EXHIBIT 10.2
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT (the "Contract") is entered into
effective the 12th day of July, 1996 by and between JOHN D. ROSS and ROSEMARY
ROSS, each an individual residing in Sacramento, California (collectively, the
"Seller") and CONSOLIDATED GRAPHICS PROPERTIES II, INC., a Texas corporation
(the "Purchaser").
ARTICLE 1
SALE AND PURCHASE
SECTION 1.1 Subject to the terms and provisions hereof, Seller agrees to
sell to Purchaser, and Purchaser agrees to purchase from Seller all of the real
property described on EXHIBIT "A" attached hereto and made a part hereof
(hereinafter called the "Property"), together with (i) all improvements thereon
and fixtures affixed thereto, and (ii) all right, title and interest of Seller
in and to any and all roads, easements, streets and ways bounding the Property,
and rights of ingress and egress thereto.
ARTICLE 2
CONSIDERATION FOR CONVEYANCE
SECTION 2.1 As an inducement for Purchaser to enter into that certain
Asset Purchase Agreement dated of even date with this Contract, Seller agrees to
enter into this Contract and to sell the Property for a sum of FOUR HUNDRED
TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($425,000.00) ("Purchase Price"), which
shall be due and payable by Purchaser in cash at the Closing (hereinafter
defined).
ARTICLE 3
TITLE POLICY
SECTION 3.1 At Closing, Seller shall furnish Purchaser, at Purchaser's
sole cost and expense, with an Owner's Policy of Title Insurance on the standard
form in use in the State of California, issued by a Title Insurance Company
satisfactory to Purchaser, insuring good and indefeasible title to the Property
in the Purchaser, subject only to those recorded exceptions deemed acceptable to
Purchaser in Purchaser's sole discretion (collectively, "Permitted Exceptions")
and the standard printed exceptions, except that (i) the exception relating to
ad valorem taxes shall except only to taxes owing for the current and subsequent
years, and (ii) there shall be no general exception for rights of parties in
possession, visible and apparent easements, or roads and highways except as may
be approved by Purchaser. Other costs of escrow shall be split between the Buyer
and Purchaser.
SECTION 3.2 Simultaneously with the execution of this Contract, Seller
shall deliver to Purchaser copies of any and all engineering reports, inspection
reports, notices or other materials in Seller's possession or control regarding
or evidencing the presence, or lack thereof, on the Property or released from
the Property of any hazardous waste (as hereinafter defined).
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
SECTION 4.1 Seller represents and warrants to Purchaser that:
(a) Seller has good and indefeasible title to the Property.
(b) Seller has no knowledge of any condemnation proceedings
having been instituted or threatened against the Property.
(c) Except as disclosed in Schedule 1 attached hereto and that
certain environmental report from Continental Excavating Corp., dated
April 16, 1990 (collectively, "Environmental Disclosures"), there has
been no application, use, treatment, production, generation, discharge,
disposal, or storage on, from, or on to the Property of any "hazardous
waste" as that term is defined in the Resource Conservation and Recovery
Act, the Comprehensive Environmental Resources, Compensation and
Liability Act, the regulations issued pursuant thereto by the
Environmental Protection Agency ("EPA"), and/or other similar laws,
ordinances, rules and regulations of the State of California and any
governmental or quasi-governmental bodies of the State of California,
and there is no proceeding or inquiry threatened or pending by any
Governmental Authority with respect thereto.
(d) Except as disclosed in the Environmental Disclosures, there
are no underground storage tanks situated within the Property.
(e) Except as disclosed in the schedules to the Asset Purchase
Agreement dated as of July 12, 1996 (the "Purchase Agreement") among
Seller, Consolidated Graphics, Inc. and Consolidated Eagle Press, Inc.,
Seller has received no notice of, nor has Seller any knowledge of, any
violations of any federal, state, county or municipal laws, ordinances,
orders, regulations or requirements affecting the Property or any
portion thereof.
(f) There is no action, suit or proceeding pending or threatened
against or affecting the Property or any portion thereof or relating to
or arising out of the ownership or use of the Property or any portion
thereof in any court or before or by any federal, state, county or
municipal department, commission, board, bureau, agency or other
governmental instrumentality.
(g) There are no adverse or other parties in possession of the
Property.
(h) Except as disclosed in the schedules to the Purchase
Agreement, Seller has neither taken any action nor failed to take any
action with respect to the Property or having an affect on the Property
which has or could result in a violation of any applicable federal
and/or state securities laws.
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(i) At Closing, there will be no unpaid bills or claims in
connection with any work on the Property.
