EXHIBIT 2.1
EXECUTION COPY
AGREEMENT OF SALE
THIS AGREEMENT OF SALE ("Agreement") made and entered as of May
1, 2001, by and between NEBRASKA BOOK COMPANY, INC., a Kansas corporation
(hereinafter the "Seller"), and UNIVERSITY CO-OPERATIVE SOCIETY, a Texas
co-operative association (hereinafter the "Buyer").
W I T N E S S E T H:
WHEREAS, Seller operates two (2) college bookstore businesses
operating under the name "Bevo's Book Store" at 2304 Xxxxxxxxx and 0000
Xxxxxxxxx, Xxxxx 000X (Dobie Mall), both in Austin, Texas (hereinafter
collectively referred to as the "Business"); and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to
purchase from Seller, certain assets owned by Seller that are used in or
connected with the operation of the Business, and the parties hereto have
reached an understanding with respect to the sale by Seller and the purchase by
Buyer of all of such assets of Seller.
NOW, THEREFORE, FOR VALUABLE CONSIDERATION, it is agreed as
follows:
1. PURCHASE PRICES; PROPERTY. Seller shall sell to Buyer, and
Buyer shall purchase from Seller, in reliance upon the covenants,
representations, and warranties of Seller contained herein and subject to the
terms and conditions of this Agreement, the Property (as hereinafter described).
The "Purchase Price" shall be One Million Two Hundred Thousand Dollars
($1,200,000), payable Nine Hundred Thousand Dollars ($900,000) due at Closing to
Seller by cashier's check, certified funds or wire transfer, as designated by
Seller, and the balance of Three Hundred Thousand Dollars ($300,000) shall be
due and payable on or before May 1, 2002. Buyer's obligation to pay the unpaid
balance of the Purchase Price shall be evidenced by a promissory note and
secured by a first lien security interest against the Property, which promissory
note shall be subject to setoff as set forth in SECTION 10 hereof.
1.1 PROPERTY. Seller shall sell, assign, transfer and convey to Buyer,
free of all liens, pledges, claims and encumbrances of any kind, nature or
description, as more particularly set forth herein, all right, title and
interest in and to all of the assets associated with the Business, including,
without limitation, the following:
(a) leasehold interests for the retail facilities together with all
leasehold improvements and fixtures related thereto, as described on
EXHIBIT 1 (collectively the "Leased Premises");
(b) all good and saleable inventory and merchandise located at the
Leased Premises on the date of Closing;
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(c) all tangible personal property located at the Leased Premises on the
Closing Date such as equipment, tools, supplies, furniture, and fixtures
which are substantially listed on the attached EXHIBIT 2; and
(d) all goodwill and going concern value associated with the Business
locations, except as set forth in SECTION 1.2 below
(all of which assets shall be collectively referred to as the "Property"). It is
the intention of the parties that Buyer obtain all of the assets of Seller
presently used in or connected with the Business other than the "Excluded
Assets" described in SECTION 1.2 hereof.
1.2 EXCLUDED ASSETS. The following assets are specifically excluded from
the sale: cash; the trade name "Bevo's Book Store" and variations thereof, and
any other trade names associated with the Business and trade secrets and
proprietary information of Seller which is not specific to the operation of the
Business; point of sale equipment and backroom inventory control system.
1.3 INVENTORY IN TRANSIT. Inventory which has been ordered by Seller
prior to Closing but arrives after the Closing will be accepted and paid for by
Buyer as described on a list to be delivered to Buyer at Closing; provided,
however, that Seller shall use its reasonable best efforts to cancel any
outstanding orders for inventory for the Business.
2. LIABILITIES AND OBLIGATIONS; NO ASSUMPTION. Buyer shall assume
only the liabilities and obligations of Seller which are specifically set forth
on EXHIBIT 3 (herein collectively referred to as the "Assumed Liabilities").
Other than the Assumed Liabilities, Seller shall pay and indemnify Buyer for the
payment of, and Buyer does not and will not assume and will not discharge or be
liable or responsible for, any debts, liabilities, or obligations of Seller,
including, without limitation, any (i) liabilities or obligations of Seller with
respect to any transactions occurring after the Closing; (ii) sales, transaction
or use tax arising from this transaction; (iii) payroll, income, franchise or
employment tax or other liabilities or obligations of Seller incurred in
connection with the operation of the Business or the sale of the Property; (iv)
amounts due to trade vendors (with the exception of amounts associated with
inventory described in SECTION 1.3), all of which shall be paid promptly by
Seller, (v) contingent liabilities or obligations of Seller; or (vi) contracts,
written or oral, involving or affecting the Business.
