or which claims, or might give rise to a
claim for, damages in a material amount as a result of the consummation of this
Agreement.
6.04 Closing Proceedings. All proceedings to be taken in connection with
the consummation of the transactions contemplated by this Agreement and all
documents incident thereto, shall be reasonably satisfactory in form and
substance to GT Acquisition and its counsel, and GT Acquisition and its counsel
shall have received copies of such documents as GT Acquisition and its counsel
may reasonably request in connection with said transactions.
6.05 Governmental Approvals; U.S. Forest Service. All governmental
agencies, departments, bureaus, commissions and similar bodies, the consent,
authorization or approval of which is necessary under any applicable law, rule,
order or regulation for the consummation by Ski Holdings of the transactions
contemplated hereunder and the operation of the Resort by GT Acquisition after
consummation of the transactions hereunder shall have consented to, authorized,
permitted or approved the consummation of the transactions hereunder, including
without limitation, the U.S. Forest Service and those governmental bodies
having jurisdiction with respect to the various liquor licenses and other such
licenses and permits issued in connection with the operation of the Resort.
Without limiting the foregoing, GT Acquisition shall have at the Closing all
rights, title and interest as purchaser under those certain option and purchase
agreements, and as non-federal proponent in that certain Agreement to Initiate,
which are collectively listed in the attached Exhibit A, which is incorporated
by reference thereto and Ski Holdings shall transfer or cause to be
transferred, all such right, title and interest to GT Acquisition at the
Closing (other than the right, title and interest of Booth Creek, Inc. under
the Agreement to Initiate listed in Exhibit A, which GT Acquisition shall cause
to be transferred to itself). In addition, without limiting the foregoing, the
U.S. Forest Service shall have consented to, authorized, permitted or approved
the substitution of GT Acquisition as the non-federal proponent under the
Agreement to Initiate listed in Exhibit A. Ski Holdings shall have no liability
if Targhee Corp suffers any loss or liability as a result of any election by GT
Acquisition to waive this condition and close without such consents.
6.06 Absence of Certain Changes or Events. From and after the date hereof,
the Resort shall have been operated in the ordinary course of business and
there shall not have occurred any sale or transfer of a material amount of
property of the Resort, except in the ordinary course of business. Without
limiting the foregoing, between the date hereof through and including the
Closing Date, Targhee Corp shall have recognized deferred revenue in the
ordinary course of business and in accordance with GAAP consistent with the
past practices of Targhee Corp.
6.07 Cash Proceeds. Immediately prior to the Targhee Corp Mergers, Ski
Holdings shall insure that Targhee Corp and its Subsidiaries have cash on hand
and in bank accounts in an amount not less than the sum of (a) the aggregate
Net Cash Receipts of Targhee Corp during the Interim Period and (b) the balance
of deferred revenues of Targhee Corp as of the close of business on the day
before the Closing Date, computed in accordance with GAAP.
6.08 Transition Services. Ski Holdings shall have entered into a
Transition Services Agreement substantially in the form of Exhibit B attached
hereto pursuant to which Ski Holdings shall provide to GT Acquisition those
services set forth on the Schedules to Exhibit B hereto for the time periods
and for the fees corresponding to such services as set forth on the Schedules
to Exhibit B hereto.
6.09 Necessary Assets and Rights. Upon the consummation of the
transactions contemplated by this Agreement, the Purchased Assets will include
all of the material assets, properties and rights of every type and
description, real, personal and mixed, tangible and intangible, owned or used
by Targhee Corp and its Subsidiaries as of the date hereof, including
replacement of such property in the ordinary course of business, for the
conduct of the Resort as presently conducted, free and clear of any mortgages,
pledges, liens, security interests, claims and other encumbrances of any kind
or nature whatsoever, except the ownership interests of the U.S. Forest Service
in the land used by Targhee Corp and except as disclosed on Schedule 6.09.
Without limiting the foregoing, the Purchased Assets shall include all material
rights as of the Closing Date to the name "Grand Targhee Incorporated" and all
variations thereof and all intellectual property used in the operation of the
Resort that Targhee Corp has as of the date hereof.
6.10 Contingent Liabilities. The Reference Balance Sheet has been prepared
based upon the accounting practices, procedures and methods regularly and
historically employed by Targhee Corp and its Subsidiaries for reporting to Ski
Holdings and is in accordance with GAAP, as historically applied by Targhee
Corp and its Subsidiaries, and is in accordance with the books and records of
Targhee Corp (which books and records are complete and correct in all material
respects) and fairly presents the financial position of Targhee Corp and its
Subsidiaries in all material respects as of such date. As of the Reference
Balance Sheet Date, neither Targhee Corp nor any Subsidiary has any material
liabilities (whether absolute, accrued, contingent or otherwise) of a nature
required to be set forth on a balance sheet prepared in accordance with GAAP,
except for those set forth on the Reference Balance Sheet. Since the Reference
Balance Sheet Date, Targhee Corp has not incurred or become subject to, and
prior to the Closing will not have incurred or become subject to, any material
liabilities other than liabilities incurred in the ordinary course of business.
GT Acquisition acknowledges that the accuracy of the foregoing statements
contained in this Section 6.10 are intended to constitute a condition precedent
to its obligations to close the transactions contemplated by this Agreement and
are not intended to constitute representations and warranties that would, if
inaccurate, form the basis of a pre-closing or post-closing claim for
indemnity.
6.11 Accounts Payable. On the Effective Date and at the Closing, (a) all
of the accounts payable (other than those which are individually less than
$1,000 and in the aggregate less than $10,000) of Targhee Corp and its
Subsidiaries (including accounts payable of Ski Holdings allocable to Targhee
Corp) shall have been paid in accordance with the original terms of each such
account and in the ordinary course of business, (b) no such accounts payable of
Targhee Corp and its Subsidiaries shall be past due and (c) all amounts payable
with respect to any options and purchase agreements including, but not limited
to, the agreements listed in Exhibit A shall have been paid when due by Ski
Holdings in order to preserve the rights, options and other obligations arising
under or in connection with the respective agreements.
6.12 Releases from Credit Agreement. Ski Holdings shall have obtained
releases of all liens on the Purchased Assets from Fleet National Bank
(formerly known as BankBoston, N.A.), a national banking association
("BankBoston"), arising under that certain Amended and Restated Credit
Agreement dated as of October 30, 1998, as amended by the First Amendment to
Amended and Restated Credit Agreement entered into as of the 18th day of May,
1999 (the "Credit Agreement"), by and among Ski Holdings, Booth Creek Ski
Acquisition Corp., a Delaware corporation, Trimont Land Company, a California
corporation, Sierra-at-Tahoe, Inc., a Delaware corporation, Bear Mountain,
Inc., a Delaware corporation, Waterville Valley Ski Resort, Inc., a Delaware
corporation, Mount Cranmore Ski Resort, Inc., a Delaware corporation, Ski
Lifts, Inc., a Washington corporation, Targhee Corp, LMRC Holdings Corporation,
a Delaware corporation, Loon Mountain Recreation Corporation, a New Hampshire
corporation, Loon Realty Corporation, a New Hampshire corporation and
BankBoston, as agent for itself and the other lenders named therein. Such
releases shall be delivered in form and substance reasonably satisfactory to GT
Acquisition on or prior to the Closing Date.
6.13 Opinion. Ski Holdings shall have received a customary and
satisfactory fairness opinion dated on or before the Closing Date from Sno
Engineering, Inc., pursuant to that certain Indenture dated as of March 18,
1997, as amended (the "Indenture"), among Ski Holdings, the Guarantors named
therein and Marine Midland Bank, as Trustee thereunder.
6.14 Transfer of Premises and Liquor Licenses. Immediately prior to the
consummation of the Targhee Corp Mergers, each of Targhee Corp and its
Subsidiaries shall have (a) entered into a lease or a sublease of the premises
which it occupies with a separate subsidiary of GT Acquisition and (b)
transferred its liquor license for such premises to such subsidiary. Each such
lease or sublease shall be for a term ending on January 7, 2001 at a monthly
rent and upon other terms and conditions acceptable to GT Acquisition.
6.15 Targhee Corp Mergers. Immediately prior to the Closing, the Targhee
Corp Mergers shall have been consummated in accordance with the laws of
Delaware and Wyoming, as applicable, and the requirements of the certificate or
articles of incorporation of each of Ski Holdings, Targhee Corp and its
Subsidiaries.
6.16 Consents. Prior to the Closing Date, Ski Holdings shall have obtained
all consents specified on Schedule 4.03 and such consents shall be in full
force and effect.
ARTICLE VII
Conditions to Closing Applicable to Ski Holdings
------------------------------------------------
The obligations of Ski Holdings hereunder (including the obligation of Ski
Holdings to close the transactions herein contemplated) are subject to the
following conditions precedent:
7.01 Termination. Neither Ski Holdings nor GT Acquisition shall have
terminated this Agreement pursuant to Section 8.01 hereof.
7.02 Bring Down. All representations and warranties made by GT Acquisition
herein to Ski Holdings shall be true and correct in all material respects on
and as of the Closing Date with the same effect as if such representations and
warranties had been made on and as of the Closing Date, and GT Acquisition
shall have performed and complied with all agreements, covenants and conditions
on its part required to be performed or complied in all material respects with
on or prior to the Closing Date. At the Closing, Ski Holdings shall have
received a certificate executed by GT Acquisition to the foregoing effect.
7.03 Pending Matters. No investigation, action, suit or proceeding by any
governmental or regulatory commission, agency, body or authority, and no
action, suit or proceeding by any other Person shall be pending on the Closing
Date which challenges or might result in a challenge to this Agreement or any
transaction contemplated hereby, or which claims, or might give rise to a claim
for, damages in a material amount as a result of the consummation of the
transactions contemplated hereby.
7.04 Closing Proceedings. All proceedings to be taken in connection with
the consummation of the transactions contemplated by this Agreement, and all
documents incident thereto, shall be reasonably satisfactory in form and
substance to Ski Holdings and its counsel, and Ski Holdings and its counsel
shall have received copies of such documents as it and its counsel may
reasonably request in connection with said transactions.
7.05 Transition Services. GT Acquisition shall have entered into a
Transition Services Agreement substantially in a form of Exhibit B attached
hereto pursuant to which Ski Holdings shall provide to GT Acquisition those
services set forth on the Schedules to Exhibit B hereto for the time periods
and for the fees corresponding to such services as set forth on the Schedules
to Exhibit B hereto.
7.06 Governmental Approvals; U.S. Forest Service. All governmental
agencies, departments, bureaus, commissions and similar bodies, the consent,
authorization or approval of which is necessary under any applicable law, rule,
order or regulation for the consummation by Targhee Corp and Ski Holdings of
the transactions contemplated hereunder and the operation of the Resort by GT
Acquisition after consummation of the transactions hereunder shall have
consented to, authorized, permitted or approved the consummation of the
transactions hereunder, including without limitation, the U.S. Forest Service
and those governmental bodies having jurisdiction with respect to the various
liquor licenses and other such licenses and permits issued in connection with
the operation of the Resort. Without limiting the foregoing, GT Acquisition
shall have at the Closing all rights, title and interest as purchaser under
those certain option and purchase agreements, and as non-federal proponent in
that certain Agreement to Initiate, which are collectively listed in Exhibit A.
In addition, without limiting the foregoing, the U.S. Forest Service shall have
consented to, authorized, permitted or approved the substitution of GT
Acquisition as the non-federal proponent under the Agreement to Initiate listed
in Exhibit A.
7.07 Liens. Ski Holdings shall have obtained releases for all liens on the
Purchased Assets arising under the Credit Agreement. Such releases shall be
delivered in form and substance reasonably satisfactory to Ski Holdings prior
to the Closing Date.
7.08 Release of Guarantees. Ski Holdings shall have obtained the releases
listed on Schedule 7.08 for all executed guarantees provided by Ski Holdings
for obligations of Targhee Corp in its operation of the Resort.
7.09 Opinion and Release. Ski Holdings shall have received a customary and
satisfactory fairness opinion dated on or before the Closing Date from Sno
Engineering, Inc., pursuant to the Indenture, and Targhee Corp and each of its
Subsidiaries shall have been released as Guarantors under the Indenture.
7.10 Consents. Prior to the Closing Date, Ski Holdings shall have obtained
all consents specified on Schedule 4.03 and such consents shall be in full
force and effect.