(j) Neither the entering into of this Contract nor the
consummation of the transaction contemplated hereby will constitute a
violation or breach by Seller of any contract or other instrument to
which Seller is a party, or to which it is subject or by which any of
its assets or properties may be affected, or of any judgment, order,
writ, injunction or decree issued against or imposed upon it, or will
result in a violation of any applicable law, order, rule or regulation
of any governmental authority affecting Seller.
(k) Seller shall deliver the Property to Purchaser at the Closing
free and clear of any indebtedness secured by liens affecting the
Property except as referred to in Section 3.1.
(l) Seller shall take no action or fail to take any action
between the date of execution hereof and the Closing which would or
could result in any lien, encumbrance or other exception to Seller's
title arising or attaching to the Property.
(m) The Property presently has or will have prior to Closing,
direct access to a public road or roads which abut the Property and such
roads are or shall be under the same local governmental jurisdiction
which provides fire and police protection to the Property.
(n) Seller is not a foreign person within the meaning of Sections
1445 and 7701 of the Internal Revenue Code of 1954 ("IRC"), i.e., Seller
is not a nonresident alien, foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the IRC
and Income Tax Regulations).
SECTION 4.2 The representations and warranties contained in Section 4.1
shall be true and correct on the date of Closing and shall survive the Closing
and continue in full force and effect notwithstanding the Closing and
consummation of the sale contracted for herein, and the obligation of Purchaser
to close this transaction is expressly conditioned upon said representations and
warranties being true and correct on the date of Closing.
ARTICLE 5
CLOSING
SECTION 5.1 The Closing hereunder shall take place on July ___, 1996, at
the offices of Stewart Title of Sacramento, 555 Capitol Mall, Suite 280,
Sacramento, CA 95814, at ________ a.m., or at such other place or time upon
which Purchaser and Seller may mutually agree in writing.
SECTION 5.2 At the Closing, Seller shall deliver or cause to be
delivered to Purchaser, at Seller's sole cost and expense, each of the following
items:
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(a) A grant deed, duly executed and acknowledged by Seller, and
in form for recording, conveying good, indefeasible fee simple title in
the Property, subject only to the Permitted Exceptions.
(b) The Title Policy in the form specified in Section 3.1 hereof
or, at Purchaser's option, the title policy premium as provided for in
Section 3.2 hereof.
(c) Such evidence or documents as may be reasonably required by
Purchaser evidencing the status and capacity of Seller and the authority
of the person or persons who are executing the various documents on
behalf of Seller in connection with the sale of the Property.
(d) A Certification in a form to be provided or approved by
Purchaser, signed by Seller under penalties of perjury, containing the
following:
(i) Seller's U.S. Taxpayer Identification Number;
(ii) The business address of Seller; and
(iii) A statement that Seller is not a foreign person within
the meaning of Sections 1445 and 7701 of the IRC (i.e., Seller is
not a nonresident alien, foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined in the IRC and Income Tax Regulations)).
In the event that Seller fails to deliver such Certification at Closing
or Seller delivers such Certification but Purchaser has actual knowledge
that such Certification is false or Purchaser receives notice that the
Certification is false from any agent of the Purchaser or the Seller,
Purchaser shall be entitled to withhold from the Purchase Price a sum
equal to ten percent (10%) of the total amount which otherwise would
have been realized by Seller from such sale, which sum will be paid by
Purchaser to the United States Treasury pursuant to the requirements of
Section 1445 of the IRC and the regulations promulgated thereunder.
(e) All additional documents and instruments as in the opinion of
Purchaser's counsel and Seller's counsel are necessary to the proper
consummation of this transaction.
SECTION 5.3 At the Closing, Purchaser shall deliver to Seller the
following items:
(a) The Purchase Price required by and in the manner specified in
Section 2.1 hereof; and
(b) Such evidence or documents as may reasonably be required by
Seller evidencing the status and capacity of Purchaser and the authority
of the person or persons who are executing the various documents on
behalf of Purchaser in connection with the sale of the Property.
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SECTION 5.4 At Closing, the following items shall be adjusted or
prorated between Seller and Purchaser:
(a) Ad valorem taxes for the Property for the current calendar
year shall be prorated to date of Closing, and Seller shall pay to
Purchaser in cash at Closing, Seller's pro rata portion of such taxes.
Seller's pro rata portion of such taxes shall be based upon taxes
actually assessed for the current calendar year. If, for any reason, ad
valorem taxes for the current calendar year have not been assessed on
the Property, such proration shall be estimated based upon ad valorem
taxes for the immediately preceding calendar year, and adjusted when
exact amounts are available.
