EFTA00312957.pdf

(viii) Commencing as of the date here of and through the date of closing of title hereunder, Seller shall: (a) not grant, sell or convey any inte the Premises, including easements, righ rest in ts-of-way or liens, to any person, corporation,_ public or private, governmental body or political subdivision, without the prior written consent of Purchaser (except that (i) Purchaser agre es not to unreasonably withhold its consent to the grant, sale or conveyance of util- ity or similar easements that do not adve rsely affect Pur- chaser's intended use of the Premises, and (ii) Seller may mortgage the Premises to secure obligati ons that do not exceed Ten Million Dollars ($10,000,000.00) in the aggregate); and (b) maintain the improvements located Premises in good condition, subject on the to reasonable wear and tear and natural deterioration. 24. The obligation of Purchaser to Closing is subject to the fulfillment of proceed to the the following condi- tions, except to the extent that any of such waived by Purchaser: conditions may be (i) Title to the Premises shall be chaser as provided in Paragraph 15 as of acceptable to Pur- the Closing Date; (ii) The representations and warr contained in Paragraph 22, except as cont anties of Seller ained in subpara- graph 22(A)(viii) thereof, or otherwise made in writing shall be true and correct in all material respects Date as though made on such date, except as of the Closing for any change contem- plated or permitted by this Contract; (iii) Seller shall have duly performe all agreements and conditions required d and complied with by this Contract to be performed and complied with by Seller; (iv) Seller shall have delivered to cate executed by Seller to the effect Purchaser a certifi- that, as of the Closing Date, all representations and warranties made by Seller under this Contract and all certificates and exhibits given and delivered to Purchaser pursuant to this Contract are, to the best of Seller's knowledge, true and corr ect; (v) This Contract shall not have been herein provided; and terminated as (vi) Seller shall have received or Seller shall have determined same Seller's Court Approvals is unnecessary in -17- EFTA00312957  connection with the tran saction contemplated and Purchaser's attorney by this Contract, and the Title Compan y agree therewith. 25. Each and every on shall constitute a de e of the following fault of Seller unde events "Event of Default"); r this Contract (an (i) A defaul paid by Seller pursua t in the payment of any amounts due to nt to this Contract; be (ii) A fail insurance as set fort ure of Seller to deliver certificates h in subparagraph of 23(v) hereof; (iii) Any fail the other covenants, te ure of Seller to observe or perform rms or conditions any of tract; set forth in this Con- (iv) A failure by Sell improvements located er to adeq following the dama on the Premises agai uately secure the ge or destruction of nst further damage the improvements by all or any portio fire or other casual n of ty; and (v) Should any re Seller in this Contra presentation or ct prove to be untrue warranty made by respect and as a resu in any material lt of said untruth, ises is materially ad the value of the Pr versely affected th em- ereby. 26. If there has under this Contract, been an Event of De and the Event of fault by Seller fifteen (15) days afte Default continues r Seller has receiv for thereof from Purcha ed written notice ser (except that if shall require more than such Event of Defa fifteen (15) days ult shall not have remedi to remedy, and Se ed such Event of ller of time reasonably re Defaul quired to remedy said t within a period then, in that event, Event of Default) Pu notice to Seller and, rchaser shall send an additional wr , if Seller fails to itten Default within five (5) days after receip remedy said Event of ond written notice, th t of Purchaser's en Purchaser shal (i) terminate this Co l have the option sec- ntract, or (ii) ta to Seller's default, pr ke action to cu ovided, however, re lowing an Event of De that fault, enter into or Purchaser may, fol- either personally or upon the Premises by its agents, no , cure such default. minees or atto Such option of Pu rneys, to by written notice to rchaser shall be Seller. In the ev exer minates this Contra ent that Purchase cised ct as provided in party shall have an this Paragraph 26 r ter- y liability whatso , hereunder except