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Exhibit 10(c)
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT is made effective for all purposes as of the 30th day
of June, 1997, by and between Purchaser and IGC (such parties being
hereinafter defined).
ARTICLE I
Definitions
As used in this Agreement, unless the context otherwise requires or is
otherwise herein expressly provided, the following terms shall have the
following meanings:
1.1 PURCHASE PRICE: One Hundred Ninety Thousand One Hundred Fifty-five
Dollars (190,155.00)
1.2 PURCHASER: A.P.S. Associates Limited Partnership, a Delaware
limited partnership, its assignees, designees or
nominees, with an address at:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1.3 IGC: Interstate General Company L.P., a Delaware
limited partnership, with an address at:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1.4 SETTLEMENT: The consummation of the sale and purchase provided
for in this Agreement to occur as provided in
Article VII hereof.
1.5 IGC PROPERTY: Management fees receivable (payable to IGC) from
each of the entities listed on Exhibit A.
ARTICLE II
Sale and Purchase
2.1 Sale and Purchase. For and in consideration of the mutual
promises, covenants, representations, warranties, and agreements contained
herein, IGC shall sell and convey the IGC Property to Purchaser, and
Purchaser shall purchase the IGC Property.
ARTICLE III
Representations and Warranties of IGC
IGC represents and warrants to Purchaser that as of the date of the
execution of this Agreement, and as of the date of Settlement:
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3.1 Legal Status. IGC is a limited partnership organized, validly
existing, and in good standing under the laws of Delaware and subject to
the performance by IGC of its obligations under Section 6.1 hereof, (i) IGC
has the power to enter into this Agreement and to consummate the
transactions provided for herein; (ii) the undersigned officer of
Interstate General Management Corporation, the general partner of IGC, has
full power, authority and legal right to enter into this Agreement on
behalf of IGC; and (iii) no other party has any right, title or interest in
any of the IGC Property.
3.2 Compliance with Other Instruments, etc. Except as set forth in
Exhibit D, neither the entering into of this Agreement nor the consummation
of the transactions contemplated hereby will constitute or result in a
violation or breach by IGC of its Articles of Incorporation, by-laws and
other corporate documents, or, subject to the performance by IGC of its
obligations under Section 6.1 hereof, of any contract or other instrument
to which it is a party, or to which it is subject or by which it or any of
its assets or properties may be bound.
3.3 Compliance with Laws, etc. Neither the entering into of this
Agreement nor the consummation of the transactions contemplated hereby will
constitute or result in a violation or breach by IGC of any judgment,
order, writ, injunction or decree issued against or imposed upon it, or
result, subject to the performance by IGC of its obligations under Section
6.1 hereof, in a violation of any applicable law, order, rule or regulation
of any governmental authority. Except as described in Exhibit C hereto,
there is no action, suit, proceeding or investigation pending in any court
or before or by any federal, district, county, or municipal department,
commission, board, bureau, agency or other governmental instrumentality,
which would prevent the consummation of the transactions contemplated by
this Agreement or which would become a cloud on the title to the IGC
Property or any portion thereof or which questions the validity or
enforceability of the transactions contemplated by this Agreement or any
action taken pursuant hereto. No approval, consent, order or authorization
of, or designation, registration or filing with any governmental authority
is required in connection with the due and valid execution and delivery of
this Agreement by IGC and its compliance with the provisions hereof and the
consummation of the transactions contemplated hereby except as provided in
Section 6.1 hereof.
3.4 The IGC Property.
(a) The management fees listed on Exhibit A hereto constitute
the valid and binding legal obligations of the entities listed thereon, and
are due and owing to IGC without offset, counterclaim or defense of any
kind.
(b) Except as set forth in Exhibit D, neither tha execution and
delivery of this Agreement nor the sale of the IGC Property hereunder will,
subject to the performance by IGC of its obligations under Section 6.1
hereof, violated any provision of, or result in the acceleration of any
obligation under, any security, mortgage, note, debenture, loan, lease,
agreement, instrument, order, judgment or decree to which IGC is a party or
by which IGC is bound.
(c) The board of directors of Interstate General Management
Corporation, the general partner of IGC, has duly approved the transactions
contemplated by this Agreement and has authorized the execution and
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delivery of this Agreement by the officers of Interstate General Management
Corporation who are executing this Agreement.
(d) There are no actions or proceedings pending or threatened to
liquidate, reorganize or dissolve IGC.
(e) All federal, state and local income, withholding, sales,
franchise and other taxes due or payable by IGC with respect to the IGC
Property have been paid by IGC and all returns due with respect thereto
have been filed. IGC does hereby indemnify and hold harmless Purchaser
against any loss, cost, damage or expense arising from nonpayment of any
taxes whatsoever owed by IGC or which may be assessed against IGC for
periods prior to Settlement.