3. CLOSING; POSSESSION. The closing of this sale shall take place
on or about May 1, 2001, and effective as of close of business on April 30,
2001, or as soon thereafter as the parties may mutually agree, which date may be
hereinafter referred to as the "Closing Date" or the "Closing", at a location to
be mutually determined by the parties. If the effective date of Closing is other
than the last day of a calendar month, the parties shall pro-rate on a per diem
basis expenses of prepaid rent paid for the month that Closing occurs, and the
obligations related to the Contracts to be assumed by Buyer. Seller shall
deliver possession on the Closing Date.
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4. RISK OF LOSS. Risk of loss to the Business and the Property
shall be upon Seller until the Closing and thereafter shall be upon Buyer.
Seller shall continue in force, until Closing, all insurance now in force on the
Business. In the event that prior to Closing either building at which the
Business is operated shall be materially damaged by fire, explosion, or any
other cause, Buyer shall have the right to rescind this Agreement and receive
back all monies heretofore paid to Seller. Buyer shall secure its own insurance
to be effective upon Closing.
5. SELLER'S WARRANTIES AND REPRESENTATIONS AND COVENANTS.
Seller warrants and represents to Buyer, its successors and assigns, that the
following representations and warranties are true and correct in all material
respects as of the date of this Agreement, and shall be deemed remade at and as
of the Closing Date.
5.1. ORGANIZATION, POWER AND QUALIFICATION. Seller is a corporation duly
organized, validly existing and in good standing under the laws of Kansas, and
is duly qualified to do business and in good standing in the State of Texas.
Seller has all requisite corporate power and authority to own or hold under
lease its properties and assets and to carry on its business as now conducted;
to execute, deliver and perform its obligations hereunder; to consummate the
transactions contemplated thereby, and to convey the Property as required
hereby.
5.2. AUTHORIZATION. The execution and delivery by Seller of this
Agreement and each other document to which Seller is a party executed in
connection herewith, and the performance of each of its obligations hereunder
and thereunder, have been duly authorized and approved by all necessary
corporate action prior to the date of this Agreement, and at the Closing, Seller
shall deliver to Buyer a certified copy of the resolutions of its Board of
Directors authorizing the execution of this Agreement and all closing documents.
This Agreement and each other document to which Seller is a party executed in
connection herewith have been duly and validly executed and delivered by Seller
and constitute a valid and binding obligation of Seller enforceable against it
in accordance with its terms, except to the extent limited by applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws of
general application relating to or affecting the enforcement of creditors
rights.
5.3. TITLE AND CONDITION OF ASSETS.
(a) Seller owns and has good marketable title to all of the Property,
and as of the Closing Date, free and clear of all mortgages, liens,
pledges, charges or encumbrances or other third party interests of any
nature whatsoever. Transfer of the Property from Seller to Buyer will
vest Buyer with good and valid title to the Property, free and clear of
all liens, encumbrances, claims and charges whatsoever.
(b) The Property consisting of fixtures and tangible personal property
utilized in the operation of the Business is conveyed to Buyer in "AS
IS" condition, without warranty.
5.4. LIABILITIES. All unsecured liabilities related to the Business
shall have been paid or otherwise satisfied in full on or before Closing, except
to the extent that the same are due after Closing, in which event Seller shall
pay the same when due in accordance with the terms thereof.
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5.5. REAL ESTATE LEASES. Seller has delivered copies of the real estate
leases for the Leased Premises to Buyer. Each of such leases and agreements is
in full force and effect and constitutes a legal, valid and binding obligation
of the respective parties thereto. Seller is not in default under any such lease
or agreement nor has any event occurred which with the passage of time or giving
of notice would constitute such a default or permit termination, modification,
or acceleration thereunder. There are no disputes, oral agreements, or
forbearance programs in effect as to any lease.
