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 12 the transaction contemplated hereby, Buyer will not be required to withhold from the Purchase Price any withholding tax; (c) OFAC. Neither Seller, nor to Seller’s knowledge, any person or entity with actual authority to direct the actions of Seller, (i) are named on any list of persons, entities and governments issued by the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”) pursuant to Executive Order 13224 – Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism (“Executive Order 13224”), as in effect on the date hereof, or any similar list known to Seller or publicly issued by OFAC or any other department or agency of the United States of America (collectively, the “OFAC Lists”), (ii) is included in, owned by, controlled by, knowingly acting for or on behalf of, knowingly providing assistance, support, sponsorship, or services of any kind to, or otherwise knowingly associated with any of the persons, entities or governments referred to or described in the OFAC Lists, or (iii) has knowingly conducted business with or knowingly engaged in any transaction with any person, entity or government named on any of the OFAC Lists or any person, entity or government included in, owned by, controlled by, acting for or on behalf of, providing assistance, support, sponsorship, or services of any kind to, or, to Seller’s knowledge, otherwise associated with any of the persons, entities or governments referred to or described in the OFAC Lists; (d) Bankruptcy. To Seller’s knowledge, no petition in bankruptcy (voluntary or otherwise), assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other action under federal or state bankruptcy laws is pending against or contemplated by Seller; (e) Management. That there is no entity or person charged with the management or responsibility for operating the Property other than Seller; (f) Contracts. That other than as set forth on Schedule C, attached hereto, there are no contracts which affect the golf course and that may be binding on Buyer from and after the Closing Date. The Buyer shall have the right within thirty days after the Effective Date to advise the Seller as to which contracts on Schedule C at will assume and which ones it will

om and after the Closing Date. The Buyer shall have the right within thirty days after the Effective Date to advise the Seller as to which contracts on Schedule C at will assume and which ones it will not. Thereafter, the Seller shall be responsible to terminate prior to Closing those that the Buyer is not willing to assume. This specific representation shall survive the Closing indefinitely; and (g) Leases. There are no leases affecting the Property. When a representation and warranty, or other statement, is made in this Agreement to the “knowledge” of Seller, or to the “actual knowledge” of Seller, or similar words, it means the actual knowledge of Christopher Gengaro, without the benefit of any due diligence or other investigation. To the extent that Buyer, prior to Closing, obtains actual knowledge that any of

2019.02.13 Rock Spring Club to West Orange 2-13-19 13 the representations or warranties made by Seller herein are false but nonetheless closes the Transaction and buys the Property, Seller’s representations and warranties shall, effective as of Closing be deemed to have been automatically modified to the extent necessary to make the applicable representation and warranty conform to Buyer’s actual knowledge. 12. Buyer’s Representations. Buyer represents and warrants to, and covenants with, Seller as follows: (a) Due Organization. As of the Closing, Buyer shall be authorized to consummate the Transaction set forth herein and fulfill all of its obligations hereunder and under all closing documents to be executed by Buyer, and shall have all necessary authorizations and power to execute and deliver this Agreement and all closing documents to be executed by Buyer, and to perform all of Buyer’s obligations hereunder and thereunder. As of the Closing, this Agreement and all closing documents to be executed by Buyer shall have been duly authorized by all requisite governmental or other required action on the part of Buyer and shall be the valid and legally binding obligation of Buyer, enforceable in accordance with their respective terms, subject to the fulfillment of the Contingencies set forth in Section 8 hereof. Neither the execution and delivery of this Agreement and all closing documents to be executed by Buyer, nor the performance of the obligations of Buyer hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Buyer or will conflict with any order or decree of any court or governmental instrumentality of any nature of which Buyer has actual knowledge and by which Buyer is bound; (b) Bankruptcy. No petition (voluntary or otherwise), assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other action has been filed by or against Buyer under the Federal Bankruptcy Code or any similar State or Federal law and none is contemplated; (c) Financial Capability. Subject to the Contingencies in Section 8, Buyer has the financial capability and wherewithal to pay the Purchase Price and close title to the Property and acquire the Personal Property. When a representation and warranty, or other statement, is made in this Agreement to the “knowledge” of Buyer, or to the

rchase Price and close title to the Property and acquire the Personal Property. When a representation and warranty, or other statement, is made in this Agreement to the “knowledge” of Buyer, or to the “actual knowledge” of Buyer, or similar words, it means the actual knowledge of any official, representative or employee of the Township of West Orange, without the benefit of any due diligence or other investigation. 13. Conditions to Buyer’s Obligations. Buyer’s obligation to pay the Purchase Price, and to accept title to the Property, shall be subject to compliance by Seller with the following conditions precedent on and as of the date of Closing:

2019.02.13 Rock Spring Club to West Orange 2-13-19 14 (a) Delivery of Seller Closing Documents. Seller shall deliver to the Title Company in escrow, as provided for in Section 10 above, on or before Closing, Seller Closing Documents; and (b) Representations and Warranties. The representations and warranties of Seller contained in this Agreement shall have been true when made in all material respects, and shall be true in all material respects at and as of the date of Closing as if such representations and warranties were made at and as of Closing, and Seller shall have performed and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed or complied with by Seller prior to or at Closing. If any of the conditions set forth in this Section 13(a) & (b) are not met at the time of Closing, then Buyer shall have the option (to be exercised in its sole discretion, but not later than the time scheduled for Closing, as so extended) either to (i) waive the requirement for satisfaction of the unsatisfied conditions and proceed to Closing without abatement or reduction of the Purchase Price, (ii) declare this Agreement 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, or (iii) exercise its remedies under Section 9(b) above in the event the failure of the condition(s) precedent to be satisfied is due to Seller’s material default of covenants or agreements required by this Agreement to be performed or complied with by Seller prior to or at Closing. In no event shall it be deemed a default by Seller if the condition set forth in Section 13(b) is not satisfied because Seller is unable to restate the representation or warranty as of Closing through no fault of Seller. 14. Conditions to Seller’s Obligations. Seller’s obligation to deliver title to the Property shall be subject to compliance by Buyer with the following conditions precedent on and as of the date of Closing: (a) Payment of Purchase Price. On the Closing Date, Buyer: (i) shall deliver to Seller the Purchase Price, as adjusted pursuant to Section 2; and (ii) cause delivery of the Maintenance Payment to Seller; (b) Delivery of Buyer’s Closing

he Closing Date, Buyer: (i) shall deliver to Seller the Purchase Price, as adjusted pursuant to Section 2; and (ii) cause delivery of the Maintenance Payment to Seller; (b) Delivery of Buyer’s Closing Documents. Buyer shall close title to all of the Property and deliver all of the documents required of Buyer hereunder; and (c) Representations and Warranties. The representations and warranties of Buyer contained in this Agreement shall have been true when made, in all material respects, and shall be true in all material respects at and as of the date of Closing as if such representations and warranties were made at and as of Closing, and Buyer shall have performed and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed or complied with by Buyer prior to or at Closing.

2019.02.13 Rock Spring Club to West Orange 2-13-19 15 If any of the conditions set forth in this Section 14 are not met at the time of Closing, then Seller shall have the option (to be exercised in its sole discretion, but not later than the time scheduled for Closing) either to (i) waive the requirement for satisfaction of the unsatisfied conditions and proceed to Closing without abatement or reduction of the Purchase Price, (ii) declare this Agreement 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 or (iii) exercise its remedies under Section 9(a) above in the event the failure of the condition(s) precedent to be satisfied is due to Buyer’s default of covenants or agreements required by this Agreement to be performed or complied with by Buyer prior to or at Closing. 15. Notices. Unless otherwise provided herein, all notices and other communications which may be or are required to be given or made by any party to the other in connection herewith shall be in writing and shall be: (i) delivered in person, (ii) deposited with a nationally recognized overnight courier for next business day delivery, or (iii) by email (to the other party and simultaneously to its counsel so long as on the same day such notice or other communication also is sent by nationally recognized overnight courier for next Business Day delivery; provided, however, that if the email delivery of any notice sent hereunder is within any time limit applicable thereto, such notice shall be considered timely given even if the follow up overnight courier copy is not within such time limit), to the addresses set out in Section 1, or at such other addresses as specified by written notice delivered in accordance herewith. Any notice given by an attorney for a party shall be effective for all purposes. Any notice or other communication sent as hereinabove provided shall be deemed given and received on the date actually received (or on the date delivery of such notice is refused), if delivered in accordance with this Section 15. 16. Disclaimer. SELLER HAS MADE NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS AND WARRANTIES RESPECTING THE PROPERTY INCLUDING COMPLIANCE WITH ENVIRONMENTAL LAWS AND

n accordance with this Section 15. 16. Disclaimer. SELLER HAS MADE NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS AND WARRANTIES RESPECTING THE PROPERTY INCLUDING COMPLIANCE WITH ENVIRONMENTAL LAWS AND THE ENVIRONMENTAL, HEALTH AND SAFETY CONDITIONS OF THE PROPERTY, AND BUYER SHALL ACCEPT THE PROPERTY IN ITS “AS IS” CONDITION (INCLUDING WITH RESPECT TO THE COMPLIANCE OR NON-COMPLIANCE WITH ENVIRONMENTAL LAWS, AND THE ENVIRONMENTAL, HEALTH AND SAFETY CONDITIONS OF THE PREMISES), WITH ALL FAULTS AND DEFECTS, LATENT OR OTHERWISE, AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, BY OPERATION OF LAW OF OTHERWISE, INCLUDING ANY REPRESENTATION OR WARRANTY CONCERNING TITLE TO THE PROPERTY, THE PHYSICAL CONDITION OF THE PROPERTY, THE COMPLIANCE OF THE PROPERTY WITH APPLICABLE LAWS AND REGULATIONS (INCLUDING THE STATUS OF DEVELOPMENT OR USE RIGHTS RESPECTING THE PROPERTY) OR THE QUALITY, VALUE OR FINANCIAL CONDITION OF THE PROPERTY. IN ADDITION TO AND NOT IN LIMITATION OF THE FOREGOING, IT IS UNDERSTOOD AND AGREED BY SELLER AND BUYER THAT SELLER MAKES NO WARRANTY OF HABITABILITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR FITNESS FOR ANY PURPOSE WITH REGARD TO THE PROPERTY. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD “AS-IS” AND WITH ALL