(f) No representation, warranty or covenant by IGC or in this
Agreement, or any statement, certificate or schedule made, furnished or to
be furnished to Purchaser pursuant hereto or in connection with the
transactions contemplated hereby, contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material
fact necessary to make the statements contained therein not misleading.
(g) Notwithstanding any investigation or audit conducted before
or after Settlement, and notwithstanding any facts or circumstances which
any party may have obtained or discovered as a result of such
investigation, audit or otherwise, the parties shall be entitled to rely
upon the representations and warranties set forth herein.
3.5 Full Disclosure. IGC knows of no materially adverse fact
affecting or threatening to affect the IGC Property which has not been
disclosed to Purchaser in this Agreement.
3.6 Completeness of Representations. No representation or warranty
made by IGC in this Agreement or as provided herein contains any untrue
statement of a material fact or omits to state any material fact necessary
to make the statements contained herein not false or misleading.
ARTICLE IV
Representations and Warranties of Purchaser
Purchaser represents and warrants to IGC that, as of the date of the
execution of this Agreement, and as of the date of Settlement:
4.1 Legal Status. (i) Purchaser is a limited partnership organized,
validly existing, and in good standing under the laws of Delaware;
(ii) Purchaser has the power to enter into this Agreement and to perform
its obligations as provided for herein; and (iii) the undersigned officer
of Advanced Power Systems, Inc., a general partner of Purchaser, has full
power, authority and legal right to enter into this Agreement on behalf of
Purchaser, and to consummate the transaction provided for herein.
4.2 Compliance with Other Instruments, etc. Neither the entering
into of this Agreement nor the consummation of the transactions
contemplated hereby will constitute or result in a violation or breach by
Purchaser of its limited partnership agreement or other corporate
documents, or, subject to the performance by IGC of its obligations under
Section 6.1 hereof, of any contract or other instrument to which it is a
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party, or to which it is subject or by which it or any of its assets or
properties may be bound.
4.3 Compliance with Laws, etc. Neither the entering into of this
Agreement nor the consummation of the transactions contemplated hereby will
constitute or result in a violation or breach by Purchaser of any judgment,
order, writ, injunction or decree issued against or imposed upon it, or
result, subject to the performance by IGC of its obligations under Section
6.1 hereof, in a violation of any applicable law, order, rule or regulation
of any governmental authority. There is no action, suit, proceeding or
investigation pending in any court or before or by any federal, district,
county, or municipal department, commission, board, bureau, agency or other
government instrumentality which would prevent the consummation of the
transactions contemplated by this Agreement or which questions the validity
or enforceability of the transactions contemplated by this Agreement or any
action taken pursuant hereto. No approval, consent, order or authorization
of, or designation of, registration or filing (other than for recording
purposes) with any governmental authority is required in connection with
the due and valid execution and delivery of this Agreement by Purchaser and
its compliance with the provisions hereof and the consummation of the
transactions contemplated hereby except as provided in Section 6.1 hereof.
4.4 No Violation. The Purchaser is not in violation of any order,
judgment, law, statute, regulation or ordinance.
4.5 Authorization. The general partners of Purchaser have duly
approved the transactions contemplated by this Agreement and have
authorized the execution and delivery of this Agreement by the undersigned
on behalf of Purchaser.
4.6 No Liquidation. There are no actions or proceedings pending or
threatened to liquidate, reorganize or dissolve the Purchaser.
ARTICLE V
Survival of Representations and Warranties; Further Assurances
5.1 Survival and Merger. The representations and warranties set
forth in Article III and IV of this Agreement shall be deemed to have been
made again on and as of the date of Settlement and shall then be true and
correct and shall remain operative and shall survive the Settlement and the
execution, delivery and recordation of the Instruments of Conveyance and
shall not be merged therein. Purchaser and IGC shall each have the right
to exercise any and all legal and equitable rights and remedies for any
breach of the foregoing representations and warranties hereunder which are
disclosed after Settlement.
5.2 Further Assurances; Hold Harmless.
(a) IGC agrees that, upon request of Purchaser, it shall (or
direct its officers and employees to, if applicable) execute and deliver
all documents, and take any other actions which may in the reasonable
opinion of Purchaser be necessary or desirable to evidence protect or
record the right or title of Purchaser to the IGC Property, or to aid in
the prosecution or defense of any rights arising therefrom, all without
further consideration.