5.6. ABSENCE OF CERTAIN CHANGES. Since December 31, 2000, there has not
been: (i) any material adverse change in the Business; (ii) any damage,
destruction or loss (whether or not covered by insurance) adversely affecting
the Business or the Property; (iii) any increase in the compensation,
commissions or perquisites payable or to become payable by Seller to any
employee or agent of the Business except those incurred in the ordinary course
of the business of Seller consistent with past practice, or any payment of any
bonus, profit sharing or other extraordinary compensation to any employee of
Seller except those incurred in the ordinary course of business of Seller
consistent with past practice, (iv) any change in the accounting methods or
practices followed by Seller or any change in the amortization policies or rates
theretofore adopted by Seller; (v) other than in the ordinary course of
business, any sale, lease, abandonment or other disposition by Seller of any
real property or of any machinery, equipment or other operating properties, or
any intangible assets utilized in the Business.
5.7. TAX RETURNS. Proper, accurate, and complete applicable state,
local, and federal income, personal property, franchise, payroll, sales, use,
and other tax returns related to the Business have been or will be filed by
Seller with all applicable tax authorities for all fiscal years and periods
ending prior to the Closing Date and all such taxes, if any, payable for such
years have, and on the Closing Date will have been paid or adequate provision
made therefor. There are no tax liens on any of the Property except for liens of
current ad valorem taxes not yet due and payable.
5.8. NO ACTIONS. Seller is not in violation of any law or order of any
court or federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality which violation would have a material
adverse effect upon the Property, the Leased Premises or the Business. There are
no lawsuits, proceedings, claims or governmental investigations pending or
threatened against, or involving Seller, the Property, the Leased Premises or
the Business which would have a material adverse effect upon the Property, the
Leased Premises or the Business or results or operations of Seller or its right
to conduct the Business as presently conducted. There are no judgments,
consents, decrees, injunctions, or any other judicial or administrative mandates
outstanding against Seller which could adversely affect the assets, liabilities,
financial condition, or operations of the Business or Seller's right to conduct
the Business as presently conducted or which would impair the transfer or free
use of its assets.
5.9. ABSENCE OF RESTRICTIONS. The execution and delivery of this
Agreement by Seller and the consummation of the transactions contemplated
hereby:
(i) Do not conflict with or result in a breach of any of the
terms, provisions, or conditions of the Articles of Incorporation or
By-Laws of Seller;
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(ii) Do not violate any provision or rule of law or impair any
legally enforceable rights of any third party;
(iii) Are not contrary to any existing order of any court or
administrative agency to which Seller is subject; and
(iv) Do not conflict with, violate, result in a breach of the
terms and conditions of, accelerate any provision of, constitute a
default under, or constitute an event which with notice or the lapse of
time or both would become a default under or result in the creation of
any lien, security interest, charge or encumbrance upon the Property,
any lease, contract, mortgage, note, bond, indenture, license, security
or loan agreement, or other agreement or other instrument to which
Seller is a party or by which Seller or the Property may be bound or
affected; and the consummation of this transaction will not accelerate
any commitment or obligation of Seller.
5.10. LABOR MATTERS. Seller:
(i) Is not a party to any collective bargaining agreement
covering or relating to its employees of the Business;
(ii) Is not a party to any oral or written contract with any of
its employees which is not terminable at will by it or its assignee
without breach, premium or penalty; and
(iii) Has complied with applicable laws, rules and regulations
relating to withholding any payment of employment taxes and
contributions, and has withheld any payments required by law or
agreement to be withheld from the wages or salaries of its employees,
and is not liable for the arrears of wages or for any tax or penalty for
failure to comply with the foregoing.
5.11. EMPLOYEE BENEFITS. There are no Employee Plans other than those
listed in the Disclosure Schedule, and Seller has never been a party to any
multi-employer plan. Seller is not delinquent as to contributions or payments to
or in respect of any Employee Plan. Buyer will not be legally obligated or
required to make contributions to any employee plans or assume any liability in
respect to any present or former employee of Seller, or otherwise incur any
present or continuing liability to any present or former employee of Seller as a
result of acquiring the Business.