ARTICLE VIII
Termination
-----------
8.01 Termination Events. This Agreement may be terminated at any time
prior to the Closing as follows, and in no other manner:
(a)by mutual written consent of Ski Holdings and GT Acquisition;
(b)by GT Acquisition, upon written notice to Ski Holdings, if the Closing
Date has not occurred on or before 60 days from the date hereof (which date
shall be extended by Ski Holdings to the extent necessary to satisfy the
conditions precedent set forth in Sections 6.05, 6.12 and 6.13 hereof but Ski
Holdings shall not be required to extend such date beyond an additional 30
days), or such later date as the parties may agree in writing, provided that GT
Acquisition is not in breach or default under this Agreement; and
(c)by Ski Holdings, upon written notice to GT Acquisition, if the Closing
Date has not occurred on or before 60 days from the date hereof (which date
shall be automatically extended if so extended under clause (b) of this Section
8.01), or such later date as the parties may agree in writing, provided that
Ski Holdings is not in breach or default under this Agreement.
Any termination pursuant to this Article VIII shall not limit or restrict
the rights or other remedies of any party hereto.
ARTICLE IX
Certain Agreements and Understandings
-------------------------------------
9.01 Purchase Price Allocation. Ski Holdings and GT Acquisition shall
allocate the Purchase Price among the Purchased Assets in accordance with
Schedule 9.01 attached hereto and this Section 9.01. Ski Holdings and GT
Acquisition shall use their reasonable efforts to reach agreement prior to the
Closing Date as to the allocation of the Purchase Price among the Purchased
Assets. Ski Holdings and GT Acquisition agree that if they have not reached an
agreement as to such allocation by the date which is ninety days after the
Closing Date, the allocation shall be made as determined by a firm of
independent accountants of national standing selected by the parties or, if the
parties are unable to agree upon the selection of such a firm within one
hundred days after the Closing Date, selected by the New York City office of
the American Arbitration Association at the request of either party (the
"Allocation Accounting Firm"), who shall have appraisal capabilities and, as a
condition to retention, shall commit to make a determination within thirty days
after selection. Ski Holdings and GT Acquisition shall use their reasonable
efforts to cooperate with the Allocation Accounting Firm and to cause the
Allocation Accounting Firm to make its determination within thirty days after
selection. The resolution of the dispute by the Allocation Accounting Firm
shall be final, binding and conclusive on the parties. The fees and expenses of
the Allocation Accounting Firm shall be borne one-half by GT Acquisition and
one-half by Ski Holdings. Each party shall promptly notify the other of any tax
proceeding, audit or investigation relating to the allocation described in this
Section 9.01 and shall keep the other advised of the progress thereof.
9.02 Access to Information.
(a)Upon reasonable notice from GT Acquisition to Targhee Corp and Ski
Holdings, Targhee Corp will cause to be afforded to GT Acquisition and its
financing providers, and their respective officers, employees, representatives
and advisors access during normal business hours to the employees,
representatives, advisors, facilities and books and records of Targhee Corp and
its Subsidiaries so as to afford GT Acquisition and its financing providers
full opportunity to make such review, examination and investigation of the
Resort as they each may reasonably deem necessary to make in connection with
the transactions contemplated hereby.
(b)For a period ending seven (7) years following the Closing, GT
Acquisition will (except as provided below) retain all business records of
Targhee Corp and its Subsidiaries for periods prior to the Closing. During such
period and on two (2) business days prior notice, GT Acquisition will afford
duly authorized representatives of Ski Holdings reasonable access, subject to
reasonable restrictions as GT Acquisition may require, during regular business
hours, to all of such records and will permit such representatives, at Ski
Holdings' expense, to make abstracts from, or to make copies of any such
records, or to obtain temporary possession (as long as such possession, in the
reasonable judgment of GT Acquisition, does not interfere with the business of
GT Acquisition) of any thereof as may reasonably be required by Ski Holdings.
Should GT Acquisition wish to dispose of any such records, GT Acquisition will
advise Ski Holdings of its wishes in writing and, if Ski Holdings so requests,
GT Acquisition will promptly deliver, at the expense of Ski Holdings, the
records in question to Ski Holdings. If Ski Holdings does not request delivery
of such records within thirty (30) days of GT Acquisition's notice, GT
Acquisition may thereafter dispose of such records.
9.03 Exclusivity. Targhee Corp and Ski Holdings agree that from the date
hereof and until the Closing Date or such time as this Agreement shall have
been terminated in accordance with the provisions of Section 8.01 hereof, none
of Targhee Corp, Ski Holdings or any of Targhee Corp's or Ski Holdings'
officers, directors, shareholders, affiliates or other representatives
(collectively the "Affiliated Parties") will invite, solicit or encourage
proposals or offers or entertain, accept, negotiate, discuss or otherwise
participate in a possible merger, combination, sale or other disposition of
Targhee Corp or the Resort, or any capital stock associated with Targhee Corp
or the Resort or any interest therein (a "Targhee Corp Sale") with any other
party. Targhee Corp and Ski Holdings each represents that neither it nor any of
its stockholders is a party to or bound by any agreement with respect to a
Targhee Corp Sale other than this Agreement. Ski Holdings shall cause the
Affiliated Parties to immediately cease and terminate any existing or prior
existing activities, discussions or negotiations with any persons or entities
conducted heretofore with respect to any Targhee Corp Sale, and shall promptly
request each such person or entity who has heretofore entered into a
confidentiality agreement in connection with a Targhee Corp Sale or has
otherwise received information in connection with a Targhee Corp Sale to (a)
return to Ski Holdings all confidential information heretofore furnished to
such person or entity by or on behalf of Targhee Corp or the Resort and (b)
destroy (and certify to Ski Holdings as to the destruction) all notes,
analyses, compilations, reports, forecasts, studies, memoranda, computer stored
data or other documents which contain, or are based in whole or in part or
otherwise reflect, confidential information received in connection with a
Targhee Corp Sale. It is intended by the parties hereto that so long as the
terms of this Agreement are in effect, GT Acquisition shall have the exclusive
right to purchase Targhee Corp and the Resort on the general terms and
conditions herein contained.
9.04 Indemnification.
(a)GT Acquisition hereby indemnifies and holds harmless Ski Holdings from
and against all claims, damages, losses, liabilities, costs and expenses
(including, without limitation, settlement costs and any legal, accounting or
other expenses for defending any actions or threatened actions) in connection
with any misrepresentation or breach of any representation or warranty made by
GT Acquisition in this Agreement or any breach of any covenant, agreement or
obligation of GT Acquisition contained in this Agreement or any agreement
executed or delivered pursuant hereto; provided, however, that GT Acquisition's
maximum aggregate liability pursuant to this Section 9.04(a) shall not exceed
the amount of $1,000,000, except with respect to GT Acquisition's obligations
under the Assumption Agreement as to which such limit shall not apply.
In no event shall Ski Holdings be entitled to indemnification pursuant to
this Section 9.04(a) unless and until the aggregate liability suffered by Ski
Holdings collectively exceeds $150,000 whereupon Ski Holdings shall be entitled
to indemnification hereunder from GT Acquisition for liability in excess of
such threshold amount to the extent permitted herein.
(b)Ski Holdings hereby indemnifies and holds harmless GT Acquisition from
and against all claims, damages, losses, liabilities, costs and expenses
(including, without limitation, settlement costs and any legal, accounting or
other expenses for defending any actions or threatened actions) in connection
with any misrepresentation or breach of any representation or warranty made by
either Targhee Corp or Ski Holdings in this Agreement or any breach of any
covenant, agreement or obligation of either Targhee Corp or Ski Holdings
contained in this Agreement; provided, however, that Ski Holdings' maximum
aggregate liability pursuant to this Section 9.04(b) shall not exceed the
amount of $1,000,000, except with respect to any Tax-related obligation
provided for in Section 9.04(c).
Except with respect to any Tax-related obligation provided for in Section
9.04(c), GT Acquisition shall not be entitled to indemnification pursuant to
this Section 9.04(b) unless and until the aggregate liability suffered by GT
Acquisition collectively exceeds $150,000 whereupon GT Acquisition shall be
entitled to indemnification hereunder from Ski Holdings for liability in excess
of such threshold amount to the extent permitted herein.
(c)Ski Holdings hereby indemnifies and holds harmless GT Acquisition (and
after the Closing, Targhee Corp) from and against all claims, damages, losses,
costs and expenses (including, without limitation, settlement costs and any
legal, accounting or other expenses incurred in connection with any audits or
defending any actions or threatened actions) in connection with all Taxes of
Targhee Corp and its Subsidiaries (a "Tax-related obligation") for all periods
(or portions thereof) ending on or before the Closing Date (whether or not any
such Tax-related obligation constitutes a breach of any representation or
warranty contained in Section 4.09), except for the Assumed Tax-related
obligations. GT Acquisition hereby indemnifies and holds harmless Ski Holdings
from and against all claims, damages, losses, costs and expenses (including,
without limitation, settlement costs and any legal, accounting or other
expenses incurred in connection with any audits or defending any actions or
threatened actions) for (i) all Tax-related obligations arising out of the
ownership or use of the Purchased Assets for all periods (or portions thereof)
ending after the Closing Date and (ii) the Assumed Tax-related obligations.
(d)The indemnities contained in this Section 9.04 with respect to GT
Acquisition and Ski Holdings shall survive the consummation of the transactions
hereunder to and including December 31, 2000, except that (i) the indemnities
for Tax-related obligations contained in Section 9.04(c) or representations and
warranties contained in Section 4.09 hereof shall survive the Closing Date and
terminate upon the expiration of the applicable Tax statute of limitations,
plus 30 days and (ii) the indemnities for Assumed Liabilities contained in
Section 9.04(a) hereof shall survive the Closing Date and terminate upon the
expiration of the applicable statute of limitations.
9.05.Rehiring of Employees. On the Closing Date, GT Acquisition shall
offer employment to substantially all of the employees then employed by the
Resort, upon terms and conditions substantially similar to the terms and
conditions upon which such employees are then employed by the Resort. The
foregoing, however, shall not preclude GT Acquisition from thereafter
terminating any such employee in accordance with its employment practices and
policies.
ARTICLE X
Miscellaneous
-------------
10.01 Expenses.
(a)Whether or not this Agreement is consummated, Ski Holdings shall pay
the costs and expenses (including attorneys' fees and other legal costs and
expenses and accounting fees and other accounting costs and expenses) incurred
by Targhee Corp and Ski Holdings in connection with this Agreement and the
transactions contemplated hereby.
(b)Whether or not this Agreement is consummated, GT Acquisition shall pay
all of the costs and expenses (including attorneys' fees and other legal costs
and expenses and accountants' fees and other accounting costs and expenses)
incurred by it in connection with this Agreement and the transactions
contemplated hereby.
10.02 Survival. The representations, warranties, agreements and covenants
made by the respective parties hereto in this Agreement shall survive the
Closing Date to the extent provided herein.
10.03 Entire Agreement. This Agreement (including the attached Schedules
and Exhibits) contains the entire agreement between the parties hereto with
respect to the transactions contemplated hereunder, and supersedes all
negotiations, representations, warranties, commitments, offers, contracts and
writings prior to the date hereof. No waiver and no modification or amendment
of any provisions of this Agreement shall be effective unless specifically made
in writing and duly signed by the party to be bound thereby.
10.04 Counterparts. This 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.
10.05 Assignment. Pending the Closing, Ski Holdings agrees not to
transfer, sell, assign or convey any of the stock of Targhee Corp owned by Ski
Holdings and shall cause Targhee Corp and its Subsidiaries not to transfer,
sell, assign or convey any of the Purchased Assets, except in the ordinary
course of the Resort Business or as contemplated hereunder. GT Acquisition may
assign its right to receive the Purchased Assets to an affiliate of GT
Acquisition or any lender providing financing to GT Acquisition in connection
with the transactions contemplated hereby. Subject to the foregoing sentence,
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns. This Agreement shall not be
construed so as to confer any rights or benefits upon any Person other than the
parties hereto and their respective successors and assigns.
10.06 Headings. The captions of the various Sections and Articles of this
Agreement have been inserted only for convenience and shall not be deemed to
modify, explain, enlarge or restrict any of the provisions of this Agreement.
10.07 Governing Law. The validity, interpretation and effect of this
Agreement shall be governed by the laws of the State of New York, excluding the
"conflicts of laws" rules thereof.
10.08 Notices. (a) All notices, requests, demands and other communications
under this Agreement shall be in writing and delivered in person, or by
overnight courier, or by telecopy (with receipt confirmed), or by facsimile
transmission (with written confirmation) or sent by registered or certified
mail, return receipt requested, postage prepaid, and properly addressed as
follows:
To GT Acquisition: GT Acquisition I, LLC
----------------- c/o Booth Creek Management Corp.
