2563-19 Agreement of Sale - Rock Spring Club to West Orange 2-13-19 Final.pdf

2019.02.13 Rock Spring Club to West Orange 2-13-19 7 policy without exception for the Required Removal Items, Seller shall produce each of the Required Removal Items duly executed and endorsed for cancellation or a separate instrument in the proper form for discharging each of the Required Removal Items of record, or shall allow Buyer a credit at Closing for the amount necessary to pay each of the Required Removal Items in full, together with reasonable costs relating to their cancellation, in which latter event Seller shall produce at Closing a letter from the holder of each of the Required Removal Items stating the sum necessary to pay off each of the Required Removal Items as of the date of Closing. In the event the Closing is delayed as a result of any permitted or required response set forth in this Section 6(c), then the Closing Date shall be set for the final day of any such delay. (d) Termination. If Buyer terminates this Agreement as provided for in this Section 6, then upon such termination all rights and obligations of the respective parties under this Agreement shall be null and void, except as otherwise expressly provided in this Agreement with respect to rights and obligations that survive a termination. (e) Examination. As a material inducement to Seller to enter into this Agreement, Buyer, by virtue of its execution of this Agreement, hereby acknowledges that prior to the Effective Date, Buyer has conducted a full and complete investigation and inspection of the Property, including but not limited to the environmental condition of the Property and that Buyer is completely and fully satisfied therewith and waives any rights to object thereto. Buyer hereby understands and agrees that it shall have no right to terminate this Agreement by virtue of any condition of the Property, except as specifically provided for in this Agreement, and hereby waives any right to object thereto or to cause Seller to remediate or repair any conditions existing at or on the Property, including but not limited to those conditions set forth and disclosed by the Environmental Due Diligence Documents, as hereinafter defined, which Buyer hereby expressly agrees to accept responsibility for. Furthermore, Buyer acknowledges that Seller has delivered to Buyer at no expense to Buyer, the following documents, which have been delivered to Buyer without any covenant,

accept responsibility for. Furthermore, Buyer acknowledges that Seller has delivered to Buyer at no expense to Buyer, the following documents, which have been delivered to Buyer without any covenant, representation or warranty by, and without recourse to, Seller. Buyer hereby acknowledges receipt, prior to the Effective Date, of the following documents, which documents, to the best of Seller’s knowledge, are all the documents related to the environmental condition of the Real Property that are in Seller’s possession (the “Environmental Due Diligence Documents”): (i) Gilmore & Associates, Inc. Phase I Report dated September 13, 2018; (ii) EcolSciences, Inc. Phase I Report dated December 30, 2014 (2 parts);

2019.02.13 Rock Spring Club to West Orange 2-13-19 8 (iii) Ramboll US Corporation's October 25, 2018 report; (iv) Email from Susan Karp, Esq. of Sills Cummis & Gross, P.C.; (v) Remedial Action Permit dated August 6, 2013; and (vi) No Further Action Letter dated April 17, 2012. 7. Condemnation/Risk of Loss. (a) Condemnation. Seller shall notify Buyer of any written notice Seller may receive that all or any part of the Property may be taken as a result of the exercise of the power of eminent domain. If any portion or all of the Real Property and Improvements are taken by the exercise of the power of eminent domain by or behalf of any governmental entity other than the Township of West Orange or one of its related divisions, this Agreement shall become voidable at Buyer’s sole election. After receiving notice of condemnation Buyer shall have ten (10) days to give Seller written notification as to whether or not Buyer will (i) proceed to Closing accepting the funds from the condemnation; or, (ii) terminate this Agreement in which case the parties shall not have any rights one against the other. In the event of a taking by the exercise of the power of eminent domain by or on behalf of the Township of West Orange or one of its related divisions, this Agreement shall remain in full force and effect, in which event Seller shall, at the Closing, deliver to Buyer all sums collected by Seller by reason of the taking, and transfer and assign to Buyer without recourse, representation or warranty all of Seller’s right, title and interest in and to all awards made or to be made for such taking. (b) Loss or Damage. The risk of loss or damage to the Real Property and Improvements by reason of any insured casualty during the period up to the Closing shall be borne by Seller; however, Seller shall not have the risk of loss for any uninsured loss or damage. If the Real Property and Improvements or any part of the Real Property and Improvements is damaged or destroyed (notice of which shall be given to Buyer by Seller after receipt by Seller of notice of such damage or destruction), and the damage or destruction can reasonably be repaired or replaced by Seller prior to the Closing and the cost of the foregoing shall be less than $500,000.00, then Seller shall restore the damage or destruction to as nearly the condition existing prior to the date of the damage or destruction as