6. BUYER'S WARRANTIES AND REPRESENTATIONS. Buyer warrants
and represents to Seller, its successors and assigns, that the following
representations and warranties are true and correct in all material respects,
and shall be deemed remade at and as of the Closing Date:
6.1. ORGANIZATION. Buyer is duly organized, validly existing and in good
standing under the laws of the State of Texas and has all requisite power and
authority to execute this Agreement and to deliver and perform its obligations
hereunder; and to consummate the transactions contemplated thereby. This
Agreement constitutes the valid and legally binding obligation of Buyer,
enforceable in accordance with its terms.
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6.2. AUTHORIZATION. At the Closing, Buyer shall deliver to Seller
a certified copy of the resolution of its Board of Directors authorizing the
execution of this Agreement and all closing documents.
7. EMPLOYEES. Buyer shall have no obligation to interview or hire
any of Seller's present employees. Seller shall be liable and responsible for
any and all claims, causes of action and damages which such employees may have
as a result of this transaction, including without limitation severance or
termination payments. Notwithstanding the foregoing, Seller hereby consents and
approves that Buyer may interview and hire the manager and hourly employees at
the Business. In the event that Buyer hires any of Seller's employees, Seller
shall be liable and responsible for salary and all fringe benefits and
termination rights to which such employees may be entitled up to the Closing
Date.
8. CONDITIONS OF CLOSING.
8.1 CONDITIONS TO BUYER'S OBLIGATIONS. All obligations of Buyer under
this Agreement are subject to the fulfillment at Closing of each of the
following conditions:
(a) Seller's representations and warranties contained in this Agreement
shall be true and correct in all material respects at the time of
Closing as though such representations and warranties were made at such
time;
(b) Seller shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or complied with
by Seller prior to or at Closing;
(c) Seller shall make all deliveries described in SECTION 9.1 of this
Agreement;
(d) Buyer shall have negotiated the terms of a lease or lease assignment
in form and substance satisfactory to Buyer to become effective on or
before Closing Date, including without limitation, written consent of
the landlord of each of the locations of the Business; and
(e) Buyer shall have received a certificate of search for UCC or other
liens against the Property which it deems necessary, certified on or
about the Closing Date, indicating that there are no liens or claims
against the Property, other than those to be released as of the Closing
(including evidence of the release of such liens at Closing as Buyer
deems applicable).
If any one or more of the conditions precedent set forth in this Section
shall not be in effect or complied with on the Closing Date, after a reasonable
period of time to correct by Seller, Buyer may, by written notice to Seller,
cancel this Agreement and all obligations of Buyer hereunder. Upon such
termination, neither party shall have any liability to the other by reason
hereof (except for any willful default or breach).
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8.2 CONDITIONS TO SELLER'S OBLIGATIONS. All obligations of Seller under
this Agreement are subject to the fulfillment prior to or at Closing of each of
the following conditions:
(a) The representations and warranties of Buyer contained in this
Agreement shall be true and correct in all material respects at the
Closing as though such representations and warranties were made at such
time;
(b) Buyer shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or complied with
by it prior to or at the Closing Date;
(c) The parties shall have entered into a five (5) year wholesale book
agreement whereby Buyer is committed to sell to Seller a minimum of
$500,000 in used textbooks per year based on the NBC Buyer's Guide.
Further, as long as Buyer is fulfilling the minimum sale requirements of
the wholesale book agreement, Seller agrees that it will not own or
operate its own retail college bookstore which primarily serves the
University of Texas market.
(d) In the event that Buyer intends to sell its bookstore operations, or
otherwise enter into a transaction that would result in a change of
ownership or control of its business enterprise (a "Change of Control
Transaction"), Buyer agrees to grant Seller a right of first refusal to
acquire the bookstore operations conducted by Buyer based on the same
price and terms that Buyer is willing to accept from a third party. In
this regard, in such event Buyer shall provide written notice (the
"Notice") to Seller of either its intention to sell or of a written
offer from a bona fide third party for a Change of Control Transaction.
Seller shall then have thirty (30) days from the date of its receipt of
such Notice to deliver its election (the "Election Notice") to exercise
its right of refusal in writing. Thereafter, Seller shall have a period
of sixty (60) days from the date of its delivery of its Election Notice
within which to close a purchase of the Buyer's bookstore operations
upon such terms as set forth in the Notice. Should Seller either (i)
fail to respond to the Notice within such thirty (30) day period, or
(ii) fail to close the purchase of Buyer's bookstore operations within
sixty (60) days of the date of delivery of such Election Notice,
whichever is applicable, Buyer shall have the unfettered right to sell
its bookstore operations without further obligation to Seller, other
than the balance of any Purchase Price payable under the terms of this
Agreement.