0000 Xxxxx Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Xx.
Fax: (000) 000-0000
Tel: (000) 000-0000
With A Copy To: Winston & Xxxxxx
-------------- 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn:Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
To Ski Holdings
---------------
or Targhee Corp: Booth Creek Ski Holdings, Inc.
--------------- 0000 Xxxxx Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
With A Copy To: Loeb & Loeb, LLP
-------------- 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxx, P.C.
Fax: (000) 000-0000
Tel: (000) 000-0000
(b)Any party may from time to time change its address for the purpose of
notices to that party by a similar notice specifying a new address, but no such
change shall be deemed to have been given until it is actually received by the
party sought to be charged with its contents.
(c)All notices and other communications required or permitted under this
Agreement which are addressed as provided in this Section 10.08 if delivered
personally, or by telecopy (with receipt confirmed), or by facsimile
transmission (with written confirmation) or by overnight courier, shall be
effective upon delivery; and if delivered by mail, shall be effective upon
receipt.
10.09 U.S. Dollars. All amounts expressed in this Agreement and all
payments required by this Agreement are in United States dollars.
10.10 Savings Clause. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, rule or
regulation, such provision shall be fully severable and this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof. The remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance therefrom. Furthermore,
in lieu of such illegal, invalid or unenforceable provision, there shall be
added automatically as a part of this Agreement, a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
10.11 Interpretation. Unless the context of this Agreement otherwise
requires, (a) words of any gender shall be deemed to include each other gender,
(b) words using the singular or plural number shall also include the plural or
singular number, respectively, and (c) references to "hereof", "herein",
"hereby" and similar terms shall refer to this entire Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement on the day and year first above written.
BOOTH CREEK SKI HOLDINGS, INC.
By: /s/ Xxxxxxxxx X. Xxxx
--------------------------------
Title: Exec. Vice President / CFO
-----------------------------
GT ACQUISITION I, LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Title: Executive Vice President
-----------------------------
Schedule 1.02-1
Treatment of Cash Flow Activity Prior to and Through the Effective Date
Ski Holdings and Targhee Corp. shall treat and process cash receipts, cash
disbursements and other cash activity through the Effective Date in the
following manner:
1. As a condition precedent to the Closing, Targhee Corp. and its
Subsidiaries must have paid their accounts payable (other than those which
are, individually, less than $1,000 and, in the aggregate, less than
$10,000) in accordance with the original terms of each such account and in
the ordinary course of business, and no such accounts payable of Targhee
Corp. and its Subsidiaries may be past due.
2. Any daily cash deposits made to Targhee Corp.'s Cash Depository Account
(KeyBank Account No. 00000000) for business on or prior to the Effective
Date shall be for the benefit of Ski Holdings, and Ski Holdings may, at
its sole discretion, transfer such deposits to its consolidated cash
management accounts with BankBoston.
3. Ski Holdings will make available sufficient funds to honor payroll
disbursements made to Targhee Corp. employees for regularly scheduled
payrolls paid from the Local Payroll Bank Account (KeyBank Account No.
00000000) which require funding on or prior to the Effective Date. Any
funds in Account No. 00000000 in excess of the amount required to honor
payroll checks issued on or prior to the Effective Date may be transferred
by Ski Holdings, at its sole discretion, to its consolidated cash
management accounts at BankBoston.
4. Ski Holdings will honor and fund any accounts payable disbursement checks
issued by Targhee Corp. from the Disbursement Account (BankBoston Account
No. 00000000) on or prior to the Effective Date.
5. Any credit card deposits made to the Credit Card Account (BankBoston
Account No. 00000000) for business on or prior to the Effective Date shall
be for the benefit of Ski Holdings, and will be automatically swept to Ski
Holdings' consolidated cash management accounts with BankBoston.
6. Any daily cash deposits made to the Targhee Express Depository Account
(Bank of Xxxxxxx Hole Account No. 222646) for business on or prior to the
Effective Date shall be for the benefit of Ski Holdings, and Ski Holdings
may, at its sole discretion, transfer such deposits to its cash management
accounts with BankBoston.
7. Ski Holdings will honor payroll ACH disbursements made to Targhee Corp.
employees for regularly scheduled payrolls which require funding on or
prior to the Effective Date. Such disbursements will automatically be
posted and clear against the Payroll ACH Account (BankBoston Account No.
00000000) which is part of Ski Holdings consolidated cash management
system with BankBoston.
8. Ski Holdings will fund payroll tax deposits through System Tax Services
("STS") for regularly scheduled payrolls which require funding prior to
the Effective Date.
9. Ski Holdings will fund CBA Health and Welfare Claims and Flex
Contributions which require funding prior to the Effective Date.
Treatment of Cash Activity During the Interim Period after the Effective Date
and to the close of business on the day before the Closing Date
1. Daily cash deposits made to Targhee Corp.'s Cash Depository Account
(KeyBank Account No. 00000000) for business during the Interim Period
shall be for the benefit of GT Corp. and shall be treated as a positive
amount in the determination of Net Cash Receipts for the Interim Period.
2. Any checks issued to Targhee Corp. employees for payrolls paid from the
Local Payroll Bank Account (KeyBank Account No. 00000000) which require
funding during the Interim Period shall be the obligation of GT Corp. and
shall be treated as a negative amount in the determination of Net Cash
Receipts for the Interim Period.
3. Any checks issued by Targhee Corp. from the Disbursement Account
(BankBoston Account No. 00000000) during the Interim Period shall be the
obligation of GT Corp. and shall be treated as a negative amount in the
determination of Net Cash Receipts for the Interim Period.
4. Credit card deposits made to the Credit Card Account (BankBoston Account
No. 00000000) for business during the Interim Period shall be for the
benefit of GT Corp. and shall be treated as a positive amount in the
determination of Net Cash Receipts for the Interim Period.
5. Daily cash deposits made to the Targhee Express Depository Account (Bank
of Xxxxxxx Hole Account No. 222646) for business during the Interim Period
shall be for the benefit of GT Corp. and shall be treated as a positive
amount in the determination of Net Cash Receipts for the Interim Period.
6. Payroll ACH disbursements issued to Targhee Corp. employees from the
Payroll ACH Account (BankBoston Accounting No. 00000000) for regularly
scheduled payrolls which require funding during the Interim Period shall
be the obligation of GT Corp. and shall be treated as a negative amount in
the determination of Net Cash Receipts for the Interim Period.
7. Payroll tax deposits made through STS for regularly scheduled payrolls
which require funding during the Interim Period shall be the obligation of
GT Corp. and shall be treated as a negative amount in the determination of
Net Cash Receipts for the Interim Period.
8. CBA Health and Welfare Claims and Flex Contributions which require funding
during the Interim Period shall be the obligation of GT Corp. and shall be
treated as a negative amount in the determination of Net Cash Receipts for
the Interim Period.
9. As provided in the definition of "Net Cash Receipts", those charges listed
on Schedule 1.02-2 attached hereto (to the extent not actually paid by
Targhee Corp. during the Interim Period) shall be treated as a negative
amount in the determination of Net Cash Receipts for the Interim Period.
10. As provided in the definition of "Net Cash Receipts", any costs, expenses
and other charges of Ski Holdings which are allocable to Targhee Corp.
and/or its Subsidiaries directly related to the land exchange process
between Targhee Corp. and the U.S. Forest Service that, in accordance with
the original terms thereof, are not delinquent as of the Effective Date or
are incurred thereafter (to the extent not actually paid by Targhee Corp.
during the Interim Period) shall be the obligation of GT Corp. and shall
be treated as a negative amount in the determination of Net Cash Receipts
for the Interim Period.
11. As provided in the definition of "Net Cash Receipts", any charges which
would have been allocable to Targhee Corp. had the Transition Services
Agreement been in effect during the Interim Period shall be the obligation
of GT Corp. and shall be treated as a negative amount in the determination
of Net Cash Receipts for the Interim Period.
Treatment of Cash Accounts on and After the Closing Date
1. As the activity in the Cash Depository Account (KeyBank Account No.
00000000), Local Payroll Bank Account (KeyBank Account No. 709753871) and
Targhee Express Depository Account (Bank of Xxxxxxx Hole Account No.
222646) is not directly tied to Ski Holdings' consolidated cash management
system, GT Acquisition may continue to utilize these accounts for cash
activity originating on or after the Closing Date.
2. For accounts payable disbursements, GT Acquisition representatives shall
commence the necessary actions following the Effective Date to establish
their own disbursement checking account for use for activity originating
on or after the Closing Date. GT Acquisition may not originate cash
disbursements from the Disbursement Account (BankBoston Account No.
00000000) on or after the Closing Date.
3. Credit card deposit activity will require some coordination amongst GT
Acquisition, MCMS and GT Acquisition's intended depository institution to
properly transition. GT Acquisition representatives shall commence the
necessary actions following the Effective Date to have credit card
deposits following the Closing Date processed through a new account for
the benefit of GT Acquisition. In the event that any credit card deposits
for business on or after the Closing Date continue to be deposited to the
Credit Card Depository Account (BankBoston Account No. 00000000), Ski
Holdings shall remit such amounts to GT Acquisition in a timely manner.
4. Payroll ACH disbursements will not be permitted to be processed through
the Payroll ACH Account (BankBoston Account No. 00000000) for payrolls
which require funding on or after the Closing Date. GT Acquisition shall
either convert existing payroll ACH dibursements to live checks (which
clear against the KeyBank Local Payroll Bank Account) or change all ACH
payments to clear against the KeyBank Local Payroll Bank Account.
5. Payroll tax deposits for regularly scheduled payrolls which require
funding on or after the Closing Date shall be modified to be funded by GT
Acquisition.
6. CBA Health and Welfare Claims and Flex Contributions which require funding
on or after the Closing Date shall be funded by GT Acquisition.
Schedule 1.02-2
Booth Creek Ski Holdings, Inc.
Outstanding Accounts Payable on Grand Targhee's Behalf
As of February 21, 2000
Original Invoice Responsible
Invoice Invoice Invoice Invoice Amount Party for
Vendor Name Date Number Due Date Amount Outstanding Description Payment
------------- -------- ------- -------- --------- ----------- ---------------------- -----------
1998/1999 Rental Buy
--------------------
Skis Dynastar 10/05/98 635096 03/1/00 $3,922.38 $1,961.19 98/99 rental equipment Buyer
Skis Dynastar 10/28/98 638971 03/1/00 4,424.12 2,212.06 98/99 rental equipment Buyer
Skis Dynastar 10/28/98 638972 03/1/00 3,870.05 1,935.03 98/99 rental equipment Buyer
Skis Dynastar 11/19/98 644514 03/1/00 9,601.87 4,800.94 98/99 rental equipment Buyer
Skis Dynastar 11/23/98 645059 03/1/00 1,060.71 530.36 98/99 rental equipment Buyer
Skis Dynastar 11/24/98 645328 03/1/00 2,640.00 1,320.00 98/99 rental equipment Buyer
Skis Dynastar 12/02/98 646506 03/1/00 125.30 62.65 98/99 rental equipment Buyer
Skis Dynastar 12/23/98 651371 03/1/00 9.98 4.99 98/99 rental equipment Buyer
----------
Total Skis Dynastar Outstanding $12,827.21
----------
K2 Corporation 08/07/98 157022 3/1/00 $6,195.00 $3,097.50 98/99 rental equipment Buyer
1999/2000 Rental Buy (1)
------------------------
Skis Dynastar 10/28/99 672594/ 03/01/2000-01 $3,452.38 $3,452.38 99/00 rental equipment Buyer
672595 03/01/2000-01
Skis Dynastar 10/28/99 672596/ 03/01/2000-01 1,801.80 1,801.80 99/00 rental equipment Buyer
672597 03/01/2000-01
Skis Dynastar 12/7/99 679637 03/01/2000-01 1,724.85 1,724.85 99/00 rental equipment Buyer
Skis Dynastar 12/10/99 680437 03/01/2000-01 1,076.43 1,076.43 99/00 rental equipment Buyer
Skis Dynastar 12/10/99 678854 03/01/2000-01 3,166.52 3,166.52 99/00 rental equipment Buyer
Skis Dynastar 12/10/99 679385 03/01/2000-01 635.36 635.36 99/00 rental equipment Buyer
Skis Dynastar 12/10/99 685639 03/01/2000-01 977.20 977.20 99/00 rental equipment Buyer
Skis Dynastar 12/10/99 687976 03/01/2000-01 309.20 309.20 99/00 rental equipment Buyer
----------
Total Skis Dynastar Outstanding $13,143.74
----------
Salomon 10/20/99 9567686 3/1/00 3,800.72 $3,800.72 99/00 rental equipment Buyer
Xxxxx 10/15/99 101599 3/1/00 3,400.00 $3,400.00 99/00 rental equipment Buyer
----------
Total Owed For Rental Buys As of February 21, 2000 $36,269.17
----------
Other Misc. Outstanding Accounts Payable
----------------------------------------
Marker 12/2/99 10006820 03/1/00 1,445.94 $ 722.97 99/00 uniform items Buyer
Marker 12/2/99 10006821 03/1/00 4,362.50 2,181.25 99/00 uniform items Buyer
Marker 11/8/99 10004941 03/1/00 3,274.46 1,637.23 99/00 uniform items Buyer
Marker 10/26/99 10003846 03/1/00 1,876.50 938.25 99/00 uniform items Buyer
Marker 10/29/99 10004193 03/1/00 6,271.38 3,135.69 99/00 uniform items Buyer
----------
Total Marker Outstanding $ 8,615.39
----------
----------
Total Owed to Misc Vendors As of February 21, 2000 $ 8,615.39
----------
Total Outstanding Accounts Payable ----------
on Behalf of Grand Targhee $44,884.56
---------------------------------- ----------
Amount to Be Paid by Seller $ -
Amount to Be Paid by Buyer $44,884.56
(1) Note: The rental equipment amounts to Dynastar will be paid 50% on 3/1/2000
and the remaining 50% on 3/1/2001
Schedule 1.02-3
Legal Description of Real Properties
Graphic of Grand Targhee Special Use Permit Map of Approximately 2,400 acres
omitted.