th ever to the other neither at Purchaser shall return of the Lett be entitled to er of Credit or the (i) a case may be, and proceeds thereof, (ii) reimbursement fo r the net charge as the s for -18- EFTA00312958  surveys and examinatio n of title actually as evidenced by paid re incurred by Purchase ceipts provided to r the occurrence of any Seller. Following Event of Default, Pu ally or by his agents rchaser may person or attorneys insofar - ble, take such steps as may be applica- to protect and enfo or proceeding in equity rce his rights by su for the specific pe it Contract, in all even rformance of this ts Seller shall prom of Credit or the proc ptly return the Lett eeds thereof, as the er chaser and reimburse case may be, to Pur- Purchaser for the ne and for examination. t of title actually incu charges for surveys evidenced by paid re rred by Purchaser as ceipts provided to Se ller. 27. If, prior to th the Premises is take e Closing Date, any n portion of Purchaser of such fa by eminent domain, Seller shall notify ct terminate this Contra and Purchaser shall have the option to ct upon notice to Se than sixty (60) days ller given not later after receipt of Se Contract is terminat ll er's notice. If th ed as aforesaid, th the proceeds thereo e Letter of Credit or is f, Escrow Agent to Purcha as the case may be, shall be returned ser and, thereafter by nor Seller shall have , neither Purchase an y further rights or ob r other hereunder. In ligations to the case of any such ta elects not to terminat king, if Purchaser be no abatement of th e this Contract as aforesaid, there e Purchase Price bu shall and turn over at the t Seller shall assign closing of title, entitled to receive and Purchaser shall and keep, all awards he for such taking. The provision of th place of Section 5-13 is Paragraph 27 sh 11 of the General all govern in Obligations Law. 28. If, prior to tion of the Premises the Closing Date, al is destroyed or dama l or any por- casualty, Seller sh ged by fire or ot al he chaser shall have no l notify Purchaser of such fact but Pu r option to terminat r- the closing of title e shall occur as prov this Contract; rather, except as otherwise ided in this Co provided in the last ntract graph 28, and ther e shall be no abat sentence of this Pa , ement of the Purcha ra- Price, provided, howe se ver, that, at Seller by notice to Purchase 's option, exer r cise such casualty, Seller within ten (10) days after the date d may elect either of age, and the Closing shal to (i l be adjourned at ) repair the dam- one or more periods, Seller's request not to extend beyo for order to permit Sell nd September 1, 19 er to make such re 90, in reimbursed from insu pair, and Seller rance proceeds re shall be for expenses incurr ceived or to be re ed in connection wi ceiv legal expenses and ex th the repair, incl ed penses of collecti uding Seller may retain th on e proceeds remaining of the proceeds, and expenses associated after payment of with the repair, if all shall assign and tu any, or (ii) Seller rn over, at the cl osing of title here under, -19- EFTA00312959  and Purchaser shall be entitl ed to receive and keep, all ance proceeds paid or to be pai ins d to compensate for the dam ur- to the Premises caused by age such casualty that remain aft and other expenses of collec er legal tion, without further aba the Purchase Price. In the eve tement of nt Seller elects not to rep as above provided, then,•at Sel air ler's option, the Closing may be accelerated to such oth Date er date (but in no event ear than 60 days after the date lier Purchaser receives notice of Seller's election) as may be rea giving due consideration to the sonably requested by Seller fact that Seller operat school. es a The provisions of this Par place of Section 5-1311 of agraph 28 shall govern in the General Obligations Law . 