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 AGREEMENT FOR PURCHASE AND SALE OF PROPERTY THIS AGREEMENT (together with the Exhibits and Schedules attached hereto, this “Agreement”) is made this 28th day of March, 2019 (the “Effective Date”), by and between MONTCLAIR GOLF CLUB, a New Jersey not for profit corporation (“Seller”), and TOWNSHIP OF WEST ORANGE, a body politic of the State of New Jersey (“Buyer”). FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES SET FORTH HEREIN AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS: 1. Terms and Definitions: The terms listed below shall have the respective meaning given them as set forth adjacent to each term. (a) “Broker” shall mean Holliday Fenoglio Fowler, L.P. (“HFF”) (attn.: Jose Cruz) having an address of 200 Campus Drive, Suite 4100, Florham Park, NJ 07932. (b) “Business Day” shall mean a day other than a Saturday, Sunday and days that are federal or State of New Jersey holidays such that the federal or State of New Jersey governments are closed for business. (c) “Closing” shall mean the consummation of the transaction contemplated herein, which shall occur on or about April 30, 2019, such date not being time of the essence because it is subject to Buyer’s right to extend same if necessary for Buyer to satisfy the Contingencies (as defined in Section 8 of this Agreement), through June 30, 2019, TIME BEING OF THE ESSENCE as to such date. (d) “Property” shall mean collectively: (i) that certain real property being known as Lots 22 through 31 in Block 46.01, Lots 2 and 10 in Block 160 and Lots 30 and 34 in Block 160.01 on the Official Tax Map of the Township of West Orange, in the County of Essex, and State of New Jersey, being more particularly described on Exhibit A annexed (the “Real Property”) together with all buildings and other improvements located on the Real Property (collectively, the “Improvements”); and (ii) such rights, if any, of Seller in and to the following: (x) all land lying in the bed of any street or roads open or proposed, in front of, adjacent to, or adjoining the Real Property, to the center line thereof; and

2019.02.13 Rock Spring Club to West Orange 2-13-19 2 (y) all rights-of-way, open or proposed streets, alleys, easements, strips or gores of land adjacent to the Real Property. (e) “Personal Property” shall mean collectively: (i) those items of equipment and other personal property listed on Schedule A; and (ii) the name “Rock Spring.” It is understood and agreed by the parties that the Personal Property shall not include, and Seller does not intend to convey any interest in, the liquor license issued for the Property, or any trophies or tournament or other honorary boards displayed in or stored at the Rock Spring clubhouse, nor shall it include any equipment, intangible property or other personal property that is NOT listed on Schedule A. Upon written notice to Seller delivered no less then fifteen (15) days prior to the Closing, Buyer may require Seller to remove from the Property any items of moveable personal property not listed on Schedule A. The Personal Property shall be delivered at Closing in substantially the same condition as of the Effective Date, subject to ordinary wear and tear. (f) “Purchase Price” shall mean the sum of Eleven Million Two Hundred Eighty-Three Thousand and 00/100 Dollars ($11,283,000.00), which shall be paid in cash at Closing, by way of a wire transfer of immediately available funds to an account(s) designated by Seller, subject to the closing adjustments set forth in this Agreement. In the event the Closing occurs prior to June 30, 2019, so that Buyer is closing earlier than the outside date permitted for Closing pursuant to this Agreement, the Purchase Price shall be reduced by the amount equal to $3,000 multiplied by the number of days falling between the actual Closing date and June 30, 2019 (the “Purchase Price Reduction”). Notwithstanding the foregoing, the parties agree that the maximum Purchase Price Reduction is $183,000, and under no circumstances shall the Purchase Price Reduction exceed the amount of $183,000.00. By way of example, if the Closing occurs on May 31, 2019, then at Closing, the Purchase Price shall be reduced by $90,000, since there are 30 days between May 31, 2019 and June 30, 2019 (so $3,000 x 30 = $90,000). (g) “Seller’s Notice Address” shall be as follows, except as the same may be changed pursuant to the Notice section herein: Montclair Golf Club 25 Prospect Avenue West Orange, New Jersey

0 = $90,000). (g) “Seller’s Notice Address” shall be as follows, except as the same may be changed pursuant to the Notice section herein: Montclair Golf Club 25 Prospect Avenue West Orange, New Jersey 07052 Attention: David Kupstas, General Manager E-mail: dkupstas@montclairgolfclub.org With a copy at the same time to each of: Sills Cummis & Gross, P.C.