Schedule 4.03
CONSENTS
1. Bank Boston N.A. pursuant to that certain Amended and Restated Credit
Agreement dated as of October 30, 1998, as amended by the First Amendment to
Amended and Restated Credit Agreement entered into as of May 18, 1999 by and
among Ski Holdings, Booth Creek Ski Acquisition Corp., a Delaware corporation,
Trimont Land Company, a California corporation, Sierra-at-Tahoe, Inc., a
Delaware corporation, Bear Mountain, Inc., a Delaware corporation, Waterville
Valley Ski Resort, Inc., a Delaware corporation, Mount Cranmore Ski Resort,
Inc., a Delaware corporation, Ski Lifts, Inc., a Washington corporation,
Targhee Corp., LMRC Holdings Corporation, a Delaware corporation, Loon Mountain
Recreation Corporation, a New Hampshire corporation and BankBoston, as agent
for itself and the other Lenders named therein.
2. United States Department of Agriculture-Forest Service in connection with
the U.S. Forest Service Term Special Use Permit issued by that agency on March
18, 1997.
3. United States Department of Agriculture-Forest Service in connection with
the Agreement to Initiate the Forest Service, U.S. Department of Agriculture
and Booth Creek, Inc., executed as of September 3 and 4, 1997.
4. Exclusive GPS Tracking Agreement, dated November ___, 1999, between Maptek
LLC and Booth Creek Ski Holdings, Inc. regarding guest global positioning
system mapping at the Grand Targhee resort.
5. Service Agreement, dated _____________, 1999 between Grand Targhee, Inc. and
Alltrans, Inc. regarding bus shuttle service.
6. Service Agreement, dated November 9, 1999 between Grand Targhee, Inc. and
Southwest Unlimited LLC, dba Downhill Express regarding bus and van service.
7. Equipment Lease Agreement Number 83422-100 and Equipment Schedule No. 1,
dated December 29, 1997, between Bombardier Capital, Inc. and Grand Targhee
Incorporated regarding lease of two 1996 Bombardier Plus MP Snowgroomers.
8. Price, Parts and Warranty Agreement, dated November __, 1999 between
Bombardier Motor Corporation of America Utility Division and Booth Creek Ski
Holdings, Inc., as it relates to Grand Targhee.
9. Master Agreement, dated December 23, 1998, and Lease Schedule No. 1 thereto,
dated December 24, 1998, each between BancBoston Leasing Inc. and Grand Targhee
regarding lease of Bombardier Corporation equipment.
10. United States Department of the Interior, National Park Service, Special
Use Permit issued to Grand Targhee Resort issued by that agency November 24,
1999.
11. Federal Communications Commission VHF translator Station Licenses each
issued to Grand Targhee on July 29, 1999 by that agency: (i) K02KD-Channel 2
(License BRTTV-980807 AE); (ii) KO5GU-Channel 5 (License BRTTV-980807AF); and
(iii) K07QC-Channel 7 (License BRTTV-980807 AG).
12. Federal Communications Commission Radio Station Licenses issued: (i)to
Grand Targhee Inc. on March 29, 1996 (Call Sign: KRV764); and (ii)to Booth
Creek Ski Holdings Inc dba Grand Targhee Ski & Summer resort on May 8, 1998
(Call Sign: WPMA885).
13. Department of Environmental Quality, Water Quality Division, water waste
treatment plant permit (Teton County Location, Permit No. WY0024708) issued by
that agency to Booth Creek Holdings, Inc.
14. State of Wyoming, Teton County: (i) Resort Liquor License (No. 2148) issued
on January 7, 2000 to Grand Targhee Incorporated in connection with Grand
Targhee Resort (Grand Targhee Bar): (ii) Retail Liquor License (No. 2135)
issued on January 7, 2000 to Targhee Ski Corp. in connection with Grand Targhee
Resort; (iii) County Retail Malt Beverage Permit (No. 2151) issued on January
7, 2000 to BV Corporation in connection with the General Store; and (iv) County
Retail Malt Beverage Permit issued on January 7, 2000 to Targhee Company in
connection with the Igloo Bar.
15. Option and Purchase Agreement, dated September 3, 1997, between Krispen
Family Holdings, L.C. and Booth Creek Ski Holdings, Inc. (as assignee of Booth
Creek, Inc.) , as amended by the First Amendment to the Option and Purchase
Agreement, dated November 23, 1999, regarding Squirrel Xxxxxxx land, if at the
Closing, GT Acquisition is not an "affiliate" of Ski Holdings as defined in the
foregoing agreement.
16. State of Wyoming, Department of Family Services: day care center license
issued to Grand Targhee Resort on December 11, 1998.
17. State of Wyoming, Office of the State Engineer, permit to appropriate
ground water, issued to Big Valley Corporation and assigned to Grand Targhee,
Inc.
18. Option and Purchase Agreement, dated ______________, 1999, between Booth
Creek Ski Holdings, Inc. and Xxxxx College regarding Squirrel Xxxxxxx land.
19. Equipment lease between Newcourt/Lucent/AT&T and Grand Targhee Incorporated
in connection with Phone #1-10000 for the lease period commencing January 1,
2000.
20. Equipment lease between Newcourt/Lucent/AT&T and Grand Targhee Incorporated
in connection with Phone#2 -M3002 for the lease period commencing January 1,
2000.
21. Equipment lease between GE Capital and Grand Targhee Incorporated in
connection with a copier for the lease period commencing January 1, 1999.
22. Equipment lease between Toshiba and Grand Targhee Incorporated in
connection with a copier and fax equipment for the lease period commencing
January 1, 1999.
23. Equipment lease between Toshiba and Grand Targhee Incorporated in
connection with a copier for the lease period commencing March 1, 1999.
24. Equipment lease between Pitney Xxxxx and Grand Targhee Incorporated in
connection with certain postage equipment for the lease period commencing
January 1, 1999.
25. Equipment lease between Pitney Xxxxx and Grand Targhee Incorporated in
connection with certain postage equipment for the lease period commencing
January 1, 2000.
26. Equipment lease between Dell Financial and Grand Targhee Incorporated in
connection with computer equipment for the lease period commencing March 1,
2000.
Schedule 4.09(f)
AUDITS
1. On February 7,2000, Targhee Corp received notice from the Internal Revenue
Service concerning an appointment scheduled for March 14, 2000 for a federal
income tax audit of Targhee Corp and its Subsidiaries for the period commencing
June 1, 1996 and ending March 18, 1997.
2. Targhee Corp. may have received double credit for a prior payment to the
USFS. No such liability has been asserted by the USFS.
Schedule 6.09
MATERIAL ASSETS
1. Equipment subject to that certain UCC-1 financing statement dated January
28, 1999 (Filing No. 99028131A06) executed by Targhee Corp. for the
benefit of BancBoston Leasing Inc.
2. Equipment subject to that certain UCC-1 financing statement, filed January
9, 1998 (Filing No. U-87798) in Teton County, Wyoming executed by Targhee
Corp. for benefit of Bombardier Capital, Inc.
3. Equipment subject to that certain UCC-1 financing statement, executed in
December 14, 1999 by Targhee Corp. for benefit of Bombardier Capital, Inc.
4. Equipment subject to that certain UCC-1 financing statement, filed July 7,
1995 by Targhee Corp. for benefit of AT&T Commercial Finance Corp.
5. Equipment subject to that certain UCC-1 financing statement, filed January
24, 1996 by Targhee Corp. for benefit of Citicorp Leasing, Inc.
6. Equipment subject to that certain UCC-1 financing statement, filed
February 3, 1997 by Targhee Corp. for benefit of Xxxxxxxxx CTEC, Inc.
7. Items 19 through 26 listed on Schedule 4.03 are incorporated herein by
reference.
Schedule 7.08
RELEASE OF GUARANTEES
1. Guaranty of Master Lease Agreement dated December 29, 1997 between Targhee
Corp. and Bombardier Capital, Inc. and leasing transaction made pursuant to
Equipment Schedule No. 1 dated December 29, 1997 and Equipment Schedule No. 2
dated December, 1999.
2. Obligations related to the Parts, Price and Warranty Agreement dated
November 23, 1999 between Booth Creek Ski Holdings, Inc. and Bombardier Motor
Corporation of America.
3. Guaranty of Master Agreement dated December 23, 1998 by and between Targhee
Corp and BancBoston Leasing, Inc. and that certain leasing transaction dated
December 23, 1998 pursuant to Lease Schedule No. 1.
Schedule 9.01
PURCHASE PRICE ALLOCATION
GT Corp shall allocate the Purchase Price among the assets and liabilities
of Targhee Corp. in the following manner:
1. Any cash on hand or cash made available pursuant to Section 6.07 shall be
valued based on their recorded amounts.
2. Receivables shall be valued at present values of amounts to be received
determined at appropriate interest rates, less allowances for
uncollectibility and collection costs, if necessary.
3. Finished goods inventories at estimated selling prices less the sum of
costs of disposal and a reasonable profit allowance for the selling
effort. However, in the event that recorded balances of finished goods
inventories as of the Closing Date, net of applicable reserves for
obsolete, damaged or slow-moving goods, approximate the amounts that would
be determined pursuant to the preceding sentence, then existing recorded
balances may be used.
4. Supplies and similar inventories at current replacement cost. However, in
the event that recorded balances of supplies and similar inventories as of
the Closing Date approximate the amounts that would be determined pursuant
to the preceding sentence, then existing recorded balances may be used.
5. Prepaid expenses and other current assets shall be valued based on their
recorded values as of the Closing Date, unless the nature of such assets
would otherwise indicate a more appropriate value.
6. Property and equipment to be used shall be valued at the current
replacement costs on a going concern basis for current use for similar
capacity unless the expected future use of the asset(s) indicates a lower
value to the acquirer.
7. Property and equipment to be sold shall be valued at fair value less cost
to sell.
8. Costs incurred in connection with the proposed land swap with the U.S.
Forest Service shall be valued at their recorded values as of the Closing
Date, which shall be deemed to approximate their estimated fair values.
9. Option contract payments made in connection with the proposed land swap
with the U.S. Forest Service shall be valued at their recorded values as
of the Closing Date, which shall be deemed to approximate their estimated
fair values.
10. Intangible assets, if any, that can be identified and named, including
contracts, patents, franchises, customer and supplier lists, and favorable
leases, at their estimated fair values.
11. Accounts and notes payable, long-term debt and other claims payable at
present values of amounts to be paid determined at appropriate current
interest rates.
12. Liabilities and accruals at present values of amounts to be paid
determined at appropriate current interest rates.
13. Other liabilities and commitments, including unfavorable leases,
contracts, and commitments, at present values of amounts to be paid
determined at appropriate current interest rates.
14. Any excess purchase price over the estimated fair values of assets
acquired and liabilities assumed shall be recorded to goodwill.
Exhibit A
OPTION AND PURCHASE AGREEMENTS; OTHER AGREEMENTS
1. Agreement to Initiate, dated September 4, 1997, between U.S. Department of
Agriculture Forest Service and Booth Creek, Inc., as amended by the Squirrel
Xxxxxxx-Grand Targhee Resort Land Exchange Amendment to Agreement to Initiate,
dated August 25, 1999.