29. Seller and Purchaser cute, verify and deliver to each shall complete, exe the appropriate party, in - manner so as not to delay a timely the Closing, any appropria questionnaires, affidavits te returns, or other documents required respect to Article 31B of with the New York Tax Law (the "Ga Law") by reason of the tra ins Tax nsaction contemplated by tract and which are required this Con- to be completed, executed, delivered or verified by Sel ler and Purchaser, respectiv Seller and Purchaser shall ely. each have the right to returns, questionnaires, aff review the idavits and other documents the other party proposes which to deliver prior to such del the event that either Seller ivery. In or Purchaser does not del returns, questionnaires, aff ive idavits and other documents r such timely manner so as not to in a delay the Closing, Seller chaser, as the case may or Pur- be, is hereby authorized to such documents on behalf of delive the other party. Seller sha r any tax which may be det ll pay erm Law in connection with thi ined to be due under the Gains Tax s transaction. Seller sha indemnify and hold Purchaser ll defend, claims based on a breach harmless with respect to all or alleged breach by Seller obligations contained in thi of its s Paragraph 29, and Par and the first sentence of agraphs 8, 9 Paragraph 23(ii), together and all losses, damages, with any costs and expenses (inclu able attorneys' fees and dis ding reason- bursements) relating to or arising therefrom or such claims incurred by Purchaser in con with the enforcement of nection this provisions of this Paragraph indemnification provision. The shall survive the Closin g. 30. Seller shall comple deliver to the appropria te, execute, verify and te authorities a certif form substantially similar ication in the to that set forth on annexed hereto and made a Exhibit D part hereof, and such ments, affidavits or certif other docu- icates which may be completed, executed, delive requir red or verified by Seller ed to be -20- EFTA00312960  (collectively, the "Other Document s") with respect to Section 1445 of the Internal Revenue Code of 1986 (the cation") by reason of the transactions cont "FIRPTA Certifi- emplated by this Contract. 31. Purchaser.agrees that it will not interest in this Contract unless Seller assign its shall have consented thereto by a signed writing, which consent may be withheld for any or no reason at Seller's sole and abso lute discretion. Notwithstanding the foregoing, Purchase r may assign his inter- est in this Contract to any family member or any corporation, partnership or trust which is controlled directly or indi- rectly, through ownership, agreement or otherwise, by Pur- chaser-, or to The Wexner Foundation, The dation, The Wexner-Heritage Foundati Leslie H. Wexner Foun- on or any other charitable foundation formed by Purchaser or of whic h he is a past or present trustee, director or other fiduciar y. 32. Purchaser and Purchaser's designee the right to enter into and upon the Premises s shall have Closing Date, from time to time, during prio r to the school breaks or recesses or after school hours, and upon reasonable notice, for purposes of arranging for certain renovati on, decorating and remodeling of the Premises which Purchaser after the Closing (the "Renovation Work"), intends to perform that Purchaser shall be liable to Seller provided, however, for any damage or destruction to the Premises caused by the inspection thereof pursuant to this Paragraph 32, includin g, but not limited to, liability for any Violations, including Violations with respect to asbestos, created thereby, and, in no even t, shall Purchaser or its designees have any right to puncture the walls or ceil- ings, drill into same or otherwise inva de the spaces bounded thereby. In connection with Purchaser's preparations for the Renovation Work, the Seller shall coop erate with Purchaser in (i) the obtaining of any and all permits, icates required by any governmental or approvals and certif- other authorities, including, without limitation, public util ities and landmark authorities (collectively, "the Perm its"), and shall promptly execute any applications, certificates, documents or papers requested by Purchaser in connection therewith, provided, how- ever, that Purchaser pays all of the costs and expenses of Seller incurred in connection therewith, attorneys'- fees and disbursements and including reasonable (ii) the prosecution of any legal or administrative proceedings or actions to the extent reasonably requested by Purchase r, at Purchaser's expense, and Seller shall not withhold its consent to the pros- ecution of any such proceedings or acti ons in the name of Seller, if, in the reasonable opinion of counsel to Purchaser, such action or proceeding should be prosecuted in the name of -21- EFTA00312961  Seller for the success thereo f. Purchaser shall indemnify Seller against all reasonabl e costs and expenses of, and cla which may be asserted agains ims t Seller in