2019.02.13 Rock Spring Club to West Orange 2-13-19 3 One Riverfront Plaza Newark, New Jersey 07102 Attention: Jason L. Sobel, Esq. Tel. No.: (973) 643-5295 E-mail: JSobel@sillscummis.com and Christopher P. Gengaro Lentz & Gengaro LLP 347 Mt. Pleasant Avenue, Suite 203 West Orange, New Jersey 07052 E-mail: cpg@lentzgengaro.com (h) “Buyer’s Notice Address” shall be as follows, except as same may be changed pursuant to the Notice section herein: Township of West Orange 66 Main Street West Orange, New Jersey 07052 Attention: Karen J. Carnevale, Municipal Clerk Email: KCarnevale@westorange.org With a copy at the same time to: Kenneth Kayser, Assistant Township Attorney 66 Main Street West Orange, New Jersey 07052 Tel. No.: (973) 325-9976 Email: kenkayser@verizon.net 2. Proration of Expenses and Payment of Costs and Recording Fees. (a) Prorations. Seller and Buyer agree that all real estate taxes and assessments (including water and sewer charges that are a lien against the Property) shall be prorated on a calendar-year basis, or other basis as appropriate, as of midnight on the day immediately preceding the date of Closing. If Closing shall occur before the actual taxes and assessments (including water and sewer charges that are a lien against the Property) payable during such year are known, the apportionment of taxes and assessments (including water and sewer charges that are a lien against the Property) shall be upon the basis of taxes and assessments (including water and sewer charges that are a lien against the Property) for the Property payable during the immediately preceding year, provided that if the taxes and assessments (including water and sewer charges that are a lien against the Property) payable during the year in which Closing occurs

2019.02.13 Rock Spring Club to West Orange 2-13-19 4 are thereafter determined to be more or less than the taxes payable during the preceding year, Seller and Buyer promptly shall adjust the proration of such taxes and assessments (including water and sewer charges that are a lien against the Property), and Seller or Buyer, as the case may be, shall promptly pay to the other any amount required as a result of such adjustment and this covenant shall survive Closing for a period of 180 days. In the event that accurate prorations and other adjustments cannot be made at Closing because current bills and other material information are not obtainable, Seller and Buyer shall prorate on the best available information, subject to a further adjustment to be made and paid promptly following receipt of the final bills and/or material information, which covenant shall survive Closing for a period of 180 days. If there are confirmed assessments for municipal improvements affecting the Property, which assessments are to be paid in installments, then (i) Seller shall pay those installments which are due prior to the year of the Closing, (ii) Buyer shall pay those installments that are due following the year of the Closing, and (iii) Seller and Buyer shall adjust between them those installments that are due for the year of the Closing for their respective pro-rata share of such assessment, based on their period of ownership of the Property for such year. If there are unconfirmed assessments for municipal improvements affecting the Property, then Buyer shall pay those assessments. (b) Buyer and Seller Expenses. At Closing: (a) Buyer shall pay: (i) the premium and related charges for any title insurance policy and endorsements to be issued to Buyer, (ii) the recording fees necessary to record the deed at the register of deeds office where the Property is located, and (iii) any so called “Mansion Tax”, if applicable; and (b) Seller shall pay the recording fees necessary to record the discharge of any liens of record required to be discharged by Seller in accordance with this Agreement as well as the realty transfer fee pursuant to N.J.S.A. 46:15-7 and 7.1, if applicable. Buyer shall be responsible for the cost of its own survey, environmental reports and due diligence investigations. Seller and Buyer shall be responsible for their own attorney’s fees. The provisions of this

shall be responsible for the cost of its own survey, environmental reports and due diligence investigations. Seller and Buyer shall be responsible for their own attorney’s fees. The provisions of this Section 2 shall survive Closing for a period of 180 days. 3. Sale of Property and Personal Property. Subject to the terms of this Agreement, Seller agrees to sell the Property and the Personal Property for the Purchase Price and Buyer agrees to purchase the Property and the Personal Property for the Purchase Price. 4. Payment of Purchase Price. Buyer shall pay the Purchase Price to Seller at Closing in accordance with all of the terms and conditions of this Agreement, and specifically subject to the Purchase Price Reduction. 5. Title. Subject to Buyer’s right to review and raise objections to title pursuant to Section 6 below, at Closing Seller agrees to convey to Buyer fee simple title to the Real

