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 17 Agreement shall be binding unless in writing and signed by the parties hereto. No prior agreement or understanding with respect to the sale of the Property (including any letter of intent executed prior to this Agreement) shall be valid or of any force or effect from and after the date hereof. The Section headings in this Agreement are inserted for convenience of reference only and in no manner expand, limit or otherwise define the terms hereof. All exhibits and schedules are incorporated herein by reference as if set forth at length herein. Each party acknowledges that such party and its counsel, after negotiation and consultation, have reviewed and revised this Agreement. As such, the terms of this Agreement shall be fairly construed and the usual rule of construction, to wit that ambiguities in this Agreement should be resolved against the drafting party, shall not be employed in the interpretation of this Agreement or any amendments, modifications, schedules or exhibits hereto or thereto. In no event shall any draft of this Agreement create any obligation or liability, it being understood that this Agreement shall be effective and binding only when a counterpart hereof has been executed and delivered by each party hereto. For purposes of this Agreement, “including” no matter how conjugated shall mean “including, without limitation.” 18. Third Parties. Except as expressly provided in this Agreement, nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement upon any other person other than the parties hereto and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, nor shall any provision give any third parties any right of subrogation or action over or against any party to this Agreement. 19. Applicable Law. This Agreement shall be construed under the laws of the State of New Jersey without giving effect to its conflicts of law principles. The parties acknowledge that this Agreement was made and is intended to be performed in the State of New Jersey and the parties submit to the jurisdiction of the courts of the State of New Jersey in any action or proceeding between or among the parties or otherwise concerning

erformed in the State of New Jersey and the parties submit to the jurisdiction of the courts of the State of New Jersey in any action or proceeding between or among the parties or otherwise concerning the Transaction. 20. Buyer Milestones. Notwithstanding anything to the contrary in this Agreement, Buyer and Seller have mutually agreed on the following milestones set forth in this Section 20. Agreement to these milestones is acknowledged by the parties to be a material provision of this Agreement and they understand that without the inclusion of the terms set forth in this Section 20, Seller would not have agreed to proceed with the sale of the Property to Buyer. Buyer hereby agrees that it shall utilize best efforts and act with reasonable expediency to meet the following milestones for completion of the following items, (all of which shall take place in calendar year 2019, on the dates listed below): March 28 Buyer execution of this Agreement April 10 Expiration of 20-day appeal/estoppel period for Bond Ordinance which enables bonds to be issued for sale April 30 Closing Further notwithstanding anything to the contrary in this Agreement, in the event that Buyer does not meet, or is otherwise unable to complete or fulfill any of the milestones set forth in this

2019.02.13 Rock Spring Club to West Orange 2-13-19 18 Section 20, by the date listed above for such milestone, unless such failure of any such milestone was the result of an occurrence of Force Majeure (as defined herein below), Seller may terminate this Agreement, in Seller’s sole and absolute discretion. Seller’s termination shall be effectuated by delivery of written notice to Buyer of Seller’s termination of this Agreement, including the specific deadline which Buyer failed to meet. Seller’s termination pursuant to this Section 20 shall be automatically and immediately effective upon receipt of the notice by Buyer, unless prior to receipt of such termination notice, Buyer has performed or completed the previously incomplete or failed milestone for which Seller has based its termination on, in which case the termination notice sent by Seller with respect to such failed milestone, shall be deemed null and void and this Agreement shall continue as per its terms. Buyer agrees to notify and update Seller, with respect to Buyer’s progress with, and completion of each of the above milestones. For purposes of this Agreement, the term “Force Majeure” shall be defined as the inability of any party to timely fulfill any of its obligations under this Agreement by reason of any strike, lockout or other labor trouble; inability to obtain labor, materials, coal, oil, or other suitable fuel or reasonable substitutes therefor or the failure of the supply of any thereof; acts of God (including but not limited to any weather event) fire or other casualty; governmental preemption of priorities or other controls in connection with a public emergency; governmental restrictions or requirements of laws; enemy or hostile governmental action; civil commotion; or any other cause beyond such party’s control. In the event that a milestone is not met by the deadline as a result of a Force Majeure, then the time to complete that milestone shall be extended for a period of time equal to the duration of the Force Majeure, or commensurate with the delay caused by the Force Majeure. Notwithstanding the foregoing, the June 30, 2019 Closing Date is not subject to any delay as a result of Force Majeure. 21. Maintenance of Golf Course Prior to Closing. Seller agrees to maintain the golf course located on the Real Property (the “Golf Course”) pursuant to the maintenance schedule set forth on