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(b) IGC agrees to indemnify and hold harmless Purchaser at all
times after the Settlement against and with respect to: (i) any breach by
IGC of any of its obligations, representations or warranties hereunder,
(ii) any cost, expense or damages incurred by Purchaser in connection with
perfecting its right and title to the IGC Property, (iii) any claim
asserted against Purchaser for any unsatisfied obligation of IGC in
connection with the IGC Property, (iv) any failure to obtain the approvals
referred to in Section 6.1 hereof and (v) any claim asserted by any
government agency or any lending institution arising from consummation of
the transactions contemplated hereby.
ARTICLE VI
Covenants and Conditions of Settlement
The obligations of the Purchaser hereunder shall be subject to the
fulfillment of the following conditions, and IGC agrees to fulfill such
conditions:
6.1 Instruments of Conveyance. Seller shall execute and deliver to
the Purchaser an appropriate assignment of the IGC Property. Such
assignment shall be substantially in form and substance equivalent to the
Assignment attached hereto as Exhibit B. The assignment contemplated
herein may be subject to the approval of any regulatory or governmental
agencies having jurisdiction over IGC (provided, however, that such
approval need not be received prior to settlement hereunder). IGC shall
obtain all such approvals by ______________________, 1997.
6.2 Satisfaction of Liens. Except as contemplated in Section 6.1,
any and all liens, of any type whatsoever, with respect to the IGC
Property, or as to which it may be subject, shall have been satisfied or
otherwise released of record by IGC, prior to Settlement, or provision
satisfactory to Purchaser shall have been made by IGC for its full and
complete release.
6.3 Settlement Representations and Warranties. At Settlement, each
of the representations and warranties of IGC contained in this Agreement is
deemed to have been made again on and as at the Settlement and shall be
true and correct in all material respects as at the Settlement. IGC shall
indemnify and hold harmless Purchaser from and against all loss, damages,
costs or expenses (including reasonable attorney's fees) resulting from or
in any way related to any breach thereof.
ARTICLE VII
Settlement
7.1 Settlement. Settlement shall take place in the office of the
Purchaser's designated legal counsel as of the effective date established
by this Agreement.
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ARTICLE VIII
Default and Termination
8.1 Purchaser's Default. If the transaction herein contemplated
shall not be consummated on the date of Settlement because of the
Purchaser's default, then IGC may exercise any and all legal and equitable
rights or remedies available to them, including, without limitation, the
right to specific performance and/or recovery of damages.
8.2 Seller's Default. If the transaction herein contemplated shall
not be consummated on the date of Settlement because of one or more default
hereunder by IGC, then Purchaser may exercise any and all legal and
equitable rights or remedies available to it, including, without
limitation, the right to specific performance and/or recovery of damages.
ARTICLE IX
Recision and Reformation
9.1 Reformation in Certain Events. If (i) the approvals referred to
in Section 6.1 hereof with respect to any portion of the IGC Property is
not obtained, or (ii) in the opinion of counsel to Purchaser, any such
approvals that are obtained are insufficient to vest in Purchaser free and
clear title to any portion of the IGC Property, or (iii) any governmental
agency commences or threatens to commence a legal proceeding arising from
the consummation of the transactions contemplated hereby in which such
agency either asserts rights in any portion of the IGC Property or claims
which, in the reasonable opinion of Purchaser, may materially reduce the
value of any portion of the IGC Property (any such event being referred to
herein as a "Transfer Defect"), then Purchaser, at its option, may rescind
to purchase the sale of the IGC Property. Promptly upon receipt of notice
of such recision, the Purchase Price will be reduced by the value (as shown
on Exhibit A hereto) of the portion of the IGC Property as to which the
Purchaser has rescinded this Agreement, and the remainder of the IGC
Property shall be purchased and sold in accordance with the terms hereof.
9.2 Recision. If, as a result of one or more Transfer Defects,
Purchaser determines that it is unable to obtain substantially all of the
benefits of ownership of the IGC Property or otherwise is deprived of any
material inducement to its willingness to enter into and perform this
Agreement, Purchaser, by notice to IGC, may rescind this Agreement,
following which notice this Agreement shall be null and void and of no
further force or effect.
ARTICLE X
General Provisions
10.1 Modifications and Waivers. No modification, waiver, amendment,
discharge or change of this Agreement, except as otherwise provided herein,
shall be valid unless the same is in writing and signed by the party
against which the enforcement of such modification, waiver, amendment,
discharge or change is sought. This Agreement contains the entire
agreement between the parties relating to the transactions contemplated
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hereby, and all prior or contemporaneous agreements, understandings,
representations and statements, oral or written, are merged herein.
10.2 Successors and Assigns. All terms of this Agreement shall be
binding upon, and inure to the benefit of and be enforceable by the parties
hereto and their respective legal representatives, successors and assigns.