2. Option and Purchase Agreement, dated September 3, 1997, between Krispen
Family Holdings, L.C. and Booth Creek Ski Holdings, Inc. (as assignee of Booth
Creek, Inc.), as amended by the First Amendment to the Option and Purchase
Agreement, dated November 23, 1999, regarding Squirrel Xxxxxxx land.
3. Option and Purchase Agreement, dated May ___, 1999, among Wildwood
Properties, Xxxx X. Xxxxxx and Xxxxx X. Xxxxxx, Trustees, and Booth Creek Ski
Holdings, Inc. regarding certain real property regarding Squirrel Xxxxxxx land.
4. Option and Purchase Agreement, dated _______, 1999, between Wildwood
Properties and Booth Creek Ski Holdings, Inc. regarding Squirrel Xxxxxxx
mineral rights.
5. Letter to Xxxxxx X. Xxxxxxx, general partner of Wildwood Properties, from
Booth Creek Ski Holdings, Inc., dated May 12, 1999, regarding ski passes.
6. Letter to Xxxxxx X. Xxxxxxx, general partner of Wildwood Properties, from
Booth Creek Ski Holdings, Inc., dated May 12, 1999, regarding simultaneous
exercise of the land and mineral options.
7. Option and Purchase Agreement, dated ______, 1999, between Booth Creek Ski
Holdings, Inc. and Xxxxx College regarding Squirrel Xxxxxxx land.
8. Development Contingent Payment Agreement, dated March 18, 1997, among Booth
Creek Ski Holdings, Inc., Grand Targhee Incorporated, Moritz X. Xxxxxxxxx and
Xxxxx Xxxx Bergmeyer regarding a per-developed unit fee.
9. Exclusive GPS Tracking Agreement, dated October 22, 1999, between Map Tek
LLC and Booth Creek Ski Holdings, Inc. regarding guest global positioning
system mapping.
10. Service Agreement, dated ______, 1999 between Grand Targhee, Inc. and
Alltrans, Inc. regarding bus shuttle service.
11. Service Agreement, dated November 9, 1999 between Grand Targhee, Inc. and
Southwest Unlimited LLC, dba Downhill Express regarding bus and van service.
12. Equipment Lease Agreement Number 83422-100 and Equipment Schedule No. 1,
dated December 29, 1997, between Bombardier Capital, Inc. and Grand Targhee
Incorporated regarding lease of two 1996 Bombardier Plus MP Snowgroomers.
13. Price, Parts and Warranty Agreement, dated November ___, 1999 between
Bombardier Motor Corporation of America Utility Division and Booth Creek Ski
Holdings, Inc., as it relates to Grand Targhee.
14. Master Agreement, dated December 23, 1998, and Lease Schedule No. 1
thereto, dated December 24, 1998, each between Bancboston Leasing Inc. and
Grand Targhee regarding lease of Bombardier Corporation equipment.
Exhibit B
TRANSITION SERVICES AGREEMENT
This Transition Services Agreement (this "Agreement") is entered into
as of June 20, 2000 by and between GT Acquisition I, LLC, a Delaware
limited liability company (the "Company"), and Booth Creek Ski Holdings, Inc.,
a Delaware corporation ("Ski Holdings").
A. The Company and Ski Holdings, among others, are parties to that
certain Asset Purchase Agreement (the "Asset Purchase Agreement"), dated as of
March 21, 2000.
B. Pursuant to the Asset Purchase Agreement, the Company is,
concurrently herewith, purchasing from Ski Holdings all of the assets
constituting the Grand Targhee Ski and Summer Resort.
C. The Company and Ski Holdings now wish to arrange for the provision
of certain services by Ski Holdings to the Company, on the terms and conditions
set forth herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties agree as follows:
1. Certain Definitions.
"Closing" shall mean the consummation of the transactions
contemplated by the Asset Purchase Agreement, including the execution and
delivery of this Agreement by each of the parties hereto.
"Closing Date" shall mean the date upon which the Closing occurs.
"Person" shall mean any entity, corporation, company, association,
joint venture, joint stock company, partnership, trust, organization,
individual (including personal representatives, executors and heirs of a
deceased individual), nation, state, government (including agencies, branches,
departments, bureaus, boards, divisions and instrumentalities, thereof),
trustee, receiver or liquidator.
All Exhibits and Schedules to this Agreement, as existing on the date
of this Agreement or as thereafter supplemented, modified or amended from time
to time, are incorporated into this Agreement by this reference as though fully
set forth herein. All accounting terms not otherwise defined herein or in any
other related agreement shall have the meanings accorded to them under GAAP.
References herein to "Articles," "Sections," "Schedules" and "Exhibits" shall
be to Articles, Sections, Schedules and Exhibits, respectively, of this
Agreement unless otherwise specifically provided. Any of the terms defined in
Section 1 may, unless the context otherwise requires, be used in the singular
or the plural and in any gender depending on the reference.
2. Services; Term. Commencing on the Closing Date and continuing for the
term specified in Exhibit A with respect to each such service, Ski Holdings
shall provide the services (collectively, the "Transition Services") enumerated
in Exhibit "A" to the Company with respect to the Grand Targhee Ski and Summer
Resort in Alta, Wyoming (the "Grand Targhee resort"), subject in all cases to
the terms and conditions specified in Exhibit A. Additional services may be
added to Exhibit "A" at any time by mutual agreement of the parties hereto.
Except for the Transition Services specifically delineated in this Agreement,
Ski Holdings will have no responsibility for providing any other services to
the Company from and after the Closing Date.
3. Termination. The Company may terminate this Agreement or Ski Holdings
provision of any particular Transition Service upon 30 days' prior written
notice to Ski Holdings.
4. Compensation. As compensation for the Transition Services rendered
hereunder, the Company shall pay the fees and reimbursements specified in
Exhibit A (the "Transition Service Fees"). The Transition Service Fees shall be
billed in the following manner:
(a) For Transition Services which can be billed directly by the third
party vendors supplying such services, Ski Holdings and the Company shall use
their best efforts to cause such vendors to xxxx the Company directly.
(b) For Transition Services for which the fees are fixed and
determinable each monthly fiscal period of Ski Holdings, Ski Holdings shall
present invoices to the Company on or before the tenth (10th) business day of
each month, which invoices shall be due and payable within 15 days of
presentment.
(c) For Transition Services which are based on actual usage, Ski
Holdings shall provide the Company with invoices on a monthly basis in arrears
not later than 15 days following the close of each fiscal month of Ski
Holdings, which invoices shall be due and payable within 15 days of
presentment.
5. Expenses. In addition to paying all Transition Service Fees, the
Company shall also reimburse Ski Holdings for all out-of-pocket expenses
incurred by it in connection with the Transition Services including, without
limitation, advertising, legal and other reasonable professional fees;
provided, however, that Ski Holdings shall obtain the Company's prior approval
on a case-by-case basis before incurring any outside legal fees and before
incurring any other out-of-pocket expenses exceeding $1,000 in any particular
case. Ski Holdings shall include all such itemized expenses in the monthly
invoices for Transition Services referred to in Section 4.
6. Arms Length Terms. The parties acknowledge and agree that the
compensation and other terms of this Agreement afford Ski Holdings
consideration for the rendition of the Transition Services which is at least
equal to that which could be obtained from unaffiliated Persons if Ski Holdings
were to provide the Transition Services to such unaffiliated Persons in the
same geographic areas in which the Company conducts business.
7. Documentation and Disputes. In the event that any of the Transition
Service Fees or reimbursements are based upon hourly rates or allocations of
combined costs other than as specified in Exhibit A, Ski Holdings will, upon
request, provide to the Company documentation supporting the amount charged.
8. Confidential Information.
(a) Each of Ski Holdings and the Company shall: (i) hold in trust and
maintain confidential, (ii) not disclose to others without the prior written
approval of the other, and (iii) not use for any purpose, other than such
purposes as may be authorized in writing by the other, any Information received
from the other under this Agreement; provided, however, that Ski Holdings may
disclose any such information to Fleet National Bank (f/k/a BankBoston NA) as
required by its loan arrangement with such bank.
(b) For these purposes, "Information" shall mean any information
relating to the Transition Services or the other party which is confidential,
proprietary or otherwise not generally available to the public (but excluding
information which has become part of the public domain, or which the receiving
party has obtained independently from third party sources without those sources
having violated any fiduciary or other duty not to disclose such information).
(c) The foregoing obligations of confidentiality, non-disclosure and
non-use shall not apply, however, to any Information to the extent that the
receiving party can show that: (i) such Information is or becomes generally
available to the public other than through the acts or omissions of the
receiving party; (ii) such Information is or becomes available to the receiving
party on a non-confidential basis from a third party having the legal right to
disclose such Information, (iii) such Information relates to historical
activities of the other party prior to the date hereof; or (iv) disclosure of
such Information is required under applicable law or regulations or is made
pursuant to the request of any regulatory authority having jurisdiction over
the receiving party.
9. Standard of Care; Limitation of Liability. Ski Holdings shall use
reasonable efforts to attempt to provide the Transition Services to the Company
with the same general degree of care, skill and prudence as is customarily
exercised by Ski Holdings in its own business. Ski Holdings, however, shall not
be liable for any act or omission related to or arising from its provision of
the Transition Services unless that act or omission constitutes gross
negligence or willful misconduct on its part. Furthermore, Ski Holdings shall
not be liable to the Company hereunder for any liabilities, losses, damages,
expenses or other amounts (however characterized) which may be suffered by the
Company as a result of any breach of this Agreement by Ski Holdings to the
extent any such liabilities, losses, damages, expenses or other amounts exceed
the aggregate Transition Service Fees payable by the Company hereunder, and in
no event shall Ski Holdings be liable hereunder for any indirect or
consequential damages which may be suffered by the Company. Ski Holdings shall
have no duties to the Company except those expressly set forth herein, and
shall have no duty or responsibility to determine whether any data or
information provided to it or any of its employees or agents hereunder by the
Company is accurate, but may, instead, conclusively rely upon the accuracy of
any such data or information.
10. Indemnification. The Company shall indemnify, defend and hold harmless
Ski Holdings and its shareholders, directors, officers, employees and agents
from and against (i) any breach of this Agreement by the Company and (ii) any
and all damages, losses, claims, judgments, amounts paid in settlement and
out-of-pocket expenses (including reasonable legal and accounting fees) arising
out of any actual or threatened third party claims, proceedings or
investigations relating to or resulting from Ski Holdings' rendition of the
Transition Services or Ski Holdings' performance of any of its duties
hereunder, except to the extent the same proximately result from the willful
misconduct, gross negligence or negligence of Ski Holdings or any such
shareholder, director, officer, employee or agent. The Company's
indemnification obligations shall survive the termination of this Agreement,
and Ski Holdings shall have the right to require the Company to advance
expenses incurred by it in advance of the final disposition of any such claim,
proceeding or investigation.
11. Assignment or Transfer. No party shall assign, transfer or delegate
any of its rights or obligations under this Agreement without the prior written
approval of the other party, except that no such approval shall be required for
an assignment or delegation to an affiliate or to a successor to all or a
substantial portion of the assets or the business of either party, provided
that such affiliate or successor assumes such party's obligations hereunder
with respect to the rights assigned or transferred. This Agreement shall be
binding on the parties' respective permitted or approved successors and
assigns.
12. Notices. All notices, requests, demands and other communications
provided for hereunder shall be in writing (including facsimile communications)
and shall be mailed (return receipt requested), sent by facsimile or delivered
by courier or other means of personal service to each party at the address set
forth as follows, and any such notice, request, demand or other communication
shall be effective upon receipt. All payments required in this Agreement shall
be paid to and delivered to the party as provided herein for notice.
If to the c/o Booth Creek Management Corp.
Company: 0000 Xxxxx Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Xx.
Fax: (000) 000-0000
Tel: (000) 000-0000
With copy to: Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Tel: (000) 000-0000
If to Ski Holdings: Booth Creek Ski Holdings, Inc.
0000 Xxxxxxx 000, Xxxxx 0
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Vice President of Finance and Accounting
Fax: (000) 000-0000
Tel: (000) 000-0000
With copy to: Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
Tel: (000) 000-0000
13. Entire Agreement. This Agreement (including the exhibits hereto and
provisions of the Asset Purchase Agreement incorporated by reference) is
intended to embody the final, complete and exclusive agreement among the
parties with respect to the subject matter hereof; is intended to supersede all
prior agreements, understandings and representations written or oral, with
respect thereto; and may not be contradicted by evidence of any such prior or
contemporaneous agreement, understanding or representation, whether written or
oral.