e Majeure. 21. Maintenance of Golf Course Prior to Closing. Seller agrees to maintain the golf course located on the Real Property (the “Golf Course”) pursuant to the maintenance schedule set forth on Schedule B, attached hereto and made a part hereof (the “Golf Course Maintenance”). It is specifically understood and agreed that Seller is only required to perform those items specifically set forth on Schedule B. In exchange for Seller completing the Golf Club Maintenance, in the event the Closing occurs, Buyer agrees to provide for it to be paid to Seller by a third party, at Closing, the amount of Sixty-One Thousand Three Hundred Eight and Seventy-Five Hundredths Dollars ($61,308.75) (the “Maintenance Payment”), which payment shall be in addition to the Purchase Price. The parties understand and agree that if the Closing does not occur, Buyer shall have no liability to Seller for the cost of Golf Course Maintenance. The Maintenance Payment is contemplated to be made by a golf course operator to be selected by Buyer through competitive bidding in accordance with the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq. (the “Golf Course Operator”). Buyer’s obligation with respect to this payment is to (i) include the requirement to make the foregoing payment in the request for proposal (the “RFP”); and (ii) to ensure that any successful bidder to the RFP agrees to place the Maintenance Payment in escrow, which shall be held and disbursed pursuant to the terms of that certain escrow agreement attached hereto as Exhibit G (the “Maintenance Payment Escrow Agreement”). 22. Broker’s Commissions. Buyer and Seller each hereby represent that, except for the Broker, there are no other brokers or finders involved or that have a right to proceeds in this transaction. Seller shall be responsible for payment of a commission to the Broker pursuant to a separate, previously negotiated agreement. Seller and Buyer each hereby agree to indemnify and

2019.02.13 Rock Spring Club to West Orange 2-13-19 19 hold the other harmless from all loss, cost, damage or expense (including, without limitation, reasonable attorneys' fees at both trial and appellate levels) incurred by the other as a result of any claim arising out of the acts of the indemnifying party (or others on its behalf) for a commission, finder's fee or similar compensation made by any broker or finder who claims to have dealt with such party (except that Buyer shall have no obligations hereunder with respect to any claim by the Broker with respect to the Transaction). Seller’s indemnity shall include any claims, fees or other compensation due to the Broker. The representations, warranties and indemnity obligations contained in this section shall survive Closing. 23. Attorneys’ Fees. In all cases each of the parties to this Agreement shall be responsible for its own attorney’s fees and costs. 24. Counterparts/Facsimile/PDF Signatures. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become a binding agreement when one or more counterparts have been signed by each of the parties and delivered to the other party. The exchange of executed copies of this Agreement by facsimile or Portable Document Format (PDF) transmission shall constitute effective execution and delivery of this Agreement as to the parties for all purposes; signatures of the parties transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. 25. Computation of Time. Any time period provided for in this Agreement that ends on a Saturday, Sunday or legal holiday shall extend to 5:00 p.m. New York time on the next full Business Day. 26. Waiver of Jury Trial. SELLER AND BUYER JOINTLY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH SELLER AND BUYER MAY BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS AGREEMENT. This waiver is knowingly, willingly and voluntarily made by Seller and Buyer, each of whom hereby acknowledges that no representations of fact or opinion have been made by any individual to induce this waiver of trial by jury or to in any way modify or nullify its effect. Seller and Buyer each further represent that it has been represented in the signing of this Agreement in the making of this waiver by independent legal counsel, selected of

dify or nullify its effect. Seller and Buyer each further represent that it has been represented in the signing of this Agreement in the making of this waiver by independent legal counsel, selected of its own free will, and that it has had the opportunity to discuss this waiver with counsel. 27. Partial Invalidity. If any term, covenant or condition of this Agreement shall be invalid or unenforceable, the remainder of this Agreement shall not be affected and shall remain in full force and effect. 28. Reporting Person. Seller and Buyer hereby designate the Title Company to act as and perform the duties and obligations of the “reporting person” with respect to the Transaction for purposes of 26 C.F.R. Section 1.60454(e)(5) relating to the requirements for information reporting on real estate transaction closed on or after January 1, 1991. In this regard, Seller and Buyer each agree to execute at Closing, and Buyer shall cause the Title Company to execute at Closing, a Designation Agreement in form reasonably acceptable to Seller and Buyer, designating the Title Company as the reporting person with respect to the Transaction contemplated by this Agreement.

