Exhibit 10.1
AGREEMENT OF
SALE
Phase 1-1,175 acres Monroe and Lackawanna Counties,
PA
THIS AGREEMENT OF SALE (the "Agreement"),
is made this 11th day of March . 2009, by and between
BLUE RIDGE REAL ESTATE COMPANY, a corporation duly organized
under the laws of the Commonwealth of Pennsylvania, having an
address of P.O. Box 707, Blakeslee, PA 18640 (the "Seller"), and
THE CONSERVATION FUND, A Non-Profit Corporation organized
under the laws of the State of Maryland, having an address of 1655
North Fort Myer Drive, Suite 1300, Arlington, Virginia 22209 (the
"Purchaser").
WITNESSED, WHEREAS, Seller is the owner
of eight non-contiguous parcels of land containing an aggregate of
approximately 3,972 acres of unimproved property located in
Lackawanna, Luzerne, and Monroe counties, Pennsylvania, (the
"Land"); and
WHEREAS, Purchaser has offered to
purchase and Seller has agreed to sell the Land in two phases under
two separate contracts.
WHEREAS, in this Phase 1 Agreement of
Sale, Seller agrees to sell and Purchaser agrees to acquire a
portion of the above described land consisting of 1,175 acres of
the Land located in Monroe and Lackawanna Counties, Pennsylvania,
as more fully described herein as the "Property"; and
WHEREAS, the Purchaser and the Seller
have documented their agreement concerning the transfer and sale of
the balance of the Land in a Phase 2 contract executed by Purchaser
and Seller simultaneously with this Agreement.
NOW THEREFORE, for and in consideration
of the mutual promises contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller agrees to sell and Purchaser agrees to
purchase the Property, subject to and in accordance with the terms
and conditions set forth in this Agreement.
Section 1.
The Property.
Seller agrees to sell and Purchaser
agrees to purchase certain unimproved property containing an
aggregate of approximately 1,175+/- acres located in Coolbaugh
Township, Monroe County and Thornhurst Township, Lackawanna County,
Pennsylvania as more particularly shown on the map attached hereto
as Exhibit A-1 , and consisting of those tax parcels listed
on the table attached hereto as Exhibit A-2 including,
without limitation but except as otherwise provided herein, any and
all buildings, improvements, personalty and fixtures situated
thereon, and any and all mineral, timber, water, grazing and other
surface and subsurface rights, permits, hereditaments, easements,
incidents and appurtenances belonging thereto (the "Property"). The
Property shall be sold subject to Seller reserving the oil and gas
rights on the Property for a period commencing up the date for
Closing (as hereinafter defined in Section 4), and terminating on
December 31, 2031 (the "Oil and Gas Reservation") provided such
rights are exercised in accordance with the terms and conditions of
a surface rights agreement (as more fully described in Section
6.2).
Section 2.
Good Faith Deposit.
Within five (5) business days from the
Effective Date of this Agreement (as defined below in Section
15.17), Purchaser shall deliver a good faith deposit in the amount
of Five Thousand and 00/100 Dollars ($5,000.00) to be held in an
interest bearing escrow account with Pocono Area Abstract Company,
PO Box 128, Blakeslee, PA 18610, Attn: Rick Hanna, Phone:
570-646-0282, as escrow agent (the "Title Company"). The good faith
deposit, and all interest earned thereon (the "Deposit") shall be
applied towards the payment of the Purchase Price for the Property,
as described below, unless otherwise forfeited to Seller or
returned to Purchaser in accordance with the terms of this
Agreement.
Section 3.
Purchase Price.
The purchase price for the Property,
including the Deposit, shall be TWO MILLION ONE HUNDRED THOUSAND
and 00/100 Dollars ($2,100,000.00) (the "Purchase Price"). The
Purchase Price shall be paid by Purchaser to Seller at Closing (as
defined below in Section 4) in cash, certified funds, or by wire
transfer of federal or other immediately available
funds.
Section 4.
Closing . The closing of
the purchase and sale of the Property (the "Closing") shall be held
at the office of the "Title Company" on or before thirty (30) days
following the termination of the Inspection Period, as defined
below in Section 5.