14. Governing Law and Venue. This Agreement is to be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly within such State, and without regard
to the conflicts of laws principles thereof. Any suit brought hereon, whether
in contract, tort, equity or otherwise, shall be brought in the state or
federal courts sitting in the City and County of Denver, Colorado, California,
the parties hereto hereby waiving any claim or defense that such forum is not
convenient or proper. Each party hereby agrees that any such court shall have
in personam jurisdiction over it, consents to service of process in any manner
prescribed in Section 13 or in any other manner authorized by Colorado law, and
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner specified by law.
15. Binding Effect. This Agreement and the rights, covenants, conditions
and obligations of the respective parties hereto and any instrument or
agreement executed pursuant hereto shall be binding upon the parties and their
respective successors, assigns and legal representatives.
16. Attorney's Fees. If any party shall bring an action against the other
by reason of any alleged breach of any covenant, provision or condition hereof,
or otherwise arising out of this Agreement, the unsuccessful party(ies) shall
pay to the prevailing party(ies) all attorney's fees and cost actually incurred
by the prevailing party(ies), in addition to any other relief to which it or
they may be entitled.
17. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. In making proof of
this Agreement it shall not be necessary to produce or account for more than
one counterpart.
18. Section Headings. The section headings of this Agreement are for
convenience of reference only and shall not be deemed to alter or affect any
provision hereof.
19. Severability. In the event that any provision or any part of any
provision of this Agreement shall be void or unenforceable for any reason
whatsoever, then such provision shall be stricken and of no force and effect.
However, unless such stricken provision goes to the essence of the
consideration bargained for by a party, the remaining provisions of this
Agreement shall continue in full force and effect, and to the extent required,
shall be modified to preserve their validity.
20. No Third-Party Rights. Except as contemplated by Section 10, nothing
in this Agreement, whether express or implied, is intended to confer any rights
or remedies under or by reason of this Agreement on any Persons other than the
parties to it and their respective successors and assigns, nor is anything in
this Agreement intended to relieve or discharge the obligation or liability of
any third Persons to any party to this Agreement, nor shall any provision give
any third Persons any right of subrogation or action over against any party to
this Agreement.
21. Ambiguities. The parties acknowledge that each party and its counsel
has materially participated in the drafting of this Agreement and consequently
the rule of contract interpretation that ambiguities, if any, in the writing be
construed against the drafter, shall not apply.
[remainder of this page intentionally left blank; signatures follow]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
the day and year first above written.
GT ACQUISITION I, LLC, a Delaware
limited liability company
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Its: Executive Vice President
-----------------------------
SKI HOLDINGS
BOOTH CREEK SKI HOLDINGS, INC., a
Delaware corporation
By: /s/ Xxxxxxxxx X. Xxxx
------------------------------
Its: Exec. Vice President / CFO
-----------------------------
EXHIBIT "A"
SCHEDULE OF SERVICES
1. Employee Transition Services. From and after the Closing Date and
continuing until the later of June 30, 2000 or the ninetieth (90th) day after
the Closing Date, at the written request of the Company, Ski Holdings will
cause employees selected by it to provide business advisory and consulting
services to the Company ("Employee Transition Services"). The provision by Ski
Holdings of such Employee Transition Services to the Company will be subject to
the following:
(a) The Company must provide reasonable advance written notice of its
request for Employee Transition Services.
(b) The demands of each employee's existing and expected work
commitments to Ski Holdings will have priority over the Employee Transition
Services, with the objective that the provision of the Employees Services to
the Company will not impede the proper execution of any such employee's work
commitments to Ski Holdings.
(c) The fees charged by Ski Holdings to the Company for such Employee
Transition Services will be based on the fully distributed cost of the Employee
Transition Services on a per hour or per day basis, which will include the
following: (i) the average per hour rate of compensation paid to the employee
based on (x) such employee's then current annual salary rate divided by 2080
hours, or (y) such employee's then current hourly wage rate, as applicable;
(ii) Ski Holdings' estimated annual payroll overhead burden rate of 25%; and
(iii) other directly allocable costs and expenses associated with the provision
of such Employee Transition Services.
2. Specific Employee Transition Services. Without limiting the generality
of Section 1 of this Exhibit A and subject to the provisos in Sections 1(a) and
1(b) above:
(a) from and after the Closing Date and until the later of June 30,
2000 or the ninetieth (90th) day after the Closing Date, the Company may
utilize the services of the following employees at no charge: Xxxxx Xxxxxxxxx
(Ski Holdings' Vice President and General Counsel); Xxxx Xxxxxxxx (Risk
Management); Xxxxx Xxxxxxxx; and Xxxxx Xxxxx; provided, however, that the
services of Xxxx Xxxxxxxx shall be limited to risk management consultation and
shall specifically exclude negotiations to procure new insurance on behalf of
the Company; and
(b) from and after the Closing Date and through April 28, 2000, the
Company may utilize the services of each of Xxx Xxxx and Xxx Xxxxxxx at no
charge. After April 28, 2000 and until the earlier of (i) the date of the
initial rendering of the record of the decision to approve the Environmental
Impact Statement currently in process with respect to the Grand Targhee resort
(without regard to any applicable administrative or judicial appeal periods) or
(ii) August 31, 2000, the Company shall pay for any such services by Xx. Xxxx
at the rates sets forth in Section 1 of this Exhibit A and the Company will be
required to make its own arrangements with Xx. Xxxxxxx if it wishes to use her
services, and any arrangements between Ski Holdings and Xx. Xxxxxxx shall not
preclude the use by the Company of her services. Thereafter, should the Company
request that Xxx Xxxx render services to it as a consultant or expert witness
with respect to any administrative or judicial appeal arising from the
foregoing land exchange with the U.S. Forest Service, Ski Holdings will provide
Xx. Xxxx'x services on a limited basis provided that (i) only Xx. Xxxx, and not
personnel otherwise available to the Company, has the knowledge and expertise
to render the requested services, (ii) Xx. Xxxx'x availability to perform his
regular duties on behalf of Ski Holdings will not be impaired by his
performance of the requested services to the Company and (iii) the Company and
Ski Holdings reach mutually acceptable agreements as to the terms pursuant to
which Xx. Xxxx'x services will be provided to the Company.
Notwithstanding anything else provided in this Section 2, however, the amount
of time devoted by any employee listed in items (a) and (b) above to any
matters related to the Company shall not generally exceed the amount of time
currently devoted by such employee to matters for the Company.
3. Commercial Insurance. From and after the Closing Date and continuing
until the earlier of (i) the later of June 30, 2000 or the ninetieth (90th) day
after the Closing Date, or (ii) the date on which the Company procures its own
like insurance, Ski Holdings will cause its insurers to continue to provide the
Company with the following forms of insurance coverage ("Transition Insurance")
under Ski Holdings' existing commercial insurance policies, subject in all
cases to the Company's compliance with the existing terms and conditions of
such insurance policies:
(a) Commercial property.
(b) Boiler and machinery.
(c) Electronic data processing.
(d) Commercial general liability, umbrella coverage, and First,
Second, Third and Fourth Excess Layer.
(e) Business automobile.
(f) Crime.
Except for the Transition Insurance, Ski Holdings will have no responsibility
for arranging to provide to the Company any other form of insurance coverage,
including directors and officers liability insurance, employment practices
liability insurance, fiduciary liability insurance, xxxxxxx compensation or
other forms of insurance.
The Company will promptly reimburse Ski Holdings for its allocable
share of all premium costs of the Transition Insurance, as reflected on
Schedule 1. The Company will pay all actual uncovered claims, excess losses,
deductibles and other costs applicable to the Transition Insurance for any
incidents applicable to its business and operations, as well as any taxes or
administrative expenses associated with the Transition Insurance.
4. Health Welfare and Other Benefits.
(a) Subject to all applicable rules and regulations related to such
health, welfare and benefit plans, Ski Holdings will continue to provide
eligible employees of the Company with the opportunity to participate in the
following Ski Holdings health and welfare programs (the "Health and Welfare
Programs") for the period commencing on the Closing Date and continuing until
the earlier of (i) the later of June 30, 2000 or the ninetieth (90th) day after
the Closing Date or (ii) such time as the Company has made alternate
arrangements for Health and Welfare Programs:
(i) Benefits provided under the Booth Creek Ski Holdings, Inc.
Indemnity Employee Benefit Plan.
(ii) Benefits provided under the Booth Creek Ski Holdings, Inc.
Vision Plan.
(iii) Benefits provided under the Booth Creek Ski Holdings, Inc.
Dental Plan.
(iv) Employer provided life insurance and accidental death &
disability coverage.
(v) Employer provided dependent life insurance coverage.
(vi) Employee funded supplemental life insurance coverage.
(vii) Employer provided short-term disability coverage.
(viii) Employer provided long-term disability coverage.
(ix) Employee funded supplemental long-term disability coverage.
The Company will promptly reimburse Ski Holdings for, or pay directly to the
various providers and administrators of the Health and Welfare Programs, the
Company's direct or allocable share (based upon participating employees) of all
administrative fees, employer premiums, employee premiums, claims, losses and
any other costs incurred by Ski Holdings and associated with the Health and
Welfare Programs. Schedule 2 summarizes the current administrative fees,
employer premiums and employee premiums associated with the Health and Welfare
Programs.
(b) From and after the Closing Date and until the earlier of (i) the
later of June 30, 2000 or the ninetieth (90th) day after the Closing Date or
(ii) such time as the Company has made alternate arrangements for retirement
programs, Ski Holdings will continue to hold and administer in the Ski Holdings
401(k) plan (the "Plan") the accounts and funds of employees of the Company who
were formerly employees of Ski Holdings and/or its affiliates.
5. Banking Services. Following the Closing Date, the Company will
establish its own banking and cash management accounts and Ski Holdings will
have no responsibility therefor.
6. Ticketing and Loyalty System Services. The parties acknowledge that the
Company currently maintains and supports its own primary ticketing system and
participates in the Vertical Value loyalty program maintained and supported by
Ski Holdings and its First Tracks ticketing system. Each of the Company and Ski
Holdings acknowledge the low volume of Vertical Value members maintained by the
Company. During the remainder of the 1999/00 ski season:
(a) the Company may continue to use the First Tracks ticketing system
relating to the Vertical Value program at no cost to the Company; and
(b) Ski Holdings will honor Vertical Value redemptions at Ski
Holdings' other ski resorts from Vertical Value members at the Grand Targhee
resort; and the Company will honor Vertical Value redemption at the Grand
Targhee resort from Vertical Value members at Ski Holdings' other ski resorts,
each party honoring such Vertical Value redemption at no cost to the other.
Following the 1999/00 ski season, Ski Holdings will have no
responsibility to provide any ticketing or loyalty system support or integrated
programs to the Company.
7. Human Resources and Employee Development Services. At the written
request of the Company, from and after the Closing Date and continuing until
the later of June 30, 2000 or the ninetieth (90th) day after the Closing Date,
Ski Holdings will continue to provide to the Company substantially the same
training, program assistance and other services it provides to its other
resorts through its corporate Human Resources personnel and consultants (the
"Human Resources Services"). In particular, Ski Holdings will provide the
following Human Resources Services to the Company as of the dates set forth
below:
(a) Xxxxx Xxxxxxxx will be coordinating the "360 Degree Feedback"
process commencing in February, 2000. If the Company elects to participate in
such program with respect to the Grand Targhee resort after the Closing Date,
the Company will reimburse Ski Holdings for its allocable portion of the
consolidated set-up fee and the $80 per head processing fee for any selected
participants.
(b) Employee Climate Surveys will be conducted in February, 2000 for
all of Ski Holdings' ski resorts. If the Company elects to participate in such
program with respect to the Grand Targhee resort after the Closing Date (i) the
Company will, at its cost, be responsible for all data collection efforts
associated with the program, (ii) the Company will reimburse Ski Holdings for
Ski Holdings' out of pocket costs related to providing the program to the Grand
Targhee resort and (iii) Ski Holdings will provide compilation services for the
Employee Climate Survey to the Company at no charge.
(c) Xxxxx Xxxxxxx provides certain compensation consulting services
to the Ski Holdings' resorts. Any such services provided by Xxxxx Xxxxxxx to
the Company after the Closing Date with respect to the Grand Targhee resort
will be promptly paid for (or reimbursed, if previously paid by Ski Holdings)
and billed directly to the Company at Xxxxx Xxxxxxx'x applicable rates and
charges.
(d) Xxxx Xxxxxxx provides certain training and customer quality
consulting services to Ski Holdings' resorts. Any such services provided by
Xxxx Xxxxxxx after the Closing Date with respect to the Grand Targhee resort
will be promptly paid for (or reimbursed, if previously paid by Ski Holdings)
and billed directly to the Company at Xxxx Xxxxxxx'x applicable rates and
charges.