2019.02.13 Rock Spring Club to West Orange 2-13-19 20 29. No Offer. This Agreement is of no force or effect unless and until it is signed by both Seller and Buyer, and a signed copy of this Agreement delivered by Seller to Buyer. The mailing, delivery or negotiation of this Agreement by Seller or Buyer or any agent or attorney of Seller or Buyer prior to the execution and delivery of this Agreement as set forth in this Section 29 shall not be deemed an offer by Seller or Buyer to enter into this Agreement, whether on the terms contained in this Agreement or on any other terms, nor shall it create any contractual obligation on the part of either Seller or Buyer as to this Agreement or the continued negotiation thereof. Until the execution and delivery of this Agreement as set forth in this Section 29, Seller or Buyer may withdraw this Agreement, change any of the terms of this Agreement, negotiate with other prospective buyers or prospective tenants, or both, and terminate all negotiations and discussions of the subject matter of this Agreement, without cause and for any reason or no reason, without recourse or liability. In addition to the above, and notwithstanding the foregoing, Buyer as a municipal body must have this Agreement signed by Seller in order to be accepted by Resolution of Buyer. In the event that Buyer has not taken the requisite action to accept and execute this Agreement on or before March 28, 2019, Buyer understands that Seller may immediately withdraw the offer to sell the Property to Buyer in Seller’s sole and absolute discretion, whereupon this Agreement or any offer related to the sale of the Property to Buyer shall be null and void, and of no force or effect. 30. No Joint Venture. This Agreement does not and shall not be construed to create a partnership, joint venture or any other relationship between the parties hereto except the relationship of seller and buyer specifically established hereby. 31. No Recordation. Buyer shall not record this Agreement or any memorandum hereof. 32. Notification of Sale. At least ten (10) Ten Business Days prior to the closing of title, Buyer shall submit a completed form C-9600, Notification of Sale, Transfer or Assignment in Bulk, signed by Buyer, together with a fully-executed copy of this Agreement (the “Tax Notification”), to the Bulk Sale Section of the Department of Treasury, Division of

le, Transfer or Assignment in Bulk, signed by Buyer, together with a fully-executed copy of this Agreement (the “Tax Notification”), to the Bulk Sale Section of the Department of Treasury, Division of Taxation, State of New Jersey (the “Bulk Sale Section”), by registered or certified mail or overnight delivery, in order to provide time, as required by law, for the Director of the Division of Taxation (the “Director”) to advise the parties whether any sums from the sale proceeds shall be held by the law firm of Sills, Cummis & Gross, P.C. (the “Tax Escrow Agent”) in escrow (the “Tax Escrow Fund”), and paid over, in whole or in part, to the Department of Treasury upon its demand for same, with the remainder, if any, to be paid over to Seller without any right of setoff. The Tax Escrow Fund shall be held by Tax Escrow Agent pursuant to a tax escrow agreement in the form and containing the terms set forth in Exhibit F annexed hereto, which shall be executed at the closing of title by the parties and Tax Escrow Agent. Buyer shall provide Seller a copy of the Tax Notification not less than five (5) business days prior to its submission of the same to the Bulk Sale Section. Seller shall have the right to prepare and file an Asset Transfer Tax Declaration (the “TTD”) in the form prescribed by the Director. If Seller delivers the TTD to Buyer in a sealed envelope before Buyer has filed the Tax Notification, then Buyer shall include the TTD with the Tax Notification in such sealed envelope when it files the Tax Notification with the Bulk Sale Section. If the Bulk Sale Section or the Director fails to

2019.02.13 Rock Spring Club to West Orange 2-13-19 21 timely respond as required by law, then there shall be no Tax Escrow Fund. The provisions of this Section shall survive the closing of title. [SIGNATURES APPEAR ON THE FOLLOWING PAGES]

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