(b) All other income and ordinary operating expenses for or
pertaining to the Property, including, but not limited to, public
utility charges, maintenance, service charges, and all other normal
operating charges of the Property shall be prorated at the Closing
effective as of the Closing Date.
(c) In the event any adjustments pursuant to this Section 5.4
are, subsequent to Closing, found to be erroneous, then either party
hereto who is entitled to additional monies shall invoice the other
party for such additional amounts as may be owing, and such amount shall
be paid within ten (10) days from receipt of the invoice.
SECTION 5.5 Possession of the Property shall be delivered to Purchaser
by Seller at the Closing.
SECTION 5.6 All costs and expenses in connection with the transaction
contemplated by this Contract shall be borne by Seller and Purchaser in the
manner in which such costs and expenses are customarily allocated between the
parties at closings of real property similar to the Property in the Sacramento,
California area.
SECTION 5.7 SELLER AGREES TO INDEMNIFY AND HOLD PURCHASER HARMLESS OF
AND FROM ANY AND ALL LIABILITIES, CLAIMS, DEMANDS AND EXPENSES, OF ANY KIND OR
NATURE (EXCEPT THOSE ITEMS WHICH BY THIS CONTRACT SPECIFICALLY BECOME THE
OBLIGATION OF PURCHASER) ARISING OR ACCRUING PRIOR TO THE DATE OF CLOSING AND
WHICH ARE IN ANY WAY RELATED TO THE OWNERSHIP, MAINTENANCE OR OPERATION OF THE
PROPERTY, AND ALL EXPENSES RELATED THERETO, INCLUDING, WITHOUT LIMITATION, COURT
COSTS AND ATTORNEYS' FEES.
SECTION 5.8 PURCHASER AGREES TO INDEMNIFY AND HOLD SELLER HARMLESS OF
AND FROM ANY AND ALL LIABILITIES, CLAIMS, DEMANDS AND EXPENSES, OF ANY KIND OR
NATURE (EXCEPT THOSE ITEMS WHICH BY THIS CONTRACT SPECIFICALLY REMAIN THE
OBLIGATION OF SELLER) ARISING OR ACCRUING SUBSEQUENT TO THE DATE OF CLOSING AND
WHICH ARE IN ANY WAY RELATED TO THE OWNERSHIP, MAINTENANCE OR OPERATION OF THE
PROPERTY, AND ALL EXPENSES RELATED THERETO, INCLUDING, WITHOUT LIMITATION, COURT
COSTS AND ATTORNEYS' FEES.
SECTION 5.9 In the event either party hereto receives notice of a claim
or demand which results or may result in indemnification pursuant to Section 5.7
or Section 5.8, such party shall immediately give notice thereof to the other
party to this Contract. The party receiving such
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notice shall immediately take such measures as may be reasonably required to
properly and effectively defend such claim, and may defend same with counsel of
his own choosing. In the event the party receiving such notice fails to properly
and effectively defend such claim, and in the event such party is liable
therefor, then the party so giving such notice may defend such claim at the
expense of the party receiving such notice.
ARTICLE 6
OCCUPANCY OF PROPERTY
SECTION 6.1 In further consideration of the agreement of Purchaser to
purchase the Property for the Purchase Price, Seller grants Purchaser an
exclusive right to occupy and use the Property for Purchaser's operations from
the date of this Agreement to the date of Closing.
ARTICLE 7
REMEDIES FOR DEFAULT
SECTION 7.1 In the event of a default by Purchaser hereunder, Seller
may, at Seller's sole option, do any of the following:
(a) terminate this Contract by written notice delivered to
Purchaser at or prior to the Closing; and/or
(b) enforce specific performance of this Contract against
Purchaser; and/or
(c) in addition to and not to the exclusion of any other remedy
at law or in equity available to Seller, including the remedies in
subparagraphs (a) and (b) immediately above, bring an action against
Purchaser for actual compensatory damages.
SECTION 7.2 Seller shall be in default hereunder upon the occurrence of
any one or more of the following events: (i) any of Seller's warranties or
representations set forth herein are untrue or inaccurate in any respect; or
(ii) Seller shall fail to meet, comply with or perform any covenant, agreement,
or obligation within the time limits and in the manner required in this
Contract.
In the event of a default by Seller hereunder, Purchaser may, at Purchaser's
sole option, do any of the following:
(a) terminate this Contract by written notice delivered to Seller
at or prior to the Closing; and/or
(b) enforce specific performance of this Contract against Seller;
and/or
(c) in addition to and not to the exclusion of any other remedy
at law or in equity available to Purchaser, including the remedies in
subparagraphs (a) and (b) immediately above, bring an action against
Seller for actual compensatory damages.