8. Marketing Services and Promotional Arrangements.
(a) Ski Holdings maintains a number of promotional arrangements
designed to increase visitation at its resorts. Schedule 3 reflects promotional
product arrangements currently in place for the 1999/00 ski season which permit
usage or visitation at the Grand Targhee resort for the remainder of the
1999/00 ski season. From and after the Closing Date and for the remainder of
the 1999/00 ski season, Ski Holdings will continue to honor at its other
resorts the redemption of existing promotional items initiated by the Grand
Targhee resort, provided that the Company honors the redemption at the Grand
Targhee resort of promotional items initiated by the Ski Holdings' other
resorts, each at no cost to the other. Any changes in the promotional programs
that would cause visitation levels at either Grand Targhee or Ski Holdings'
other resorts to increase significantly over current levels will require the
approval of the Company and Ski Holdings.
(b) Ski Holdings also maintains a number of other marketing programs,
initiatives and research programs which involve its resorts. From and after the
Closing and continuing for the remainder of the 1999/00 ski season, Ski
Holdings will continue to afford the Company with the opportunity to
participate in these programs provided the Company promptly pays Ski Holdings,
or reimburses Ski Holdings if previously paid by Ski Holdings, for all
allocable or direct costs incurred by Ski Holdings with respect to the Grand
Targhee resort. Schedule 4 reflects these programs and the estimated allocable
or direct cost to be charged to the Company for such programs during the
remainder of the 1999/00 ski season.
9. E-Business Services. From and after the Closing Date and continuing
until the later of June 30, 2000 or the ninetieth (90th) day after the Closing
Date, the Company may continue to utilize Ski Holdings' E-Commerce "virtual
store" and transaction system for processing gift certificate transactions, at
no charge. However, except as specified in this Section 9, Ski Holdings will
have no responsibility to provide any other E-Commerce system services to the
Company.
10. Enterprise Systems Software. From and after the Closing Date and
continuing until August 25, 2000, the Company may maintain access to and use of
Ski Holdings' XX Xxxxxxx enterprise system software and AS/400 computer. Such
access will be limited to those uses currently in place, including accounting
systems capabilities comprised of the general ledger, financial reporting,
accounts payable/cash disbursements, payroll, human resources, fixed assets and
other XX Xxxxxxx modules currently in place. For such access the Company will
pay Ski Holdings (or reimburse Ski Holdings if previously paid by Ski Holdings)
for all allocable and direct costs arising from such usage. The estimated costs
of access to and usage of XX Xxxxxxx and the AS/400 are reflected on Schedule
5. Any non-recurring or unusual system support provided by Ski Holdings'
personnel associated with the Company's usage of the XX Xxxxxxx system and
AS/400 will be charged to the Company in accordance with Section 1 of this
Exhibit A.
11. Internet Access. From and after the Closing Date and continuing until
August 25, 2000, the Company may continue to maintain internet access services
through Ski Holdings. The estimated costs of access to and usage of Ski
Holdings' internet access services will include the charges reflected on
Schedule 5. Any system support services provided by Ski Holdings' personnel
associated with the Company's continued usage of internet services will be
charged to the Company in accordance with Section 1 of this Exhibit A.
12. Telecommunications Services. From and after the Closing Date and
continuing until August 25, 2000, the Company may continue to use the
telecommunication services currently provided to it by Ski Holdings or by
telecommunications vendors under consolidated buying arrangements. The
estimated costs of access to and usage of such telecommunications services will
include the charges reflected on Schedule 5. Any telecommunications support
services provided by Ski Holdings' personnel associated with the Company's
continued usage of telecommunication services will be charged to the Company in
accordance with Section 1 of this Exhibit A.
13. Daily Sales and Labor Systems. From and after the Closing Date and
continuing for the remainder of the 1999/00 ski season, the Company may
continue to use Ski Holdings' Daily Sales and Labor Systems, at no charge.
14. Determination of Allowable Costs. All determinations of the Company's
allocable share of (i) employee salaries, other benefits and annual payroll
overhead burden relating to the Employee Transition Services (ii) insurance
premiums and other costs relating to the Transition Insurance; (iii) Health and
Welfare Program and retirement program administrative fees, employer premiums,
employee premiums, claims, losses and other related costs; and (iv) all other
direct and indirect costs incurred by Ski Holdings in rendering the Transition
Services will be made by Ski Holdings exclusively and will be conclusive and
binding upon the Company in the absence of manifest error.
15. Services at No Charge. To the extent that any Transition Services are
to be provided to the Company at no charge pursuant to this Exhibit A, the
parties agree that such Transition Services will be provided to the Company at
no charge only for so long as the costs to Ski Holdings of providing them to
the Company do not increase to a level materially in excess of the costs so
incurred by Ski Holdings as of the date hereof. If such a material increase in
costs occurs, Ski Holdings will have the right to charge the Company for those
excess costs.
Transition Services Agreement
Schedule 1
Premium Allocation - Commercial Insurance
Allocation for Month Ended
---------------------------------------------
February March April May June
Form of Insurance 2000 2000 2000 2000 2000 Total
-------------------------------------------------------------------------------
Commercial Property $ 1,237 $ 1,237 $ 1,237 $ 1,237 $ 1,237 $ 6,186
Boiler and Machinery 176 176 176 176 176 881
Electronic Data 31 31 31 31 31 156
Processing
Commercial General 13,702 16,486 4,502 11 1,556 36,257
Liability, Umbrella
coverage and first,
second, third and
fourth Excess Layer
(A)
Business Automobile 870 870 870 870 870 4,349
Crime 91 91 91 91 91 456
----------------------------------------------------------
$ 16,108 $ 18,892 $ 6,908 $ 2,416 $ 3,961 $ 48,285
==========================================================
Note: The Premium Allocation above excludes any amounts due to uncovered
losses, excess losses, deductibles and any other costs applicable with the
insurance coverages for any incidents applicable to the Company and its
subsidiaries' operations, as well as any taxes or administrative expense
associated with such coverage. The Buyer shall be responsible for all such
costs.
(A) - General liability allocation is based on $73,211 premium allocation to
Grand Targhee times the percentage of monthly budgeted revenue to annual
budgeted revenue for fiscal 2000.
Transition Services Agreement
Schedule 2
Health and Welfare Plan
Adminstrative Fees, Premiums and Other Charges
Administrative Fees / Premiums Billing Rate
------------------------------ ------------
Specific Stop Loss
Single: $ 16.68 per current census
2 Person: 45.09 per current census
Family: 45.09 per current census
Medical Administration Fees
Single: 9.50 per current census
2 Person: 9.50 per current census
Family: 9.50 per current census
Dental Administration Fees
Single: 2.75 per current census
2 Person: 2.75 per current census
Family: 2.75 per current census
Utilization Review 1.75 per current census
STD 1.00 per current census
COBRA 0.75 per current census
Billing Fee 0.35 per current census
Flex Fee 4.50 per current census
Employee Contributions / Premiums
---------------------------------
Indemnity Employee Benefit Plan $16.00 Employee
$40.00 Employee with 1 Dependent
$64.00 Employee with 2 or more
Dependents
Dental Plan $5.00 Employee
$12.00 Employee with 1 Dependent
$18.00 Employee with 2 or more
Dependents
Vision Plan No employee contribution required
Employee Supplemental Life Deductible amounts per coverage table
Insurance Coverage
Employee Supplemental Buy-Up $.22 per $100 of covered payroll
Long-Term Coverage
Employer Premiums and Charges
-----------------------------
Indemnity Employee Benefit Plan Actual Incurred Claims Losses
(Net of Employee Contributions)
Dental Plan Actual Incurred Claims Losses
(Net of Employee Contributions)
Vision Plan Actual Incurred Claims Losses
Employer Provided Life Insurance $.18 per $1000 of coverage
and AD&D Coverage
Employer Provided Dependent Life $1.75 per covered employee
Insurance Coverage
Employer Provided Short-Term Note A
Disability Coverage
Employer Provided Core Long-Term $.21 per $100 of covered payroll
Disability Coverage
Note A: If short term disability benefits are provided under a state mandated
plan, no additional benefits provided. If a state mandated is not available
then benefits are as follows: 1) Waiting period: accident - 0 days, illness - 7
days, 2) Benefit amount: 66.67% of basic earnings, 3) Maximum weekly benefit:
$500, and 4) Maximum benefit period: 26 weeks.
Transition Services Agreement
Schedule 3
Booth Creek Resorts Promotional Product Listing
Winter 1999/2000
Promotion Offer/ Restrictions/ Redeem At Comments
Name Discount Requirements
-------------------------------------------------------------------------------
Backstage Free season Any day Ticket All BC
Xxxx xxxx Booths Resorts
-------------------------------------------------------------------------------
Brandywine Free lift Sun-Fri, Special Valid at
Voucher ticket non-hol. Tickets all BC
Collect Ticket Resorts
coupon. Booth
-------------------------------------------------------------------------------
Big Bear Free lift Sun-Fri, Ticket Valid at
season pass ticket non-hol. Booths NS, SAT
holders Collect and GT only.
voucher.
-------------------------------------------------------------------------------
Big Bear All day Sun-Fri, Ticket Valid at
season ticket at non-hol. Booths all BC
pass holders pm rate Must Resorts
present
pass
-------------------------------------------------------------------------------
Dynastar - Free lift Sun-Fri, Special Valid at
New ticket non-hol. Tickets all BC
Shape of Collect Ticket Booth Resorts
Skiing coupon &
Check id.
-------------------------------------------------------------------------------
Dynastar - Bring a Sun-Fri, Ski/Board Valid at
New Buddy Offer* non-hol. Rental all BC
Shape of Collect Ticket Booth Resorts
Skiing coupon and Special
check id Tickets
for name
match.
-------------------------------------------------------------------------------
Gold Team Free lift Sun-Fri, Ticket Valid at
Voucher - AA ticket non-hol Booths all BC
Collect Resorts
voucher.
-------------------------------------------------------------------------------
Grand Targhee All day Sun-Fri, Ticket Valid at
pass holders ticket at non-hol. Booths all BC
pm rate Must Resorts
present
pass
-------------------------------------------------------------------------------
Harry's Fresh 2 for 1 Any day Any resort Valid at
Foods bowl of food & all BC
soup (not beverage Resorts
chili) location
-------------------------------------------------------------------------------
K2 sticker Free Collect Special Valid at
Vertical sticker Tickets all BC
Value Activity Resorts
Center
-------------------------------------------------------------------------------
Northstar All day Sun-Fri, Ticket Valid at
pass holders ticket at non-hol Booths all BC
pm rate Resorts
-------------------------------------------------------------------------------
Platinum Free lift Anyday Special Loon and WV
Season Pass ticket Tickets pass. Valid
at all BC
Resorts.
-------------------------------------------------------------------------------
Sierra pass All day Sun-Fri, Ticket Valid at
holders ticket at non-hol Booths all BC
pm rate Must Resorts
present
pass
-------------------------------------------------------------------------------
Ski Magazine Bring a Sun-Fri, Ski/Board Valid at
(January Buddy non-holiday. Rental all BC
issue) Offer * Collect Resorts
coupon
Booth Creek Resorts Promotional Product Listing
Winter 1999/2000
Promotion Offer/ Restrictions/ Redeem At Comments
Name Discount Requirements
-------------------------------------------------------------------------------
Skier's Edge 25% off Sun-Fri, Marketing Skier's
adult all non-hol Edge will
day lift contact
ticket Mktg Dir
To purchase
tickets as
needed.
-------------------------------------------------------------------------------
Snowlink Bring a Sun-Fri, Ski/Board Valid at
survey Buddy non-holiday. Rental all BC
letter Offer Collect Resorts
Coupon
-------------------------------------------------------------------------------
Snoworld Bring a Sun-Fri, Ski/Board Valid at all
Magazine Buddy Offer* non-holiday. Rental BC Resorts
Collect
coupon
Booth Creek Resorts Promotional Products Listing
Winter 1999/2000
Promotion Offer/ Restrictions/ Redeem At Comments
Name Discount Requirements
-------------------------------------------------------------------------------
Student Bring a Sun-Fri, Special Valid at
Advantage Buddy* OR non-hol Tickets all BC
$5 off Must Resorts
snowtoy present
rental member
card.