(e) Upon assignment to and assumption of the leases for the Leased
Premises, the landlords will release Seller of liability and all
obligations with respect to the leases.
(f) Buyer shall make all deliveries described in SECTION 9.2 of this
Agreement.
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9. DELIVERIES AT CLOSING.
9.1 SELLER'S DELIVERIES. At Closing, Seller shall deliver to Buyer:
(a) DOCUMENTS OF TRANSFER. Documents of transfer to the Property in due
and proper form to convey good and marketable title to Buyer, free of all liens,
encumbrances, restrictions, and charges whatsoever. Seller shall generally
convey the Property by delivering to Buyer a General Assignment and Xxxx of Sale
wherein Seller warrants its title to the Property. Seller shall further execute
and deliver such further documents as may be necessary or advisable to
effectuate the transfer of all items constituting the Property, together with
proper warranties.
(b) KEYS, ETC. All keys, combinations, warranty materials, instructions,
and other items necessary for Buyer or its agents to take possession and control
of the Property and of the Business.
(c) LEASE ASSIGNMENTS. Leases or assignment of leases for the Leased
Premises, each in form and content satisfactory to Buyer;
(d) UCC RELEASES. Duly executed partial release or termination of UCC
liens identified in any lien search;
(e) INVENTORY IN TRANSIT. A list of inventory in transit as described in
SECTION 1.3.
(f) FURTHER ASSURANCES. At and following the Closing, Seller, without
further consideration, shall execute and deliver such other documents and
instruments and take such further actions as Buyer may reasonably request in
order to complete and perfect the transactions contemplated herein.
9.2 BUYER'S DELIVERIES. At Closing, Buyer will deliver to Seller the
Purchase Price on the terms provided in SECTION 1 hereof, including a promissory
note, security agreement and UCC financing statement, and the certificate
referenced in SECTION 6.2 hereof.
10. INDEMNIFICATION. (a) From and after the Closing, each party
covenants and agrees to reimburse and indemnify and hold the other harmless
from, against and in respect of any and all losses, costs and expenses asserted
against, imposed upon or incurred by such other party by reason of or resulting
from, including, without limitation, any and all actions, suits, claims,
proceedings, investigations, audits, demands, assessments, fines, judgments,
costs and other expenses (including, without limitation, reasonable audit and
legal fees) arising out of or resulting from any misrepresentation or omission,
breach of warranty or nonfulfillment of any covenant or agreement by such party
under this Agreement or any other written agreement, statement, exhibit,
schedule, list, certificate or other instrument referred to or furnished
pursuant to this Agreement.
(b) The parties to this Agreement shall in good faith give the party
against whom a claim is being made reasonable advance notice of a potential
claim for indemnification to enable such party to participate in and to assume
the defense of such claim as provided herein.
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(c) Notwithstanding any other provision of this Agreement, upon notice
to Seller specifying in reasonable detail the basis for such setoff, the
promissory note which constitutes a portion of the Purchase Price hereunder
shall be subject to setoff by Buyer in the event of a breach of the Seller's
representations and warranties hereunder. The exercise of such right of setoff
by Buyer that is not deemed to be in good faith by the final order of a court of
competent jurisdiction will constitute an event of default under the promissory
note and any instrument securing the obligations of Buyer under such promissory
note. Notwithstanding the foregoing, neither party shall have any liability and
no right of setoff shall accrue until and to the extent that the amount of the
damages of the claiming party exceeds $10,000; and if any such claim by Buyer is
not resolved prior to the due date of such promissory note, the amount due under
such note shall be deposited in an interest bearing escrow account to secure
Buyer's obligations until such claim is resolved.
11. DEFAULT. In the event of default by either party which is not
cured prior to the Closing Date, the non-defaulting party shall have the option
to rescind this Agreement in addition to all other remedies at law or in equity
arising from such default, including the remedy of specific performance.
12. FINDERS. Seller and Buyer each to the other represents and
warrants that all negotiations relative to this Agreement have been carried on
by them directly without the intervention of any other person, and Seller and
Buyer each shall indemnify the other and hold them harmless from and against any
claim for brokerage or other commissions relative to this Agreement or to the
transactions contemplated herein.