Section 5.
Due Diligence
Review. Purchaser's
obligation to purchase the Property is subject to Purchaser
satisfactorily completing its due diligence review of the Property,
as more fully set forth herein.
5.1.
Inspection Period.
Purchaser shall have a period commencing
upon the Effective Date of this Agreement and terminating no later
than seventy five (75) days after the Effective Date, in which to
obtain, secure, conduct, review and analyze any and all tests,
studies, applications, reports and documents deemed necessary by
Purchaser, including but not limited to: surveys, appraisals, title
reports, title commitments, funding commitments and environmental
assessments which Purchaser deems necessary to satisfy itself as to
the feasibility of proceeding with an acquisition of the Property
(the "Inspection Period").
5.2
Documents: Evidence of
Title . During the Inspection
Period Purchaser shall obtain at Purchaser's expense, a title
commitment issued by the Title Company, together with copies of all
exceptions, pursuant to which the Title Company shall issue to
Purchaser a standard coverage owner's policy of title insurance
subject only to those matters not otherwise raised as an objection
during the Inspection Period, insuring good and marketable title to
the Property in the amount of the Purchase Price. Issuance of a
title insurance policy covering the Property in the amount of the
Purchase Price, as described above, shall be a condition precedent
to Purchaser's obligation to close on the purchase and sale of the
Property.
5.3
Right of Entry onto the
Property . Purchaser and its
employees, contractors and agents, shall have the right to enter
upon the Property at reasonable times for appraising, surveying,
inspecting the Property, and for other reasonable purposes related
to Purchaser's acquisition of the Property. Purchaser shall provide
Craig Harahus, (Telephone No. 570-433-8433), the Seller's
representative, with telephonic notice prior to entry onto the
Property. Purchaser agrees to indemnify and hold Seller harmless
from and against any claims,
2
liens, damages, losses, and causes of
action arising solely from Purchaser exercising its rights of entry
onto the Property as described herein. Notwithstanding the
foregoing, Purchaser's indemnification under this Section 5.3.
shall not apply to claims arising out of the negligent, willful or
wanton conduct of Seller or its employees, contractors, agents and
invitees.
5.4.
Election at the End of the Inspection
Period . Should Purchaser
determine, for any reason prior to the expiration of the Inspection
Period, that it is not feasible for Purchaser to proceed with its
acquisition of the Property, Purchaser shall notify Seller in
writing on or before the expiration of the Inspection Period of its
dissatisfaction, at which time this Agreement shall be considered
null and void and of no further force and effect and the Deposit
shall be promptly returned to Purchaser. Upon such termination the
Purchaser shall, within ten (10) days of receipt of Seller's
written request, provide the Seller with copies of all due
diligence materials obtained by Purchaser from third party
contractors in connection with this transaction, to the extent such
third party contractors allow delivery of the same to the Seller at
no further cost or expense to Purchaser (other than copying and
postage). The Purchaser's transfer of the due diligence materials
shall be made without representation or warranty of any kind.
Purchaser shall, at any time, have the right to waive its due
diligence condition precedent, as described in this Section 5,
before the end of the Inspection Period and if Purchaser elects to
waive this condition precedent or to terminate the Inspection
Period, this Agreement will remain in full force and effect and the
Deposit shall become non-refundable except as otherwise provided
herein. Failure of Purchaser to notify Seller of its
dissatisfaction prior to the expiration of the Inspection Period
shall be deemed a waiver of this condition precedent.
5.5.
Election to Cure
.
Notwithstanding anything to the contrary
contained in Section 5.4. above, in the event Purchaser's due
diligence inspection of the Property reveals physical or title
defects impacting the Property, which are capable of being cured,
Purchaser may elect to provide Seller with the option of curing
such defects, as opposed to terminating this Agreement. In such
event, the Purchaser shall offer such option in a written notice to
Seller prior to. the termination of the Inspection Period,
specifying the nature of the defect and the amount of time proposed
by Purchaser for such cure. If Seller is willing to accept such
option to cure the defects, Seller shall so advise Purchaser in
writing within ten (10) days of receipt of Purchaser's notice of
defect, and the parties will then document their agreement to have
Seller cure such defects to Purchaser's satisfaction within a
specified time, by having both parties execute an amendment to the
Agreement. If Seller is unwilling to cure the defects, Purchaser
shall have ten (10) days after receipt of Seller's written notice
to notify Seller of Purchaser's intention to waive the defect and
proceed to Closing or terminate this Agreement whereupon the
Deposit shall be immediately refunded to Purchaser and this
Agreement shall be null, void, and of no further force or
effect.