2019.02.13 Rock Spring Club to West Orange 2-13-19 16 FAULTS AND DEFECTS AS ABOVE DESCRIBED. SELLER, ALL PREDECESSORS IN TITLE, ALL PRIOR OCCUPANTS AND OPERATORS OF THE PROPERTY, AND EACH AND ALL OF THEIR RESPECTIVE AFFILIATES, MEMBERS, HEIRS, EXECUTORS, ADMINISTRATORS, PARTNERS, SHAREHOLDERS, OFFICERS, DIRECTORS, TRUSTEES, REPRESENTATIVES, EMPLOYEES, AGENTS, LEGAL REPRESENTATIVES, PROPERTY MANAGERS, SUCCESSORS AND ASSIGNS, (COLLECTIVELY AND INDIVIDUALLY, INCLUSIVE OF SELLER, THE “RELEASEES”) ARE HEREBY RELEASED OF AND FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION REGARDING, AND BUYER WAIVES ANY CLAIM AND CAUSE OF ACTION AGAINST THE RELEASEES REGARDING, COVENANTS NOT TO SUE THE RELEASEES REGARDING, ASSUMES ALL LIABILITY AND RESPONSIBILITY REGARDING, AND SHALL INDEMNIFY, DEFEND AND HOLD THE RELEASESS HARMLESS REGARDING, THE CONDITION OF THE PROPERTY, INCLUDING THE ENVIRONMENTAL CONDITION OF THE PROPERTY AND ITS ENVIRONS, REGARDLESS OF WHETHER THE CONDITION RESULTED FROM ON-SITE OR OFF-SITE ACTIVITIES OF ANY ONE OR MORE OF THE RELEASEES OR ANY THIRD PARTY, OR THE CONDITION MIGRATED FROM OR ONTO THE PROPERTY, AND REGARDLESS OF WHETHER THE CLAIM OR CAUSE OF ACTION NOW EXISTS OR IS HEREAFTER CREATED UNDER COMMON LAW, OR NOW EXISTS OR IS HEREAFTER ENACTED PURSUANT TO FEDERAL, STATE, COUNTY OR MUNICIPAL LAW OR REGULATION, AND REGARDLESS OF WHETHER THE CONDITION CONSTITUTES A PATENT OR LATENT DEFECT, INCLUDING CLAIMS AND CAUSES OF ACTION UNDER: (A) THE FEDERAL COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT AND/OR ANALOGOUS STATE, COUNTY AND/OR MUNICIPAL LAWS AND REGULATIONS; (B) FEDERAL, STATE, COUNTY AND/OR MUNICIPAL CLEAN WATER AND CLEAN AIR LAWS AND REGULATIONS; (C) FEDERAL, STATE, COUNTY AND/OR MUNICIPAL LAWS AND REGULATIONS CONCERNING HAZARDOUS SUBSTANCES OR WASTES AND THEIR USE, GENERATION, HANDLING, STORAGE OR DISPOSAL; (D) FEDERAL, STATE, COUNTY AND/OR MUNICIPAL LAWS AND REGULATIONS IMPOSING RESTRICTIONS OR PRECONDITIONS ON CLOSURES, TRANSACTIONS OR TRANSFERS OF PROPERTIES OR ENTITIES; AND/OR (E) FEDERAL, STATE, COUNTY AND/OR MUNICIPAL LAWS AND REGULATIONS GOVERNING FLOOD PLAINS, STREAM ENCROACHMENT AND/OR WETLANDS. THE FOREGOING NOTWITHSTANDING, THIS SECTION SHALL NOT PROTECT THE RELEASEES FROM ANY FRAUDULENT ACTS BY ANY OF THE RELEASEES. THIS SECTION 16 SHALL SURVIVE CLOSING AND

AM ENCROACHMENT AND/OR WETLANDS. THE FOREGOING NOTWITHSTANDING, THIS SECTION SHALL NOT PROTECT THE RELEASEES FROM ANY FRAUDULENT ACTS BY ANY OF THE RELEASEES. THIS SECTION 16 SHALL SURVIVE CLOSING AND SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE RELEASEES, INCLUDING SELLER, AND BUYER, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. 17. Entire Agreement. This Agreement constitutes the sole and entire agreement between the parties hereto with respect to the sale of the Property and no modification of this