13. MISCELLANEOUS.
13.1. NOTICES. All notices, consents, waivers or other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date (i) delivered by hand (with written confirmation of receipt),
(ii) sent by telecopier (with written confirmation of receipt) with a copy
mailed by certified mail, return receipt requested, or (iii) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), to the person and address set forth below:
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If to Seller: Nebraska Book Company, Inc.
Attention: Xxxx X. Xxxxxxxx, President
0000 Xxxxx 00xx Xxxxxx, X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
Facsimile No.: 000-000-0000
If to Buyer: University Co-operative Society
Attention: Xxxxxx X. Xxxxxxxx, President
0000 Xxxxxxxxx Xxxxxx
XX Xxxxxx0000
Xxxxxx, XX 00000
with a copy to:
Xxxxxxxxx & XxXxxx, L.L.P.
000 X. Xx. Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxx X. XxXxxx, Esq.
or at such other person or address as either party may designate to the other in
writing.
13.2. COUNTERPARTS. This Agreement may be executed simultaneously in
such counterparts as the parties may desire, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument, and
will be effective when the counterparts, which together contain the signatures
of each party, will have been delivered to Seller and Buyer. Delivery of
executed signature pages by facsimile transmission will constitute effective and
binding execution and delivery of this Agreement.
13.3. ENTIRE AGREEMENT. All negotiations between the parties are merged
in this Agreement and the Exhibits to this Agreement and there are no
understandings or agreements other than those incorporated herein. This
Agreement, together with the Exhibits and Schedules attached hereto which are
incorporated herein by this reference, constitute the entire agreement between
the parties and no negotiations, warranties, covenants, promises or
representations which are not contained in this Agreement shall have any force
or effect. This Agreement supersedes any letter of intent or memorandum of
understanding entered into between the parties or their predecessors. This
Agreement may not be modified except by an instrument, in writing, duly executed
by the parties.
13.4. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of Seller and Buyer. In the
event that Buyer causes the Property, the Leased Premises, or the Business of
Seller to be transferred to some other party by liquidation, merger, or
otherwise, the rights of Buyer may be enforced by such other party in its own
name.
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13.5. CONFIDENTIALITY. The parties hereby ratify any confidentiality
agreement between them related to this transaction, and further understand and
agree that the terms of and the transactions effectuated by this Agreement are
to be held in strictest confidence. Seller covenants and agrees to make no
public or private announcement or disclosure of the transactions contemplated
herein except as authorized to do so in advance by Buyer.
13.6. EXPENSES. Each party shall be solely responsible for, and shall
pay all of its own expenses associated with the transaction described in this
Agreement, including but not limited to its accounting, consultants, legal fees,
and out-of-pocket expenses incurred in connection with this Agreement and the
transactions herein contemplated.
13.7. APPLICABLE LAW. This Agreement shall be governed by, and
interpreted and enforced in accordance with, the laws of the State of Texas, and
the proper venue for any dispute hereunder shall be in the courts of Xxxxxx
County or Dallas County, Texas.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have hereunto set their hands the
day and year first above written.
SELLER:
Attest: NEBRASKA BOOK COMPANY, INC.,
a Kansas corporation
By By /s/ Xxxx X. Xxxxxxxx
------------------------------ ---------------------------------
Title: Xxxx X. Xxxxxxxx, President
---------------------------
BUYER:
Attest: UNIVERSITY CO-OPERATIVE SOCIETY,
a Texas co-operative association
By By /s/ Xxxxxx X. Xxxxxxxx
------------------------------ ---------------------------------
Title: Xxxxxx X. Xxxxxxxx, President
---------------------------
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EXHIBIT 1
DESCRIPTION OF LEASED PREMISES (a/k/a 2304 Guadalupe, Austin, Texas).
Lease Contract dated January 1, 1983, between X. X. Xxxxxxxx and wife
Xxxxxxxx Xxxxxxxx ("Landlord") and Nebraska Book Company, Inc., as
assignee and successor in interest to Triro, Inc., Tenant, covering
certain premises commonly known as 2304 Guadalupe, Austin, Texas.