and the cost of the foregoing shall be less than $500,000.00, then Seller shall restore the damage or destruction to as nearly the condition existing prior to the date of the damage or destruction as is reasonably practicable. If, in Seller’s reasonable judgment, the damage or destruction cannot reasonably be repaired or replaced prior to the Closing, or if the cost of the foregoing shall exceed or shall reasonably be expected to exceed (as evidenced by a cost estimate from a reputable company obtained by Seller), the sum of $500,000.00, or if the loss or damage is an uninsured loss or damage, then Seller shall notify Buyer thereof and Buyer shall have the option, upon notice to Seller, given

2019.02.13 Rock Spring Club to West Orange 2-13-19 9 within ten (10) days of Seller’s notice, to either: (i) close the purchase, in which event Seller shall, at Closing, deliver to Buyer any insurance proceeds collected by Seller or assign to Buyer without recourse, representation or warranty, all of Seller’s right, title and interest in and to such insurance proceeds, if any, and Buyer shall assume responsibility for the repair or replacement, as the case may be, of the damage or destruction to the Real Property and Improvements, which obligation shall survive the Closing; or (ii) terminate this Agreement. In the event Buyer does not make the election within the ten (10) day period provided for above, then Buyer shall be deemed to have elected to continue this Agreement and close title to the purchase of the Property. If Buyer elects to terminate the Agreement, Seller shall have the option, upon written notice to Buyer, sent within ten (10) days after Buyer’s termination notice, to send notice to Buyer that it intends to repair the damage, in which event Seller shall have the right to extend the Closing date for a period not to exceed ninety (90) days to perform the repair. If Seller does not elect to repair the damage after its receipt of Buyer’s termination notice, then upon such termination, all rights and obligations of the respective parties under this Agreement shall be null and void, except as otherwise expressly provided in this Agreement with respect to rights and obligations that survive a termination. 8. Contract Contingencies. This Agreement is subject to and conditioned upon the fulfillment of the following conditions: (a) Bond Financing Contingency. Buyer’s obligation to complete the Closing is specifically made subject to Buyer obtaining any and all necessary approvals, and authorizations for a municipal bond issuance and receipt of the funds from the bond issuance to be utilized to complete its financial obligations contemplated under this Agreement, (the “Bond Contingency”). (b) Bond Downpayment Waiver Contingency. Buyer’s obligation to complete the Closing is specifically made subject to Buyer obtaining any and all necessary approvals, and authorizations from the State Local Finance Board to waive the requirement that Buyer hold in escrow five (5%) percent of the purchase price as a “down payment escrow.” (the “Downpayment Waiver

s, and authorizations from the State Local Finance Board to waive the requirement that Buyer hold in escrow five (5%) percent of the purchase price as a “down payment escrow.” (the “Downpayment Waiver Contingency”). (c) State Comptroller Approval Contingency. Buyer’s obligation to complete the Closing is specifically made subject to Buyer obtaining any and all necessary approvals, and authorizations from the New Jersey State Comptroller permitting Buyer to enter into a contract (this Agreement) for an amount in excess of Ten Million ($10,000,000.00) Dollars. (the “State Comptroller Contingency”). 9. Default.