2019.02.13 Rock Spring Club to West Orange 2-13-19 5 Property and Improvements by a bargain and sale deed with a covenant against grantor’s acts, subject only to: (a) zoning and building regulations, ordinances and requirements adopted by any authority having jurisdiction over the Real Property and Improvements; (b) subsurface conditions affecting the Real Property and Improvements not disclosed by any instrument recorded in the county records; (c) such facts as shown on a survey prepared by Stewart Associates, Inc., dated June 30, 2014, and bearing Drawing Number 14-4940, and such facts as a current accurate survey may disclose provided same do not render title unmarketable; (d) easements, covenants, restrictions, reservations, rights of way, grants and other matters of record, (e) taxes for the current year and subsequent years not yet due and payable; (f) the state of compliance or non-compliance of the Property with any federal, regional, state, county or local laws, statutes, ordinances, rules, regulations, orders, codes, directives and requirements now or hereafter in force, including all environmental laws, statutes, ordinances, rules, regulations, orders, codes, directives and requirements now or hereafter in force, all judicial and administrative decisions and directives in connection with the enforcement thereof and the common law (“Law”); and (g) such other exceptions, as set forth on Schedule D, attached hereto, and state of title as set forth in the Baseline Title Report, as defined in Section 6(a), (all of the foregoing items, (a)-(g) inclusive, being collectively, the “Permitted Exceptions”). 6. Examinations. Seller and Buyer hereby agree as follows: (a) Title Examination. Buyer has ordered prior to the Effective Date, and hereby accepts a title report and commitment in (the “Baseline Title Report”) from Commonwealth Land Title Agency, Inc. (the “Title Company). Prior to the Effective Date, the parties reviewed (i) the Baseline Title Report, and (ii) the survey of the Property, and agreed in writing as to what exceptions will remain and what exceptions the Seller will remove. Notwithstanding the foregoing, Seller shall be required to provide the Title Company with a title affidavit substantially in the form and containing the terms set forth on Exhibit B annexed and to cure on or before Closing, any monetary liens created by Seller against the

itle Company with a title affidavit substantially in the form and containing the terms set forth on Exhibit B annexed and to cure on or before Closing, any monetary liens created by Seller against the Real Property whether or not shown on the Baseline Title Report (the “Required Removal Items”). Seller represents that any Required Removal Items will be satisfied at Closing, and that there is sufficient equity in the Property to satisfy same. In the event that either (i) a lis pendens has been filed against the Property that has not been discharged as of the Closing Date (a “Lis Pendens”), or (ii) an injunction preventing the sale of the Property to Buyer has been issued by a court of competent jurisdiction that has not been dissolved or vacated (an “Injunction”), then the Buyer shall not be required to Close until such time as the Lis Pendens or the Injunction has been discharged, vacated or dissolved (a “Discharge”), provided, however, that either party may terminate this Agreement if a Discharge has not been issued by a Court of competent jurisdiction within ninety (90) days of the date that the Lis Pendens or Injunction was filed. It is specifically understood and agreed by the parties that Buyer shall be required to Close even if an appeal has been

2019.02.13 Rock Spring Club to West Orange 2-13-19 6 filed, may be filed, or is pending, with respect to an application for an Injunction or a Discharge. (b) Updated Title Examination. If the Baseline Title Report is updated after the Effective Date, Buyer shall have the right to object (each, a “New Buyer Objection”) to any additional and unique material matters disclosed (each, a “New Title Document Matter”) in any such update of the Baseline Title Report, provided that Buyer gives Seller notice of the New Buyer Objection within the earlier of three (3) days of its receipt of the New Title Document Matter or at Closing. Seller shall notify Buyer within the earlier of three (3) days or at Closing, whether Seller will cure the New Buyer Objection. If Seller does not respond, Seller shall be deemed to have elected not to cure the New Buyer Objection. If Buyer fails to deliver the New Buyer Objection to Seller within the three (3) days or at Closing time period, then Buyer shall be deemed to have waived its right to object to any New Title Document Matter and shall close subject to the Permitted Exceptions. If Seller is unable or unwilling to cure any such New Buyer Objection within the time period set forth above, Buyer shall have the right by notice given to Seller within the earlier of three (3) days after receipt of Seller’s notice (or within three (3) days after the expiration of Seller’s three (3) day response period, if Seller does not respond) or at Closing, either to (i) waive such New Buyer Objection and proceed to Closing without any abatement or reduction of the Purchase Price, or (ii) terminate this Agreement. If Buyer fails to elect to waive the New Buyer Objection and close the Transaction in accordance with this Agreement by notice given to Seller within the three (3) days/Closing period, or to terminate the Transaction, then Buyer shall be conclusively deemed to have elected to waive the New Buyer Objection and close the Transaction. The parties shall follow the same procedure outlined above with respect to additional New Buyer Objections, if any. (c) Removal of Title Objections. Except with respect to the Required Removal Items, Seller shall not be under any obligation to remove or otherwise address any New Buyer Objections. If Seller agrees to clear or remove any New Buyer Objections, then Seller shall have the right until Closing to satisfy

be under any obligation to remove or otherwise address any New Buyer Objections. If Seller agrees to clear or remove any New Buyer Objections, then Seller shall have the right until Closing to satisfy the foregoing; however, except with respect to the Required Removal Items, a failure by Seller to do so shall not be deemed a default by Seller and Buyer’s sole remedy shall be to either waive the New Buyer Objection, without any abatement or reduction of the Purchase Price, or to terminate this Agreement on notice to Seller given no later than Closing. Seller shall have the right, upon notice to Buyer given on or prior to Closing, regardless of any time of the essence date provision that may be applicable, to adjourn Closing for up to ten (10) Business Days in the aggregate, to address any New Buyer Objections. Seller need not discharge or release any Required Removal Items before Closing. At Closing, if the Title Company will not agree to insure over or issue a title