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ARTICLE 8
MISCELLANEOUS
SECTION 8.1 All notices, demands, or other communications of any type
(herein collectively referred to as "Notices") given by Seller to Purchaser or
by Purchaser to Seller, whether required by this Contract or in any way related
to the transaction contracted for herein, shall be void and of no effect unless
given in accordance with the provisions of this Article 6. All notices shall be
in writing and delivered to the person to whom the notice is directed, either in
person or by United States Mail, as a registered or certified item, return
receipt requested. Notices delivered by mail shall be effective when deposited
in a post office or other depository under the care or custody of the United
States Postal Service, enclosed in a wrapper with proper postage affixed,
addressed, if to Purchaser, as follows:
Consolidated Graphics Properties II, Inc.
2210 West Dallas Street
Houston, Texas 77019
Attention: Joe R. Davis
With copy to: R. Clyde Parker, Jr., Esq.
Winstead Sechrest & Minick P.C.
910 Travis Street
Suite 1700
Houston, Texas 77002-5895
and addressed, if to Seller, as follows:
Eagle Press
8111 37th Avenue
Sacramento, California 95824
Attention: John Ross
With copy to: Nancy C. Miller
Hyde, Miller & Owen
428 J Street, Suite 400
Sacramento, California 95814
Either party hereto may change the address for notice specified above by giving
the other party ten (10) days advance written notice of such change of address.
SECTION 8.2 Any representation, warranty, covenant or agreement herein
of either party to this Contract, whether to be performed before or after the
time of Closing, shall not be deemed to be merged into or waived by the
instruments of Closing, but shall expressly survive Closing and shall be binding
upon the party obligated thereby.
SECTION 8.3 This Contract may be assigned by Purchaser to any person,
firm, corporation or other entity which Purchaser may, at its sole discretion,
choose, and shall be
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binding upon and inure to the benefit of the parties hereto, their heirs,
executors, administrators and assigns.
SECTION 8.4 This Contract shall be construed and interpreted in
accordance with the laws of the State of California and the obligations of the
parties hereto are and shall be performable in the county wherein the Property
is located. Where required for proper interpretation, words in the singular
shall include the plural; the masculine gender shall include the neuter and the
feminine, and vice versa. The terms "heirs, executors, administrators and
assigns" shall include "successors, legal representatives and assigns."
SECTION 8.5 This Contract may not be modified or amended, except by an
agreement in writing signed by Seller and Purchaser. The parties may waive any
of the conditions contained herein or any of the obligations of the other party
hereunder, but any such waiver shall be effective only if in writing and signed
by the party waiving such conditions or obligations.
SECTION 8.6 Each person executing this Contract warrants and represents
that he is fully authorized to do so.
SECTION 8.7 Time is of the essence of this Contract.
SECTION 8.8 In the event it becomes necessary for either party hereto to
file a suit to enforce this Contract or any provisions contained herein, the
party prevailing in such action shall be entitled to recover, in addition to all
other remedies or damages, reasonable attorneys' fees incurred in such suit.
SECTION 8.9 The descriptive headings of the several Articles, Sections
and Paragraphs contained in this Contract are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 8.10 The Asset Purchase Agreement dated as of July _____, 1996
(the "Agreement") among Consolidated Graphics, Inc., Consolidated Eagle Press,
Inc. and John Ross, and this Contract, including the Exhibit hereto, constitute
the entire agreement among the parties pertaining to the subject matter hereof
and supersede all prior and contemporaneous agreements and understandings of the
parties in connection therewith. No representation, warranty, covenant,
agreement or condition not expressed in this Contract or the Agreement shall be
binding upon the parties hereto or shall affect or be effective to interpret,
change or restrict the provisions of this Contract.
SECTION 8.11 Numerous copies of this Contract have been executed by the
parties hereto. Each such executed copy shall have the full force and effect of
an original executed instrument.
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EXECUTED on this the ______ day of July, 1996, by Purchaser.
CONSOLIDATED GRAPHICS PROPERTIES II,
INC., a Texas corporation
By:_________________________________
Name:_______________________________
Title:______________________________
EXECUTED on this the ______ day of July, 1996, by Seller.
____________________________________
JOHN D. ROSS
____________________________________
ROSEMARY ROSS
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EXHIBIT "A"
PROPERTY DESCRIPTION
Lots 10 and 11, as shown on the "Plat of Fuller Industrial Park", recorded in
Book 58 of Maps, Map No. 1, records of said County.
EXHIBIT "A", Property Description - Solo Page