5.6.
Seller's Delivery of
Documents . Within seven (7)
days of the Effective Date, Seller at its expense shall deliver or
cause to be delivered to Purchaser for Purchaser's review in
connection with its due diligence inspection of the Property the
following documents or records relating to the Property:
(a)
true, complete and correct copies of all
agricultural, residential, oil and gas or other leases, timber
agreements and all other third party agreements
3
encumbering the Property including;
licenses and third party contracts, and current and up-to-date
security deposit and rent payment records;
(b)
most recent historic title insurance
policy and deeds issued to Seller;
(c)
tax bills and assessment records for the
past two tax fiscal years, including but not limited to real estate
taxes, school taxes, special assessments and personal property
taxes and all documentation pertaining to Property's tax
classification under the Clean and Green Program;
(d)
copies of all studies, reports and all
other documents which Seller possesses or other otherwise
reasonably available to Seller, including without limitation,
environmental reports, soils reports, property condition assessment
reports, and maps, but specifically excluding appraisals and a 2006
Phase I Environmental Site Assessment, which by its terms cannot be
distributed by Seller to any other party;
(e)
copies of most recent survey(s), plans,
specifications and governmental licenses and permits;
and
(f)
copies of all maintenance agreements,
vendor contracts, and agreements with Property
caretakers.
Section 6.
Additional Conditions
Precedent. Purchaser's
obligation to purchase the Property is subject to the satisfactory
completion of the following conditions precedent set forth
below:
6.1.
Approval of Purchaser's
Board. Purchaser's acquisition
of the Property shall be subject to the approval of Purchaser's
Board' of Directors. Purchaser acknowledges that this condition was
satisfied on April 15, 2008.
6.2
Surface Rights Agreement.
The Seller and Purchaser shall
successfully negotiate a Surface Rights Agreement prior to the
expiration of the Inspection Period, and shall incorporate such
final form of surface rights agreement into the Agreement by
Amendment (the "Surface Rights Agreement"). In addition, the Seller
and Purchaser shall execute and record the Surface Rights Agreement
at the Closing.
6.3.
Removal of Hunting Cabin
. At least ten (10) days prior to
Closing, the Seller shall remove and dispose of offsite at its sole
cost and expense and in accordance with applicable law, the hunting
cabin located on that portion of the Property, and shall repair and
restore any damage or destruction caused by the Property as a
result of the removal of the hunting cabin, including grading and
re-seeding of the site. At least five (5) business days prior to
Closing, the Seller shall make the Property available for
inspection by Purchaser to confirm removal of the hunt cabin in
accordance with this provision.
If the conditions precedent set forth
above are not satisfied on or before the dates set forth above,
Purchaser may elect to waive the conditions and proceed to Closing,
or alternatively, terminate the Agreement, be relieved of all
liability hereunder, in which event the Deposit shall be promptly
returned to Purchaser.
Section 7.
Seller's Representations and
Warranties. To induce
Purchaser to enter into this Agreement, Seller makes the following
representations and warranties as of the date of
4
this Agreement (the "Representations and
Warranties") for the benefit of Purchaser and its successors and
assigns. These representations and warranties are continuing in
nature and shall remain true, accurate and correct through the date
of Closing.
7.1
Title to the Property
. Seller is the record owner of the
Property to be conveyed hereunder. Upon the Closing Date, Purchaser
will have good, marketable and insurable title to the
Property.
7.2.
Authority . Seller is duly incorporated, validly existing and
in good standing under the laws of the State of Pennsylvania and
has taken all necessary corporate proceedings to execute and
perform this Agreement and this Agreeme