connection with, Seller's prosecution of any legal or administrative procee or actions as aforesaid. Sel dings ler shall, at the Closing, ass to Purchaser, in the manner ign and to the extent directed by chaser, all of the right, tit Pur- le and interest of Seller und all of the Permits to the er extent assignable and not req connection with the operation uired in of a school by Seller in whi case, Purchaser shall assume ch obligations arising under all of Seller's liabilities and the Permits from and after the of such assignment. Purchaser date expenses of Seller, including shall pay all of the costs and reasonable attorneys' fees and disbursements incurred by Sel ler in connection with the ment of the Permits to Purcha assign- ser. The covenants contai this Paragraph shall surviv ned in e the Closing. 33. Any errors or omissions ments at the Closing shall in computing apportion- be corrected promptly after discovery. The provisions of their Closing. this Paragraph shall sur vive the 34. This Contract (a) con between the parties hereto, tains the entire agreement (b) is entered into after investigation, neither party full relying upon any statement resentation, not embodied in or rep- this Contract, made by the (c) may not be changed, modifi other, by an instrument in writin ed or terminated orally, but g, signed by the party aga only enforcement of any waiver, inst whom modification or discharge and (d) is to be deemed to is sought, have been jointly prepared parties hereto, and any unc by the ertainty or ambiguity exi herein, if any, shall not sting be interpreted against eit but shall be interpreted acc her party, ording to the application rules of interpretation for of the arm's-length agreement ulations aforesaid are to s. The stip— apply to and bind the hei tors, administrators, succes rs, execu- sors and assigns of the parties. If any term or pro respective vision of this Contra any extent, be invalid or une ct shall, to nforceable, the remainder Contract shall not be affect of this ed thereby, and each ter vision of this Contract sha m and pro- ll be valid and be enf fullest extent permitted by orced to the law. 35. If two or more person or Purchaser, the word 'Selle s constitute either r' or the word "Purch Seller be construed as if it read aser" shall "Sellers' or "Purchase the sense of this Contract rs" whenever so requires. 36. Anything contained in trary notwithstanding, but this Contract to the con subject, however, to - the terms and -22- EFTA00312962  provisions of subparagraph 39.C.(B) hereof, the liability of Seller upon Seller's default under this Contract shall be lim- ited to Seller's interest in the Premises, or any part thereof, and no other property or assets of Seller shall be subject to levy, execution or other enforcement proc edure for the satis- faction of Purchaser's claims or any judg ments against Seller. Purchaser, by his execution of this Cont ract the event he pursues any remedies availabl , agrees that, in e to him hereunder or under instruments delivered pursuant to this Contract, Pur- chaser shall have no monetary recourse against Seller or any of Seller's successors or assigns other than as hereinabove set forth, nor against any officer, sharehol der, director, trustee, principal, employee or agent of Sell er, or any of such succes- sors' or assigns' officers, shareholders , directors, trustees, employees, principals or agents for any deficiency, loss or claim for monetary damages resulting therefrom, and none of the personal property or assets of any of the foregoing persons shall be subject to levy, execution or other enforcement proce- dure for the satisfaction of the reme dies of Purchaser hereunder. Upon Seller's default pursuant to this Contract, if Seller shall promptly return the Letter of Credit or the pro- ceeds thereof, as the case may be, and reim the cost of title examination and survey, burse Purchaser for then Purchaser's sole remedy hereunder is to seek specific performance for the enforcement of this Contract. 37. No waiver by either party of any refusal by the other party to comply with failure or its obligations here- under shall be deemed a waiver of any othe r or subsequent fail- ure or refusal to so comply. 