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EXHIBIT 2
LIST OF EQUIPMENT, TOOLS, SUPPLIES, FURNITURE AND FIXTURES
PROPERTY TAX DETAIL
Date in
Asset Property Description Service
----- -------------------- -------------
Location: 203 BEVOS-WEST
------------------------
Group: 1620 FURNITURE & FIXTURES
Date In Service for Year: 99
9505 *I* REGISTER CABINET 6/03/99
9506 *I* FIXTURES - ENDCAPS 6/03/99
9507 *I* XXXXXX TIME CLOCK 6/03/99
9508 *I* REGISTER CABINETS 6/03/99
9509 *I* FLOOR COVERING 6/03/99
9510 *I* CARPET 6/03/99
9511 *I* FIXTURES - MANNEQUIN 6/03/99
9512 *I* SHELVING 6/03/99
9513 *I* FIXTURES - WINDOW SHOWCASE 6/03/99
9514 *I* FIXTURES - T-SHIRT RACK 6/03/99
9517 *I* PHONE SYSTEM 6/03/99
9518 *I* CARPET 6/03/99
9519 *I* SHELVING 6/03/99
9520 *I* FAX MACHINE 6/03/99
9522 *II* SEWING MACHINE 6/03/99
9525 *II* FIXTURES 6/03/99
9526 *II* COUNTERS 6/03/99
9527 *II* ICE MACHINE 6/03/99
9528 *II* STORAGE CABINET 6/03/99
9529 *II* DISPLAYS 6/03/99
9530 *II* FIXTURES 6/03/99
9531 *II* STARPLUS TELEPHONE SYSTEM 6/03/99
9532 *II* NEON SIGN 6/03/99
9533 *II* FAX MACHINE 6/03/99
9534 *II* XXXXXX TIME CLOCK PC2000 SN SP 6/03/99
9535 *II* NEON SIGN 6/03/99
9537 *II* SECURITY EQUIPMENT 6/03/99
Yearly Total: 99
Date In Service for Year: 00
10714 *I* XXXXXX SUPPLY FIXTURING 1/20/00
Yearly Total: 00
Date In Service for Year: 01
12369 2-DOOR COOLER 3/12/01
Yearly Total: 01
1620 FURNITURE & FIXTURES
Group: 1720 LEASEHOLD IMPRVMNTS
Date In Service for Year: 99
9504 *I* A/C UNIT 6/03/99
9524 *II* SIGN 6/03/99
9536 *II* SIGN - EXTERIOR 6/03/99
9875 *I* LEASEHOLD IMPROVEMENTS 6/03/99
9876 *I* LEASEHOLD IMPROVEMENTS 6/03/99
9877 *II* LEASEHOLD IMPROVEMENTS 6/03/99
Yearly Total: 99
Date In Service for Year: 00
11516 *I* SECURITY FENCING-ROOF 1/06/00
11781 *II* XXXXXX 5 TON REAR A/C SYSTEM 5/31/00
11862 *I* NEW ROOF 7/26/00
Yearly Total: 00
1720 LEASEHOLD IMPRVMNTS
14
EXHIBIT 3
ASSUMED LIABILITIES
Lease Contract dated January 1, 1983, between X. X. Xxxxxxxx and wife
Xxxxxxxx Xxxxxxxx ("Landlord") and Nebraska Book Company, Inc., as
assignee and successor in interest to Triro, Inc., Tenant, covering
certain premises commonly known as 2304 Xxxxxxxxx, Austin, Texas.
15
AMENDMENT TO AGREEMENT OF SALE
THIS AMENDMENT TO AGREEMENT OF SALE ("Amendment") is made and entered as
of May 11, 2001, by and between NEBRASKA BOOK COMPANY, INC., a Kansas
corporation (hereinafter "Seller"), and UNIVERSITY CO-OPERATIVE SOCIETY, a Texas
co-operative association (hereinafter "Buyer").
Reference is hereby made to the Agreement of Sale dated May 1, 2001,
between Seller and Buyer (the "Agreement") regarding the sale of assets and
assignment of leases involving two (2) college bookstore businesses operating
under the name "Bevo's Book Store" at 2304 Xxxxxxxxx and 0000 Xxxxxxxxx, Xxxxx
000X (Dobie Mall), both in Austin, Texas. This Amendment amends certain
provisions of the Agreement and sets forth additional terms related to the
Agreement. Capitalized terms herein shall have the same meaning as in the
Agreement unless other noted herein.