2019.02.13 Rock Spring Club to West Orange 2-13-19 10 (a) Buyer Default. In the event that Buyer defaults in any of its obligations undertaken in this Agreement, as its sole and exclusive remedy, Seller shall be entitled to either: (i) waive such default and proceed to Closing in accordance with the terms and provisions hereof; or (ii) declare this Agreement to be terminated, and upon such termination all rights and obligations of the respective parties under this Agreement shall be null and void, except as otherwise expressly provided in this Agreement with respect to rights and obligations that survive a termination. (b) Seller Default. In the event that Seller materially defaults in any of its obligations undertaken in this Agreement, as its sole and exclusive remedy, Buyer shall be entitled to (i) waive such default and proceed to Closing in accordance with the terms and provisions hereof, (ii) terminate this Agreement, and upon such termination all rights and obligations of the respective parties under this Agreement shall be null and void, except as otherwise expressly provided in this Agreement with respect to rights and obligations that survive a termination, or (iii) enforce specific performance of Seller’s obligations hereunder so long as any action for specific performance is commenced, if at all, within thirty (30) days of the default or such right and remedy shall automatically thereafter be deemed forever waived and of no further force or effect. (c) Other Available Remedies. Notwithstanding any other provision of this Agreement to the contrary, Buyer and Seller may each pursue any available remedies at law or in equity to enforce the other’s post-Closing obligations hereunder. 10. Closing. The Closing shall consist of the execution and delivery of documents by Seller and Buyer, as set forth below, and the delivery by Buyer to Seller of the Purchase Price in accordance with the terms of this Agreement. Seller shall deliver to Buyer at Closing the following executed documents (the “Seller Closing Documents”): (a) Deed. Bargain and sale deed from Seller to Buyer conveying the Real Property and Improvements to Buyer subject only to the Permitted Exceptions, in the form and containing the terms set forth on Exhibit C annexed, which shall be executed by Buyer, and shall include the provisions set forth on Exhibit C, which shall be deemed a

tted Exceptions, in the form and containing the terms set forth on Exhibit C annexed, which shall be executed by Buyer, and shall include the provisions set forth on Exhibit C, which shall be deemed a covenant running with the land and binding upon Buyer, its successors and assigns; (b) Bill of Sale. Bill of Sale of transferring the Personal Property to Buyer free and clear of all liens and encumbrances, in the form and containing the terms set forth on Exhibit D annexed; and (c) Settlement Statement. A settlement statement setting forth the Purchase Price, all prorations and other adjustments to be made pursuant to the terms hereof, and the funds required for Closing;

2019.02.13 Rock Spring Club to West Orange 2-13-19 11 (d) Transfer Tax Documents. All transfer tax statements, declarations and filings as may be necessary or appropriate for purposes of recordation of the deed; (e) Title Affidavit. Title affidavit executed by Seller substantially in the form and containing the terms set forth on Exhibit B annexed; (f) Entity Consent. Such other documents, as reasonably requested by Buyer’s title insurance company, with respect to Seller entity’s approval of this Transaction; (g) FIRPTA. A certification of non-foreign status in the form and containing the terms set forth on Exhibit E annexed, duly executed and acknowledged by Seller; and (h) Additional Documents. Such other documents, instruments, certifications and confirmations as are provided for in this Agreement, or as may be reasonably required by Buyer’s title insurance company. At Closing, Buyer shall deliver the Purchase Price to Seller, as adjusted pursuant to the terms of the Agreement, and shall execute and deliver execution counterparts of the closing documents referenced above which require Buyer’s signature, authorization documents with respect to Buyer’s entity, as reasonably requested by Seller or the Title Company, as well as such other documents, instruments, certifications and confirmations as are provided for in this Agreement or may be requested by the Title Company. Closing shall be held in escrow through the mail by delivery of the closing documents to the Title Company on or prior to Closing or such other place or manner as the parties hereto may mutually agree. 11. Seller’s Representations. Seller represents and warrants to Buyer as follows: (a) Due Organization. Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization. As of the Closing, Seller shall be authorized to consummate the Transaction and fulfill all of its obligations hereunder and under all closing documents to be executed by Seller, and shall have all necessary corporate power to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder, will result in

under. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder, will result in the violation of any law or any provision of the organizational documents of or will conflict with any order or decree of any court or governmental instrumentality of any nature, or agreement, of which Seller has actual knowledge and by which Seller is bound; (b) FIRPTA. Seller is not a “foreign person” under the Foreign Investment in Real Property Tax Act of 1980 (“FIRPTA”) and upon consummation of