-------------------------------------------------------------------------------
Summit pass All day Sun-Fri, Special Valid at
holders ticket at non-hol Tickets all BC
pm rate Must Resorts
present
pass
-------------------------------------------------------------------------------
Threedom All day Sun-Fri, Special Valid at
pass holders ticket at non-hol Tickets all BC
pm rate Must Resorts
present
pass
-------------------------------------------------------------------------------
Vertical Five paid Anyday. Special Valid at
Value visits, Must Tickets or all BC
sixth is present Ticket Resorts
free. membership Booths
Then, three
paid
visits-4th
free.
-------------------------------------------------------------------------------
Updated: February 24, 2000
Primary Holiday dates: December 18, 1999-January 2, 2000; January 15-17, 2000
and February 19-21, 2000. Holiday dates may vary some by resort.
*Bring a Buddy Offer - sign a friend up for learn to ski/ride package and
receive a free lift ticket for yourself.
Transition Services Agreement
Schedule 4
Marketing and Promotional Services
February March April
Program / Initiative 2000 2000 2000 Total
-------------------- ----- ----- ----- ------
Vertical Value Program (A) $ 486 $ 486 $ 486 $ 1,458
RRC (Invoices Direct Billed to Resort)
Customers First (TBA once XXX XXX XXX
final costs associated with
database work are known.)
----------------------------------------
$ 486 $ 486 $ 486 $ 1,458
========================================
(A) Amount represents Targhee's portion of Vertical Value costs accrued as of
January 28, 2000 at Corporate.
Transition Services Agreement
Schedule 5
E Commerce and Web-Site Services
Resort Sports Network Costs and Charges
---------------------------------------
January 2000 Resort Cam Hosting Charge $ 1,200
January 2000 Web-Site Hosting Charge $ 612
January 2000 Quick Edit Charge $ 856
XOR Engineering Costs and Charges
---------------------------------
Services are provided by XOR on request at either negotiated terms or based on
XOR's applicable rate schedules.
World Res Costs and Charges
---------------------------
World Res receives a 5% commission on all lodging reservations initiated
through their sales channels.
Transition Services Agreement
Schedule 5
Other Information and Telecommunication Services
Amount Allocated / Charged in Month Ending
February March April May June July August
Vendor Service 2000 2000 2000 2000 2000 2000 2000 Total
------- ------- ---- ---- ---- ---- ---- ---- ---- -----
XX Xxxxxxx and AS/400 System Charges
------------------------------------
Information Services Infrastructure Costs
Allocable to Targhee (A) $3,348 $3,348 $3,348 $3,348 $3,348 $3,348 $3,348 $23,438
----------------------------------------------------------------------------
Total: $3,348 $3,348 $3,348 $3,348 $3,348 $3,348 $3,348 $23,438
============================================================================
Internet Access Services
------------------------
Pacific Xxxx Internet Access $ 111 $ 111 $ 111 $ 111 $ 111 $ 111 $ 111 $ 777
Internet Firewall
Depreciation 32 32 32 32 32 32 32 224
----------------------------------------------------------------------------
Total: $ 143 $ 143 $ 143 $ 143 $ 143 $ 143 $ 143 $1,001
============================================================================
Telecommunication Services
--------------------------
Sprint Frame Relay to Northstar Server $ 235 $ 235 $ 235 $ 235 $ 235 $ 235 $ 235 $1,645
Sprint Frame Relay Targhee to Northstar 475 475 475 475 475 475 475 3,325
Hewlett Packard Frame Relay Maintenance 68 68 68 68 68 68 68 476
AT&T Wireless Cell Phone - X. Xxxxxxxxxx (B) 100 100 100 100 100 100 100 700
Sprint Long Distance Charges (C)
Sprint Teleconferencing Charges C)
----------------------------------------------------------------------------
Total: $ 878 $ 878 $ 878 $ 878 $ 878 $ 878 $ 878 $6,146
============================================================================
Grand Totals: $4,369 $4,369 $4,369 $4,369 $4,369 $4,369 $4,369 $30,585
============================================================================
(A) Represents costs for use of JDE Enterprise and AS/400 system and support.
(B) Monthly cost for X. Xxxxxxxxxx cell phone expense is estimated based on
historical amounts. Actual expense may vary based on usage.
(C) Actual long distance, teleconferencing and other charges are or will be
billed/charged to Grand Targhee based on actual usage and charges.
Transition Services Agreement
Schedule 5
Other Information and Telecommunication Services
Support For IS Infrastructure Cost Allocation
Annual Corporate Information Services Budget (net of allocations) $262,976
Add Allocated costs not included in net annual budget 98,640
--------
Total Annual Adjusted Corp IS Budget $361,616
Monthly IS Budget Amounts 30,135
--------
Total Monthly Infrastructure Costs Allocable to Targhee $3,348
========
BOOTH CREEK SKI HOLDINGS, INC.
March 21, 2000
GT Acquisition I, LLC
c/o Booth Creek Management Corp.
0000 Xxxxx Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
Re: Grand Targhee
-------------
Gentlemen:
Reference is made to that certain Asset Purchase Agreement (the "Asset
Purchase Agreement"), dated as of March 21, 2000 by and between you and the
undersigned. When countersigned by you in the space provided below, this will
confirm that the Asset Purchase Agreement is hereby amended, effective
immediately, to the following effect:
1. The following additional condition precedent for the benefit of GT
Acquisition I, LLC is hereby added as a new Section 6.17 of the Asset Purchase
Agreement:
6.17 Booth Creek Ski Group Restructuring. Prior to
the Closing Date, a capital restructuring the economic
terms of which conform to those described under the
heading "Capital Restructuring" at page 8 of that
certain Consent Solicitation Statement, dated March 15,
2000, issued by Ski Holdings to the holders of the
$133,500,000 aggregate principal amount of 12-1/2%
Senior Notes due 2007 of Ski Holdings, and containing
such other terms and conditions as are satisfactory to
Booth Creek Partners Limited II, L.L.L.P., in its sole
and absolute discretion (such satisfaction to be
evidenced conclusively by the execution and delivery by
such party of the capital restructuring documents),
shall have been consummated; provided, however, that if
Ski Holdings does not obtain the requisite consent of
its noteholders to the proposed amendment to the
definition of "Change of Control" described in such
Consent Solicitation Statement, then the terms of such
capital restructuring may not effect a "Change of
Control" within the meaning of the Indenture relating
to such 12-1/2% Senior Notes due 2007.
2. The following additional condition precedent for the benefit of Booth
Creek Ski Holdings, Inc. is hereby added as a new Section 7.11 of the Asset
Purchase Agreement:
7.11 Booth Ski Group Restructuring. Prior to the
Closing Date, a capital restructuring the economic
terms of which conform to those described under the
heading "Capital Restructuring" at page 8 of that
certain Consent Solicitation Statement, dated March 15,
2000, issued by Ski Holdings to the holders of the
$133,500,000 aggregate principal amount of 12-1/2%
Senior Notes due 2007 of Ski Holdings, and containing
such other terms and conditions as are satisfactory to
Xxxx Xxxxxxx Life Insurance Company, CIBC WG Argosy
Merchant Fund 2, L.L.C. and their respective
affiliates, in their respective sole and absolute
discretions (such satisfaction to be evidenced
conclusively by the execution and delivery by such
parties of the capital restructuring documents), shall
have been consummated; provided, however, that if Ski
Holdings does not obtain the requisite consent of its
noteholders to the proposed amendment to the definition
of "Change of Control" described in such Consent
Solicitation Statement, then the terms of such capital
restructuring may not effect a "Change of Control"
within the meaning of the Indenture relating to such
12-1/2% Senior Notes due 2007.
3. Except as specifically set forth herein, all of the other terms and
provisions of the Asset Purchase Agreement shall remain in full force and
effect.
BOOTH CREEK SKI HOLDINGS, INC., a
Delaware corporation
By: /s/ Xxxxxxxxx X. Xxxx
-----------------------------------------
Its: Executive Vice President / CFO
-------------------------------------
AGREED AND ACCEPTED THIS
21ST DAY OF MARCH, 2000
GT ACQUISITION I, LLC
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Its: Executive Vice President
---------------------------------
AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT ("Amendment") is made and entered into as of May 28, 2000
(the "Effective Date"), by and between BOOTH CREEK SKI HOLDINGS, INC. ("Ski
Holdings") and GT ACQUISITION I, LLC ("GT Acquisition"), and is made with
reference to the following:
A. Ski Holdings and GT Acquisition have entered into that certain Asset
Purchase Agreement dated as of March 21, 2000 (as the same may be amended,
modified, extended and/ or restated from time to time, the "Asset Purchase
Agreement") pursuant to which Ski Holdings desires to sell to GT Acquisition
and GT Acquisition desires to purchase from Ski Holdings all of the assets
formerly held by Grand Targhee Incorporated ("Targhee Corp") and each of B-V-
Corporation, a Wyoming corporation, Targhee Company, a Delaware corporation,
and Targhee Ski Corp. a Delaware corporation (collectively, the "Subsidiaries")
on the terms and conditions of the Asset Purchase Agreement;
B. The Purchased Assets (as defined in the Asset Purchase Agreement)
include, without limitation, certain facilities and equipment operated pursuant
to the Federal Communications Commission (including any other governmental body
that may hereafter succeed to the functions thereof, the "FCC") licenses listed
on Exhibit A attached hereto (the "Licenses");
C. Ski Holdings and GT Acquisition recognize that they most likely will
not be able to obtain all of the FCC approvals necessary for the assignment of
the aforementioned licenses to GT Acquisition prior to the anticipated closing
date of the Asset Purchase Agreement and that they do not desire to delay the
closing date until all such approvals are obtained; and
D. Ski Holdings and GT Acquisition wish to amend the Asset Purchase
Agreement more particularly as set forth below.
NOW, THEREFORE, in consideration of the promises, agreements and
conditions contained herein and for good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Terms defined in the Asset Purchase Agreement. All capitalized terms
used in this Amendment and not otherwise defined herein shall have the meanings
assigned to them in the Asset Purchase Agreement.
2. Retention of Certain Assets. On and as of the Effective Date and until
such time as the transfer of the Licenses by Ski Holdings to GT Acquisition is
consummated pursuant to prior FCC approvals authorizing the assignment of all
of the Licenses to GT Acquisition ("FCC Action"), Ski Holdings shall retain all
of its rights, title and interest in and to all of the facilities and equipment
(the "Facilities and Equipment") directly related to and associated with the
FCC Licenses listed on Exhibit A attached hereto. Each of Ski Holdings and GT
Acquisition acknowledges and agrees that FCC Action for purposes of this
Amendment means an order or authorization from any Bureau or Division of the
FCC which is valid, enforceable and not subject to any stay or other agency or
court proceedings to enjoin its enforcement, it being specifically understood
that such order and authorization need not be a "final" agency action.
3. Operation and Maintenance of Facilities and Equipment. Ski Holdings
agrees, at its expense, to operate and maintain the Facilities and Equipment in
good working order and in the ordinary course of business for the benefit of GT
Acquisition until such time as the FCC Action is consummated at which time Ski
Holdings shall promptly transfer its right, title and interest in and to the
Facilities and Equipment and the FCC Licenses to GT Acquisition.
4. Filing of FCC Applications and Papers. Within 30 days after signing
this Amendment, Ski Holdings and GT Acquisition shall file with the FCC all
applications and papers necessary to assign the FCC Licenses from Ski Holdings
to GT Acquisition. Each of Ski Holdings and GT Acquisition shall cooperate with
the other in preparing such applications and papers and shall pay its own costs
for preparing, filing and prosecuting such applications and papers with and
before the FCC. Each of Ski Holdings and GT Acquisition shall also cooperate
with the other in order to satisfy any and all conditions that may be included
with the FCC Action, including but not limited to any notification to the FCC
of the consummation of transactions contemplated by the Asset Purchase
Agreement.
5. Counterparts. This Amendment may be executed in multiple counterparts,
each of which shall constitute an original and all of which, taken together,
shall constitute but one and the same instrument.
6. Governing Law. The validity, interpretation and effect of this
Amendment shall be governed by the laws of the State of New York, excluding the
"conflicts of laws" rules thereof.
[remainder of page intentionally left blank, signatures
follow]
IN WITNESS WHEREOF, the Parties hereto have execute this Amendment by
their respective duly authorized officers as of the date first above written.
BOOTH CREEK SKI HOLDINGS, INC., a
Delaware corporation
By: /s/ Xxxxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxx
--------------------------------
Title: Exec. Vice President/CFO
-------------------------------
GT ACQUISITION I, LLC, a Delaware
limited liability company
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
--------------------------------
Title: Vice President
-------------------------------
Exhibit A
LICENSES
Translator Licenses
1. K02KD
2. K05GU
3. K07QC
Mobile Radio Licenses
1. KRV764
2. WPMA885