For valuable consideration, the parties further agree as follows:
1. 2304 XXXXXXXXX. A portion of the leased premises at 2304 Xxxxxxxxx is
sublet to Bank of America pursuant to a Banking Premises License (the "License")
dated July 23, 1996, by and between Triro, Inc. and Bank of America Texas, N.A.
("BOA") to be used as a retail banking facility. Buyer acknowledges receipt of a
copy of the License, and two amendments thereof, and Seller represents and
warrants that it has provided all documents relevant to and making a part of the
License. It shall be a condition of closing that Buyer and BOA enter into an
amendment of the License on terms satisfactory to Buyer, that the owner of such
premises consents to the License, as amended, and that Seller shall assign all
its right, title and interest in and to the License to Buyer.
0. XXXXX XXXX, XXXXX 000X. In anticipation of this transaction, Seller
closed its bookstore business at Suite 146a at Dobie Mall ("Suite 146a") in
April, 2000. On or about May 3, 2001, Seller received a letter from the Director
of Operations of Dobie Mall, alleging a default by Seller of Article 10.1(S) of
the Dobie Center Lease (the "Dobie Lease"). The initial term of the Dobie Lease
will expire on July 31, 2001. Buyer does not intend to reopen at Dobie Mall, and
Buyer has agreed to pay the amount due to Dobie Mall from and after the Closing
Date, subject to the cap described below, to terminate the Dobie Lease without
reopening. Buyer shall pay such amount as soon as possible after such amount is
agreed to with Dobie Mall to avoid litigation and to cure the default status.
Subject to an aggregate cap not to exceed Twenty Thousand Dollars ($20,000),
Buyer will advance or reimburse all obligations of Seller under the Dobie Lease
as of the Closing Date, although Seller's interest in the Lease will not be
assigned to Buyer at Closing. In the event that such obligation of Seller under
the Dobie Lease shall exceed the sum of Twenty Thousand Dollars ($20,000),
Seller shall remain fully liable for any excess amounts due under the Dobie
Lease. Seller will arrange with Dobie Mall to provide access to such leased
premises to remove the inventory and other property at such premises on or
before May 31, 2001.
3. DOBIE MALL - ATM MACHINE. Seller has a sublease agreement with BOA
regarding an ATM machine at Suite 146a. Seller intends to terminate this
sublease, and the parties will cooperate to transfer said sublease agreement to
Dobie Mall, including all future rent payments, in connection with the
termination of the Dobie Lease.
4. APPORTIONMENT OF MAY INCOME AND EXPENSES. Seller has paid rent for
the month of May for both Leased Premises. As provided in SECTION 3 of the
Agreement, the income and expenses related to the leases and subleases involving
the Leased Premises for the month of May shall be pro-rated on a per diem basis.
5. INCONSISTENT TERMS. To the extent that Seller's representations and
warranties are inconsistent with the agreements referenced in this Amendment,
SECTION 5 is hereby deemed to be amended hereby. The terms of this Amendment
supersede the terms of the Agreement to the extent that such terms are
inconsistent with the provisions hereof.
6. CLOSING DATE. The closing shall occur on May 11, 2001, the date of
execution hereof. Notwithstanding any other dates or references in the Agreement
and the other closing documents, all documents shall become legally effective as
of the Closing Date.
7. CONFIDENTIALITY. Reference is made to SECTION 13.5 of the Agreement.
Seller has disclosed to Buyer that Seller may be subject to regulatory
requirements which would require Seller to disclose this transaction and provide
a copy of the Agreement to the Securities and Exchange Commission or other
federal agencies. Buyer consents that such actions may be taken by Seller and
that such actions will not violate the confidentiality terms of this Agreement.
8. RATIFICATION. Except as amended herein, the parties hereby ratify all
the terms and provisions of the Agreement.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
IN WITNESS WHEREOF, the parties have hereunto set their hands the
day and year first above written.
SELLER:
NEBRASKA BOOK COMPANY, INC.,
a Kansas corporation
By /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Xxxx X. Xxxxxxxx, President
BUYER:
UNIVERSITY CO-OPERATIVE SOCIETY,
a Texas co-operative association
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx, President