10.3 Governing Law. This Agreement is intended to be performed in the
State of Maryland and shall be construed and enforced in accordance with
the internal laws thereof.
10.4 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given
if delivered personally, or by recognized air courier, or if sent by
registered or certified mail, return receipt requested, and postage
prepaid, to a party at its address set forth above, or at such other
address as such party may specify from time to time by written notice to
the other party.
10.5 Exhibits. All exhibits and schedules referred to herein and
attached hereto are incorporated by reference into this Agreement.
10.6 Severability. If any provision of this Agreement or any
application thereof shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions hereof and any other applications thereof shall not in any way
be affected or impaired, and such remaining provisions shall continue in
full force and effect.
10.7 Construction. Each party hereto and its counsel has reviewed and
revised (or requested revisions of) this Agreement, and the normal rule of
construction that any ambiguities are to be resolved against the drafting
party shall not be applicable in the construction and interpretation of
this Agreement.
10.8 Time Periods. Any time period hereunder which expires on, or any
date hereunder which occurs on, a Saturday, Sunday or legal United States
holiday, shall be deemed to be postponed to the next business day. The
first day of any time period hereunder which runs "from" or "after" a given
day shall be deemed to occur on the day subsequent to that given day.
10.9 Captions. The captions of this Agreement are inserted for
convenience of reference only and do not define, describe or limit the
scope or the intent of this Agreement or any term hereof.
10.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
10.11 Broker's Fees. Purchaser and IGC each hereby warrant and
represent to the other that they have not dealt with any broker or agent in
connection with the transactions contemplated herein. Each party hereto
hereby indemnifies and holds harmless the other party from and against any
and all claims, demands, causes of action, loss, damage, liabilities, costs
and expenses (including reasonable attorney's fees) arising from any
inaccuracy or breach of the foregoing warranty and representation.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement
the day and year first above written.
IGC:
INTERSTATE GENERAL COMPANY L.P.
By: Interstate General Management
Corporation, its general
partner
ATTEST
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
_____________________________ _________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------- ---------------------------------
Its: President
---------------------------------
PURCHASER:
A.P.S. ASSOCIATES LIMITED
PARTNERSHIP
ATTEST By: Advanced Power Systems, Inc.,
its general partner Corporation,
its General Partner
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- ---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------ ---------------------------------
Its: President
---------------------------------
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Exhibit A
INTERSTATE GENERAL COMPANY L.P.
MANAGEMENT FEES RECEIVABLE
AT JUNE 30, 1997
CHASTLETON $ 38,120
COACHMAN'S 28,218
ROLLING HILLS (GLLP) 97,308
VILLAGE LAKE 26,509
--------
$190,155
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Exhibit B
ASSIGNMENT
This ASSIGNMENT (the "Assignment") is made effective for all
purposes as of this 30th day of June, 1997, by and between Interstate
General Company L.P., a Delaware limited partnership ("Assignor") and the
A.P.S. Associates Limited Partnership, a Delaware limited partnership
("Assignee").
WITNESSETH:
WHEREAS, Assignor is entitled to receive payment of management
fees described on Exhibit A hereto (the "Management Fees"); and
WHEREAS, Assignor has, pursuant to the terms of that certain
Agreement of Purchase and Sale of even date herewith, for legally
sufficient consideration, agreed to assign all of its right, title and
interest in and to the Management Fees to Assignee; and
WHEREAS, Assignee has agreed to accept such assignment.
NOW, THEREFORE, in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, in hand paid, the
receipt and legal sufficiency of which are hereby acknowledged by the
undersigned, the parties hereto agree as follows:
1. The foregoing recitals, and all exhibits hereto, are herein
fully incorporated by this reference.
2. Assignor does hereby sell, transfer, set over and convey
unto Assignee all of Assignor's right, title and interest in and to the
Management Fees.
3. Assignee hereby accepts the foregoing assignment.
4. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and all of which taken together shall
constitute one assignment.
5. This Assignment shall be fully effective as of the date
first hereinabove set forth to transfer to the Assignee all of the
Assignor's right, title and interest in and to the Management Fees.
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IN WITNESS WHEREOF, Assignor and Assignee have caused this
Assignment to be executed by their duly authorized representatives, all
effective as of the day and year first above written.
ASSIGNOR:
INTERSTATE GENERAL COMPANY L.P.