38. This Contract shall be governed under, and construed and enforced in by, interpreted accordance with, the laws of the State of New York. 39. The Letter of Credit shall be Fowler (the 'Escrow Agent") in escrow held by Battle upon the following terms and conditions: A. If the closing of title take s place, Escrow Agent shall either (i) draw upon the Letter of proceeds of the Letter of Credit to, Cred it and deliver the or upon the instructions of, Seller at the closing of title or (ii) if Purchaser delivers written notice to Seller and Escrow Agent at least ten (10) days prior to the closing of titl e that Purchaser intends to pay to Seller by cash or good cert ified check the amount of the Downpayment, then, upon such paym ent by Purchaser to Seller at the closing of title, Escrow Agen t shall return the Letter of Credit to, or upon the instructions of, Purchaser at the closing of title. -23- EFTA00312963  B. If this Contract is terminated in acco rdance with the terms hereof, and the party entitled to the proceeds of the Letter of Credit in accordance with the provisions of this Con- tract is Seller, Escrow Agent shall draw upon the Letter of Credit and deliver the proceeds thereof to, or upon the instructions of Seller; otherwise, if the party entitled to the return of the Letter of Credit in accordan ce with the provi- sions of this Contract is Purchaser, the Letter of Credit shall be so returned to Purchaser. C. (A) If Seller shall be ready, willing to close title in full compliance with and able its obligations under this Contract, and if Purchaser shall defa ult in its obliga- tions under the terms of this Contract , Seller shall deliver written notice to Escrow Agent and Purc haser claiming Pur- chaser's default, and, if Purchaser fail s to contest such claim by written notice to Escrow Agent rece ived by Escrow Agent within ten days after receiving Seller's notice as aforesaid, then Escrow Agent shall draw upon the Lett er of Credit and Seller shall be entitled to receive, and Escrow Agent shall deliver to Seller, the proceeds received by drawing on the Let- ter of Credit, and, thereupon, Escrow Agent's responsibilities under this Contract shall terminate. (B) If Purchaser shall be ready, willing close title in full compliance with and able to its obligations under this Contract, and if Seller shall default in its obligations under the terms of this Contract, Purchase r shall deliver written notice to Escrow Agent and Seller claiming Seller's default, and, if Seller fails to contest such claim by written notice to Escrow Agent received by Escrow Agent within ten days after receiving Purchaser's notice as aforesaid, then Purchaser shall be entitled to receive, and Escrow Agent shall return to Pur- 'chaser, the Letter of Credit, or the proceeds thereof, as the case may be, and thereupon, Escrow Agent's responsibilities under this Contract shall terminate. D, NOTWITHSTANDING ANYTHING TO THE CONTAINED IN THIS CONTRACT, IF EITHER CONTRARY PARTY SHALL CONTEST THE CLAIM OF THE OTHER PARTY TO THE RETU RN OF THE LETTER OF CREDIT OR THE PROCEEDS THEREOF, AS HEREIN PROVIDED, ESCROW AGENT SHALL CONTINUE TO HOLD THE LETTER OF CREDIT OR THE PROCEEDS THEREOF, AS THE CASE MAY BE, PURSUANT TO THE TERMS OF THIS CONTRACT, AND PURCHASER'S SOLE REMEDY ON ACCOUNT OF ANY CLAIMED SELLER BREACH SHALL BE TO SEEK SPECIFIC PERFORMANCE FOR THE ENFORCEMENT OF THIS CONTRACT. -24- EFTA00312964  E. It is agreed that: (a) the duties of Escr specifically provid ow Agent are only as ed and are purely mi herein that Escrow Agent shal nisterial in nature, l incur no liability and willful misconduct or whatever except for gross negligence has acted in good fait as long as Escrow Agent h; (b) Escrow Agent sh for the collection of all not be liable or the proceeds of the responsible Letter of Credit; (c) in the performa Escrow Agent shall nce of its duties he be entitled to rely reunder, instrItment or signat upon any document, ure believed by it to by either of the pa be genuine and signed rties hereto or thei assigns; r,successors and (d) Escrow Agent ma porting to give an y assume that any pe y notice or instruct rson pur- the provisions here ions in accordance wi of has been duly auth th orized to do so; (e) Escrow Agent sh tion, cancellation all not be or rescission of this bound by any modifica- writing and signed by it, Seller and Pu Contract unless in rchaser; (f) Seller reimburse and indemn and Purchaser shall jointly and severa ify Escrow Agent fo lly harmless from and r, and shall hold it against, any and all expense, including, loss, liability, co without limitation, st or fees