By: Interstate General Management
Company, its general partner
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name ▇▇▇▇▇ ▇. ▇▇▇▇▇
Its President
ASSIGNEE:
A.P.S. ASSOCIATES LIMITED PARTNERSHIP
By: Advanced Power Systems, Inc., its
general partner
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its President
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Exhibit C
In 1994, the Company filed two claims against ▇▇▇▇▇▇▇ County, Maryland
and its County Commissioners in the Maryland Tax Court, a state
administrative agency, seeking compensation for school sites that it
previously had deeded to the County. The actions seek to enforce an
agreement settling litigation between the parties that was entered into in
1989 and to claim rights pursuant to ▇▇▇▇▇▇▇ County law. Under the terms
of the settlement agreement, the County agreed to credit the Company for
school sites contributed and to repay to the Company any excess school
impact fees paid. The Company seeks $5,500,000, equal to the fair market
value of the school sites. The Company's claims have not yet been decided
by the Tax Court.
In a separate proceeding, the Company filed suit in 1990 against
▇▇▇▇▇▇▇ County and its County Commissioners in the Circuit Court for
▇▇▇▇▇▇▇ County to enforce another provision of the 1989 settlement
agreement. The Company claims that the County has failed to conduct an
appropriate water and sewer connection fee study as the basis on which to
set such fees for the St. ▇▇▇▇▇▇▇ Communities. On June 22, 1992, judgment
was rendered in favor of the Company, which was affirmed in 1995 by the
Court of Special Appeals of Maryland. The judgment requires the County to
conduct the appropriate water and sewer connection fee study. The County
has indicated that it is now in the course of conducting a water and sewer
connection fee study. The adequacy of the study will be subject to review
by the Company and, if necessary, the courts.
In 1994, the U.S. Attorney for the District of Maryland ("U.S.
Attorney") commenced a federal grand jury investigation regarding actions
by IGC in developing certain parcels in St. ▇▇▇▇▇▇▇, Maryland. The parcels
were identified by the U.S. Army Corps of Engineers (the "Corps") as
wetlands within its regulatory jurisdiction. In October 1995, the grand
jury issued an indictment charging IGC, SCA and IGC's Chairman, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, with four felony and four misdemeanor counts of violations of
Section 404 (wetlands) of the U.S. Clean Water Act. The charges related to
discharge of fill materials into wetlands within the Corps' regulatory
jurisdiction without a permit. The violations were charged to have
occurred on four parcels totaling approximately 50 acres out of the
approximately 4,400 acres IGC had developed in St. ▇▇▇▇▇▇▇. At the same
time, the U.S. Attorney filed a civil action charging nine separate civil
violations of the U.S. Clean Water Act. On February 29, 1996, IGC, SCA and
▇▇. ▇▇▇▇▇▇ were convicted on the four felony counts. On June 17, 1996, ▇▇.
▇▇▇▇▇▇ was sentenced to 21 months imprisonment, one year of supervised
release and a $1,000,000 fine. IGC and SCA were jointly fined $3,000,000,
placed on probation for five years and ordered to implement a wetlands
restoration and mitigation plan, which the Company's engineers estimate
would cost $2,000,000. The civil action was dismissed without prejudice.
Appeals were filed with the U.S. Court of Appeals for the Fourth Circuit
("Appeals Court"), and ▇▇. ▇▇▇▇▇▇'▇ prison sentence was stayed pending the
outcome of the appeals. The Appeals Court heard the oral arguments on
March 3, 1997, and a ruling is expected during the second quarter of 1997.
Management believes the Company and ▇▇. ▇▇▇▇▇▇ have numerous substantial
grounds for the appeal.
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Exhibit D
1. IGCLP has assigned to NationsBank, N.A. (the "Bank") a security
interest in the Management Fees set forth on Exhibit A as a receivable
from Chastleton (the "Chastleton Management Fees") pursuant to that
certain Assigment and Pledge of Management Fees (Real Estate
Partnerships/IGC), dated July _____ [sic], 1994, between IGCLP and the
Bank (the "Management Fees Assignment").
2. IGCLP has assigned to the Bank a security interest in the Management
Fees set forth on Exhibit A as a receivable from Coachman's
("Coachman's Management Fees") pursuant to the Management Fees
Assignment.
The parties agree that the purchase and sale of the Chastleton Management
Fees and the Coachman's Management Fees pursuant to this Agreement is
conditioned upon the consent to the Bank to such purchase and sale by the
Bank. If such consent is not received within ten (10) business days of the
date hereof, this Agreement and any assignments made pursuant to this
Agreement shall be rescinded and made null and void with respect to the
Chastleton Management Fees and the Coachman's Management Fees, and IGC
shall return to Purchaser that portion of the Purchase Price which is
attributable to the Chastleton Management Fees and the Coachman's
Management Fees, as set forth on Exhibit A.