and disburseme re nts and reasonable co asonable attorneys' of defending any cl urt costs and expens aim es willful misconduct or or liability, incurred by it without gr oss negligence and ar its connection with it ising out of or in s acceptance of, or duties and obligati its performance of ons under, this Cont its ract; and (g) Seller and Purc Agent from any act haser each hereby done or omitted to release Escrow Agent in good faith in be done by the Es the performance of crow its duties hereun der. F. Escrow Agent is respect to the Lett acting as a stakehol er of Credit, or pr der only with case may be, and an oceeds thereof, as y other monies held the to the terms of this by Contract. If there Escrow Agent pursuant whether Escrow Agen is any dispute as to t is obligated to Credit, or proceeds deliver the Letter thereof, as the case of monies held by Escr may be, or any othe ow Agent, or as to r Credit, or proceeds whom the Letter of thereof, as the case monies held by Escr may be, or any othe ow Agent, is to be r shall hold the same delivered, Escrow Ag until receipt by Es ent crow Agent of an -25- EFTA00312965  authorization in writ ing, signed by all of any interest in such di the parties having spute, directing the Letter of Credit or th disposition of the e proceeds thereof, or any other monies as the case may be, held by Escrow Agent, such authorization, or, in the absence Escrow Agent shall ho of Credit or the procee ld the Letter of ds thereof, as the ca other monies held by se may be, or any Es tion of the rights of crow Agent, until the final determina- the parties in an ap If such written auth propriate proceeding orization is not give . such determination ar n or proceedings fo e not begun within th r date set forth herein irty days after the tinued, the Escrow Ag for the Closing Date and diligently con- ent may bring an appr proceeding for leave op to deposit the Letter riate action or proceeds thereof, as of Credit or the the case may be, or by Escrow Agent, in any other monies held court pending such de Agent shall be reim termination. Escrow bursed for all costs action or proceeding and expenses of such , including, withou attorneys' fees and t disbursements, by th limitation, reasonable to be entitled to th e party determined e Letter of Credit or not as the case may be, the proceeds thereo or any other monies f, or if the Letter of he Credit or the procee ld by Escrow Agent, may be, or any other ds thereof, as the monies held by Escr case between the parties ow Agent, are split hereto, such costs split, pro rata, betw of Es een Seller and Purcha crow Agent shall be amount of the procee ser, based upon the ds of the Letter of monies, received by Credit and/or othe each. Upon making r of Credit or the pr de oceeds thereof, as th livery of the Letter other monies held by e case may be, or an Es y this Contract, Escrow crow Agent, in the manner provided in hereunder. Ag en t sh al l have no further li ability G. Escrow Agent ha confirm that Escrow s executed th Agent has received th is Contract solely to that it shall hold sa e me in escrow, pursua Letter of Credit and of this Contract. nt to the provisio ns K. Escrow Agent shal Seller in any disp l have the right ute between Seller to represent to the Letter of Cr and Purchaser with edit or otherwise. respect 40. The parties ag any memorandum or ree that neither the notice thereof shal Contract nor chaser agrees not l be recorded, and to file any notice Pur- Premises as long as of pendency agains Seller is not in t the or observance of it default in the perf s obligations here ormance under. -26- EFTA00312966 JUN 21 'ea 23:58 BATTLEAA P.61 41. This Contract may be executed in any number of counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute one and the same Agreement. IN WITNESS WHEREOF, this Contract has been duly exe- cuted by the parties hereto. In the presence of: Leslie H. Wexner Purchaser BIRCH WATHEN SCHOOL, INC., Seller By: Name; e 5 vi,ss6„..;c_a_ Title: e'en- i• Vice Prpiacal- INAv.2.7......) BATTLE FOWLER, Escrow Agent By: 1(12711 - / A Partner -27- EFTA00312967  Exhibit A ALL that certain lot, piece or parcel of land, situate, lyi and being in the Borough of Man ng hattan, City, County and Sta of New York, bounded and descri te bed as follows: BEGINNING at a point on the northerly side of 71st Street tant 225 feet easterly from dis- the corner formed by the int tion of the eas